Absence of evidence is not evidence of absence: Prejudice (Limitation) in Scottish Abuse cases
Abuse Aware | February 2020
Following the introduction of the Limitation (Childhood Abuse) (Scotland) Act 2017 (“the Act”), it is open to make a civil claim for historic abuse if it occurred after 26 September 1964 and the survivor was under the age of 18.
As a balance against six decades of historic claims, Section 17D of the Act limits a pursuer’s action from proceeding by allowing a defender to argue that it is not possible for a fair hearing to take place.
In order to do so, defenders have to demonstrate that there is “substantial prejudice” if the case was to proceed. The court must consider the competing interests of both parties to assess this.
Exactly what constitutes “substantial prejudice” is not defined within the Act and is likely to turn on the precise facts of each case. A common issue in historic cases is the availability and quality of evidence, no more so than where the alleged abuser has died.
The decision of Sheriff Drummond QC in LM v The Executor of DG is the first time this defence has been considered by the courts since the change in the law in Scotland.
LM claimed she was repeatedly raped by her late stepfather (“the deceased”) and sued her stepbrother as the executor of the estate for damages.
In 1989 and 2001 she had complained to the police but no further action was taken at the time.
On 13 March 2017, after further evidence came to light, the deceased was interviewed by police and charged. He was served with a petition, but he died 11 days later.
The defender argued that the action should not be allowed to proceed as it was “not possible for a fair hearing to take place” and sought to invoke the provisions of section 17D(2) of the Act. As the alleged abuser was dead, the court could only ever hear “one half of the case”.
In addition, there was no means of presenting the deceased’s version of events and having his credibility assessed; of ascertaining his position in response to the allegations; nor obtaining his assistance to gather evidence to refute, contradict or explain the pursuer’s account. Nothing could be done at proof to offset the prejudice caused to the defender by the delay and associated loss of the evidence of the deceased.
The pursuer argued whilst section 17D provided a safeguard in relation to the right to a fair trial, the court was required to hear all the evidence in the case before this issue could be determined.
Sheriff Drummond QC decided that in order to determine whether it was possible for a fair hearing to take place evidence should be heard.
She acknowledged that the deceased would not be able to give instructions or give evidence at the hearing. However, in her view the “content of the police interview at the very least would allow the defender at a hearing to refute the allegations” and allow certain matters to be investigated.
Further, there was “a basis on which to cross examine the pursuer and her sister. At the very least their accounts can be tested against their police statements and possibly against each other’s accounts too.”
A proof before answer (trial) was allowed.
The Sheriff accepted that the absence of the deceased may cause problems, but in order to assess the fairness of the proceedings as a whole it was necessary to hear and test the available evidence. Significantly, she held that the defender did not lose the opportunity to raise the issue of substantial prejudice.
Going forward, the court will have to consider the available evidence as well as the absent evidence in order to determine whether the defender is substantially prejudiced.
Although LM v The Executor of DG is the first time the court has been asked to consider the provisions relating to a fair hearing it will not be the last.
Organisations and their insurers may be concerned about the possibility of claims dating back six decades. It is important to realise that the law will not necessarily allow all cases to proceed. There may be insufficient evidence available for a pursuer to satisfy the burden of proof in relation to fundamental parts of their case. A full assessment of both the availability and quality of evidence at an early stage remains a key part of dealing with historic abuse cases in Scotland.
Author – Laura Baxendale – Senior Associate