A recent decision suggests that a court cannot determine whether a fair trial is possible until the evidence has been heard.
The Limitation (Childhood Abuse) (Scotland) Act 2017 removed the triennium for historic abuse cases, subject to exceptions where a fair trial is impossible or where there is substantial prejudice to the defender, outweighing the interests of the pursuer. Until now, there has been little guidance from Scottish courts on the application of the fair trial exception, now forming section 17D(2) of the Prescription and Limitation (Scotland) Act 1973. The decision in LM v Executor of DG  SC Dun 1 is one of the first decisions on the section. The court held that evidence should be heard first before answering the question of whether it is possible for a fair hearing to take place.
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 17D(2) and sought dismissal of the action. The defender argued it was not possible for a fair hearing to take place. First, it was impossible to defend the case in any meaningful way because the deceased could not give evidence or instructions. Second, the abuse occurred over 30 years ago affecting the quality of evidence. And third, the court already had knowledge of the evidence to be led at hearing and could determine now whether it was possible to have a fair hearing.
The sheriff determined that it was not accurate to say that it was impossible for the deceased to respond to the allegations given the transcript of the police interview. That could at the very least be used to cross-examine LM. A sheriff cannot test the adequacy of the police interview until cross-examination becomes required – which can only occur at the hearing of evidence. The sheriff said that to dismiss the case at this stage would be to "…run the risk of making a decision in the abstract based on speculation and false prediction."
The present case was compared to the Australian case Judd v McKnight  NSWSC 1489. In that case, the court allowed proceedings to continue despite the death of the alleged abuser on the basis that he had been interviewed by the police regarding the pursuer's allegations of abuse.
Although this case may point towards section 17D being considered after the evidence has been heard, it is worth noting what was missing from this case. First, it seems there was no reliance on substantial prejudice. That seems surprising on the facts. Secondly, the defenders did not seek preliminary proof on the fair trial. While there might be thought a risk the pursuer would have to give evidence twice, in reality her evidence should be taken as true and the onus would be on the defender to show at proof that a fair trial is impossible.
We are in the early days of the courts considering the new limitation provisions. As each case will turn on its facts, we have no doubt this line of argument will arise again.