Historical child abuse cases should remain under time-bar regime, says Faculty

The Faculty has announced its opposition to plans by the Scottish Government to end the three-year time limit on the raising of damages actions by survivors of historical child abuse.

“In our view, any waiver of the limitation regime in relation to such claims ought to be made on a case-by-case basis, as at present,” said the Faculty.

“We do not agree that the current regime invariably leads to a pursuer’s case failing…However, it does permit the fairness to both parties of allowing a case to proceed to be scrutinised and assessed.”

As part of an announcement in May that Susan O’Brien, QC, had been appointed to chair a national public inquiry into historical abuse of children in care, the Scottish Government said it intended to remove the three-year limitation period from damages actions by survivors for abuse after 26 September, 1964.

Ministers said in a Consultation paper that they were of the view that victims of child abuse should not have to demonstrate to the court that they had a right to raise litigation before the case could proceed.

“Such a change would not of itself guarantee success but would remove the prerequisite to overcome the time-bar hurdle,” they added.

The Faculty said in its Response to the Consultation that it did not agree with the proposal to remove this class of case from the limitation regime.

It pointed to the policy objectives underlying the regime – to avoid the potential for evidence to be lost with the passage of time, to reduce the difficulties in securing a fair determination of a case long after the circumstances at issue, and to ensure the public interest in encouraging disputes to be resolved speedily thus promoting finality and certainty.

The Faculty said the objectives were uncontroversial and that a time-bar period existed in nearly all developed legal systems in the world.

“It is an unavoidable consequence of these policy objectives that otherwise sympathetic claimants may in some circumstances be unable to proceed with their cases, although any harshness in this rule in the Scottish courts is mitigated by their discretion to allow time barred claims to proceed where it is equitable to do so,” stated the Faculty.

“Indeed, a case could be made that these policy objectives are particularly pressing in actions of this nature. The defender is frequently the institutional care provider rather than the alleged abuser (who will typically either have died, or will be financially unable to meet any claim). Defenders of the former kind are obviously under an inherent disadvantage in defending such claims, as they may have no direct knowledge of the alleged abuse, and may also have difficulty in obtaining evidence relating to allegations which frequently date back decades.”

The Faculty said that legislation implementing the objectives had been reviewed by the Scottish Law Commission in 2007 and the Scottish Government had accepted a number of recommendations which appeared likely to be included in a Damages Bill.

“This may have some ameliorating effect upon the application of time bar to abuse victims. It seems to us to be precipitous to embark upon a radical change of the nature proposed before an assessment can be made as to whether this has been the case,” added the Faculty.

The full Response is at http://www.advocates.org.uk/media/1867/3-year-3.pdf