Substantial Prejudice Test considered by the Court of Session in a historical child abuse case
The recent case of A v XY Limited looks at the application of the substantial prejudice test providing some much needed guidance.
A v XY Limited
In the case of A x XY Limited, the pursuer alleged that during her time at junior school, she was the victim of historic sexual abuse perpetrated by a young male teacher at the school whilst she was on a school camping trip. Whilst generally, the limitations on time to bring claims for historical child abuse in respect of incidents after 26 September 1964 has been removed in Scotland, Lord Woolman still had to consider the “substantial prejudice” test and whether the Court should refuse to allow the action to proceed.
The alleged incident happened in 1987 when the pursuer was 13 years old during a camping trip. The pursuer gave evidence that in advance of the trip, the teacher had told the girls not to pack swimming costumes as they would be ‘skinny dipping’, and that each girl would have to take turns sharing a tent with him. Whilst on the trip, the teacher was said to have topped up the female students hot drinks with alcohol. It was during the second night of the trip that the teacher was accused of entering the pursuer’s tent and raping her.
The pursuer did not disclose the details of what happened until a few years later in 1991, during a hospital stay, and after an attempted suicide following the death of her father. The pursuer stated that the rape had a profound impact on her life, which had resulted in her underachieving in her academic life and therefore sought damages of £1.5 million. The defenders argued that the pursuer had suffered other adverse events in her life, and that not all of her problems were attributable to the alleged incident with the teacher.
The pursuer had reported the incident to the police in 2013, but due to a lack of mutual corroboration from other survivors, it was deemed that there was insufficient evidence to proceed with criminal charges.
The Court’s opinion
The Limitation (Childhood Abuse)(Scotland) Act 2017 removed the limitation period in historical child abuse cases, subject to 2 safeguards (see Section 17D):-
(2) the defenders satisfies the court that it is not possible for a fair hearing to take place.
a. the defenders satisfies the court that the defender would be substantially prejudiced were the action to proceed and,
b. having regards to the pursuer’s interest in the action proceeding, the court is satisfied that the action should not proceed.
This case principally concerned the application of section 17D(3). In respect of the first limb of the test, Lord Woolman was of the opinion that the defenders would be substantially prejudiced if the action proceeded due to the change in the law, which now exposed the defenders to a substantial damages liability and significant interference with their peaceful enjoyment of its possessions.
With regards to the second part of the test, and the balancing exercise, Lord Woolman considered in his decision, the investigation problems given the elapse of time, the arrangement of the affairs of the defenders, and whether a direct claim should have been made against the teacher.
He observed that whilst there may be gaps in the evidence, the pursuer’s legal team had assembled a comprehensive portfolio of documents and located key witnesses. It was also of note that the defenders had notice of the alleged rape 4 years after the incident, and that whilst some of the school records were lost in a fire, it was unusual to have full records in historic abuse cases.
Lord Woolman considered that any lack of evidence may hamper both parties to an equal degree and noted that the defenders were not seeking to argue that the problems were so fundamental they prohibited a fair hearing. He commented that the pursuer plainly had a financial interest in favour of the action proceeding, but that she also had a vital interest in securing justice, and that the scales therefore tipped decisively in her favour.
It is clear from this case that the Courts, in assessing the safeguards provided in the 2017 Act, will reach its decision by reviewing the specific individual circumstances of that case.
The Scottish Parliament’s briefing paper on the 2017 legislation noted that there is an important role for the Courts is developing case law in respect of the tests contained in Section 17D. We will, no doubt, see further interesting decisions in the very near future that will develop what is meant by “substantial prejudice”.