Scottish limitation litigation on the ‘fair hearing’ defence

The Limitation (Childhood Abuse) Scotland Act 2017 retrospectively abolished the three year ‘time bar’ rule for personal injury claims arising from childhood abuse in Scotland but retained defences in the Act on ‘fair hearing’ and on ‘substantial prejudice’.

On 9 January 2020, the first case was reported in Scotland in which the ‘fair hearing’ defence has been judicially considered as a legal argument (without evidence being heard). The decision in LM v The Executor of DG, Sheriff Drummond QC, Dundee Sheriff Court (link here), neither upheld nor rejected the defence. Rather, the court decided evidence will need to be heard later on the question of the ‘fair hearing’ defence. The alleged sexual abuse in this case happened between 1981 and 1985 when the pursuer was aged 11-15. Complaints to the police in 1989 and 2001 did not lead to any criminal proceedings. Eleven days after criminal proceedings were started in 2017, but long before they would have been concluded (with a known outcome), the alleged abuser died. Without a contradictor to the allegations and given the passage of time, the defender’s legal argument was that it was not possible for a fair hearing to take place. In deciding that evidence needed to be heard before determination of the ‘fair hearing’ defence, Sheriff Drummond QC emphasised that “the content of the police interview at the very least would allow the defender at a hearing to refute the allegations”. This point allowed the Sheriff to distinguish the Australian case of Moubarak by his Tutor Cooney v Holt [2019] NSWCA 102 in which proceedings were permanently stayed (put on hold) because a fair trial was not possible. In Moubarak it had been noted that “at no time prior to becoming incapax, due to the onset of dementia, was the defender ever confronted with the allegations, nor was any police statement ever taken from him.”

The defender in LM, at least at this stage of the case, did not rely on the ‘substantial prejudice’ defence also provided in the 2017 Act. The first judicial consideration of that defence is yet to be reported. However this case is noteworthy at present in showing the potential reach of this legislative change beyond cases involving prior criminal conviction, showing the court being prepared to allow detailed examination of the available evidence from many sources.

Fiona McEwan, Associate and Frank Hughes, Partner and

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