1 May, 2008
The House of Lords has unanimously dismissed the appeals of two claimants in finding that their claims for physical abuse whilst children in a care home were timebarred. The ruling amounts in effect to a defender’s charter as it emphasises that all the defender requires to do is show substantial prejudice to have the case thrown out. In the leading judgment Lord Hope re-emphasised that it was more in accord with legislative policy that the pursuers’ lost right should not be revived than that the defender should have a spent liability re-imposed on him. He emphasises that the burden rests with the party who seeks to obtain the benefit of the remedy. These two cases and the recent case of Young v Catholic Care go a long way to clarifying the law in this area. No longer does it seem that the pursuer can argue that the judge must, in exercising his discretion, weigh up a number of factors in the balance. The most important element is whether there is prejudice to the defender and if that is substantial the case will fail…