Historic Abuse Litigation: Trial First, Then Decide If It's Unfair

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 [2020] 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.