It has been over three years since the Limitation (Childhood Abuse) (Scotland) Act 2017 came into force. Despite the time that has passed there has been very little judicial guidance on the interpretation of the new limitation provisions. In particular practitioners are still grappling with the correct procedure to follow when insisting upon the new limitation defences.
In LM v DG’s Executor  SAC (Civ) 3 the Sheriff Appeal Court offers guidance on running a fair hearing defence. Unfortunately, as is perhaps expected for this fledgling legislation, the judgment still leaves some important questions unanswered.
The Limitation (Childhood Abuse) (Scotland) Act 2017 removed the triennium for historic abuse cases, subject to exceptions where a fair hearing is impossible or where there is substantial prejudice to the defender, outweighing the interests of the pursuer. LM v DG’s Executor provides guidance on the procedure to adopt when running a defence that a fair hearing is not possible.
LM seeks damages from the executor of the late DG’s estate. She alleges that the deceased sexually abused her between 1981 and 1985 when she was a minor. LM reported the abuse to Police Scotland in 1989 and again in 2001 but it was not until 13 March 2017 that the deceased was charged. During a police interview, the deceased denied the allegations. On 24 March 2017 he died. In May 2017, LM raised the action for damages against his estate.
The defender relied on section 17(D)(2) of the 2017 Act in arguing that a fair hearing was not possible. The alleged abuser was dead. The abuse had occurred over 30 years previously and this has impacted on the evidence available. At first instance the defender sought dismissal on the grounds a fair hearing could not take place. It is important to note that this was at debate – legal argument – rather than an evidential hearing. The court disagreed and allowed a full proof.
The Sheriff Appeal Court disagreed. In a succinct judgment it noted that where a defender successfully relies on the fair hearing defence the action can no longer proceed. As such the court determined that the issue is one generally to be determined at a preliminary proof. This would comprise hearing evidence on the issue of why a fair hearing was, or was not, possible. However it would not involve hearing evidence on the merits of the allegations themselves.
The court sets out that it is the facts of this case that meant a preliminary proof was appropriate to determine the issue. We do not consider it is right to say that all cases where there is a fair trial defence require a preliminary proof. There are undoubtedly cases where it is may be necessary to proceed to proof at large. However, if a full proof takes place, then this judgment lends support for the notion that the issue of fair hearing has to be decided first, before engaging with the merits.
One element absent from this case is any discussion of the substantial prejudice defence (section 17D(3)). The defence was not relied upon by the defender. Whether a defender relying on substantial prejudice alone can be confident of a preliminary proof is a different matter given it involves a balancing of the rights of the pursuer and the defender. There will also be mixed cases where both fair hearing and substantial prejudice are relied on by the defender. Again we await guidance from the court in relation to how these complicated, interrelated, defences should be managed.