Wed 04 Oct 2017

Changes to the timebar for raising personal injury claims arising from childhood abuse

In Scotland it is generally necessary for personal injury claims to be brought to court before the expiry of a three year limitation period.  However, this requirement will no longer apply to some cases where an individual's claim relates to the personal injuries caused as a result of child abuse with the coming into force today of the Limitation (Childhood Abuse) (Scotland) Act 2017 (the 2017 Act).

The three year limitation period will not apply to actions brought by an individual for personal injuries relating to an act or omission which was abuse which the individual suffered as a child. If the abuse continued over a period of time, then the three year time limit will also not apply where the individual was a child when the abuse began.

Abuse includes sexual abuse, physical abuse, emotional abuse and abuse which takes the form of neglect.  A child is an individual who is under the age of 18.  Because the section focuses on the timing of the abuse and not the timing of the injury, it will also apply in situations where abuse occurred when the individual was a child but the injury which they suffered as a result of the abuse did not manifest itself until a later stage.

The 2017 Act is unusual in that the changes which it makes have retrospective effect.  This means that the three year limitation period will no longer apply regardless of when the abuse occurred with the exception of cases where the events occurred prior to 26 September 1964.


In addition, it may also be possible for a person who has previously raised an action to raise a new action if one of two conditions are met.  The first condition is that previous action was disposed of by the court on the basis of the three year limitation period.  The second condition is where the previous action was disposed of by way of a "relevant settlement".  A settlement will be considered relevant if (i) it was agreed between the parties to the previous action, (ii) the individual who raised the previous action had a reasonable belief that the action would have been disposed of by the court because of the three year limitation period, and (iii) the sum the individual received did not exceed their expenses in connection with the previous action.

However these changes do not mean that all cases which meet the above requirements will be able to proceed.  There are some circumstances specified which will prevent an action from proceeding.  It will not proceed if the defender satisfies the court that it is not possible for a fair hearing to take place, or that they would be substantially prejudiced if the action were to proceed.  The applicability of these exceptions will depend very much on the facts and circumstances of the particular case.  However, it could be possible, for example, for a court action to be prevented from going ahead because, in the circumstances, a defender can demonstrate to the court that the loss of evidence and information which has occurred over the passage of time means that they would not be able to have a fair hearing.

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