English case considers Scottish limitation provisions

The Limitation (Childhood Abuse) (Scotland) Act 2017 overhauled the limitation regime in Scotland for cases of child abuse. Ironically, the first significant consideration of how the new Scottish provisions should be interpreted has happened in an English case – JXJ v De La Salle Brothers. However, it remains to be seen whether the Scottish courts will agree.

Facts

The Claimant was a pupil at an approved residential school between the ages of 10 and 12. He was repeatedly and violently sexually assaulted by McKinstry, a lay member of staff who worked as a gardener and night watchman. McKinstry was convicted of those assaults, and of assaults against other boys at the school, in 2003.

Legal responsibility for the school lay with a board of managers appointed by the Catholic Archbishop of Glasgow. However the headmaster, deputy headmaster and many teaching staff were members of a monastic order ("the Institute"). McKinstry was not a member of the Institute and was employed by the managers.

JXJ's claim had three separate elements:

1. The sexual assaults perpetrated by McKinstry;
2. Alleged acts and omissions of Brother Alphonsus, the headmaster, in exposing the Claimant to the risk of abuse; and
3. Further alleged assaults committed by other brothers and jointly by a group of brothers and McKinstry.

Although the events had occurred in Scotland, the case was raised in England. It was agreed that Scottish law applied. As a result limitation was governed by Scots law.

Interpreting the 2017 Act

The 2017 Act removed the limitation period for all claims based on child abuse after September 1964 in Scotland. However the Act provides a potential defence for defenders if they can satisfy the court that (1) a fair trial is not possible; or (2) they would be substantially prejudiced and that prejudice outweighs the pursuer's interest in the action proceeding.

The judge set out clearly how he considered the new provisions should be construed.

1. It is now clear that it is the defender who bears the burden of establishing that a fair trial is not possible and/or that they would be substantially prejudiced.
2. In assessing whether a fair trial is possible, the previous Scottish limitation cases will be relevant to the extent that the reasoning in those cases turned on whether it was possible for the defenders to have a fair hearing.
3. Caution is necessary when reasoning from other case law which turned on the previous test of there being the "real possibility of significant prejudice". The test is now more stringent. The defender must establish that it will suffer "substantial" as opposed to "significant" prejudice.
4. Even if the defender establishes substantial prejudice, there will be cases in which the court may determine that a claimant's interest in the action proceeding outweighs that prejudice. Prejudice to the defender alone will therefore not be determinative. It is required to be weighed in the balance against the pursuer's interest.
5. In assessing the extent of the pursuer's interest in the action proceeding, the seriousness of the abuse the pursuer claims to have suffered and the claimed effects of that abuse will be relevant. The judge however did not consider that the reasons for delay in progressing the action would be relevant to any balancing exercise. This was contrary to the joint expert report from a Scottish QC agreed by parties.

Salami Slicing

The court also had to determine whether these defences applied to the action as a whole or to each cause of action separately. The court held that it was the latter. The action would not be barred as a whole simply because there was no fair hearing in respect of one of the causes of action. However, parts of the action could be prevented from proceeding.

Interestingly, this conclusion was reached as a result of agreement between the parties without full consideration of Scottish authority. The joint expert QC had not been asked to consider this question and no evidence was called in relation to it.

Under the usual limitation regime for personal injury cases in Scotland, the action as a whole is barred by passage of time. The court has the power, if it considers it equitable to do so, to allow the action to proceed although late. The approach which has always been adopted by the Scottish courts is that the limitation defence applies to the entire action. On the basis of JXJ, the 2017 Act may have introduced a new approach whereby part of the action may be allowed to proceed but other parts not.

Application of the Defences

Having applied these principles, the judge concluded that a fair trial was not possible in relation to second and third grounds of action. He also indicated that, even if he had not found that, he would have found that the defenders were substantially prejudiced and that those parts of the action should not be allowed to proceed. The events in question took place between 45 and 47 years previously and the key, relevant witnesses were dead.

Conclusion

It will be interesting to see whether a Scottish court will follow the approach taken in JXJ. The step by step approach to the legislation is helpful. However slicing off part of an action would be a major innovation: Scottish courts may well hold that an action stands or falls in its entirety. It is likely that a Scottish court will be required to consider all of these issues afresh shortly.