Historic abuse: the fairness matrix
With the limitation period removed from reparation claims based on childhood abuse, what issues must be addressed regarding a defence of substantial prejudice or that a fair hearing is not possible?
The Limitation (Child Abuse) Scotland Act 2017 provides for the lifting of the three-year time limit, in Scotland, in compensation claims arising from childhood abuse. Inserting new ss 17A-17D in the Prescription and Limitation (Scotland) Act 1973, it represents a sea change in societal attitudes towards child abuse and in appreciation of the consequences not just for the victims, but the wider community.
The Act’s objective in lifting the time bar is to ensure that victims of childhood abuse by virtue of the particular nature of the harm suffered are not debarred from obtaining justice simply because of the effluxion of time. At new s 17D, however, it provides the court with the power to stay an action brought by a pursuer if a fair hearing is not possible, or if the defender would be substantially prejudiced if the case were to proceed.
The purpose of this article is to consider what s 17D might mean in practice.
An Australian comparison
A starting point is to examine a recent case from Victoria, which has enacted legislation not dissimilar to the Act.
In Connellan v Murphy  VSCA 116 the defendant was granted a stay. The plaintiff, born in 1961, in her claim alleged that the defendant, who was born in 1954, sexually assaulted her in “approximately 1967 or 1968”. The defendant denied the allegation.
Prior to 1 July 2015, the plaintiff’s alleged cause of action was statute-barred. However, on that date, the Limitation of Actions Amendment (Child Abuse) Act 2015 commenced, with the effect that in Victoria, limitation periods no longer apply in child abuse claims.
The 2015 Act, by new s 27R inserted in the principal Limitation Act, expressly does not limit a court’s power to summarily dismiss or permanently stay proceedings where the lapse of time “has a burdensome effect on the defendant that is so serious that a fair trial is not possible”.
For the Court of Appeal in Victoria the fact that key witnesses were alive and able to give evidence was not a trump card, as might have been expected for the plaintiff (judgment, para 56). The court was required instead to look at, as it saw it, the reality which was that the defendant was being asked to defend himself in respect of an allegation that he had sexually assaulted the plaintiff 49 years before, and “the burdensome and oppressive nature of that task is manifest”. That “task” was made “more oppressive” because the passing of time made it impossible for both parties to investigate, let alone call evidence in relation to, the surrounding circumstances. Moreover, the plaintiff’s own vague recollections were more of a hindrance than an asset (para 57).
Delay, the court concluded, also hindered the investigation of quantum and causation. The plaintiff was allegedly suffering from PTSD, but the court was not satisfied that the cause could now be investigated after so many years had passed, and any conclusion would now be “dependent upon little more than the plaintiff’s assertions of her subjective recollection of events to which she now attributes importance” (para 58).
The court held that it would be unjust to permit the plaintiff’s case to continue, and ordered a stay: “The defendant cannot realistically be expected to defend a cause of action that is alleged to have accrued almost five decades ago in circumstances where so little is known about the surrounding circumstances and facts, and all of the principal witnesses who were adults at the time are now dead. A trial of the plaintiff’s allegations would be one that proceeded on a very unsure footing with mere scraps of evidence, the reliability of which must seriously be doubted, being tendered and relied upon. As genuine as the plaintiff’s recollections might be, it would be unjustifiably burdensome to require the defendant to now attempt to defend allegations made against him as a child so many years ago” (para 65).
Delay as a factor
The lesson to be learned from the case is that a client, no matter how genuine in the telling of their account, is going to struggle to succeed in the absence of corroboration, and must be able to provide significant circumstantial details. So, for example, in a case of sexual abuse in a school, are they able to remember the names of their form teachers; do they have their school reports?
Staying in Australia, the criminal case R v Jacobi  SASCFC 115; 114 SASR 227 at paras 104-108 serves as a useful reminder of the issues that defenders may want to raise to argue prejudice occasioned by delay:
(i) the reliability of the victim’s recollections;
(ii) the risk of the possibility of reconstruction and reinterpretation of memories;
(iii) the difficulty of having to travel back in time to recall, check and verify the accuracy of events about which evidence is given;
(iv) the difficulty confronting the defendant in endeavouring to obtain and produce documentary evidence or oral evidence from other witnesses which might put in question the evidence of a complainant as to events, times and places.
The same rationale will be found in English civil and criminal jurisprudence: NA v Nottinghamshire County Council  EWHC 4005 (QB) (affd  EWCA 1139); R v Dunlop  EWCA Crim 1354;  1 Cr App R 8: “The passage of time is, of itself, no impediment to the fairness of a retrial”. Case law on delay reveals that courts are again less concerned with the period of time that has elapsed than the effect that delay can be said to have had on the defendant’s ability to mount an effective case, for example where there is evidence of collusion, or a key witness has died: R v TBF  EWCA Crim 726.
The following principles can be discerned from the cases referred to:
1. A delay in commencing proceedings in itself is not prejudicial nor automatically means a fair hearing is not possible, because it is the consequences, if any, that will concern a court.
2. If the pursuer’s delay in coming forward is unjustified, that is relevant to the question whether it is fair to proceed so long after the events in issue. In determining whether the pursuer's delay is unjustified, it must be firmly borne in mind that victims of sexual abuse are often unwilling to reveal or talk about their experiences for some time, and for good reason.
3. In assessing what prejudice has been caused by reason of delay, practitioners (and the court) need to consider what evidence directly relevant to the case has been lost through delay. For defenders, who have the burden to discharge, vague speculation that the lost documents or deceased witnesses might have assisted their case is not going to be enough. Also, and rather importantly, consideration needs to be given to the evidence that has survived the passage of time.
Defenders will in child abuse compensation cases argue prejudice, whether real or otherwise, as a matter of routine because of delay, and the courts clearly accept that in some situations prejudice can be very real, and will dismiss or stay claims. Section 17D means that prejudice and the right to a fair hearing are serious issues that those conducting child abuse litigation need to have at the forefront of their minds when advising on and preparing a case for proof.
Questions to start with
For those representing the pursuer, assessment of viability from the start of the case and throughout can make the difference between success and failure. The issues and questions to be considered are:
- Can the client’s allegations be proved on the balance of probability (the more serious the allegation, the greater the challenge)?
- Is there a criminal conviction, and if so are there surviving court or prosecution papers, and if so do they help prove the allegations?
- When did the client first disclose, and to whom, and why?
- Did the client complain outside the criminal arena, and if so what happened?
- Is the alleged abuser still alive?
- What was the reason for delay in coming forward?
- If there is a reason for delay, does it stand up to scrutiny?
- How good an account is the client able to give?
- Is causation problematic?
- What might a defence be?
- Is there any real prejudice caused by the delay?
If there are “negatives”, can these be remedied? For example, there were criminal proceedings and the alleged abuser was acquitted, but is there an explanation, such as evidence withheld from the jury?
The above list is useful of course for those representing the defender when assessing the case being advanced by the pursuer, but conversely it is useful as a checklist for both parties when considering whether there is prejudice, and if so how relevant it is to the case.
The more issues there are for a court to grapple with, as seen in Connellan v Murphy, the more inclined it may be to accept a defender’s prejudice argument. A common scenario is to find the abuser is dead, and so the question will be, is that alone going to cause a defender, for example a former employer in a vicarious liability case, real prejudice in defending a claim, or is there evidence available that might overcome this?
Points of attack?
Those representing the pursuer need to check out as far as practicable the client’s account, and obtain whatever evidence is necessary to corroborate it, for example witness statements (the police may of course already be in possession of this potentially invaluable material), and records (medical and social services).
A client may say that they have never disclosed, or maybe only to a spouse, but then some time later it is found that they disclosed, say, to a therapist. There may be a rational explanation – there often is – but a shifting account can lead to a suggestion, in court, of unreliability. Those acting for the pursuer need to ensure that a detailed account is taken and checked out. Accounts that struggle to withstand even modest scrutiny will unravel, sadly, under cross-examination.
Thought needs to be given to the client’s use of social media. Many survivors of sexual abuse use social media to seek support, and friendship, often from those in similar circumstances. This natural desire is fraught with risk, because even the most innocent of communications can suggest collusion, or lead to the contamination of evidence. Many a case has to come to grief because of social media dialogue, and clients have to be warned of the issue and advised as to the likelihood of disclosure of their social media communications. Those representing victims need to be vigilant and questioning of their client’s communications, and in a position to step in before harm is caused to the case.
Social media does have its good side, because it can provide access to potential witnesses, and other sources of information that might not otherwise be accessible.
Prejudice remains invariably a major legal battleground, and whilst the burden may have shifted in Scotland, as elsewhere, on the issue from pursuer to defender, delay and its consequences will still have to be addressed. It will be for the pursuer’s lawyers when advising and preparing the case to meet head-on the practical challenges caused by the delay in coming forward. Not to do so may provide an opening for a defender to run a successful s 17D argument.
The thoughts and observations in this article are my own. Any highlighting is attributable to me.
Alan Collins is a partner at Hugh James Solicitors, London, and specialises in representing survivors of child sex abuse. This article is derived from a presentation made to the Law Society of Scotland, in Edinburgh, on 5 September 2017. Email: firstname.lastname@example.org