Image source, bbc

Labour MSP Mary Fee asks if new guidance should be issued to judges on discretion.

Graeme Watson from FOIL says: "There is no guidance as such."

Mr Watson says one way of proceeding would be an equitable discretion with a non-exhaustive list of factors the judge must take account of. 

Mr Watson says it may well help the judiciary if there were a list of factors that could be taken into account for their discretion. 

Alastair Ross from ABI says an abuser retains responsibility for their acts.

Mr Ross says "insurance is about managing risks" and that premiums are paid based on risk.

He says this helps organisations protect themselves against claims they might not be able to meet.

Green MSP John Finnie asks if the insurer's  interests are financial.

Graeme Watson from FOIL says it would be naive to says insurers have no financial interest in this.

He says insurers also want to ensure that while survivors and victims have the opportunity to be heard that likewise the organisations have the same opportunity.

Mr Watson says limitation serves use to all those involved to know the limits of what their involvement in litigation might be.

"It is a hurdle and not a barrier."

Greens MSP John Finnie asks for statistics for how often Mr Watson has recommended a settlement.

Graeme Watson from FOIL says "not often", and that very few cases have progressed in recent years.

Mr Watson says 15 years ago there were more cases coming forward but the removal of legal aid reduced the number of claimants. 

He says discretion has been used when the time bar may have passed because the evidence has been available.

Mr Watson says it is for the court to weigh up whether a case should proceed or not. 

Alastair Ross from ABI asks if the removal of time bar means a case proceeds? 

He says no but it might just provide a day in court.

Mr Ross says there must be a fair and balanced litigation process for all concerned.

Lib Dem MSP Liam McArthur says there is some concern that discretion may be used in relation to the time bar.

Mr McArthur asks if it would be reasonable to assume that judges may continue to deal with it this way. 

Alastair Ross from ABI says it is important to have a fair and balanced process and the ability to deliver a fair trial.

Mr Ross says it is important to bear in mind that time bar or limitation is an appropriate defence.

He says if considerable time has passed, there may no longer be evidence. 

Graeme Watson from FOIL says if this Bill goes through and the victims and survivors are hopeful that they will be heard in court, it will not be more the case as in any other form of litigation.

Mr Watson says the role of insurers and lawyers is to settle when that is appropriate.

Image source, ABI

The Association of British Insurers, external has "significant concerns about the implications of some measures proposed in the Bill. 

It says: "The three-year limitation period or time bar, which only begins when a potential claimant reaches the age of 18, is not an absolute rule.

"Judges in Scotland have the discretion to set aside limitation if they are persuaded of the merit in hearing a claim of historic abuse, as set out in Section 19A of the Prescription and Limitation (Scotland) Act 1973."

Read more of the submission from the ABI here. , external

Alastair Ross from the Association of British Insurers says in England and Wales judges seem more prepared to exercise discretion but Scottish judges are not.

"What I would ask is whether this bill is the best way to address that," he says. 

Mr Ross says says a pre-action protocol may be the best way forard for all parties. 

He says this could still achieve a legally binding outcome quicker than going through the courts. 

Graeme Watson who is a member of the Sub-Group on Historic Abuse with the Forum of Insurance Lawyers says there are those who are insured so there will be a financial cost to the insurers.

Mr Watson says there are those who may have been insured but it is unclear and those who will be meeting the costs themselves. 

Image source, FOIL

FOIL says it "understands the considerations which have led to the presentation of the current Bill, changes to the rules on limitation are not to be undertaken lightly. 

"Any change which affects the pursuer or the defender‟s ability to bring or defend a claim out of time will have an adverse effect upon the opposing side in litigation. 

"There is significant potential for the necessary balance between the parties to be adversely affected, resulting in injustice. 

"It should be remembered that the courts have discretion under the current rules, under Section 19A of The Prescription and Limitation (Scotland) Act 1973, to allow claims to proceed beyond the three year limitation period should “it seem equitable to the court to do so.”

Read more of the submission here. , external

Image source, bbc

Graeme Watson who is a member of the Sub-Group on Historic Abuse with the Forum of Insurance Lawyers (FOIL) says there are two aspects to this, firstly the policy.

Mr Watson says FOIL welcome the policy to widen access to justice for abuse victims.

He says this bill would allow change the criteria by which the court would decide whether a case should proceed.

Mr Watson says removal of the three year limitation period and reinstating cases previously disposed of is problematic.

He says one form of discretion is being substituted for another.

MSPs will now take evidence from: 

• Alastair Ross from the Association of British Insurers (ABI)
• Graeme Watson who is a member of the Sub-Group on Historic Abuse with the Forum of Insurance Lawyers (FOIL)

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Ms Mitchell thanks all the witnesses and in particular Mr Whelan and Mr Aitken for the "huge amount of courage" they have shown by giving evidence.

Mr Garrett says certain checks and balances are necessary whether they are in the bill or not because of the law and human rights.

He says anyone who has looked at this over a number of years would have to concede that the Scottish judiciary system is very conservative.

David Whelan spokesperson for Former Boys and Girls Abused in Quarriers Homes says he would want the legislation to be as wide as possible and set out what judges are able to do so there is no doubt.

Graeme Garrett from the Association of Personal Injury Lawyers says there are issues with the bill in the point of principle.

Mr Garrett says solicitor files may no longer exist and claimants may have been very young with claims being settled by parents. 

He says these are practical difficulties going forward for claimants and that guidance is required on this.

Image source, bbc

David Whelan spokesperson for Former Boys and Girls Abused in Quarriers Homes says it is important that cases that have been time barred in the past are given proper consideration.

He says where there has been a conviction in criminal courts the civil case should not have been time barred.

Mr Whelan says Quarriers has made the process "very adversarial".

"Quarriers have to take some responsibility for that," says Mr Whelan.

Image source, bbc

Graeme Garrett from the Association of Personal Injury Lawyers says people who in the past have brought actions should be allowed to bring them again after this legislation.

Mr Garrett says victims should not be prevented from seeking a full and proper claim now.

He says the proposal in the bill, as it stands, would be very unfair on people seeking redress again. 

Mr Garrett says people who received quite insulting compensation will now be met by another brick wall preventing them getting full compensation.