In the first ruling to deal with the new prescription provisions contained in s17D(2) of the Prescription and Limitation (Scotland) Act 1973, a court has held that evidence should be heard first before answering the question of whether it is possible for a fair hearing to take place in the context of historic child abuse claims.
Police figures show that sexual crimes made up around 5% of all recorded crime in 2018-2019, with a quarter of those relating to historical cases. At least 1,194 of those related to historic crimes against children.
It seems likely therefore that the volume of civil claims for damages in such cases will continue to rise.
An increase in civil claims is also anticipated, as a result of the legislative change which saw the Scottish Government retrospectively remove the three-year statutory time limit for bringing childhood abuse claims.
Abolition of the statutory time limit
Until 2017, the time limits adhered to by the courts for raising civil claims for damages based on abuse meant that historic cases were difficult to pursue.
Section 17A of the Prescription & Limitation (S) Act 1973 means that time limits for the raising of civil court proceedings no longer apply to claims made by individuals who were under the age of 18 and suffered abuse on or after 16 September 1964.
However, the 'fairness provisions' contained in s17D gives the court the power to dismiss a pursuer's claim if a defender successfully argues that either:
- a fair trial is impossible; or
- there is substantial prejudice to the defender, outweighing the interests of the pursuer.
The recent case of LM v Executor of DG  SC Dun 1 provides the first guidance from Scottish courts on the application of the fair trial exception.
Facts of case
The pursuer in the action sought damages from her step-father's estate in relation to sexual abuse she alleged she had suffered as a child in the 1980s.
Her step-father died in May 2017 and LM raised the action for damages against his estate.
The defender relied on section 17D(2) to argue that it was not possible for a fair hearing to take place. In particular, the defender claimed that the inability to lead evidence from DG, hear his perspective or take his instructions, meant that a proper defence case could not be made. The defender further contended that the passage of time had a detrimental impact on the availability of quality evidence. Nothing could be done to offset the unfairness to DG and for that reason the case should not be allowed to proceed.
In contrast, the pursuer argued that a fair trial was still possible. The defender would have the chance to cross-examine the pursuer and other witnesses. They could also obtain their own expert reports. In addition, a transcript of the police interview with the deceased was available which would offset the unfairness caused by him not being able to testify.
Most significantly, the pursuer argued that questions of fairness could only be determined after the court had heard all the available evidence.
The sheriff agreed that the availability of the police transcript meant that it was not correct to say that the defender had no way of knowing the deceased's perspective or response.
He accepted, however, that whether the transcript adequately represented the deceased's response to the allegations could only be assessed once cross-examination had taken place at an evidential hearing.
The sheriff therefore allowed the case to proceed but made it clear that the defender was not prevented from raising the question of fairness or having the case dismissed on that basis after the evidence had been heard.
Looking to the future
The case was the first to consider the new section 17D and is unlikely to be the last that deals with the new provisions. Given the volume of historic abuse cases that could come before the courts over the next few years, questions of fairness are likely to be a recurring theme. This is especially true in cases where there has been a significant passage of time and evidence is difficult to procure.
It is worth noting that discussions are currently taking place to decide whether a compulsory protocol for dealing with historic child abuse claims should be created. That may well lead to further legislative change in future.
This legal update was written by Trainee Andrea Fraser and Partner Elena Fry.