Associate & Solicitor Advocate
Interpretation of the 2017 Act in Union
The Limitation (Childhood Abuse) (Scotland) Act 2017 (“the 2017 Act”) removed the three-year limitation period in respect of actions relating to historic abuse.
Following the enactment of the 2017 Act in October 2017, practitioners eagerly awaited decisions which would reveal how the Scottish courts would interpret the new provisions. However, to date the Scottish courts have issued only one reported decision in almost three years. In LM v The Executor of DG, it was held that despite the death of the alleged abuser a fair trial was not prevented from taking place and the action was allowed to proceed to an evidential hearing.
Rather unexpectedly, the next decision of note has come from the English High Court. In the recent judgment of Chamberlain J, in JXJ v The Province of Great Britain of the Institute of Brothers of the Christian School ("the de la Salle Brothers") we find an English judge providing a lucid and clear analysis of how, in his learned view, the new provisions should be applied.
JXJ was a pupil at an approved residential school in Scotland. Responsibility for the school lay with a board of managers appointed by the Archbishop of Glasgow. However, the headmaster, deputy headmaster and many teaching staff were members of the Institute.
JXJ claimed that he was repeatedly sexually assaulted by a lay member of staff, McKinstry. McKinstry was convicted of those assaults (and others) in 2003. JXJ also claimed that he was physically assaulted by a number of Brothers who were members of the Institute.
JXJ's claim had three distinct bases:
- The sexual assaults perpetrated by McKinstry;
- Alleged acts and omissions of Brother Alphonsus, the headmaster, in exposing JXJ to the risk of abuse; and
- Further alleged assaults committed by other Brothers and jointly by a group of Brothers and McKinstry.
Although the incidents had occurred in Scotland, England was the appropriate forum in which to try the claim. The action was raised in England and it was agreed that Scots law applied. As a result, the issue of limitation was governed by Scots law and it was for this reason that Chamberlain J, an English Judge, had to state and apply Scots law even though he was sitting in an English court
The limitation regimes between Scotland and England differ and so evidence as to the Scots law of limitation was provided in the form of a report prepared by David Sheldon QC.
Limitation in England
In England & Wales limitation is governed by the Limitation Act 1980. Abuse cases fall under section 11 of the Act which provides for a three-year time limit. However, under section 33 the court has discretion to disapply the limitation period “if it appears to the court that it would be equitable to allow an action to proceed”, having regard to the prejudice caused to both parties. The court’s discretionary power is unfettered, though section 33(3) sets out a non-exhaustive list of circumstances to which a judge should have regard. These are:
(a) the length of, and the reasons for, the delay on the part of the claimant;
(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the claimant or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed;
(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the claimant for information or inspection for the purpose of ascertaining facts which were or might be relevant to the cause of action;
(d) the duration of any disability of the claimant arising after the date of the accrual of the cause of action;
(e) the extent to which the claimant acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps, if any, taken by the claimant to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
It is important to note in England & Wales the burden is on a claimant to show that it would be equitable to disapply the limitation period.
Limitation in Scotland
In Scotland, that burden is reversed. As a result of the Scottish government’s policy decision to disapply the limitation time bar for all abuse occurring after 26 September 1964, the onus is now on the defendant to show that the action cannot proceed. At the time of the draft Bill, it was noted that “the Scottish Government is persuaded that cases of childhood abuse have unique characteristics which warrant a specific limitation regime”. That being the case, there is no need for the court to balance equities at the outset.
The provisions of section 17D of the 2017 Act serve to limit a claimant’s action from proceeding only by allowing a defendant to argue:
- That it is not possible for a fair hearing to take place (section 17D(2)); or
- That as a result of the claim being brought after this time:
- The defendant "would be substantially prejudiced" if the action were to proceed; and
- That this prejudice outweighs the claimant’s interest in the action proceeding (section 17D(3)).
Whether there can be a fair trial
When considering a defence under section 17D(2) and whether a fair trial can take place, the question for the court is binary. As David Sheldon QC notes in his report to the court in JXJ, it either “is or it is not” possible to have a fair trial. Chamberlain J noted that in assessing if a fair trial is possible, the existing Scottish case law which had been decided under the previous limitation regime (i.e. whether it was possible for the defendant to have a fair hearing) could still be regarded as helpful and instructive.
Whether or not a fair trial can take place is the first issue that the court must assess in a case. Indeed the application of the test by Chamberlain J brought to mind Males J’s formulation of the English & Welsh approach in NA v Nottinghamshire County Council  EWHC 4005, in which he states:
“If a fair trial is no longer possible, that will be the end of the matter. An action cannot be allowed to proceed if that would result in an unfair trial. But if a fair trial is possible notwithstanding that there is some prejudice, the balance of injustice needs to be considered, weighing whatever prejudice the defendant has suffered in the light of all the circumstances of the case.”
Chamberlain J also separately clarified the defence of substantial prejudice under section 17D(3). Contrary to what was once the case, the test requires the defendant to show that he would be substantially prejudiced, rather than that there is merely a real possibility of it. Furthermore, the prejudice has to be substantial, rather than merely significant. And even if the defendant establishes this, in order for a defence to succeed the substantial prejudice that has been identified must then be assessed as outweighing the prejudice to the claimant in not permitting the action to proceed. In assessing the extent of the claimant's interest, the seriousness of the abuse which the claimant allegedly suffered and the claimed effects of that abuse will certainly be relevant.
Having identified the appropriate tests, Chamberlain J then applied those tests to each of the three bases of JXJ’s claim.
- As to the assaults by McKinstry, the judge accepted that the passage of time had given rise to some prejudice to the defendant, but not substantial . Quite properly, the Institute admitted that McKinstry committed the sexual assaults of which he was convicted. Although JXJ's evidence about the extent of those assaults went beyond those admissions to some extent, the difference was insignificant. Moreover, many of the documents concerning the additional matter of the Institute’s vicarious liability were preserved and available and the Institute was also able to adduce evidence from Brother Livinus, whose recollection as to the extent of influence exercised by the board of managers and the Institute was clear, despite the time that had elapsed since he worked at the School. A fair trial of the McKinstry assaults was possible (albeit that the judge then went on to find that vicarious liability did not attach to the Institute).
- Chamberlain J reached a very different conclusion on the question of fair trial in relation to the alleged acts and omissions of Brother Alphonsus in exposing JXJ to the risk of abuse and/or in failing to protect him from McKinstry’s abuse. He found that a fair trial was not possible. Moreover even had he found that one was possible, he would have concluded that the institute was nonetheless substantially prejudiced and that this outweighed JXJ’s interest. Indeed, he found that the prejudice to the Institute was more than just substantial. It was close to total, because nothing at all was known about what steps, if any, were taken by Brother Alphonsus in response to JXJ's complaint. Accordingly, even giving full weight to JXJ's interest in the action proceeding, the prejudice to the Institute was such that the action should not proceed.
- Finally, Chamberlain J considered the alleged physical assaults committed by other Brothers and jointly by a group of Brothers and McKinstry. All but two of the alleged abusers concerned were now dead. As to the two who were alive, McKinstry was not the principal protagonist and the other, Brother Benedict, seemed unlikely to give material evidence, JXJ having frankly admitted in an email that he did not remember him. Chamberlain J held that a fair trial of these assaults was not possible. Further, that even had he found that a fair trial was possible he would then have gone on to conclude that the Institute would be substantially prejudiced and that this outweighed the claimant’s interest in proceeding.
Significant Prejudice vs Substantial Prejudice
The approaches of the courts are not wholly dissimilar. In both jurisdictions, a claim will fail where a fair trial is no longer possible. In both jurisdictions, a claim might still fail where a fair trial is possible, but where the defendant is sufficiently prejudiced.
Nonetheless, JXJ illustrates that, on Chamberlain J’s analysis, there are some important differences. First, in England and Wales the burden lies with the claimant to establish why the case should proceed, rather than the defendant being required to establish why it should not. Secondly, in England & Wales the claimant’s reason for delay is relevant to a court’s assessment. This is not now the case in Scotland. Thirdly, prejudice is assessed differently. In England & Wales the real possibility of significant prejudice will lead to a claim being dismissed: see CD v The Catholic Child Welfare Society & Others  EWCA Civ 2342. In Scotland, by contrast, the defendant must show that it would be substantially prejudiced. This is a higher hurdle to overcome and reflects the specific limitation regime that is in place for cases concerning non-recent abuse.
It follows that in Scotland a claim might still fail where a fair trial is possible because of prejudice to the defendant. However, all things being equal, it must be anticipated that there will be fewer of those cases than in England & Wales because of the different way in which prejudice is interpreted and weighed among other factors.
Will JXJ be followed by the Scottish Courts?
Any decision of the English High Court is not binding upon Scottish courts. Whilst the law in relation to limitation of actions in England & Wales is not quite the same as that in Scotland, the implementation of the 2017 Act means that the existing Scottish authorities require to be considered in this new legislative light.
In our view Chamberlain J provides a clear route to follow when assessing the issues of fair trial and substantial prejudice. Whilst it is likely that the Scottish courts will want to deliver their own interpretation of Scottish legislation in due course, this instructive and detailed interpretation of the law should be regarded as persuasive guidance.