Limitation in abuse claims: lifting the bar in Scotland

The Scottish Government has reached a firm view that limitation should not operate to extinguish claims of those who suffered child abuse after 1964. A consultation about making this change has just begun. After it closes on 18 September 2015, the Scottish Government has committed to publishing a draft Bill before the end of the 2015/16 Parliamentary Session.

The latest consultation on limitation in Scotland is narrower than previous activity and relates only to actions for child abuse suffered after 1964 and not to any other civil claims.

In 2007, the Scottish Law Commission had recommended an extension of limitation generally from three to five years. It also recommended wider discretion for the courts, by way reforming the “Power of court to over-ride time limits etc” (the heading of section 19A of the Prescription and Limitation (Scotland) Act 1973). A further consultation in 2012 resulted in the Scottish Government, in December 2013, confirming its intention to legislate on these points. However, the present consultation paper now states clearly that:

“On reflection … the Scottish Government are of the view that the unique position of survivors of historic child abuse merits a different approach to application of the limitation regime … we propose to take steps to disapply the 3 year limitation period to cases of historical child abuse.”

In late May 2015, the Inquiry into Historical Abuse of Children in Care was launched, chaired by Susan O’Brien QC. It was confirmed then that (a) the scope of the enquiry will extend to foster care, hospital care and to boarding schools and (b) that the present three-year time limit would be lifted for abuse cases.

The stated reasoning behind the proposal is that historical child abuse warrants a different approach to personal injury claims generally. It is said that the (Scottish) law should acknowledge that the abuse itself if is a key reason why pursuers do not come forward for many years, even with knowledge of what had happened to them. A supportive passage to this effect from Lady Hale’s opinion in A v Hoare in 2008 is cited. The consultation paper then concludes that, even with allowing courts a wide discretion to disapply time limits, “the nature of a limitation period creates an inbuilt resistance to allowing stale claims which is not appropriate in the context of child abuse.”

It seems very clear from the latest material that the change outlined above will be made fairly quickly in Scotland. It should however be emphasised that the latest paper does point out that “Scottish Ministers aim to ensure that any resulting legislation is fit for purpose, with no unintended consequences and that it takes account of all relevant perspectives, including equalities considerations and any potential financial and regulatory implications”.

Avoiding unintended consequences of this change and avoiding ‘creep’ to other areas of injury work will be a key concern among insurers involved in Scotland. They may find some reassurance in the following passage of the paper that the change is intended to be limited to abuse cases only (emphasis added):

“One of the main reasons for the law on time-bar, and which is why we wish to maintain that law for other categories of personal injury actions, is that there is a general public interest in actions being settled as quickly as possible. Good quality, fresh, reliable and complete evidence which has not been adversely affected by the passage of time contributes to the efficient administration of justice…”

About the author

Murray_T-11_webTony has specialised in handling the defence of personal injury claims for insurers since 1993. Throughout this period, he has dealt with public, employers’ and product liability, property damage and motor claims. Tony has experience of handling a number of high value, complex and unusual injury claims including complete spinal cord injury to T2-T3, brain injury, amputations and suicide. Tony heads up the firm’s Scottish counter-fraud unit and is a member of the Insurance Fraud Investigators Group. He is the current Chairperson of FOIL in Scotland.

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