Over recent years, there has been an increased acknowledgement that the time-bar on seeking damages for historic abuse is restricting access to civil justice, particularly in those cases where abuse may have been facilitated by the systemic failures of bodies and institutions legally responsible for the care of children.
In Scotland, these issues and more are being investigated by the Scottish Child Abuse Inquiry. The Scottish Government has also introduced the Limitation (Childhood Abuse) (Scotland) Bill which seeks to lift the three-year time-bar on claiming damages for historic child abuse and sets out the circumstances for cases to be raised again when they were originally struck out because of time-bar.
Despite these developments, the Inner House of the Court of Session recently dismissed a personal injury action for damages for child abuse said to have been committed in the early 1960s. Here we provide an overview of the decision, and what this means for victims of historic child abuse seeking justice. For more information, please call our specialist personal injury litigators.
Time Limits on Claims in Scotland
The Prescription and Limitation (Scotland) Act 1973 contains Scotland’s law on prescription, when an obligation is said to extinguish, and limitation, also known as time-bar, when a claim cannot proceed after a period of time has lapsed. Although conceptually different, both of these interplay to broadly provide time limits for bringing certain categories of claims, such as in respect of breach of contract, professional negligence or defamation.
The general rule for personal injury actions, provided they aren’t extinguished by prescription, is that they can only be commenced within three years from when the loss, injury or damage first occurred or the claimant reasonably became aware of the loss, injury or damage (section 17). The court also has discretion to allow a time-barred action to proceed if it seems equitable to do so (section 19A).
Amongst other things, a key justification for these time limits is that ‘the longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose’. However, it has generally been recognised that the 1973 Act doesn’t always operate fairly, particularly for those who contract occupational diseases or allege to have suffered institutional child abuse.
DK v The Marist Brothers
The Outer House of the Court of Session delivered its judgment in DK v The Marist Brothers & Anor [2016] CSOH 54 on 15 April. In that case, DK, aged 60, sought reparation for the sexual and physical abuse he alleged he suffered when a boarding pupil at St Columba’s in Largs for two years. The main issue was whether the claim was time-barred by long negative prescription, and if not, whether he could bring the claim under section 17(3) or 19A of the 1973 Act.
The Court refused to allow the case to proceed on the basis that it wasn’t established, on a balance of probabilities, that DK had attended the school on or after 26 September 1964. As such, his claim was extinguished by long negative prescription and limitation became irrelevant.
The reason why the 1964 date was so crucial was because amendments made to the 1973 Act excluding long negative prescription for certain personal injuries was not retrospective. In practical terms, this meant that long negative prescription continued to apply to any obligation to make reparation for any wrong committed prior to 26th September 1964. As DK could not establish, on a balance of probabilities, whether he had left school either in the summer of 1964 or 1965, and failed to lead evidence that there was ongoing and continuous wrongful conduct after September 1964, the claim was dismissed.
The judgment highlights the interrelation between prescription and limitation, and that despite proposed changes to the law (see more on this directly below), long negative prescription can be fatal to a claim for damages. However, it also perhaps presents a possible defence if the complaint relates to a continuing course of conduct. Where there is evidence of such continuing conduct, time only begins to run from the date of the last wrongful act.
The Limitation (Childhood Abuse) (Scotland) Bill
In March, the Scottish Government introduced the Limitation (Childhood Abuse) (Scotland) Bill, which amends section 17 of the 1973 Act to remove the three-year limitation period for personal injuries actions resulting from abuse when the person who sustained the injuries was a child at the time of the abuse. It also provides for allowing cases that have no succeeded due to time-bar to be raised again, provided to do so wouldn’t breach the defender’s Convention rights.
Although these proposed exceptions to limitation do not change the law on prescription and would not, therefore, apply to claims relating to abuse suffered prior to 26th September 1964 (as in the case above), they do present an opportunity to those who have been unable to seek justice against those who caused them to suffer abuse as children on or after that date.
Should the Bill become law, it may be possible to bring a personal injury claim on the basis of abuse taking place when the pursuer is a child, rather than necessarily when the injury arises or is reasonably known to arise. This shift from when the injury occurred to when the abuse occurred will hopefully make it easier for those who suffered abuse as a child to hold those responsible to account.
Expert Litigators in Scotland
Our litigation team, headed by partner Diane Cairney, help resolve a broad range of disputes with skilful negotiation and straightforward, clear advice. Where court action is required, we are pro-active and determined in our approach to securing effective solutions. We foster close working relationships and respond to our clients’ individual needs, whether that is in relation to a complex personal injury claim or a high value commercial dispute. Whatever issue you may be facing, please contact us to find out how we can help.
