The Limitation (Childhood Abuse) (Scotland) Act 2017 comes into force today.
Previously, we have highlighted the Act’s retrospective effect in allowing claims arising from childhood abuse which happened after 26 September 1964 to be litigated without any time-bar impediment.
It is also worth emphasising the Act’s prospective application. Childhood abuse, which may be happening now or at any time in the future as well as after 1964, could give rise to litigation without any time-bar hurdle for the claimant to overcome, not only now but for all time coming. That should be borne in mind in the context of record-keeping, going forward, as well as to date.
During the Bill’s passage through the Scottish Parliament, the desirability of a pre-action protocol for childhood abuse claims was discussed. Whilst the Act comes into force today, no pre-action protocol specifically designed for these claims has yet been set up. Since abuse still requires injury (physical and / or psychological) to sound in damages, the personal injury voluntary pre-action protocol could be applied, on a case-by-case basis, for these claims.
It should be borne in mind that this voluntary pre-action protocol only applies if the parties agree to that (with this protocol’s main aim being claims valued at up to £10,000 although there is nothing to prevent parties agreeing that it should apply to a higher value claim). On the other hand, the compulsory personal injury pre-action protocol applies to an “accident or other circumstance giving rise to liability” (emphasis added) happening after 28 November 2016 where the claim is valued at up to £25,000. That protocol should, therefore, arguably be followed for childhood abuse claims where the date and value criteria apply.
Of course, with the abolition of limitation, there will be no pressure of time for childhood abuse claims to be litigated immediately nor for significant pre-litigation intimation (except if the protocols referred to above are followed). It is a lacuna, then, at present that the highest value abuse claims in Scotland will currently be the least regulated by way of protocol. Having waited many years for this change in the law, survivors will perhaps wish to litigate sooner rather than later. It remains to be seen how the courts will interpret and apply the “fair hearing” and “substantial prejudice” safeguards for defenders and whether the Scottish courts will use any inherent discretionary power on expenses to regulate litigation costs where claims are litigated without much prior intimation and outwith any existing protocol.
Written by Frank Hughes and Siobhan Kelly, partners at BLM