accordingly faced time-bar arguments from those whom they have sought to hold responsible when they have launched civil actions. The new Scotish consultation is consequently looking at removing this time bar.
In the past, alleged victims have atempted to use certain other rules to get around the time bar, but without much success. In Scotland, for example, the law says that the limitation period doesn’t run against a person of “unsound mind” (in England and Wales the equivalent rule refers to lacking capacity to conduct legal proceedings).
While many pursuers have experienced memory suppression and induced reticence, the courts have been clear that such conditions do not amount to unsoundness of mind. Despite the abuse apparently causing severe mental illness in some cases, such as post-traumatic stress disorder, this does not appear to have led to successful arguments.
Lack of awareness is another possible argument. The Scotish legislation provides that time only begins to run against a person when they become aware of two things: that they have
suffered injuries that are sufficiently serious to justify litigation, and that they were caused by the defender’s wrongdoing. (The English legislation contains a similar “date of knowledge” provision.)
It is impossible
to avoid the conclusion that in Scotland, as well as England and Wales, the current legislation as framed and interpreted does not adequately provide for them. Both the Scottish and UK parliaments therefore need to address this problem as a matter of urgency.
Legal teams have argued that victims have repressed memories and did not become aware that they were entitled to sue until relevant newspaper reports surfaced. But the courts have repeatedly held that the pursuer was aware within the terms of the legislation. As a further restriction, the legislation says explicitly that a victim not knowing they have a right of action is not relevant here. Courts have also said that a pursuer’s fear that no one would listen or believe them is irrelevant in relation to awareness.
Finally the Scotish and English legislation allows a court to permit a time-barred action to proceed where it is “equitable” to do so. Many historic abuse victims have sought to rely on these provisions. But in the only Scotish historic abuse case to reach the House of Lords, AS v Poor Sisters of Nazareth (2008) - a case about alleged abuse of children at Nazareth House in Glasgow - the lords rejected such an argument. This was principally because of the length of time which had elapsed and because the defenders would be prejudiced by loss of evidence. In rejecting such applications, the courts also appear to have been influenced by the fact that atitudes to physically chastising children have changed in recent decades and that defenders’ behaviour should not be judged by modern standards.
One is leſt with a profound sense that, as far as victims of historic abuse are concerned, justice has not been done.
16
August 2015
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