The Scottish government has announced that during the 2016/17 legislative session, it will introduce a bill to abolish the three year time bar for bringing compensation claims arising from alleged historic child abuse. Daniel Tyler looks at the proposed change in the law and its potential consequences.

Current law

Under section 17 of the Prescription and Limitation (Scotland) Act 1973, an individual who wishes to bring an action for damages in respect of any personal injury must do so within three years of sustaining the injury or within three years of knowing that the injury has been sustained. This means that as far as child abuse claims are concerned, an individual must bring an action by the date of their 19th birthday (three years after they reach 16). Although a court may allow an action to proceed outside the limitation period if it seems equitable to do so, many victims of child abuse criticise the limitation rules as they say that they were not able to come forward at the time it happened because of fear or embarrassment. Moreover, abuse alleged to have taken place before 26 September 1964 remains subject to the law of prescription. Until 1984, the prescriptive period for personal injury claims was 20 years after which the right to bring a claim was extinguished. In 1984 the law was amended so that, in future, no prescriptive period would apply to personal injury claims. However, the change did not apply to claims which had already by that date prescribed, i.e. claims in relation to events occurring before 26 September 1964. Consequently, an individual who alleges he or she was abused has no right to bring a claim unless the claim was made or acknowledged before 26 September 1984.

The proposed reforms

The Scottish government’s Limitation (Childhood Abuse) (Scotland) Bill removes the three year limitation period for personal injury claims arising from alleged abuse where the individual was aged under 18 at the time it occurred. For the purposes of the bill, abuse includes sexual, physical, and emotional abuse as well as neglect. The Bill also allows individuals whose actions were disposed of under the limitation regime to re-raise their claim provided that this would not affect a defender’s Convention rights. The new law will not apply to abuse that took place before 26 September 1964, which remains subject to the law of prescription.

The proposed reforms have met with criticism. Scotland’s Faculty of Advocates noted that defenders (as defendants are known in Scotland) are often institutional care providers rather than the alleged abusers and that these bodies are at an inherent disadvantage in defending these claims. This is because they may lack direct knowledge of the alleged abuse and may also have difficulty in locating evidence given that the allegations are often from long ago. The Faculty has also pointed out that it may not always be the case that an individual has delayed bringing a claim because of the abuse itself. Consequently, the Faculty argued that limitation should continue to be considered on a case by case basis.

Consequences

Should the Bill become law, we can expect vastly increased claims volumes, particularly given that it enables individuals to re-raise claims previously disposed of on limitation grounds.

It will be interesting to see what effect if any it has on the law in England and Wales where abuse claims are currently also subject to a limitation regime. In England and Wales, the courts have discretion under s 33 of the Limitation Act 1980 (‘the Act’) to allow a claim to be brought out of time. In deciding whether to exercise its discretion, courts must take into account all of the circumstances of the case and in particular, a list of factors set out in s 33(3) including the length of and reason for a claimant’s delay. Decisions are therefore fact-specific which means that the court can, and does exercise its s 33 discretion in favour of defendants. A good example is RE –v- GE [2015] EWCA Civ 287. In that case, the claimant’s solicitors alerted her in 2008 to the judgment A –v- Hoare [2008] UKHL 6 which moved historic abuse cases from the non-extendable limitation regime under s 2 of the Act to the more flexible regime under ss 11 and 33. However, instead of proceeding with despatch, the claimant delayed 4 ½ years between intimating her claim and issuing proceedings. The court found this delay excessive and refused to allow the claim to proceed. Moreover in (1) F (2) S -v- TH we successfully defended a claim at trial involving alleged historical abuse by a now deceased Roman Catholic priest against two brothers in the 1970s and 1980s. HHJ Langstaff found that the available evidence was insufficient for either claimant to have discharged the burden of proof to the requisite standard that the abuse had occurred as alleged and that even if they had, he would still have refused to exercise his s33 discretion to permit the claims to continue because of the difficulties caused by their delay.

These judgments indicate that there are sound reasons for retaining the current limitation regime but lawyers will be watching developments in Scotland closely. The Bill was introduced on 16 November 2016 and is expected to become law by June 2017. It remains to be seen what recommendations follow the Independent Inquiry into Child Sexual Abuse (IICSA) being carried out in England and Wales.