Suing beyond the grave – could this set a dangerous precedent?

The first case of its kind has been brought to court following a legislation change in 2017 to remove the three-year limitation for damages in childhood abuse claims. The case has made legal history as the pursuer intends to sue her late stepfather’s estate for £100,000 over claims of abuse. The woman, who is now in her forties, claims her stepfather sexually abused her between the ages of 11 and 15 years old (from 1981 to 1985). The alleged abuser was charged and served with a petition after new evidence emerged in 2017, however, he died eleven days later.

What is the current law for historic abuse claims?

The Limitation (Childhood Abuse) (Scotland) Act 2017 removes the three-year limitation period from civil actions for personal injury damages for survivors of historical child abuse and is relevant to abuse that took place on or after 26th September 1964. This amendment to the law means claims that were previously subject to the three-year limitation period, and failed because of the restricted timescale, can now be taken to court again.

While a decree of absolvitor – a court judgement found in favour of the defendant – means an action cannot be re-raised, the 2017 Act created an exception for claims involving abuse. It can be argued that this sets a precedent which has the potential to be dangerous in other areas of the law.

Will this open the floodgates for historic abuse claims against the deceased?

Sheriff Lorna Drummond QC has given the go-ahead for evidence to be heard from the pursuer’s sister as well as a clinical psychologist to determine whether damages should be awarded. While the pursuer’s sister has supported the claims made, the executor of the estate – her step-brother – has contested the allegations and is the defender in the case.

Expected to take place in Dundee Sheriff Court later this year, the decision has the potential to raise some serious issues over how abuse can be proved if the alleged abuser is deceased. Relying on section 17D(2) of the 1973 Act, the defender says it impossible for a fair hearing to happen because there are no means of presenting the deceased’s version of events or to hear his response to the pursuer’s allegations.

However, the Sheriff said it is inaccurate to state “there is no meaningful record of the deceased’s response to the allegations” when there is a transcript from the stepfather’s police interview in 2017. The accused makes several ‘no comment’ replies and refutes specific allegations and alleged incidents. According to the Sheriff, the content of the interview allows “the defender to refute the allegations and some of the replies may be evidentially significant and capable of investigation by the defender”.

There is cause for concern that this case could be seen as a “green light” for personal injury lawyers to pursue historical claims against the estates of deceased relatives based on allegations which have never been tested in court. In an article from the Scottish Daily Mail (17 January 2020), Gary McAteer, from Beltrami & Company, commented on the case and the repercussions it could cause:

“Whilst it’s fair for an alleged victim of child abuse to be able to sue the abuser, there needs to be a fair trial, and then how can that be achieved in fairness to everyone who will be affected?

“The intention of the Scottish Parliament in changing the law was no doubt to benefit victims of sexual abuse, but unless this test case is overturned, or at least clarified, there could be unintended consequences for other areas of law, which may need this to be looked at again.”

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