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Removal of 3 year limitation period for historic abuse claims

Headlines

A Bill to remove the three-year time limit that applies to childhood abuse claims in Scotland was laid down on 17th November. View bill >

The Limitation (Childhood Abuse) (Scotland) Bill – the Scottish Government’s first piece of legislation of the 2016-17 Parliamentary year – is part of Ministers’ wider commitment to fulfil the recommendations from an extensive independent consultation with survivors of childhood abuse conducted in 2014.

Timeline

  1. Consultation response by 11th January 2017

  2. Stage 1 to be completed by 28th April 2017

  3. Stage 2 – committee is to consider and dispose of amendments.

  4. Stage 3 - takes place at a meeting of the whole Parliament.  Stage 3 is in two parts:

    • proceedings to debate and dispose of those amendments (if any) selected for debate;

    • and a debate on a motion by the member in charge that the Bill be passed.

  5. Royal Assent - becomes an Act of the Scottish Parliament (likely summer 2017)

Key points of the Bill

  • It will amend the Prescription and Limitation (Scotland) Act 1973 by removing the three year time limit for cases of childhood abuse

  • Applies to abuse against any child regardless of the setting where the abuse took place

  • Goes further than other jurisdictions by including sexual, physical and emotional abuse

  • Enables cases previously raised but unsuccessful due to ‘time-bar’ to be re-litigated whether they were determined by the court or settled by both parties without damages paid

  • Does not apply to abuse before 26 September 1964

Concerns for the industry

  • Modifying the law on limitation will not necessarily enable every cases raised by pursuers in child abuse cases to proceed.  While it will remove the prerequisite to overcome the time-bar hurdle it will not resolve the underlying issue that the evidence available may be insufficient to allow those intended claimants to prove their cases.

  • There are legitimate concerns 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 could disturb that balance.

  • It 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 any evidence necessary for the defender to have a fair trial.

  • Allowing someone to bring an action that has been previously disposed of is undesirable. The idea that the change in the law could apply to previously decided cases goes against the legal principle of res judicata, legal certainty and surely infringes on the right to a fair trial of the alleged abuser under Article 6 of the European Convention on Human Rights.  There would also be a strong argument to be made that retrospective legislation reviving historic abuse claims would contravene Article 1 of the First Protocol to the European Convention on Human Rights, involving an interference in the peaceful enjoyment of possessions.

Financial consequences

Scottish councils published statistics last year 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 113,291 in 2015.  It is thought that of the cases identified the number of historic cases has risen by 165 %. 

It is difficult to predict the likely effect of the proposals, but it is clear that the number of individuals seeking help following historical sexual abuse is increasing very rapidly.  The removal of the limitation period will surely lead to an increase in historic claims.  Whether they have any legitimate right of action is another case entirely. 

Alternatives

The complications regarding historic quality of evidence and multiple sites of harm in abuse cases are similar to disease.  It is likely that a disease pre-action protocol will be introduced next year (as is also likely with medical negligence claims).  Would a similar structure be beneficial for abuse claims?

A pre-action protocol would reduce the need for claims to be litigated and would provide a set of procedures, timescales and evidentiary requirements.  It would allow victims the opportunity to have their claim aired, considered and an offer made if appropriate without the need for litigation and the giving of evidence.   Additionally it would give defenders’ solicitors an opportunity to screen claims and deal efficiently with those that can be settled.    

The SNP administration has cross-party support on this issue in the Scottish Parliament and it’s likely this Bill will pass through with relative ease.

Contact

For further information please contact Andrew Lothian, Head of General Insurance (Scotland) on 0131 474 2305, Caroline Coyle, Associate on 0141 228 8132.

By Andrew Lothian

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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