04 October 2017

The Limitation (Childhood Abuse) (Scotland) Act 2017 (“the 2017 Act”) comes into force today, 4 October 2017. The effect of the legislation is to remove the statutory limitation defence from all claims for damages arising out of abuse suffered in childhood. The Act removes the usual three year limitation period for claims by anyone who was under the age of 18 when the abuse took place. Instead, such claims will be capable of being brought at any time.

Under the 1973 Act, victims of childhood abuse had to raise claims within three years of their 16^th birthday or risk their claim being struck out due to limitation.  The Court also had a discretion under s19A to allow otherwise timebarred cases to proceed if it was considered equitable to do so.  Explanations for a delay in raising proceedings such as shame, fear and psychological difficulties as a result of the abuse have generally not been accepted by the Courts, leading to criticism of the current law as leaving victims without proper redress.

In a bid to address those concerns the Scottish Government have passed the 2017 Act which retrospectively removes the period of limitation from all childhood abuse cases which took place after 26 September 1964, where they meet the following criteria:-

• The claim for damages must be for personal injury. Accordingly, the victim must be able to prove that he has suffered from some form of personal injury as a result of the abuse;
• The Pursuer must have been a child  (defined as under the age of 18) when the injuries occurred or, where the act/omission was a continuing one, the date on which the act or omission began;
• The act/omission which caused the personal injuries constitutes “abuse”. The abuse may be sexual, physical, and somewhat controversially, “emotional”. These terms are not defined.
• The Pursuer must be the person who sustained the injuries. Accordingly, this would prevent a claim being made by the estate of any deceased victim.

Any claims arising out of abuse that took place before 26 September 1964 were prescribed by virtue of the Prescription and Limitation (Scotland) Act 1984 and are therefore extinguished. They cannot be pursued under the terms of the new Act.

Significantly, the 2017 Act also allows for the re-raising of actions which were previously litigated and disposed , either where the Court ruled that the action was time-barred under the 1973 Act or where the case was settled on the “reasonable belief” that the action was likely to be disposed of by the court in this way because it was time-barred. It is worth nothing that this section does not apply to cases settled/disposed of on the merits of the case. As such, cases settled for reasons other than the existence of the limitation period will not be capable of being re-raised.  It is unclear whether the onus will be on Pursuers seeking to re-raise, or Defenders seeking to defend such claims, to establish the terms of any previous settlement.  

“Safeguards”

There are two so-called “safeguards” for Defenders implemented by the 2017 Act. The first is that the Court will not allow a case to proceed where a fair hearing is not possible. The onus is, however, on the Defender to plead and prove that it is not possible for a fair hearing to take place. The simple fact of the passage of time, and even a considerable passage of time, will not be sufficient grounds to argue that a fair hearing is impossible. Similarly, it is unlikely to be sufficient to say that an alleged perpetrator is deceased, as is often the case in such claims. The Court is likely to expect that exhaustive attempts have been made to investigate such claims as far as possible before it will entertain any argument that a fair hearing is not possible.  

Secondly, a Defender may argue that he would be substantially prejudiced were the action to proceed. In such instances, the Court would need to be satisfied (and the onus is on the Defender to do so) that the Defender would be substantially prejudiced were the action to proceed and also that having regard to the interests of the Pursuer, the prejudice is of such gravity that the action should not proceed. The effect of the removal of limitation is that the Pursuer is no longer under any obligation to justify or explain the time that has elapsed before bringing an action.  It is now to be accepted by the courts that such delays in coming forward are inherent in this type of abuse.

The terms “fair hearing” and “substantially prejudiced” are not defined in the 2017 Act and so they will be open to the interpretation. We expect to see considerable litigation at least in the early days, on what these terms mean in practice.

The implications for Defenders

The introduction of the Act is likely to have substantial financial implications for local authorities and other public bodies, charities, religious and sporting organisations working with children, and Insurers. The Scottish Government estimates that there are presently 2,200 potential cases arising from historic child abuse although critics consider this figure to be "conservative”. Coupled with the reforms being introduced by the the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill, which, if implemented, will remove most of the financial risk to Pursuers litigating such claims in court, there is an expectation that there will be a significant increase in these claims.  Attempts should be made now to identify any possible claims to allow investigations to be carried out and attempts made to preserve any remaining evidence where possible.

BTO’s Insurance team have a wealth of experience in handling such claims on behalf of Defenders including charities, religious organisations and educational establishments. Should you wish to discuss the implications of the legislation in more detail or require any further information, please do not hesitate to contact:

 Claire White, Partner, cwh@bto.co.uk, 0141 221 8012