Over the past 15 years or so, I have acted for more than 1000 clients who, when children, were sexually or physically abused.

The principal legal obstacle facing these clients, when claiming compensation, is the rule of time bar.  Under Scots law, a court action for damages must be raised within three years of the abuse or, if the client was abused when a child, three years from the client’s sixteenth birthday.  This rule may be quite fair in relation to road accidents and accidents at work but is demonstrably unfair in relation to these clients’ cases.

The vast majority of victims find it very difficult to come to terms with the crimes committed against them.  They try to bury the memories and it is often some event in later life which helps them to confront the situation and seek a legal remedy.  By that time, of course, the three year period has long since past. 

Under Scots law, the courts do have a discretion to allow a court action to be lodged outwith the three year period.  Accordingly, in 2008, I took two test cases to the House of Lords, as it was then called, on this very question but, unfortunately, both cases were unsuccessful.  The court had obvious sympathy for the victims but took the view that it would be unfair on the defenders in these cases if the actions were allowed to proceed long after the events in question.

As a result of that decision, I have had to advise clients ever since that it would be very difficult to succeed with a claim for damages if the abuse took place more than, say, 20 years ago.

However, there is now a chance that this time-bar rule may be overturned.  The Scottish Government has set up an inquiry into abuse to be chaired by Susan O’Brien QC who has great experience in this area of law.  The Government has indicated that it will consider the proposed removal of the rule.  The Education Secretary, Angela Constance, is quoted as saying that she wants survivors of abuse to know that the Government is in the business of “opening doors, not closing them”.  This sounds hopeful. 

If the time bar rule is overturned, this would allow victims of historical abuse to proceed with court actions for damages in the future.  However, regrettably it would not assist the many hundreds of victims who raised court actions in the past but had these dismissed as a result of this onerous law.