Abuse complications in Scotland: DK v The Marist Brothers

A recent decision of the Court of Session has added to the complexities associated with what on the face of it seems a short and straightforward bill to change limitation in abuse claims in Scotland.

As detailed in our earlier blog, the Limitation (Childhood Abuse) (Scotland) Bill looks set to be introduced at the Scottish Parliament in the early part of its Fifth Session, starting May 2016. It looks likely to abolish the three year personal injury limitation, or “time-bar”, rule for abuse claims. It also looks likely to allow previously litigated (and disposed of) abuse cases to be re-raised. As presently drafted, though, it does not deal with the Scots law of prescription (the extinguishing of obligations). It is worth noting that the Limitation Act 1980 and the Latent Damage Act 1986 do not extend to Scotland. Instead, the Prescription and Limitation (Scotland) Act 1973 applies. Generally in Scotland, limitation only applies to personal injuries. Other claims are subject to the law of prescription, which operates to extinguish the obligation after a set period, generally 5 years but with a 20 year long stop. The effect of the 20 year period of prescription has now been considered in an historical abuse claim since, due to the manner in which 1984 transitional legislation was drafted, the question arose whether the 20 year long stop prescriptive period continued to apply to any obligation to make reparation (in tort) prior to 26 September 1964.

Lady Wolffe, in DK v The Marist Brothers (Outer House, Court of Session, 15 April 2016), has re-asserted the primacy of prescription in Scotland. At a preliminary proof (trial) on time-bar, DK (the alleged abuse victim) could not prove that he was abused after 26 September 1964. Accordingly, the entirety of his claim had been extinguished by the long negative prescription. It was, therefore, not necessary for the Judge to decide the case on limitation or discretion to allow a time-barred action to proceed. Lady Wolffe added however that, had it been necessary, she would have held the case time-barred by limitation and would not have exercised her discretion to allow the claimant to continue though out of time.

The Scottish Government has acknowledged the difficulties associated with prescription (including in relation to Human Rights) and has invited representations on how it can resolve the issue of prescription in abuse cases. This case highlights that this remains a pertinent issue.

BLM will be hosting a seminar in May which will provide an opportunity for debate about the issue of limitation in Scotland and other jurisdictions and on prescription in Scotland.

Author

Mark Jamieson, professional support lawyer

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