The Scottish legislation which retrospectively abolished limitation in personal injury claims arising from childhood abuse expressly retained defences where a fair trial would be “impossible” and where the retrospective effect of the abolition of limitation gives rise to “substantial prejudice” to the defender sufficient to outweigh the interests of the pursuer in the case proceeding.
In a previous blog (link here), we commented on the sheriff’s decision in LM v The Executor of DG. This was the first reported judgment on the fair hearing defence. After hearing legal argument, but no evidence, the sheriff refused to dismiss the case on the basis of the fair hearing defence but neither upheld nor rejected the defence, deciding instead that evidence would need to be heard first. So, the sheriff fixed a proof (evidential trial) on all issues.
The defender appealed, asking the Sheriff Appeal Court (SAC) to dismiss the case because a fair hearing was not possible. On 23 December 2020, three appeal sheriffs sitting at SAC unanimously refused to dismiss the case. Nonetheless, SAC, again unanimously, identified error by the sheriff in fixing a proof on all issues “in circumstances where a fair hearing may not be possible”. SAC explained that “Where pleaded, the issue of fair hearing is one which requires to be dealt with in limine (as a preliminary issue). It cannot be held over until the end of a proof”. So, without being asked to do so by either party, SAC recalled the sheriff’s order fixing a proof and instead fixed a preliminary proof restricted to the issue of the fair hearing defence. SAC also ordered that the defender should “lead” at the preliminary proof, which is to say that the defender should call their witnesses to give evidence first, with the onus on the defender to satisfy the court that a fair hearing is not possible. A link to SAC’s judgment is here.
SAC’s clarification of these matters is likely to be welcomed by defenders in allowing focus on particular defences in a contested non-recent childhood abuse claim where the question of fair hearing is in issue.
This case remains the only reported Scottish one on the fair hearing defence. The first reported Scottish case on the separate defence of “substantial prejudice” is still awaited.