This is intended to implement long-standing recommendations flowing from the Independent Inquiry into Child Sexual Abuse (IICSA) to create greater consistency of approach to such claims between the Scottish legal system and that of England and Wales.
Previously, civil claims for personal injury arising from child sexual abuse were subject to section 11 of the 1980 Act, which imposed a three‑year limitation period, generally, running from the Claimant’s 18th birthday. Courts do have the discretion to waive that time limit under section 33 of the 1980 Act, but the burden rests on the Claimant to show that a fair trial remains possible.
The previous approach in England & Wales, as under the 1980 Act, was described by the Court of Appeal in RE v GE (2015) as follows:
"…if a fair trial cannot take place it is very unlikely to be "equitable" to expect the defendant to have to meet the claim. But if a fair trial can take place that is by no means the end of the matter. In other words, I would regard the possibility of a fair trial as being a necessary but not a sufficient condition for the disapplication of the limitation period…"
The new sections 11ZA and 11ZB of the 1980 Act fundamentally change this approach and include:
- Removal of the three‑year limitation period for civil personal injury claims arising from child sexual abuse (s.11ZA).
- Disapplication of section 33 discretion and replacing it with a requirement that the court dismiss a claim if a fair trial is not possible (ss.11ZB).
- Retrospective effect, applying to claims not already finally determined or settled.
- Therefore, this represents a reversal of the burden of proof, i.e. the burden shifts to a defendant to demonstrate:
- that a fair hearing is no longer possible, or
- that proceeding would cause substantial prejudice which makes it inequitable to allow the claim to continue.
In Scotland, childhood abuse claims limitation periods have been abolished for around a decade. The Limitation (Childhood Abuse) (Scotland) Act 2017 amended the Prescription and Limitation Act (Scotland) 1973 by inserting Section 17A – 17D. These additions removed the three‑year time bar for actions of damages for personal injuries resulting from childhood abuse (including sexual, physical and emotional abuse and neglect) where the abuse occurred after 26 September 1964. The 2017 Act also allowed certain claims which were previously dismissed on the basis of limitation to be reconsidered.
However, the 2017 Act did look to put some restrictions in place, just as are proposed south of the border. There is no absolute right for a Claimant to proceed on the basis of limitation/prescription no longer being a potential stumbling block. The Court must be satisfied that:
- a fair hearing is no longer possible, or
- the defender would suffer substantial prejudice; a prejudice which outweighs the Plaintiff's/Claimant's interest in the claim proceeding.
With the Act, came the litigation – although published cases in relation to the arguments remain limited. The main authority in Scotland remains the case of B and W v. The Congregation of the Sisters of Nazareth [2022] CSIH 52. The case was originally heard in 2008 but was dismissed on the basis a fair hearing for the defendant was not possible. In weighing up their decision, the Court considered the passage of time since the alleged acts, the deterioration of documents and the death or unavailability of many potential witnesses. In considering those factors, the Court found the cases could not fairly proceed against the defendant and they were dismissed.
After the introduction of the 2017 Act, the Claimants' appealed. After hearing submissions, the Court of Session determined that the test to be considered was not whether a defendant has a difficult trial, but whether a trial is now fundamentally unfair owing to the passage of time. In delivering the decision, the Court stated, "the test is not whether a defender faces real difficulty in defending the action, but whether the defender has satisfied the court that a fair hearing is not possible." Crucially, the Court stated the loss of evidence was not in and of itself a determinative factor, noting "the absence of identification of alleged individual perpetrators does not, of itself, make a fair hearing impossible" furthering the point by advising courts do have access to other corroborative material such as the findings in inquiries (in Scotland the Scottish Child Abuse Inquiry). They summed up by stating that "all litigation involves evidential risk. The loss of documents or the death of witnesses does not inevitably mean that a fair hearing cannot take place".
As noted above, generalised assertions about lost witnesses or missing documents have had limited traction in Scotland and it remains unclear whether the courts in England and Wales will follow the same approach if the provisions are enacted into law.
Crucially, for defendants the experience in Scotland has shown that demonstrating significant prejudice can be no mean feat. The courts in Scotland have required concrete explanation of what specific defences can no longer be advanced at trial to demonstrate prejudice. Where there are evidential gaps, the courts in Scotland have made clear that inquiry evidence may be used to fill those and that delay in making a claim alone is not a knock out blow for a case.
However, there can be dangers by assuming that evidential gaps can be filled through factual witness evidence. By their nature historic abuse claims can often be reliant on factual witness evidence on some quite specific points many years after the event (i.e. factual evidence relevant to issues of vicarious liability rather than the happening of the abuse). There is a growing body of case law in England & Wales which warns of the dangers that this approach presents.
HHJ Gosnell's judgments in AB, CD, EF, GH v Catholic Child Welfare Society [2017] when quoting from Mr Justice Leggatt's decision in Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] discussed that:
" We believe memories to be more faithful than they are. Two common errors are to suppose (1) that the stronger and more vivid the recollection, the more likely it is to be accurate; (2) the more confident another person is in their recollection, the more likely it is to be accurate"
"Memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is even true of “flash bulb” memories (a misleading term), i.e. memories of experiencing or learning of a particularly shocking or traumatic event."
"Events can come to be recalled as memories which did not happen at all or which happened to somebody else."
"The process of civil litigation itself subjects the memories of witnesses to powerful biases."
"Considerable interference with memory is introduced in civil litigation by the procedure of preparing for trial. Statements are often taken a long time after relevant events and drafted by a lawyer who is conscious of the significance for the issues in the case of what the witness does or does not say".
"The best approach from a judge is to base factual findings on inferences drawn from documentary evidence and known or probable facts. “This does not mean that oral testimony serves no useful purpose… But its value lies largely… in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth”
Further support can be drawn from a defamation case, Lachaux v Lachaux [2017]:
"Witnesses, especially those who are emotional, who think they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason, a witness, however honest, rarely persuades a judge that his present recollection is preferable to that which was taken down in writing immediately after the incident occurred. Therefore, contemporary documents are always of the utmost importance…”
“…I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective fact proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities…”
Mostyn J said of the latter quotation:
“these wise words are surely of general application and are not confined to fraud cases… it is certainly often difficult to tell whether a witness is telling the truth and I agree with the view of Bingham J that the demeanour of a witness is not a reliable pointer to his or her honesty.”
Of course, in historic abuse cases whilst the truthfulness of a Claimant may not be in issue, even in cases where there may be a criminal conviction, the civil claim may require the court to look at intricate factual matters as to the role or relevance of an abuser's relationship with a given Defendant and/or the scope of his authorised activities within that "quasi-employment" relationship. These issues likely would not have been a necessary consideration for the criminal court and may not be issues which the Claimant, whilst a child, really paid much attention to. However, when then asked to consider such matters in factual evidence given through the eyes of an adult and in the context of a claim for compensation, it is unavoidable that such evidence can be speculative and unreliable, especially when considering HHJ Gosnell's comments in the Catholic Child Welfare Society cases.
Specifically in an abuse context[1], in Carmarthenshire County Council v Y, A, B and Z (a minor) [2017], again before Mostyn J it was said that:
"The general rule is that oral evidence given under cross-examination is the gold standard because it reflects the long-established common law consensus that the best way of assessing the reliability of evidence is by confronting the witness.
"However, oral evidence under cross-examination is far from the be all and end all of forensic proof".
Referring to paragraph 22 of Gestmin, Mostyn J said:
“…this approach applies equally to all fact- finding exercises, especially where the facts in issue are in the distant past. This approach does not dilute the importance that the law places on cross-examination as a vital component of due process, but it does place it in its correct context.”
At first instance, in MXX v A Secondary School [2022], HHJ Wall commented on these very challenges noting that
"Memories not only fade as time passes but can also become unreliable. There is a risk that a witness can become sure of something that is not in fact true or accurate." [paragraph 22]
and
"It is a common experience that an adult will analyse events from childhood through the lens of hindsight. There is a risk that when doing so, events will be given a significance that they did not in fact have at the time they occurred. That is a risk to which I have paid particular attention in this case, because of the reliance placed by the claimant on limited interactions with PXM during the WEP [Work Experience Placement] in February 2014." [paragraph 26]
That led to the conclusion at paragraph 27 that:
"The starting point for finding the facts therefore must be the contemporaneous documentary evidence created long before this litigation was contemplated."
Whilst it is uncontroversial that a deserving Claimant's cause of action should be protected where possible, limitation has always played an important role as a control mechanism in the litigation process. On paper it might be considered that the differences between requiring a claimant to establish that it is equitable to allow a claim to proceed is not a materially different test to requiring a defendant to establish that a fair trial is not possible. However, the experience in Scotland has shown the challenges created when balancing the very natural desire to allow a survivor's claim to proceed as against the fundamental principles of ensuring that justice can be fairly dispensed; especially in circumstances where the court should not pre-determine the factual evidence, but yet must of course consider its cogency in the context of whether inquiry or similar evidence may be used to fill evidential gaps creating by lost witnesses and/or missing documents.
[1] This case centred on whether "A repeatedly raped his daughter, Y, more than 20 years earlier when she was a child".
