Limitation: special consideration for abuse claims?
The higher profile of abuse claims has recently led to this issue being given special consideration by the Scottish Government. The result is a new consultation that seeks to introduce primary legislation to dramatically change the law of limitation in this area.
What is proposed?
Scottish Government Consultation on the Removal of the 3 year Limitation Period from Civil Actions for Damages for Personal Injury for in Care Survivors of Historical Child Abuse.
In May 2015, Angela Constance MSP, Cabinet Secretary for Education and Lifelong Learning addressed the Scottish Parliament on the National Inquiry into Historical Child Abuse. This was the culmination of a lengthy process of collaborative working between the Scottish Government and the Scottish Human Rights Commission (“the SHRC”).
Ms Constance announced that the Scottish Government is taking action in response to the SHRC recommendation on time-bar. It has acknowledged that delivering the right to reparation called for by survivors would require the law to disregard the time-bar, which currently requires a civil case for damages to be brought to court within the 3 year limitation period. The Scottish Government therefore intends to lift the 3 year time-bar on civil actions in cases of historical child abuse that took place after 26th September 1964. Details of how the limitation rules are to be altered are not yet available.
The consultation process has begun with a document seeking responses from interested parties now produced. All responses have to be submitted by 18th September 2015.
This proposed change would represent a major, retrospective change in the law and a significant alteration to the claims profile for historic abuse claims north of the border. Will there be attempts to revive claims which have already been rejected by the courts on limitation grounds? If not, then it may be argued those who brought claims earlier may be disadvantaged compared with those who delayed.
Scottish councils published statistics this month showing they paid out more than £1.5 million in compensation to victims of child abuse during the last decade. The Police in Scotland have also identified that there has been a rise in child sexual abuse incidents from 66,120 in 2012 to a projected 113,291 in 2015. It is thought that of the cases identified the number of historic cases has risen by 165%.
Modifying the law on limitation will not necessarily enable all cases raised by pursuers in child abuse cases to proceed. While it will remove the prerequisite to overcome the time-bar hurdle it does not resolve the underlying issue that the evidence available may be insufficient to allow those intended claimants to prove the other parts of their cases.
On a wider note the Scottish Government has announced that in line with the Goddard enquiry in England and Wales that they will conduct a statutory public enquiry into the historical abuse of children in care. Susan O’ Brien QC will chair the inquiry and it is likely that evidence will begin being taken in October 2015. It seems clear though that the Scottish Government is not willing to wait for the inquiry processes to be completed and is seeking to proceed in the meantime with this dramatic legal change on the law of limitation.
The SNP administration in Holyrood has a majority in the Scottish Parliament and the responses from other parties suggest the reform will attract cross-party support. There is clear intent and commitment to this issue and a draft Bill is promised by June 2016.
The current legal position is that if a pursuer is to raise an action for damages in the civil courts in Scotland for any form of personal injury, it must be issued within the timeframe set out in the Prescription and Limitation (Scotland) Act 1973.
The process of reform began when the Scottish Government consulted on issues surrounding damages for personal injury generally and published a response in December 2013 entitled “Civil Law of Damages: Issues in Personal Injury”. There were a number of measures proposed, one of which was to increase the limitation period for personal injury actions from 3 to 5 years. It was proposed these measures be taken forward in a Damages (Scotland) Bill. This intended Bill is still under consideration and has not yet been brought forward. In the meantime, the Scottish Government has reached the view that the limitation period for survivors of historic child abuse merits a different approach to application of the limitation regime. It claims that this is not to undermine seriousness of other injuries but to recognise that the combination of age, vulnerability and nature of the injuries involved in historic child abuse makes these cases distinctive and in need of legislation to protect the survivors’ access to justice.
The case for reform
Current law in relation to limitation does not succeed in striking a fair balance and does not adequately reflect that it is the nature of the abuse that is a barrier to raising a claim within the required period. Representatives of provider organisations explain that child abuse is by its very nature complex and the victims experience conflicted feelings; in fact they may have been pressurised to keep silent and they have a suspicion of authority and legal processes. Very often survivors are too young to recall or do not fully understand they were the subject of abuse until years later. They have been subject to such control and fear that they are left unable to deploy most basic life skills, so that the pursuit of a legal action in the aftermath of the abuse is almost unimaginable. The Scottish Government considers that whatever factors govern the exercise of the courts’ discretion, the nature of the limitation period itself creates an inbuilt resistance to allowing stale claims. It believes this is no longer appropriate in the context of child abuse claims.
The case against reform
How do we know whether the claims are legitimate or not if witnesses are no longer available to provide evidence? We have seen a large volume of historical, institutional claims where initial claims are legitimate but then other potential claimants come forward with a desire to advance unmeritorious cases. There is no doubt that there will be a significant cost to the public purse if local authorities and other bodies cannot defend claims based on alleged events from decades earlier because there is no limitation long stop. This is oppressive to a defender to allow an action to be brought long after the cause of action arose. The delay will undoubtedly affect the availability, quality and existence of certain evidence necessary for the defender to have a fair trial. Moreover, on a broader note, surely public interest and legal certainty require that disputes be settled as quickly as possible and within a defined timescale.
Many believe that the legislation is unnecessary as there already exists a balanced limitation system, in which judges can choose to waive the three year limitation period. The courts have discretion by virtue of section 19A of The Prescription and Limitation (Scotland) Act 1973 to allow claims to proceed out with the three year limitation period should “it seem equitable to the court to do so”. Changing the law in the way proposed would disturb that balance, so that further legislation in this area is undesirable.
While there is now sadly clear evidence that this abuse takes place and there exists clear sympathy on all fronts for the victims of historic child abuse, a balance must be struck between the rights of the pursuer and the defender. We would suggest that such a balance exists now with the three year time period there to protect defenders from stale, unmeritious claims where the passage of time and lack of available evidence would taint the fairness of any hearing. Where a pursuer has a genuine claim and reason for pursuing a claim out with the limitation period they may invoke their rights under section 19A to request the court to exercise its discretion to allow the claim to proceed. Legislation in this area is unnecessary and indeed may create more hurdles in terms of evidence and identifying insurers that will make the cases even more difficult resulting in lengthy protracted litigation with poor evidentiary value.
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