Tag Archives: limitation

Scottish Sheriff Appeal Court clarifies certain aspects of the “fair hearing” defence

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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.

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Limitation and sexual abuse (England & Wales)

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There has been a recent flurry of decisions on limitation in the context of claims for sexual abuse.

Under section 33 of the Limitation Act 1980, there is judicial discretion to disapply the limitation rules in personal injury claims.  The judge should only exercise such discretion in favour of claimants if a fair trial is still possible: the judge will look at the reasons for the delay, the cogency of the evidence, and whether any detriment to the defendant prevents a fair trial.

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Limitation: A look at the state of Florida

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Florida’s statute of limitations is not clear cut and is difficult to navigate. In 2010, the state abolished the criminal statute of limitations for cases involving sexual battery (rape) against children. However, this only applies to cases where the child was under 16 years old, and limitation had not already expired on 1 July 2010. Prior to this law’s enactment, the limitations period varied.

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38 men file law suit against Yeshiva University High School for Boys, New York City as State lifts limitation bar for one year

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Last month, 38 former students of Yeshiva University High School for Boys in New York City filed a lawsuit against the school alleging systematic sexual abuse by Rabbi George Finkelstein, Rabbi Macy Gordon and Richard Andron, during the mid-50s, 60s, 70s and 80s.  34 of the plaintiffs (known as claimants in English law) tried to sue Yeshiva University High School for Boys in 2013, however their actions failed in 2014 when a New York District Court Judge ruled that their claims were time barred.

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Accountability and reparations for victims and survivors of abuse

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The second preliminary took place on 25 September in preparation for the three weeks of public hearings due to start on 26 November 2018.

In the Inquiry’s words: This investigation focuses on the support services and legal remedies available to victims and survivors of child sexual abuse. It responds to multiple reports of inadequate support services, obstructive insurance companies and a civil justice system that may not deliver genuine reparation.

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Scottish Limitation Abolition Bill

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The Scottish Parliament’s Justice Committee has endorsed the general principles of the Bill proposing the retrospective abolition of limitation in cases of childhood abuse. Nonetheless, significant issues of detail and relevant concerns have been flagged in the Committee’s Stage 1 Report. This is now for further consideration by the Scottish Government. We summarise the position taken by the Committee on pre-26 September 1964 abuse then list the issues which have been flagged for further attention. Continue reading →

Accountability & Reparations Investigation

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Removal of limitation, changes to Criminal Injuries Compensation and a redress scheme for all abuse victims and survivors were called for by some representatives of victim and survivor core participants at the preliminary hearing of this investigation today.

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Further guidance provided by Court of Appeal on the issue of limitation

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The Court of Appeal handed down its ruling in the case of JL -v- (1) Archbishop Michael George Bowen (2) Scout Association [2017] EWCA Civ 82 yesterday. (http://www.bailii.org/ew/cases/EWCA/Civ/2017/82.html)

BLM acted for the second defendant, The Scout Association.

The Court held that the judge at first instance had been wrong when he disapplied the limitation period and allowed the claim to proceed. The trial judge had made factual findings about the claimant in this case, which resulted in the majority of the claimant’s claims being rejected.  The judge had failed to attach sufficient weight to the factual findings, when considering the reasons for the claimant’s delay in pursuing his claim; how long the delay had actually been; and the degree of prejudice faced by both defendants in defending the claim.

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Limitation, s33 discretion and moral culpability

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The ability of a claimant to bring a claim many years after abuse occurred is an issue which remains contentious and has again been the subject of recent judicial determination.

In the case of GH v (1) The Catholic Child Welfare Society (Diocese of Middlesbrough) [2016], His Honour Judge Gosnell concluded that when determining the court’s authority to exercise its discretion under s33 of the Limitation Act 1980, moral culpability of a defendant’s alleged actions should not be taken into consideration.

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