Judicial clarification on the correct procedure for preliminary issues in Scottish abuse claims
In February 2020, we reported on the decision of Sheriff Drummond QC in LM v The Executor of DM 2020 SC Dun 1. The Sheriff, in the first decision of its kind under s.17D of Limitation (Childhood Abuse) (Scotland) Act 2017 (“the Act”), allowed a proof before answer (trial) to be assigned to determine whether a fair trial could take place if proceedings were allowed to continue. Sheriff Drummond QC was unpersuaded by arguments at the original debate hearing that a decision on the fairness of proceedings as a whole could be taken without hearing evidence. She determined that issue could not be decided in the abstract based on speculation of what the evidence may be at proof and therefore assigned a full evidential hearing. The defender appealed that decision to the Sheriff Appeal Court.
The defender appealed on the basis that the Sheriff had wrongly decided that the case should proceed. They maintained their position that it ought to have been struck out in terms of s.17D of the Act on the basis that a fair hearing could not take place. The pursuer on the other hand argued that the defender had failed to establish that a fair hearing was not possible and that the Sheriff had been entitled to fix a hearing on the evidence.
The Sheriff Appeal Court was not persuaded by the defender’s argument that the case ought to be dismissed outright. However, it did reverse the decision of the Sheriff to allow the case to proceed to a full hearing. Instead it assigned a preliminary proof restricted to hearing evidence about whether a fair hearing could take place. In making that decision the Appeal Court commented that:
“…Where pleaded, the issue of a fair hearing is one which requires to be dealt with in limine [as a preliminary issue]. It cannot be held over until the end of a proof. In reaching her decision as to further procedure, the sheriff allowed the action to proceed to a proof before answer on all issues in circumstances where a fair hearing may not be possible. To that extent, the sheriff erred.”
The Sheriff Appeal Court is therefore clear that arguments on whether a “fair hearing” is possible in terms of s.17D ought to be dealt with as a preliminary issue. They should not be held over until after the proof has taken place. The correct procedure to be followed where these arguments are advanced is for a preliminary proof to be fixed to determine the matter.
The Sheriff Appeal Court has taken the opportunity in this case to emphasise the correct procedure to be followed in abuse (and other Sheriff Court) cases where preliminary points are raised which, if successfully argued, would lead to the case being dismissed (struck out) at an early stage in proceedings.
Firstly, the defender must clearly state in the pleadings the basis for a “fair trial” argument in terms of S.17D of the Act. The appropriate forum for that argument to be addressed by the Court is at either a legal debate or preliminary proof. At the conclusion of that hearing, the Sheriff can either find in the defender’s favour and dismiss the proceedings; or alternatively allow the case to proceed to a full evidential hearing.
This decision is a welcome development for defenders/insurers dealing with historic abuse litigation. Investigating claims of this nature routinely involves investing significant time and resource. Therefore, where there are grounds to argue for a preliminary decision in terms of s.17D, it is preferable to have those matters decided early in litigation. This can significantly limit costs and potentially result in the award of expenses in a defender’s favour. The prospect of matters being determined at an earlier stage would help clear the backlog caused by COVID-19, therefore is likely to be viewed favourably by the courts. This decision highlights the advantages of fixing preliminary hearings and, for the reasons illustrated, they are a priority consideration for Keoghs when advising clients in abuse cases.
For more information, please contact Calum Fife.