Scottish historic child abuse Claims

The Limitation (Childhood Abuse) (Scotland) Bill (“the Bill”) received Royal Assent on 28 July 2017 thereby removing the limitation period of three…

Executive summary

The Limitation (Childhood Abuse) (Scotland) Bill (“the Bill”) received Royal Assent on 28 July 2017 thereby removing the limitation period of three years for the bringing a claim for damages in respect of personal injuries resulting from childhood abuse.

The Act

Our earlier update in June of this year (read here) detailed the contents of the proposed Bill. The Limitation (Childhood Abuse) (Scotland) Act 2017 (“the Act”) comprises three sections only and, on enactment (29 July 2017), brought into force sections two and three. The Scottish Parliament have now passed The Limitation (Childhood Abuse) (Scotland) Act 2017 (Commencement) Regulations 2017 (“the Regulations”) which brings into force section one of the Act, the removal of the limitation period, on 4 October 2017.

The time limit in relation to historical cases of child abuse will be removed so that a pursuer whose abuse occurred between 26 September 1964 and the present day who wishes to raise a civil action for damages for personal injury will not be prevented by reason of time. The Act also grants pursuers the right to reintroduce their claims for a second time unless the earlier action resulted in a financial benefit, to include the making of a token payment, ex gratia payment or economic offer during litigation.

However, section 17D details circumstances that can limit a pursuer’s action from proceeding. A defender may argue that it is not possible for a fair hearing to take place. Defenders will be required to demonstrate ‘substantial prejudice’ if the case were to proceed, leaving the court to balance the competing interests of both parties. Exactly what constitutes ‘substantial prejudice’ is unclear, but the passage of time alone between the occurrence of the abuse and the presentation of a claim is insufficient to satisfy this requirement.

For those whose abuse occurred before 26 September 1964 the law of prescription will continue to apply and there will be no right to raise a civil action for damages for personal injury.

Consultation

Since the enactment of the Act, Centre for excellence for looked after children in Scotland (“CELCIS”) in conjunction with the InterAction Action Plan Review Group have launched a consultation on behalf of the Scottish Government into financial redress for historic child abuse cases.

The consultation opened on 4 September 2017 and seeks contributions from survivors of abuse who meet the terms of reference of the Scottish Child Abuse Inquiry, specifically, those who were subjected to abuse or neglect as a child whilst ‘in care’. The category of ‘care’ incorporates residential or foster care, boarding schools, long stay hospitalisation or a young offender’s institute.

The consultation, which closes on 17 November 2017, will thereafter report to the Scottish Government on financial compensation/redress schemes for the abuse survivors, having considered the responses and schemes in other countries.

Comment

Now that the Bill has received Royal Assent, the concerns arising from the Act for potential defenders and insurers/compensators remain. Potential compensators are unaware of the extent of the claims they may receive. Will s.17C of the Act limit compensators’ exposure? The Act is unclear upon which party the onus to demonstrate receipt of a financial benefit rests. There could be difficulties in tracing evidence, particularly for the most historic abuse claims, to support a financial benefit being received by the pursuer.

In order to prepare for the coming into effect of section one of the Act, compensators may wish to consider:-

  • The prospect of an increase in freedom of information requests and/or subject access requests prior to receipt of claims and how they are to be dealt with;
  • Policy coverage for the risk and notification to the relevant insurer at the relevant date. There could possibly be several insurers who will need to examine matters such as the policy coverage, excesses and whether there was a self insured period;
  • Support mechanisms for abuse survivors beyond compensation payments;
  • The employer’s duty of care to employees, and in particular the risk that historic abuse claims may have a traumatic effect on employees investigating individual cases. What support is going to be put in place for employees? Could this lead to a raft of further, and separate, litigation?

The key question arising from the Act is undoubtedly the potential volume of cases that can be brought post 4 October 2017. The current consultation on a redress scheme is still in its infancy and the recommendations, following its closure, are unknown. If there is to be a Scottish scheme of redress for abuse survivors, in what form will this present?

For further information or assistance on any of these issues please contact:

Pamela Stevenson will be hosting a live webinar on 5 October 2017 at 1.00 p.m. discussing the new legislation. In particular, what organisations should be doing in advance receipt of claims.

Further information to follow. To register your interest in advance please email Stacey Damigos at stacey.damigos@weightmans.com

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