A bill proposed by the Scottish Government seeks to remove limitation in child abuse claims. We have previously commented on some of the issues which arise one of which is in connection with prescription.
A recent Scottish Government written response has accepted there is a time bar for child abuse cases prior to September 1964.
The response acknowledges that there are two types of time bar in personal injury cases in Scotland– prescription and limitation. The response affirms that, due to a 1984 legislative change, claims for personal injuries sustained prior to 26 September 1964 were extinguished by the law of prescription after 20 years (i.e. 25 September 1984). By contrast, claims for personal injuries sustained on or after 26 September 1964 have not prescribed but are subject to a three year “limitation” period (itself with a judicial discretion for litigation to proceed after more than three years). The Scottish Government’s consultation (http://www.gov.scot/Publications/2015/06/5970 ) explains the difference between these two types of time bar and their application to claims prior to 26 September 1964.
The Scottish Government’s response confirms that, for the reasons detailed in Chapter 3 of the consultation, whilst the Scottish Government gave serious consideration to introducing legislation addressing the law of prescription in cases of abuse which occurred before 26 September 1964 the legal issues relating to the removal of the law of prescription for these cases proved too difficult to overcome. In particular, the Scottish Government considered that it would not be compatible with Article 1 of the First Protocol (A1P1) to the ECHR to reverse the law that was put in place in 1984.
It remains difficult to see then how the Scottish Government can produce a full legislative solution on this subject.
Written by Frank Hughes, partner