KHX v Isle of Wight Council (2026) and limitation

Judgment was handed down last week in the High Court case of KHX v Isle of Wight Council (2026), believed to be the first to consider the new sections 11ZA and 11ZB of the Limitation Act 1980. The amendments to the Act removed the statutory limitation period in cases of child sexual abuse, but only where specific criteria are met. These changes have only recently come into force. You might find our article here on the statutory changes to be of use.

As anticipated, early test cases will be brought around the semantics of the legislation before the law in this area becomes fully settled. Here, we examine what the court determined in KHX, and what this may mean for other civil claims involving child sexual abuse.

Background

The claimant, known by the anonymising cipher of KHX under an anonymity order, was a former looked after child placed in a children's home during the 1980s. He alleged that two residential care workers employed by the council abused him; he alleged one male member of staff, who had passed away in December 2025, physically abused him, and that a female member of staff sexually abused him.

He reported the allegations to the police in 1998 and 2021. The police appear to have investigated only the sexual abuse allegations in the late 1990s, and after interviewing the female member of staff under caution, declined to take further action. No further action was taken in 2021 following a review of the earlier police investigation. The female member of staff denied the allegations.

It was accepted that limitation could not be in issue for the alleged sexual assaults by the female member of staff, by virtue of section 11ZA of the Limitation Act 1980. The council did not argue that a fair trial was impossible under section 11ZB of the Act. Instead, it simply denied the sexual abuse had occurred.

In respect of the alleged physical abuse by the deceased male staff member, the council argued that section 11ZA could not come to the claimant's aid as the allegations concerned physical abuse only. Their case was that the new changes to the Act under section 11ZA only applied to claims of sexual abuse, and that the claimant therefore had the burden of persuading the court that discretion should be exercised under section 33 of the Act.

The claimant argued that section 11ZA applied to the proceedings in their entirety, to include the physical abuse allegations.

Limitation

The court considered the construction of the new section 11ZA of the Limitation Act 1980 and determined that the section had to be read as a whole. The judge found that Parliament "did not intend to remove limitation from distinct allegations of physical abuse merely because they are pursued within the same proceedings as allegations of sexual abuse", and that section 33 therefore applied instead. Balancing the relevant factors, including prejudice to both parties, the judge determined that it was equitable to disapply the limitation period. The physical abuse claim was therefore allowed to proceed.

Whilst the claimant ultimately succeeded on limitation, where it concerned the physical abuse allegations, the new section did not, and could not, come to his assistance due to its specific construction, namely that of section 11ZA(5). This outlined one of the necessary criteria for the section to engage, which was as follows:

Condition 3 is that the act or omission to which the claimant’s personal injuries were attributable constituted sexual abuse.

It is therefore important that, where a claim contains elements of non-sexual abuse, that section 33 of the Limitation Act 1980 is considered by both parties. The claimant, of course, will need to address this in evidence, and the defendant should assess at the outset whether a limitation defence should be pursued. Parties should also apply the same considerations to claims where abuse began in childhood but continued into adulthood.

The claim

The claimant's claim, whilst clearing the hurdle of limitation, ultimately failed. The court, recognising the claimant's complaints of both physical and sexual dating back to the 1990s, his genuineness in his beliefs, and the lack of exaggeration, found that the claimant had not discharged the burden of proof in respect of establishing the allegations of sexual abuse. The judge found that there were some aspects of the allegations that had "developed over time in ways that undermine [his] credibility".

In respect of the physical abuse allegations, it was found that physical force had been used, but the court could not be satisfied that it was unlawful, rather than an appropriate and legal restraint based upon standards of the time. The claim for physical abuse therefore also failed.

Summary

This case underscores how the passage of time can sometimes impede memories, and can complicate the ability to make sense of historic documents. The ability to challenge evidence can be lost when a key witness passes away or becomes seriously unwell. Historic documents, such as medical records, do not always provide detailed accounts of a claimant's report of abuse, even where contemporaneous disclosures were made.

Minor discrepancies in evidence are not unusual and they are not necessarily an indicator that someone is not telling the truth. Similarly, trauma can impact an individual to the extent that it is not uncommon for abuse victims and survivors to provide further details at a later date, sometimes many decades later.

The claimant in this case was said to have given evidence "forcefully" and at times in a "sarcastic or dismissive manner", however, trauma can also impact upon an individual's delivery of evidence. It should be noted that in this case, the claimant had been pursuing these allegations for nearly 30 years without success. There is no single "correct" presentation or "right" way to expect a victim or survivor to react.

In this case, the council relied on an unsigned draft witness statement of the deceased male member of staff, which carried less probative weight. The burden of proving allegations always rests with the claimant. Whilst delay in claims for sexual abuse is understandable, the later a claim is brought, the more likely issues will arise as to cogency of evidence, and the more difficulties a claimant will have in satisfying a court of their account.

Practical tips

• Bringing a claim promptly can be extremely difficult for claimants who have been sexually abused, however, earlier claims reduce the likelihood of issues with cogency of evidence.
  
  
• The removal of the statutory limitation period in cases of child sexual abuse does not remove the evidential challenges inherent in both recent aand non-recent abuse cases. The claimant must still prove the allegations.
  
  
• In certain circumstances, a victim or survivor may consider exercising their Victim's Right to Review where the police or the Crown Prosecution Service ("CPS") declined to prosecute. There are set criteria and the right applies only to a decision made on or after 5 June 2013 where it concerns the CPS, or on or after 1 April 2015 where it concerns the police. The Early Victims' Right to Review for Rape and Serious Sexual Offence Cases is also now in force nationwide, and provides victims with further rights.
  
  
• Where the claimant seeks the court's discretion in exercising limitation under section 33 of the Act for non-sexual abuse elements, the court may not permit the claim to proceed, even if this would cause extreme prejudice to the claimant. The court retains ultimate discretion.
  
  
• For defendants, the early tracing of documents and witnesses can assist with shaping the course of the case. If section 11ZA applies in respect of limitation, the burden of establishing a fair trial is impossible falls to the defendant. The court will want to see evidence of efforts made.
  
  
• In cases where there are no live, or willing, witnesses to directly address issues of fact, consideration can be given to alternative solutions, particularly where the documentary evidence may be supportive of a defence to the claim.
  
  
• Limitation is of course a defence as opposed to a complete bar to a claim proceeding. It will not be possible to strike out claims for physical abuse unless the claim discloses no cause of action or another ground applies under CPR 3.4.

How we can help

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The information in this article is correct at the time of writing. It is intended as general guidance and should not be treated as legal advice. Every situation turns on its own facts, and tailored advice should be sought before taking any action.

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