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Historic child abuse - The fair hearing exclusion

LM v The Executor of DG

Executive summary

The special arrangements put in place, in respect of extending the time to bring claims by alleged survivors of historical child abuse, have recently had their first judicial test before the Sheriff Court. This decision can, cautiously, be taken as an indicator as to how the Courts will approach “fair hearing” arguments in cases of this nature. However, it is clear that a more substantial judicial treatment of the issue will be needed in the future.

The issues

LM alleged that she was subjected to sexual abuse as a child by DG for a period of years in the early 1980s. DG passed away before a claim for damages could be brought against him and LM now proceeds against his estate.

As outlined in one of our previous updates the Limitation (Childhood Abuse) (Scotland) Act 2017 was introduced in order to effectively dis-apply the standard time limit for bringing civil claims for damages. The changes applied only to claims arising from historical child abuse that occurred after 26 September 1964. However, a limit to the new rules can be found in s.17D which gives the court the power to dismiss a pursuer’s claim if a defender successfully argues that it is not possible for a fair hearing to take place.

In this case, the first to look into s. 17D in detail, the defender argued that it was not possible for a fair hearing to take place. DG had died and the allegations could not be put to him; his version of events could not be obtained; and his absence hampered any attempt to offer alternative explanations or identify witnesses and any other evidence. The defender’s estate raised this as an issue prior to a hearing of evidence of the parties, no doubt to minimise the expense of having to move to a full trial.

The pursuer, in response, disputed that a fair trial could not take place. The pursuer pointed to the possibility of cross-examining both her and her supporting witnesses, whilst the defender also had the option of obtaining expert evidence as the pursuer had done. Furthermore, the deceased had been interviewed by the police in respect of the abuse allegations in 2017 and a transcript of the interview was available. In any event the pursuer argued that questions of fair trial must be deferred until the court had heard the evidence.

The court’s decision

The Court recognised that, under s. 17D, it had the power to prevent the pursuer’s claim proceeding where the defender satisfied the Court that it was not possible for a fair hearing to take place. The Court was also conscious that it had to act in a way that was compatible with the right to a fair trial enshrined in Article 6 of the European Convention on Human Rights. However, the Court also recognised that the question of a fair trial would be dependent on the facts of the case.

The Court considered, based on what it heard in respect of potential evidence, that to make a decision on fairness at this point would mean that the decision was based on “speculation and false prediction.” The evidence had to be presented and in particular the adequacy of the police interview as evidence had to be tested. The Court, in effect, could not assess the evidence at this point and therefore could not judge that the defender would be denied a fair trial.

That said, the Court did not discount the possibility, or disbar the defender from raising the issue of fair hearing again, after all evidence was before the Court. Indeed, it is possible that the pursuer could be prevented from proceeding in her claim because it is impossible for the defender to get a fair trial.

Comment

This case was very much a tentative step for the Courts on an issue which is sure to bedevil claims stemming from historic abuse. The historic nature of these claims will always give defenders the option to investigate issues of fairness given how the lapse of time can affect witness recollection and physical evidence. In this instance the Court has backed away from answering the question of where the balance lies between the parties, but for valid reasons; the Court needed to hear all the evidence in order to make a decision.

Usefully for defenders, this is a reminder that fair hearing arguments will carry more weight if the pursuer has the opportunity to present her evidence first.

When we first reported the change in the limitation rules we stated that defenders would be required to demonstrate ‘substantial prejudice’ if the case were to proceed, leaving the court to balance the competing interests of both parties. The issue of substantial prejudice was specifically not raised in this case. Exactly what constitutes ‘substantial prejudice’ is unclear, and this case provides no clarification, but this is likely to be a factor in future cases.

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