Western Australia is the latest state to introduce laws which will enhance the prospects of success for claimants’ bringing claims for damages arising out of non-recent sexual abuse. Following the lead of all other states, apart from South Australia, legislation has just been enacted that will abolish the 6 year limitation period. The recently concluded Royal Commission found that on average an individual waited 22 years to disclose their abusive experiences The changes being introduced also provide a legal basis for suing institutions in the name of their current office holders and include provisions designed to overcome difficulties survivors may face in identifying a correct defendant. Continue reading
On 9 March 2018, the Domestic Abuse (Scotland) Bill, which we covered in our 12 February 2018 blog, became an Act of the Scottish Parliament upon the grant of Royal Assent. Its provisions will be brought into force at a later date by Scottish ministerial regulations. Continue reading
The Limitation (Childhood Abuse) (Scotland) Act 2017 comes into force today.
Previously, we have highlighted the Act’s retrospective effect in allowing claims arising from childhood abuse which happened after 26 September 1964 to be litigated without any time-bar impediment.
It is also worth emphasising the Act’s prospective application. Childhood abuse, which may be happening now or at any time in the future as well as after 1964, could give rise to litigation without any time-bar hurdle for the claimant to overcome, not only now but for all time coming. That should be borne in mind in the context of record-keeping, going forward, as well as to date.
Scottish Ministers have set 4 October 2017 as the appointed day on which the Limitation (Childhood Abuse) (Scotland) Act will come into force.
From 4 October, the three year limitation rule will be abolished, with retrospective effect, in respect of injury cases, whether physical, psychological or both, arising from childhood abuse. The Act will apply if the abuse started before a person reached the age of 18. Abuse is widely defined, on a non-exhaustive basis, as including sexual abuse, physical abuse, emotional abuse and abuse which takes the form of neglect. The onus will remain on the claimant to establish, on the balance of probabilities, a causative link between the abuse and the injury.
Safeguards are provided in the Act for defenders, in their entitlement to a “fair hearing” and to consideration of whether they will suffer “substantial prejudice” if the case proceeds, sufficient to outweigh the claimant’s interest.
Written by Frank Hughes and Siobhan Kelly, BLM
The Scottish Government has announced its intention to bring the Limitation (Childhood Abuse) (Scotland) Act 2017 into force in October 2017.
The Abolition Bill became an Act of the Scottish Parliament on the grant of Royal Assent on 28 July 2017 but regulations by Scottish Ministers are needed to bring its provisions into force.
Once implemented, the Act will retrospectively abolish limitation in claims for personal injury, whether physical or psychological or both, caused by childhood abuse.
On account of a quirk of the Scots Law on Prescription, the Act will only be of relevance to abuse which took place on or after 26 September 1964.
Frank Hughes and Siobhan Kelly, Partners, BLM Glasgow
On 28 July 2017, the Bill to retrospectively abolish limitation in cases of childhood abuse received Royal Assent. The Limitation (Childhood Abuse) (Scotland) Act 2017 is now, therefore, on the statute book.
The grant of Royal Assent does not, though, bring the provisions of the Act into force. Subsequent regulations by Scottish Ministers will do that. Present indications suggest that those may be produced this Autumn.
Written by Frank Hughes and Siobhan Kelly, partners at BLM
The third and final legislative stage of the Bill to retrospectively abolish limitation for cases of personal injury arising from childhood abuse took place in the Chamber of the Scottish Parliament on 22 June 2017.
A proposed amendment to require Scottish Ministers to prepare a financial report on the likely impact on public bodies and their ability to meet any obligations arising from the retrospective provisions of the Bill was rejected.
Following that rejection, the Bill was unanimously passed. Royal Assent to the Bill is now anticipated, whereupon it will become an Act of the Scottish Parliament. Its provisions will thereafter come into force by way of Scottish ministerial regulations.
Frank Hughes and Siobhan Kelly, partners, BLM