Historic Abuse and Statute of Limitations

Limitation in historic abuse claims has been a controversial concern for some time as strict application of the statute on Limitation can result in unfair outcomes.

As a consequence there is a groundswell of support for review and revision of limitation periods in such cases.

There is a current lack of uniformity.

In England and Wales primary limitation periods remain subject to a three year period from when a claimant reaches majority (age 21), albeit subject to discretion to extend the period in certain circumstances.

However in other jurisdictions change is already afoot and embedded.

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Another substantial award for non-recent childhood abuse in Scotland

Although the full decision has not yet been put in the public domain, it was reported last week, both on the BBC (link here) and widely in the press, that a 173 page judgment, making another substantial award of damages for non-recent childhood abuse in Scotland, has recently been handed down by Sheriff Dickson sitting at the All-Scotland Personal Injury Court (ASPIC).

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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:

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An update on the Scottish Childhood Abuse Inquiry

The Scottish Childhood Abuse Inquiry (SCAI) resumed hearing evidence on 11 January 2022, with the focus on Merchiston Castle School as part of the Boarding Schools case study. The next part of this study will be closing submissions, probably at the end of February 2022.

The next evidence, likely to be heard in March 2022, will relate to SCAI’s work on the prevention of the abuse of children in care, comprising expert witness evidence on the psychology of those who commit such abuse. These experts will give their evidence together in a group, probably over two days.

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Scottish court withholds childhood abuse claim from trial by a civil jury

Pursuers in personal injury claims litigated at the Scottish Court of Session or All-Scotland Personal Injury Court have a right to have their claim tried by a civil jury. Where this right is exercised, the case may only be withheld from jury trial if a defender can show “special cause”. This has consistently been applied as a high test however in EG v The Governors of the Fettes Trust, Lord Clark, Court of Session, 22 December 2021, link here, a childhood abuse claim has been withheld from jury trial after special cause was found to exist.

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Further detail released on Scottish in-care redress scheme as it opens for applications

As previewed in our blog here, the Scottish in-care redress scheme is now open for applications. 

In a statement to the Scottish Parliament on 8 December 2021, the Scottish Deputy First Minister, John Swinney MSP, provided further detail on the scheme, including that:

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Scottish in-care redress scheme to open for applications from 7 December 2021

This week, a committee at the Scottish Parliament approved regulations, link here, to bring all remaining provisions of the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 into force on 7 December 2021.

Also this week, Scottish Government issued a statement of principles regarding financial contributions, link here, and a related information note, link here. In summary of certain key points:

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Scottish Child Abuse Inquiry publishes seventh set of case study findings

On 10 November 2021, the Scottish Child Abuse Inquiry (SCAI) published its seventh set of case study findings, link here. This set is about two residential schools run by the Marist Brothers, St Columba’s College in Largs and St Joseph’s College in Dumfries between 1950 and 1981, and is based on evidence heard from 43 witnesses between 3 October and 5 November, both 2019.

The main finding is that children at both schools were sexually, physically and emotionally abused, with both schools found to have had “flawed systems that allowed abusers driven by sexual motives to have easy access to children in their care... A culture of obedience, fear of severe punishment and the authority of the Catholic Church” are found to have “empowered abusers, and, conversely, rendered many victims powerless in the belief that their complaints of abuse would not be believed.” Such reports of abuse as were made “were not taken seriously or investigated as they should have been. In a few cases, action was taken, usually moving a Brother on to another post elsewhere. None of the reports of serious abuse made to Brothers were passed on to the police at the time.”

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The latest on the Scottish in-care redress scheme

On 27 October 2021, the Education, Children and Young People Committee at the Scottish Parliament heard evidence from John Swinney, Deputy First Minister in the Scottish Government, on the continuing work to set up the Scottish in-care redress scheme and on particular pieces of secondary legislation in connection with this scheme. A link to the official report of this committee meeting is here.

Potential contributors and the “fair and meaningful” principles

As confirmed in our previous blog, here, as at 13 September 2021, no final agreements had been reached for any contributions to the scheme. Mr Swinney did not mention the position on this when giving evidence to the committee on 27 October. He did, though, explain that Scottish Government are “still going through some fairly sensitive negotiations about provider contributions” and that the final version of the “fair and meaningful principles” to be applied by Scottish Government in determining whether a contributing organisation should benefit from the waiver provisions of the scheme “will be published when we launch the scheme”, which remains anticipated by the end of 2021.

The waiver

Draft secondary legislation on the form and content of the waiver was discussed, with the position remaining as summarised in our previous blog, here. If the committee wishes to produce a report on these regulations, it must do so by the end of this month.

Exceptions to eligibility

Draft secondary legislation on exceptions to eligibility for redress payments was also discussed. These provide that if a person was abused when resident in a relevant care setting for short-term respite or holiday care as arranged by a parent or guardian, any such abuse may not be used as the basis for a redress application. The committee has until 16 November 2021 to produce a report on these regulations if it wishes to do so.

Legal fees and other costs

The secondary legislation already in place on legal fees and other costs in connection with the redress scheme was considered. The position on this remains as confirmed in our previous blog, here, though the committee’s convener observed that there are “ongoing discussions” with the Law Society of Scotland on concern raised by some in the legal profession that the fixed expenses may not provide adequate remuneration where a solicitor appears before a redress panel in person. The committee has until 8 November 2021 to produce a report on these regulations if it wishes to do so. 

Frank Hughes, Partner and Fiona McEwan, Associate
frank.hughes@blmlaw.com and fiona.mcewan@blmlaw.com

Substantial judicial award for non-recent childhood abuse in Scotland

Before 21 October 2021 there were only two Scottish judicial awards reported within the previous 10 years for injuries and related losses caused by childhood abuse. The decision in this area by Lord Brailsford in A v Glasgow City Council, dated 13 and reported 21, both October 2021 (link here) is therefore of considerable significance albeit this first instance decision is made on the facts and circumstances of this particular case and is not binding law. The total award made was £1,339,185 excluding interest. This is considerably higher than the £317,000 award, inclusive of interest, in T v The English Province of the Congregation of Christian Brothers, Sheriff McGowan, ASPIC, 30/1/20, reported 5/3/20 (link here) and the £148,000 and £33,000 awards, both inclusive of interest, respectively made in A v C and B v C, Lord Doherty, Court of Session, 15 June 2018 (link here).

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