Exercising time bar discretion in childhood abuse claims
Despite a seemingly contrary decision of the House of Lords, the soon-to-retire Lord McEwan has exercised the discretion conferred by the Prescription and Limitation (Scotland) Act 1973 to allow a woman to continue to sue her alleged abuser as a child, even though the case is otherwise time barred.
In A v N  CSOH 165, published on 5 December 2008, , the pursuer alleges that the abuse began when she was seven years old and continued for 22 years until, in 1997, she complained to the police. Her abuser was then convicted criminally, but acquitted on appeal in 2003. The pursuer was not then advised about the possibility of civil action and she was anyway in no fit state to make such a claim. (A criminal injuries compensation claim was made, however.) The three-year limitation period under the 1973 Act had long since expired before she raised her action in the Court of Session in 2004. Lord McEwan reviews the authorities on the exercise of the discretion and in particular distinguishes the House of Lords case (Bowden v Poor Sisters of Nazareth  UKHL 32) as being one brought against an institution on long ago facts rather than one directly against a still living individual defender. He concludes (at para 26):
It seems to me that the mischief behind the legislation is really the need to prevent stale claims where a defender or insurer is taken by surprise and there is either no hope of evidence in rebuttal being recovered or leaving the defender a task of proving a negative. I think unfortunately this has led to a very legalistic attitude to the legislation especially when a date has been missed by a short time. Most of the early cases dealt with relatively simple reparation where the medical facts were well known and easy to understand. I very much doubt if the discussions and work which led to sections 17 and 19A [of the 1973 Act] had in contemplation the kind of case now posed involving blanking out of abuse, recovered memory and the other symptoms described here and in some of the other cases. I have an uneasy feeling that the legislation and the strict way the Courts have interpreted it has failed a generation of children who have been abused and whose attempts to seek a fair remedy have become mired in the legal system.