The third, and final, evidence session on the Bill to retrospectively abolish limitation in cases of childhood abuse took place today before the Justice Committee of the Scottish Parliament.
The Scottish Minister for Community Safety and Legal Affairs, Annabelle Ewing MSP, gave evidence. We summarise that as follows:
Background to the Bill
The Minister explained that various reform options were considered before the present Bill was drafted. Those included: giving guidance on the exercise of judicial discretion to allow a claim to proceed though raised late; the extension of the limitation period; and even wholesale abolition of limitation. It was ultimately decided that the present Bill was the most proportionate way to proceed to meet the specific aim of improving access to justice for survivors.
Striking the balance
The Minister was at pains to emphasise that the Bill has been “crafted very carefully” to strike the balance between survivors’ rights and the rights of those who may be sued. In respect of the latter group’s rights, she pointed out that “neglect” has not been included in the version of the Bill put forward, so as to avoid any unintended consequences. The present definition of abuse as including “sexual abuse, physical abuse and emotional abuse” was considered adequate. Further, if a prior settlement included any payment, no matter how small, for damages (i.e. more than just a payment for costs) then the claim cannot be re-raised. Injury, caused by abuse, was also needed for a successful claim.
Re-booting the law, but still striking the balance
The Minister agreed with the point made at an earlier evidence session that the Bill “re-boots” the law to a certain extent. Rather than the survivor having to justify delay in raising an action, it will be for the defender, if they wish to argue this, to establish why the action should not proceed, with regard to either the “fair hearing” test or the test of “substantial prejudice” sufficient to outweigh the claimant’s interest in the action proceeding.
Having now completed the evidence sessions during Stage 1 consideration of the Bill, we can now expect to hear further from the Justice Committee on it.