Advocates oppose time bar relaxation for child abuse cases

Special time bar rules for cases of historic child abuse, proposed by the Scottish Government, are being opposed by the Faculty of Advocates.

In its response to a consultation on ending the three-year time limit for personal injury cases as it applies to actions by survivors of historical child abuse, the Faculty maintains that any waiver of the limitation regime should continue to be on a case by case basis.

The court has a discretion to waive the time limit where it is considered equitable, but critics of the present rule argue that too many cases fall at this stage and that the law results in unfairness as many factors can contribute to delay in raising claims in such cases.

Faculty however maintains that the current regime allows the fairness to both parties of allowing a case to proceed to be scrutinised and assessed.

It points 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.

These objectives, it says, are uncontroversial and a time bar period exists 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”, the response states.

“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.”

Further disadvantages for defenders are that insurers may not be able to be traced, or may refuse cover, and interest on damages awarded can run at 8% per annum from the date of the original harm.

Faculty points out that legislation implementing the policy objectives was 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. The Commission also noted the difficulty in defining the persons who might be covered by an exemption.

The Commission's proposals, Faculty comments, "may have some ameliorating effect upon the application of time bar to abuse victims. It seems to us to be precipitous [sic] to embark upon a radical change of the nature proposed before an assessment can be made as to whether this has been the case".

The Association of Personal Injury Lawyers has already come out in support of the Government's prposals (click here for report).

Click here to view Faculty's full response.