The fair hearing defence: a matter for proof

Claims for childhood abuse in Scotland are no longer subject to a three year limitation period for civil claims for damages. However the defender may argue that the case should be dismissed because a fair trial is impossible or they would be substantially prejudiced if the case went ahead. Given this, can defenders deploy these tests at a debate, thereby concluding a case without the need for proof?

The recent decision in Kennedy v Bonnici [2021] CSOH 106 considers the approach to be taken, which will have implications on the progress of the large number of historic abuse cases which are currently litigated in Scotland. 

Background facts

Mr Kennedy sued for sexual and physical abuse suffered around forty years ago when a pupil at Fort Augustus Abbey boarding school. The abbey operated through a trust. The school is now closed, and the trust was wound up. Mr Kennedy raised the claim against the two surviving trustees and alleged that the trust had the benefit of an insurance policy.

The case called for debate before Lady Wolffe. The trustees argued that the case should be dismissed. Lady Wolffe held that the case should not be dismissed without evidence being led. A large part of her judgment focuses on whether liability could fix to a trust which had been wound up. The more widely applicable section of the judgment deals with limitation.

Limitation

The trustees submitted that a fair hearing was not possible due to the passage of time, the loss of records, the closure of the school, and the winding up of the trust. Witnesses and alleged abusers were said to have died, and no records were held.

Mr Kennedy submitted that the case could not be dismissed at debate unless it was inevitable that a fair hearing was not possible. In this case, there should be a hearing on the evidence.

Lady Wolffe agreed that she could not determine at debate that a fair hearing would inevitably not be possible. She noted that some investigations had not been completed, as there were records to be recovered and witnesses to be contacted following the conclusion of the criminal trial. Lady Wolffe also considered that the obligation on the court to uphold the trustees' fair trial rights subsisted throughout a case. This was a further factor weighing against deciding the matter at debate. Finally, she considered that a substantial prejudice argument could not be resolved without an evidential hearing.

Procedure

Of note Lady Wolffe held that, as the case raised issues requiring proof, "While it is likely to be expedient for limitation issues to be resolved at a preliminary proof, rather than held over, I am not persuaded that it is correct that the issue of a fair hearing 'cannot be held over until the end of a proof'.". The argument would "remain a live issue throughout a proof", suggesting that Lady Wolffe's preference may have been for arguments on fair trial to be dealt with at proof at large – when all issues of liability, causation and quantum are considered – rather than at preliminary proof.

Comment

The inference that a fair trial argument should be dealt with at proof at large can be contrasted with B & C v Sailors' Society 2021 S.L.T.1070, in which Lady Carmichael disagreed with the pursuers' submission that it was premature to deal with limitation at preliminary proof, and dismissed the case as a fair hearing was not possible. The successful defenders could therefore conclude the case without the pursuers having to give evidence about the abuse they suffered and without submissions on liability, causation and quantum.

In many cases the parties will agree on the appropriate further procedure. But where that's not the case, and should a preference for proof at large be shared by other judges, there is a risk that both sides spend time and money preparing for a proof on all issues in cases where a fair trial was never going to be possible.