In March this year, we highlighted that the Scottish Government would legislate during the 2016/17 parliamentary session to remove limitation from all damages claims for historic child abuse. The Limitation (Childhood Abuse) (Scotland) Bill has now been formally introduced to the Scottish Parliament, commencing its legislative journey.
The Bill, as introduced, can be accessed here and changes have been made to the initial draft. In this article, we look at what the Bill, as currently drafted, provides for.
As before, the Bill will remove the three-year limitation period for anyone who was under the age of 18 when the 'abuse' took place. However, the definition of "abuse" has been narrowed, to include sexual abuse, physical abuse and emotional abuse only. The reference to "neglect" has been deleted.
The Bill will continue to apply retrospectively. Subject to the "fair hearing" caveat below, it allows claimants whose claims were previously rejected by the court as time-barred or who settled (without any damages payment) in the "reasonable belief" that a time bar defence would succeed, to re-commence their claim. Actions which, under the existing time bar rules, had expired may now be revived.
An avenue is retained for defenders to argue that the "historic" claim should be rejected but this provision has been revised from the initial draft. Initially, the Bill stated that the court may not allow a claim to proceed if it was satisfied the defender's "Convention rights" would be breached. This reference has been revised. The Bill now states that an action may not proceed if it is not possible for a "fair hearing" to take place: that is, where the defender would be "substantially prejudiced" by the proceedings.
The terms of the Bill may be further amended as it passes through the committee stages within the Scottish Parliament and we will study those stages closely. Importantly, we will be looking to see whether the terms "emotional abuse" or "substantially prejudiced" will be specifically defined, or left to the courts to interpret. These terms will be key to assessing defence arguments and the likelihood of a claim being successful.