The “fair hearing” defence in Scottish childhood abuse claims and certain points on the separate “substantial prejudice” defence

When the limitation time-bar was retrospectively abolished for injury claims arising from childhood abuse in Scotland, two time-related defences were preserved or created for these claims. These are:

  • where the defender satisfies the court that it is not possible for a fair hearing to take place.
  • where the defender satisfies the court that as a result of the abolition of limitation they would be substantially prejudiced were the action to proceed and having regard to the pursuer’s interest in the action proceeding, the court is satisfied that the prejudice is such that the action should not proceed.

To date, there has been one reported Scottish judgment solely on the merits of the “substantial prejudice” defence, analysed in our blog here. An important distinction between the substantial prejudice defence and the “fair hearing” one is that even where there is substantial prejudice, a case may still be allowed to proceed because of the balancing exercise that the court must carry out after considering the pursuer’s interest in the action proceeding. There is no such balancing exercise with the “fair hearing” defence. Rather, the court “may not allow an action … to proceed” if a fair hearing is not possible. Four claims, litigated across two court actions, have now been dismissed by the courts on the basis of the fair hearing defence. Although the decisions in both actions were made at first instance so are not binding and may be superseded should a Scottish appeal court later consider the fair hearing defence, two distinct sets of circumstances emerge from the two decisions to date on when a fair hearing may be considered impossible:

  • when claims of abuse are directed against a group of individuals generally (i.e. rather than being targeted against certain specific individuals), especially where some of that group have died without giving a relevant and sufficient account and there are insufficient written records still available.
  • when specific individuals accused of abuse have died and no account, or no sufficient account, was taken from them on the allegations before they passed and regardless of the availability of evidence from other sources.

It is also important to stress that cases in this area have been judicially described as “intensely fact specific” such that the extent to which the above sets of circumstances may ultimately determine other cases will be impacted by the whole facts and circumstances of those other cases. With this in mind, it is worth considering the two cases in more detail. 

B and W v The Congregation of the Sisters of Nazareth, Lord Weir, Outer House, Court of Session, 14 January 2022, link here

B and W were siblings who allege that they suffered physical and emotional abuse between 8 July and 12 August, both 1974, when they lived in a home run by the defender.

Of the 12 Sisters of the defender organisation who were at the home in 1974, eight are now deceased. Whilst, with varying degrees of precision and accuracy, two of the still living Sisters were identified in the pursuers’ written cases, the pursuers made clear that their “cases were taken in respect of the actings of the Sisters more generally, and … the pursuers did seek to visit on the defender vicarious liability for the conduct of … unnamed Sisters.” One of the still living Sisters was convicted at Aberdeen Sheriff Court on 19 September 2000 of four charges of cruel and unnatural treatment (of which one charge related to the Home but with none of the charges relating specifically to B or W).

Lord Weir was prepared to take into account the findings of the Scottish Child Abuse Inquiry (SCAI) on the home to assist in giving general cogency to the pursuers’ claims though the pursuers conceded that the SCAI findings did not directly assist in proving their allegations.

Ultimately, Lord Weir concluded that “The absence of evidence from persons said to have committed abuse but who have not been identified on record is fundamental to both cases and, in my view, precludes the possibility of a fair hearing in either of them. Matters are then compounded by the inability of the defender now to source archive material relating to the pursuers’ residency at the Home beyond the admission and discharge records.”

Lord Weir also took the view that a fair hearing could not be made possible by any attempt to isolate specific individuals in respect of specific instances of abuse where the cases as a whole were on the basis of general group responsibility: “I do not consider that the difficulties I have outlined are elided by the fact that two individuals, across the two actions, have been identified. The situation may have been different if the actions were directed towards only those individuals … But the claims are not so restricted. It is the totality of the abuse to which they were allegedly subjected that forms the basis for the pursuers’ claimed loss and damage. As matters have been pled, it is not possible to anticipate in advance how much responsibility it is intended to visit on Sisters generally as opposed to the individuals named, and one can readily foresee unfairness arising from any attempt at the proof to ascribe fault only to those whose identities have been averred, or indeed only to those whose identities have not been specified, when that is not the basis upon which liability against the defender is asserted.”   

So, both B and W’s claims were dismissed because a fair hearing was not possible.

B and C v Sailors’ Society, Lady Carmichael, Outer House, Court of Session, 20 April 2021, link here

B and C’s claims were based on alleged physical, sexual and psychological abuse in a children’s home in, respectively, 1968-1970 and 1972-1982.

Lady Carmichael made clear that the fact that the alleged abusers had passed was not, of itself, determinative of the question of fair hearing: “Whether the death of a wrongdoer will mean that a fair hearing is impossible … will depend on all the circumstances of the case.

The crucial points, in B’s case, were that “There is no account available from either of (the alleged abusers). There is no evidence deriving from either of them which could inform the preparation of the defender’s case, whether that be evidence of admission, denial, or partial admission” and that “The defender cannot be criticised for failing to gather evidence from (the alleged abusers). Both were dead before any claim was intimated.”

Lady Carmichael also held that other potential sources of evidence could not deliver a fair hearing in the absence of evidence from the alleged abusers: “Some former members of staff may yet be traced and be willing to provide statements. The possibility that some evidence may yet become available from them does not remedy the fundamental difficulty caused by the absence of evidence from (the alleged abusers).”

In C’s case, some information had been obtained from one of the people said to be responsible for the abuse but this was of a “limited character” and, crucially, was not on the full allegations ultimately presented in C’s litigated claim with Lady Carmichael holding that “The absence of evidence from (the two people said to be responsible for the abuse) is a fundamental barrier to a fair hearing.”

So, both B and C’s claims were dismissed because a fair hearing was not possible.

Other relevant observations on these cases

Both cases suggest that issues on the cogency and quality of pursuers’ accounts and potential difficulty in properly determining the extent of any causal connection between any abuse and subsequent psychiatric or psychological injury and associated losses are unlikely to impact on the question of fair hearing but they may be relevant to the question of substantial prejudice and the balancing exercise on that where substantial prejudice is found to exist. The primary factor in establishing substantial prejudice in many cases will be the retrospective abolition of limitation of itself, coupled with the 2001 “sea change” in the law by the House of Lords’ expansion of vicarious liability in Lister v Hesley Hall Ltd but whether substantial prejudice will outweigh the pursuer’s interest will be fact-sensitive in individual cases with the gravity of the alleged offending a relevant factor on that. Missing records may often be of limited relevance to these questions although they might have some bearing in particular cases. In the context of physical abuse, difficulty in establishing what constituted wrongful conduct at the particular time is irrelevant.

All four claimants in the two litigations summarised above may yet apply for redress from the Scottish in-care childhood abuse redress scheme. This factor is of no relevance to the question of fair hearing. Lord Weir also doubts whether it is a relevant factor in any balancing exercise on substantial prejudice: “Whether the existence of such alternative routes to compensation can in any sense outweigh the pursuers’ interest in securing justice is open to question. Access to justice through the courts is a precious commodity and I would not readily have acknowledged the existence of such alternatives as a factor standing in the way of the actions proceeding if the conditions for them doing so otherwise existed.”


Written by Frank Hughes (frank.hughes@blmlaw.com) and Fiona McEwan (fiona.mcewan@blmlaw.com) at BLM

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