The Limitation (Childhood Abuse) (Scotland) Bill
On 22nd June the Scottish Parliament saw this historic legislation pass Stage 3 following a unanimous vote. There will now be a four week period before the Bill is submitted for Royal Assent. It is thought that the new Act will come into force as soon as this Autumn.
The position in respect of limitation of actions is governed by the Prescription and Limitation (Scotland) Act 1973 (c 52) (‘the 1973 Act’). The Bill is very brief (2 pages & 2 sections) and will insert into the 1973 Act new sections 17A, 17B, 17C and 17D which will apply to actions for personal injury arising from historic child abuse only.
Section 17A removes the three year limitation period where four conditions are met. These are:
the damages must be for personal injury;
the pursuer must have been a child, i.e. under 18, when the circumstances giving rise to the claim took place or began;
the circumstances giving rise to the court action must be abuse which includes sexual, physical emotional abuse and abuse which takes the form of neglect;
the pursuer must be the person who sustained the injury – not a third party. This precludes claims on behalf of an abuse victim who has subsequently died.
Section 17B states that the Bill will have retrospective effect.
Section 17C makes provision for actions which were previously litigated and disposed of by the court or by way settlement to be re-raised in specific circumstances:
the court ruled that the case was time-barred under section 17 of the 1973 Act; or
the case was settled based on the reasonable belief that it would have been time-barred under section 17. (Any payment from defender to pursuer must not have exceeded the pursuer’s legal expenses associated with raising and settling the claim.)
This section does not allow the re-raising of actions where the court has already ruled on the merits of the case itself.
Section 17D provides that a court may not allow a court action to proceed where the defender satisfies the court that:
a fair hearing would not be possible; or
as a result of the operation of Sections 17B or 17C, the defender would be substantially prejudiced if the action were to proceed. The court will have regard to the pursuer’s interest in the case proceeding in reaching its decision.
The addition of Section 17D was an important concession made by the legislative and was something that FOIL, defender firms and insurers raised during the Consultation process. The significance of Section 17D is that notwithstanding that a pursuer has satisfied the terms of 17A, a defender can nonetheless argue that a claim should not proceed. It is going to be of extreme importance to defenders and insurers as to how strictly the terms "fair hearing" and "substantial prejudice" are interpreted by the courts.
The introduction of this legislation brings into sharp focus the implications on insurers, self-insureds and local authorities not only in financial terms but also in terms of policy and liability investigations, claims management and resources. This is against a background of the Scottish Government's estimate that 2,200 cases could surface from the new law. However, some MSPs believe this figure is conservative and that the true number could be significantly higher. Indeed, Scottish councils published statistics last year showing that they paid out more than £1.5 million in compensation to victims of child abuse during the last decade. Police 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 %. With these figures in mind, the intention is to introduce a compulsory protocol for the handling of these claims.
DWF Scotland is holding a conference in November this year to focus on the practical effects of the Act once it is in force. We aim to bring together key speakers from across the industry to help with strategic planning for these types of claim.
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.