Waiver
Section 46: Waiver
129.Section 46(1) provides that, in order to receive a redress payment under the scheme, an applicant must agree to abandon any relevant civil proceedings, and to waive their right to raise such proceedings in the future. The redress scheme is intended to provided applicants with an alternative to civil litigation, and applicants essentially have a choice as to whether to accept a redress payment or to continue or raise relevant civil proceedings. This choice is exercised by the applicant signing a waiver where they wish to accept a redress payment. Relevant civil proceedings covers a wide range of legal actions where an applicant seeks compensation or any other remedy in relation to abuse eligible under the scheme. This would include, for example, actions for damages for personal injury as well as actions for declarator, and cases before the European Court of Human Rights. However, proceedings are only required to be abandoned to the extent that they are relevant civil proceedings. Accordingly, a case could be continued against a non-scheme contributor provided that it was dropped against other parties who were scheme contributors at the relevant time.
130.While a waiver must be signed in order to receive a redress payment, there will be cases where an applicant for an individually assessed payment has already signed a waiver in relation to an earlier redress payment. That earlier payment might have been under a separate application for a fixed rate payment or, where the application under consideration is one made by virtue of section 30(3), it might have been a previous individually assessed redress payment. In such a case, it is possible that, if those against whom proceedings would constitute “relevant civil proceedings” have not changed in the interim, the signature of a waiver would not add anything to the rights which have already been waived. Subsections (2) to (4) therefore deal with this situation and provide that a second waiver need not be signed in such a case, as the original waiver is sufficient. In contrast, where the contributor list has expanded to include new scheme contributors in the intervening period, the person would be required to sign an additional waiver in order to receive the further redress payment.
131.The effect of subsection (5)(b) is that, where the applicant signs and returns a waiver (and thereby abandons any ongoing relevant civil proceedings and waives their right to raise new proceedings), there will be no right of recovery under section 3(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 (in so far as it would have entitled any person to recover from the Scottish Ministers or a relevant scheme contributor any contribution towards the payment of any damages or expenses in respect of relevant abuse). Any other rights of recovery or relief, or indemnity against Ministers or other contributors in relation to abuse of that person which is covered under the scheme, also cease to have effect (subsection (5)(c)).
132.Subsection (6) defines “relevant civil proceedings” as those against the Scottish Ministers or any relevant scheme contributor for abuse of the person in question which is covered by the scheme. “Relevant scheme contributor” is defined to mean those contributors included in the published list of scheme contributors on the date the panel determines that the applicant is eligible for the redress payment (under section 35 or 55).
133.Subsection (7) provides that if a contributor is removed from the list with retrospective effect in accordance with section 16, that organisation will not benefit from any waivers from that date. This has the effect of revoking any waivers that were previously granted by applicants to the extent that they would otherwise prevent the bringing of a civil claim against an organisation which has not in the end contributed the agreed amount to that applicant’s redress payment.
Section 47: Form and content of waiver
134.Section 47 provides that the Scottish Ministers may make regulations, subject to the affirmative procedure, to make further provision about the granting of a waiver under section 46 in order to provide for the form and content of the waiver and in order to specify information about the waiver which must be provided to applicants.
Section 48: Report on effect of waiver on participation in redress scheme
135.This section requires the Scottish Ministers to lay a report before the Scottish Parliament within 18 months of section 46 coming into force, setting out the Scottish Ministers’ assessment of any impact the waiver has on applications for a redress payment, and its effectiveness in encouraging public authorities, voluntary organisations and other persons to become scheme contributors. The report must also set out any steps they intend to take as a result of that assessment, and where they do not intend to take any such steps, their reasons for that.
