Survivors v Poor Sisters of Nazareth 6 Jun 2007 Court of Session

The several appeals posted today are all relevant to the Christian Church. See a list of all of them here at the end of the day – Index of Court Appeals on this blog [2]

Physical and emotional abuse 1961 -1979 suffered by children at Childrens Home run by Poor Sisters of Nazareth, Cardonald.

cardonald-sisters

Although not a lawyer and not familiar with Scottish law this looks as if this discussion in court is to decide whether an action against Poor Sisters, Nazareth House, Cardonald is time barred and whether that should be overturned.

The reclaiming motions were refused, by which it appears the case was not allowed to go ahead against Poor Sisters of Nazareth.

The Court was forced to take a legal decision when the Poor Sisters and their Religious Superior Sister Bernard Mary Murray could have chosen a higher moral law, but chose not to.

Redaction

Some court reports have had victims names redacted and some assault details redacted.

This is a difficult balance –  normally I would think that  I should not “censor” details but on consultation with various people I have taken the decision to redact. This is mainly to protect victims, their friends and relatives from unnecessary detail and to stop the gratification of those who seek salacious details.

In addition to the obvious “victims redaction” to protect victims details, there may also be “assault redaction” across most of the spectrum of abuse. The assaults are left in the charges, but mainly redacted when repeated with reference to the individual. I have also redacted unnecessary detail of assaults.

Redaction may obscure sometimes the legal reason for the appeal, but should make no large difference to the vital information for researchers that these documents contain. That vital information is mainly names of the perpetrators, past addresses, institutions where assaults occurred, the actual charges the perpetrators faced, and dates – on which newspapers are pathetically inaccurate and this information enables the links between people and places and abuse at various times to be ascertained.

Some transcripts may have been subject to automatic reading software and whilst effort has been made to correct these, the text should not be regarded as definitive.  Common mistakes in reprinting here are that quotation marks are sometimes not correct, replaced by odd symbols.

If you think that the balance is not correct or that a particular redaction needs reconsideration, please say.

This appeal is redacted by cathy fox blog for personal details.

Index of Newspaper and Journal articles on this blog [1]

Index of Court Appeals on this blog [2]

AB

v.

Poor Sisters of Nazareth

No 48

Court of Session Inner House First Division

06 June 2007

Lord President (Hamilton), Lord Abernethy, Lord Eassie

(1) AB; (2) CD; (3) EF,
Pursuers and Reclaimers –
McEachran, QC, Stirling Drummond Miller WS
Sister Bernard Mary Murray and others representing the Poor Sisters of Nazareth,
Defenders and Respondents –
Moynihan QC, Duncan Simpson & Marwick WS

Process – Actions for damages for abuse suffered in children’s’ home between 1961 and 1979 – Actions raised in May 2000 – Whether actions time-barred – Whether court should exercise discretion to override time-bar – Prescription and Limitation (Scotland) Act 1973 (cap. 52), secs 17, 19A

Process – Procedure roll debate – Resulting interlocutors not reclaimed against – Preliminary proof on time-bar – Resulting interlocutors reclaimed against – Whether court could review prior interlocutors during reclaiming motion

Statutory interpretation – Prescription and Limitation (Scotland) Act 1973 (cap. 52), secs 17 – Interpretation of tests in sec 17(2)

Part 2 of the Prescription and Limitation (Scotland) Act 1973, as amended, provides, inter alia, for the limitation of actions by specified time periods or time-bars. Section 17 applies to actions for damages in respect of personal injuries. Section 17(2) provides that, “Subject to subsection (3) below and section 19A of this Act, no action to which this section applies shall be brought unless it is commenced within a period of three years after- (a) the date on which the injuries were sustained or, where the act or omission to which the injuries are attributable was a continuing one, that date or the date on which the act or omission ceased, whichever is later; or (b) the date (if later than any date mentioned in paragraph (a) above) on which the pursuer became, or on which, in the opinion of the court, it would have become reasonably practicable for him in all the circumstances to become, aware of all the following facts- (i) that the injuries in question were sufficiently serious to justify his bringing an action of damages on the assumption that the person against whom the action was brought did not dispute liability and was able to satisfy a decree; (ii) that the injuries were attributable in whole or part to an act or omission; and (iii) that the defender was a person to whose act or omission the injuries were attributable in whole or in part or the employer or principal of such a person.” Section 19A provides a discretionary power to the court to override the time-bar.

As children, the pursuers and reclaimers were resident in Nazareth House in Cardonald, a children’s home run by the Congregation of the Poor Sisters of Nazareth. They were all resident there for various periods from 1961 to 1979. The home was run by the second defenders and respondents, a congregation or order of nuns of which the first defender and respondent is the present religious superior. The reclaimers averred that they had been assaulted and otherwise mistreated while at Nazareth House and as a result suffered immediate pain and distress and consequently, had suffered and continued to suffer long-standing psychological or psychiatric problems in adulthood. The reclaimers, (together with several hundred others in similar situations whose actions had subsequently been sisted pending resolution of these cases), raised actions for damages against the respondents in the Court of Session in May 2000. The respondents tabled pleas that the actions were time-barred in terms of Pt 2 of the Prescription and Limitation (Scotland) Act 1973 (as amended). In response, the reclaimers pled that the time-bar was extended firstly, in respect of nonage to their respective 21st birthdays and secondly, in terms of sec 17(2)(b) of the Act by reason of lack of awareness of the reclaimers to a date within three years prior to the commencement of the actions, ie to a date sometime after May 1997. Esto, they pled that the court should exercise its discretion under sec 19A to override the time-bar.

When the cases called before Lord Johnston for procedure roll debate, the Respondents’ pleas were upheld and the cases appointed to a preliminary proof for inquiry, restricted to the question of whether the court should exercise its sec 19A discretion to override the time-bar. The preliminary proof proceeded over several weeks before Lord Drummond Young, who heard evidence from, inter alia, the reclaimers and expert witnesses. Lord Drummond Young exercised his discretion in favour of the Defenders and dismissed each action. In the reclaiming motion, the reclaimers first invited the court to open up and review Lord Johnston’s prior interlocutors, as well as those of Lord Drummond Young reclaimed against. On this aspect of the case, it was argued for the reclaimers that: (1) while holding that sec 17(2) did not apply, Lord Johnston had indicated that the issue of awareness could have been addressed under sec 19A and Lord Drummond Young had taken an unduly narrow view of the scope of his discretion and had failed to take into account the sec 17(2) factors; (2) the court should recall Lord Johnston’s interlocutors and consider afresh the evidence heard before Lord Drummond Young and find that the actions had been timeously brought; (3) on a proper interpretation of sec 17(2)(b)(i), none of the reclaimers had the requisite awareness until less than three years prior to May 2000; (4) the constructive awareness test provided in sec 17(2)(b) was mainly objective but contained subjective elements including the personal characteristics of the reclaimers and of those, such as the reclaimers, belonging to a class of disadvantaged and abused persons; (5) sec 17(2)(b) was not concerned solely with quantum of damages but was a “composite fact” including a “litigation factor” which included reference to the features of those belonging to the class of persons of “institutional child abuse victims” of which the reclaimers were part; and (6) persons of such a class were subject to a “silencing effect” and had not appreciated they might have a claim for damages until they had seen newspaper articles alerting them to that possibility in May 1997, ie within three years of May 2000.

The respondents argued that: (1) Lord Johnston’s observations on the factors relating to awareness, which could be considered in the context of sec 19A, were properly taken into account by Lord Drummond Young; (2) the reclaimers had acquiesced in Lord Johnston’s disposal and the preliminary proof had proceeded on the restricted basis to consider only sec 19A, and it would be wholly inappropriate for the court to consider afresh and make findings of fact on matters outwith the scope of the proof; (3) if the reclaimers had wished to keep the sec 17(2) issue alive they should have reclaimed against Lord Johnston’s interlocutors; (4) the awareness test in sec 17(2)(b) was based on certain statutory facts identified in sub-heads (i)-(iii); (5) properly construed sec 17(2)(b)(i) was concerned with awareness of the extent of injury in terms of quantum; and (6) the reclaimers did not form part of the class of persons to which a “silencing effect” applied and in any event, appreciation of the possibility of bringing a claim was not a fact within the test and awareness of the possibility of resorting to litigation was excluded by sec 22(3).

Against the interlocutors of Lord Drummond Young, the reclaimers argued that the Lord Ordinary had erred in the exercise of his discretion and in a number of particular respects: (i) having restricted the preliminary proof according to a narrow interpretation of sec 19A and having wrongly excluding sec 17(2) issues; (ii) having failed to give proper recognition to the “clean hands” argument, namely that at the preliminary proof it had to be assumed that the respondents had been responsible for the abuse of the reclaimers and, it was argued, since the abuse was responsible for effectively silencing the reclaimers, the respondents could not rely on their own misdeeds to deny the reclaimers a remedy; (iii) having placed over-reliance on the dicta of McHugh J in the Australian case of  Brisbane Regional Health Authority v Taylor ; (iv) having taken into account a number of factors which were irrelevant; (v) having made assumptions regarding changes in social attitudes; (vi) having regarded the monetary value of the reclaimers’ claims as relatively small; (vii) having concluded that the respondents would have suffered prejudice because they had been unable to trace witnesses and recover documents; and (viii) having rejected evidence of a diagnosis of PTSD in respect of the first reclaimer.In reply, the respondents argued that Lord Drummond Young had not erred in the exercise of his discretion and in particular: (i) the Lord Ordinary had correctly encapsulated the approach in Scots law to sec 19A and had not excluded the sec 17(2) issues from the proper scope of the preliminary proof; (ii) the “clean hands” argument had been recognised; (iii) it had not been said that the principles enunciated by McHugh J in  Brisbane  did not reflect the position in Scotland; (iv) the Lord Ordinary had not taken into account irrelevant factors; (v) the Lord Ordinary had been entitled to make observations regarding changes in social attitudes; (vi) the Lord Ordinary had been entitled to consider the relative monetary value of the claims; (vii) it had been for the Lord Ordinary to determine how much weight to place on lost evidence and his findings on that matter had not been challenged; and (viii) the Lord Ordinary’s rejection of the diagnosis of PTSD had been of no moment.

Held that: (1) it was clear that the court had the power to open up and review Lord Johnston’s interlocutors of 30 July 2004. The issue was whether it was appropriate to do so (para 15); (2) it was not appropriate to open up and review Lord Johnston’s interlocutors (para 16); (3) the test of awareness in sec 17(2)(b)(i) was concerned only with the extent of the injury, in terms of quantum of damages. The actual or constructive awareness in relation to that sub-head was awareness that injury had been suffered which was sufficiently serious to have been above a minimum threshold in terms of quantum (paras 25, 26); (4) in any event, the reclaimers’ pleadings had not relevantly engaged sec 17(2)(b), nor raised any issue of constructive awareness, and Lord Johnston had been justified in finding as he had done (paras 28, 30, 32); (5) the court had a general discretion under sec 19A (para 80); (6) there was no reason not to accept the dicta of McHugh J in  Brisbane  as an appropriate discussion of the policy applicable in the context of Scots law (para 82); (7) Lord Drummond Young had dealt with the question of whether the alleged abuse suffered by the reclaimers had itself been the cause of their delay in raising proceedings and accordingly, the reclaimers submissions on the “clean hands principle” were not well founded (para 83); (8) Lord Drummond Young fully considered the so-called sec 17(2) issues and weighed them in the balance against the other factors relevant to the exercise of his discretion under sec 19A (para 87); (9) Lord Drummond Young had not erred in any of the ways which had been contended for by the reclaimers (paras 88, 89, 90, 91, 92, 94, 95); (10) Lord Drummond Young had been entitled to conclude that the respondents had been prejudiced by the delay in bringing proceedings and by the actual loss of material evidence, and that that prejudice was by itself a sufficient reason for not allowing the present actions to be brought under sec 19A (para 93); and reclaiming motions refused.

AB, CD and EF raised actions in the Court of Session against the defenders for damages in respect of injuries suffered when, as children, they were resident in Nazareth House, Cardonald between 1961 and 1979. The actions were commenced in May 2000. The defenders tabled pleas that the actions were time-barred. Following a procedure roll debate before the Lord Ordinary (Johnston) on 4 and 5 November 2004, interlocutors dated 30 July 2004 were pronounced in which the defenders’ pleas were upheld and the cases appointed to a preliminary proof for inquiry into whether the court should exercise its discretion to override the time-bar. The preliminary proof proceeded before the Lord Ordinary (Drummond Young) over several weeks in January and February 2005. By interlocutors dated 2 June 2005, the Lord Ordinary (Drummond Young) exercised his discretion in favour of the defenders and dismissed each action. Against those interlocutors, the pursuers reclaimed.

Cases referred to:

 Ablett and ors v Devon County Counciland the Home Office  Sedley LJ, 4 December 2000, unreported

 Adams v Bracknell Forest Borough Council  [2004] UKHL 29; [2005] 1 AC 76; [2004] 3 WLR 89; [2004] 3 All ER 897

 Agnew v Scott Lithgow Ltd (No 2)  2003 SC 448; 2003 SCLR 426

 Blake v Lothian Health Board  1993 SLT 1248

 Brisbane Regional Health Authority v Taylor  (1996) 186 CLR 541

 Carnegie v Lord Advocate  2001 SC 802

 Carson v Howard Doris Ltd  1981 SC 278; 1981 SLT 273

 Catholic Care (Diocese of Leeds) and anr v Young  [2006] EWCA Civ 1534; [2007] 1 All ER 895; (2006) 103 (46) LSG 33; (2006) 156 NLJ 1802

 Clark v McLean  1994 SC 410; 1995 SLT 235; 1994 SCLR 564

 Comber v Greater Glasgow Health Board  1989 SLT 639; 1989 SCLR 515

 Donald v Rutherford  1984 SLT 70

 Elliot v J & C Finney  1989 SLT 605

 Firman v Ellis  [1978] QB 886; [1978] 3 WLR 1; [1978] 2 All ER 851

 Forsyth v AF Stoddart and Co Ltd  1985 SLT 51

 Godfrey v Quarriers Homes  [2006] CSOH 160

 Hawkins v Clayton and ors  (1988) 164 CLR 539

 KM v HM  (1992) 96 DLR (4th) 289

 KR and ors v Bryn Alyn Community (Holdings) Ltd and anr  [2003] EWCA Civ 85; [2003] EWCA Civ 783; [2003] QB 1441; [2003] 3 WLR 107; [2004] 2 All ER 716

 Kane v Argyll and Clyde Health Board  1999 SLT 823

 Lannigan v Glasgow City Council  12 August 2004, unreported

 Lister v Hesley Hall Ltd  [2001] UKHL 22; [2002] 1 AC 215; [2001] 2 WLR 1311; [2001] 2 All ER 769

 M v O’Neill  [2006] CSOH 93; 2006 SLT 823

 McCabe v McLellan  1994 SC 87; 1994 SLT 346; 1994 SCLR 188

 McCoubrey v Secretary of State for Defence  [2007] EWCA Civ 17; [2007] 1 WLR 1544; [2007] LS Law Medical 150; (2007) 151 SJLB 159

 McCue v Scottish Daily Record and Sunday Mail Ltd  1998 SC 811; 1998 SLT 983; 1998 SCLR 742

 McIntyre v Armitage Shanks Ltd  1980 SC (HL) 46; 1980 SLT 112

 Newcastle Building Society v White  1987 SLT (Sh Ct) 81

 Noble v De Boer  2004 SC 548; 2004 SLT 1085; 2004 SCLR 485

 T v Boys and Girls Welfare Service  [2004] EWCA Civ 1747

 Thompson v Brown  [1981] 1 WLR 744; [1981] 2 All ER 296; (1981) 125 SJ 377

 X (Minors) v Bedfordshire County Council and ors  [1995] 2 AC 633; [1995] 3 WLR 152; [1995] 3 All ER 353

The cause called before the First Division, comprising the Lord President (Hamilton), Lord Abernethy and Lord Eassie, for a hearing on the summar roll on 19 January 2007.

At advising, on 6 June 2007, the opinion of the Court was delivered by the Lord President (Hamilton)-

Opinion of the Court

[1] This is the opinion of the court to which all of its members have contributed substantially.

Introductory

[2] The pursuer and reclaimer in each of these three actions of damages for personal injury was, as a child, for some years resident in a children’s home, Nazareth House, situated at Cardonald, Glasgow and run by the second defenders and respondents, a congregation or order of nuns. The first defender and respondent is the current Religious Superior of that congregation or order. AB was resident in that home between 1966, when she was three years old, and 1979, shortly after she attained the age of 16. CD was resident in the same home from 1975, when he was six years old, until 1978 when he was nine years of age; thereafter he  spent the remainder of his childhood in other children’s homes. EF was resident in the same home from about 1961, when she was seven or eight years old, until 1969, soon after she attained the age of 16.

[3] All the reclaimers come from family backgrounds which would now be described as disadvantaged. AB was the [redacted] children. Her mother apparently left home. Her father then enlisted the assistance of his sister but she did not provide appropriate care for the children. Their situation having been reported by a neighbour to the local authority, all the children were taken into care and placed in Nazareth House. CD was the [redacted] children. Both his parents had problems with alcohol and were unable to cope with their family responsibilities. As a result CD and two of his brothers were taken into care. After a brief period during which they were fostered, all three were placed in Nazareth House. EF was the [redacted] children, one of whom had died in infancy. Her mother, who apparently had problems with alcohol, was unable to cope with bringing up the surviving children. All four children were taken into care by the local authority and placed in children’s homes, EF and her sister being placed together in Nazareth House.

[4] In these actions the reclaimers each seek damages from the respondents for loss, injury and damage which they aver they sustained in and consequential upon their time as residents in Nazareth House. Although there are some differences among the averments made by the reclaimers, the pattern is the same. They maintain that they were regularly assaulted by the nuns in charge of them, that is to say, beaten or struck in a manner which, even by the standards of the time, could not be regarded as reasonable chastisement; that they regularly witnessed assaults perpetrated against other children in the home; and that they were regularly subjected to humiliating experiences. No affection was shown to them; no praise given to them; they were not treated with dignity. Apart from the immediate pain and distress of their experiences, each reclaimer maintains she or he has suffered and continues to suffer from long-standing psychological or psychiatric problems. In the case of all of the reclaimers a consequence of their experiences has been, they aver, that they have suffered from chronic or repeated bouts of depression. In the case of the male reclaimer, CD, he attributes to his childhood experiences, among other consequences, his resort as a youth to criminal behaviour and to the abuse of alcohol. Both female reclaimers, AB and EF, maintain that their experiences have led to disadvantages in the workplace, with consequential financial loss. These consequences they attribute to delictual acts or omissions of the second respondents or of the individual nuns for whose acts and omissions they are vicariously responsible.

[5] Each of these actions was commenced in May 2000. We understand that several hundred other actions have also been raised in the Court of Session against the same religious order by other persons who, as children, lived in homes run by it and that several hundred more have also been raised against other institutions which ran similar children’s homes. In total about 600 actions have been so raised. As a result of decisions taken by the Scottish Legal Aid Board most of these actions have been sisted pending resolution of the present actions.

[6] In each of the present actions the respondents have tabled pleas that the action is time-barred by reason of the limitation provisions in Pt II of the Prescription and Limitation (Scotland) Act 1973 (as amended). In response the reclaimers have pled that the three year time-limit is extended, first, by virtue of sec 17(3) of the Act, in respect of nonage, to their respective 21st birthdays and, secondly, in terms of sec 17(2)(b) by reason of the lack of relevant awareness of the respective reclaimer to a date within three years prior to the commencement of the action, ie to a date sometime after May 1997. They further plead that, if their right to commence an action has not been extended by virtue of sec 17(2), the court should exercise its discretion under sec 19A to extend the time so as to allow the action to proceed.

Procedural history

[7] The respondents having in each case tabled a plea to time-bar (plea 1) and also a plea (plea 2) to the relevancy of the reclaimers’ averments, the cases came out on procedure roll before Lord Johnston for discussion of these pleas. All three actions, although not formally conjoined, were heard together. Lord Johnston, having heard parties, pronounced on 30 July 2004 an interlocutor in AB’s action in the following terms:

’30 July 2004 Lord Johnston

The Lord Ordinary having resumed consideration of the cause sustains the 1st and 2nd defenders’ second plea-in-law to the extent of excluding all reference to section 17 of the Prescription and Limitation (Scotland) Act 1973 as amended and to the averments in Condescendence 4 from further consideration; quoad ultra allows to parties a preliminary proof on the issues focused in Condescendence 6 and Answer 6 in relation to section 19A of the said Act; appoints said preliminary proof to proceed on the day of at and grants diligence for citing witnesses and havers; continues the question of expenses’.

Equivalent interlocutors were pronounced in the other two actions. (The exclusion of the averments in cond 4 (or its equivalent) was of a statutory case under the Administration of Children’s Homes (Scotland) Regulations 1959; the reclaimers no longer insist on that case.) It will be appreciated that the interlocutor otherwise excluded questions of constructive awareness under sec 17(2) and confined the inquiry to the discretion, under sec 19A, to override the time-bar.

[8] The interlocutor was in each case one to which RC 38.3(4) applied and was accordingly one which might have been reclaimed against without leave. In the event no reclaiming motion was marked against it. The reclaimers’ advisers, we were told, were anxious to make progress – the actions by that stage having been in court for some four years – and were informed that a diet of preliminary proof could be fixed for a relatively early date. In taking the decision not to reclaim against that interlocutor they also placed reliance, we were told, on certain observations made by Lord Johnston in his opinion. Having expressed the view that the question raised by sec 17 was essentially a matter of law and consequently relevant averments, he continued (opinion in AB’s case, para 15):

‘When it comes however to the exercise of the sec 19A discretion, the court may range over many factors which could be said to be relevant to any relevant legal issue and I therefore accept that the general observations, albeit made in relation to the English equivalent of sec 17, in Bryn Alyn with regard to psychological damage occurring years after an event or series of events which are linked can, and should be, relevant to the issue under sec 19A. By “relevant legal issues” I mean a relevant action in delict as described by the pursuers’ averments taken pro veritate. I am impressed by the argument that the nature of the treatment alleged in this case can render persons who are seriously vulnerable in society in general terms even more vulnerable [and] even less likely to be able to appreciate their rights. While I myself sustain [sic] certain reservations about the extent to which the Court of Appeal in Bryn Alyn were interpreting a statute by reference to judicial or social engineering, I consider when it comes to an exercise of discretion under sec 19A, however cogent the discussion by Lord Justice Auld in respect of the equivalent sec 33 of the English legislation may be, it is entirely relevant to consider the points made by counsel for the pursuer in relation to vulnerability, her concerns, ignorance and general non-legal disability’. [9] In the event the preliminary proof proceeded before Lord Drummond Young over several weeks in January and February 2005. By interlocutors dated 2 June 2005 Lord Drummond Young, having exercised his discretion under sec 19A in favour of the defenders and having accordingly refused to allow the pursuers to bring the present actions, dismissed each of them. Against each of these interlocutors the pursuers have reclaimed.

Review of the prior interlocutors of Lord Johnston

[10] The reclaimers have invited this court to open up and review not only Lord Drummond Young’s interlocutors of 2 June 2005 but also the prior interlocutors of Lord Johnston dated 30 July 2004. They rely on RC 38.8(1) which provides: ‘a reclaiming motion shall have the effect of submitting to the review of the Inner House all previous interlocutors of the Lord Ordinary’. The respondents, while acknowledging that it would be competent for this court now to open up and review Lord Johnston’s interlocutors, submitted for a number of reasons that we should not do so.

Submissions of counsel

[11] Junior counsel for the respondents in opening their submissions on this aspect argued that, having regard to (1) the actings of the parties, (2) the difficulty of unwinding what had since happened and (3) the absence of any real underlying merit in the pursuers’ contentions under sec 17(2), the court should not review Lord Johnston’s interlocutor. Reference was made to  McCue v Scottish Daily Record and Sunday Mail Ltd . The reclaimers, having secured a preliminary proof from Lord Johnston but having in the event failed to persuade Lord Drummond Young to exercise his discretion in their favour, were now seeking, it was argued, to open up an interlocutor in which they had effectively acquiesced. The respondents had had to make hurried preparations for the preliminary proof (including a change of senior counsel) and had conducted that proof on the basis that it was directed (as the interlocutor provided) solely to the issue under sec 19A. It was now being contended by the reclaimers that this court should, on the basis of evidence led at that preliminary proof, repel the respondents’ substantive pleas of time-bar – an invitation which had not been made to Lord Johnston before whom only issues of relevancy had been discussed. The evidence adduced by parties at the preliminary proof was available only in respect of the issue to which that proof was directed (namely, sec 19A), not to sec 17(2) ( Noble v De Boer , per Lord Marnoch, para 5, Lord Hamilton, para 42). The line of questioning adopted by the respondents at the preliminary proof and the evidence there adduced by them might well have been quite different if issues under sec 17(2) had been for determination then. Lord Drummond Young had, quite appropriately, not been asked to determine any issue under sec 17(2) and had made no findings of fact in respect of it. It would be quite inappropriate for this court now to make findings of fact on that matter or to reach a determination on it. Moreover, the reclaimers’ contentions in respect of sec 17(2), whether considered on the pleadings or with the use of the evidence led at the preliminary proof, were without substance. (Detailed submissions were made by counsel for the respondents on this matter, to which we shall advert in a later section of this opinion.) If the reclaimers’ contention that sec 17(2) be determined by this court on the evidence led at the preliminary proof was rejected, the alternative procedural course which they appeared to propose was that there should now be ordered a single proof on all issues (sec 17(2), sec 19A, the merits and quantum). This would be wholly inappropriate, not least because the sec 19A issue had already been addressed and decided after an extensive proof. Further, when issues of time-bar were raised it was the practice of this court that these be dealt with by preliminary proof ( Clark v McLean , p 413). Given the scale of any proof on the merits in cases such as these, it was particularly appropriate that issues of time-bar which were relevant for proof be dealt with by way of preliminary proof. [12] Senior counsel for the reclaimers, in responding to these submissions, observed that sec 52 of the Court of Session Act 1868 (31 & 32 Vict cap 100) (the statutory ancestor of RC 38.8(1)) had been enacted to the effect of enabling the court to do complete justice. The present cases were the first of those directed against the present defenders to come before the court. An experienced Lord Ordinary (Lord Johnston), while holding that sec 17(2) did not apply, had indicated that the whole issues of awareness raised in the time-bar issues could and should be addressed under sec 19A. The Lord Ordinary (Lord Drummond Young), who heard the preliminary proof, had taken an unduly narrow view of the scope of his discretion, including failing to take into account the sec 17(2) factors which Lord Johnston had indicated remained live. To do justice the court should recall Lord Johnston’s interlocutor, consider afresh the evidence led before Lord Drummond Young as well as his findings in fact and, on the basis of these, find that the actions had been timeously brought. Nobody wanted another time-bar proof. Failing disposal by considering afresh the evidence before Lord Drummond Young and his findings in fact, the court should now allow a single proof encompassing the sec 17(2) issue and the whole issues of liability and quantum. It was conceded that, in relation to the statutory fact mentioned in sec 17(2)(b)(ii) (attributability of the injury), each of AB and EF had the requisite actual knowledge more than three years prior to May 2000; this was not, however, the case in respect of CD since there was no mention of Nazareth House in his medical records until after 1997. In all three cases none of the reclaimers had, until less than three years prior to May 2000, awareness (actual or constructive) of the ‘composite’ statutory fact mentioned in sec 17(2)(b)(i) (as properly construed).

[13] In response senior counsel for the respondents observed that it was impossible to say what questions would have been asked and what findings made if there had been a proof directed to wider issues than sec 19A. It was entirely inappropriate to ask this court to make findings of fact, on the basis of evidence led in the sec 19A preliminary proof, on matters of the actual or constructive knowledge of any of the reclaimers. If the reclaimers had wished to keep the sec 17(2) issue alive, they should have reclaimed against Lord Johnston’s interlocutor, seeking early disposal of the reclaiming motions. They had acquiesced in Lord Johnston’s disposal not only by proceeding to proof but by seeking and obtaining a diligence for recovery of documents in advance of it. Lord Johnston’s observations were to the effect that issues addressed in  KR v Bryn Alyn Community (Holdings) Ltd  (such as reluctance to come forward) could in Scotland be addressed in the context of sec 19A – which was exactly what Lord Drummond Young had done.

Discussion and decision

[14] In  McCue v Scottish Daily Record and Sunday Mail Ltd , heard before a court of five judges, the main issue was whether the effect of RC 38.5(6) (finality of a decision to grant or refuse leave to reclaim) was to exclude an earlier interlocutor from review by means of RC 38.8(1). The court held that it was not. However, it went on to observe that actings consequent upon a prior interlocutor ‘could lead the court to the conclusion that the prior interlocutor should not be interfered with’ (p 820H). The court added (p 821C):

‘[T]he review of a particular prior interlocutor may present substantial difficulties if the court is to achieve justice and fairness as between the parties. If a party has proceeded, or knowingly allowed the other party to proceed, on the basis that it is not challenged, it may be that the court would not countenance the review of that interlocutor in mediis rebus. However, at the end of the case different considerations may come in’.

It went on to approve an observation of the sheriff principal (subsequently Lord Caplan) in  Newcastle Building Society v White  (p 83) where he said:

‘An interlocutor which holds a defence relevant is intrinsically related to a later judgment which sustains that defence. Viewed another way, if a party fails to appeal a procedural determination in time, such failure may readily be held to be unequivocally referable to acceptance of the procedure in question, because once procedure has flowed it cannot be retrieved. The matter is different when the merits are in issue.’

[15] Applying these observations to the present case it is clear (as was conceded by the respondents) that the court has power in the course of this reclaiming motion to open up and review Lord Johnston’s interlocutor of 30 July 2004. The issue is whether it is appropriate to do so. That issue turns essentially on whether it is fair and just, as between these parties, now to do so. We bear in mind that these actions are at an end, so far as proceedings in the Court of Session are concerned, if we are not persuaded that Lord Drummond Young’s decision should be reversed.

[16] Bearing that consideration in mind we are not, however, persuaded that it would be appropriate for us to open up and review Lord Johnston’s interlocutor. At procedure roll he dismissed as irrelevant (essentially on the basis of lack of specific averments) the reclaimers’ contentions that they were, by virtue of sec 17(2), entitled to commence their actions. The reclaimers, through their legal advisers, chose not to reclaim against that interlocutor but instead to proceed to the restricted preliminary proof which Lord Johnston had allowed. The terms of that interlocutor are clear. Nor do we consider that the reclaimers’ advisers can reasonably have been misled by anything said by Lord Johnston in his opinion. On a fair reading, all his Lordship was saying was that, where (as he had held in the present cases) a pursuer has no relevant case for extension under sec 17(2) because he or she has full awareness in relation to physical damage, that pursuer may nonetheless, where causally connected psychological damage renders an already vulnerable person even less likely to appreciate his or her legal rights, bring that lack of awareness into account under sec 19A. Both parties committed themselves to the preparation for and the conduct of that proof, restricted as it was. That the reclaimers had so restricted themselves is evidenced by the circumstance that they (rightly) did not invite Lord Drummond Young to make any findings of fact directed to sec 17(2). Quite apart from the difficulties of an appellate court making new findings of fact on  matters upon which the court of first instance has not been addressed, it would be quite unfair for this court now to make findings of fact upon the basis of evidence led by parties for a quite different purpose. [17] If this court does not decide the case on the basis of evidence which was not led before Lord Johnston, then the only purpose of opening up his interlocutor would be now to allow a proof which comprised or included proof in relation to the sec 17(2) issue. Junior counsel for the reclaimers suggested that such a proof would be with all pleas standing (that is, on the sec 17(2) and sec 19A issues as well as on the merits and quantum); senior counsel suggested that the proof might include the sec 17(2) issue and the merits and quantum. Both acknowledged that such procedural orders were unattractive. As to the first, it would clearly be inappropriate for the sec 19A issue to be relitigated, not least because, the reclaimers being on legal aid, the respondents would have no prospect of recovering the expenses of the abortive lengthy diet. As to the latter, it is the usual practice of this court, where issues of time-bar arise, to have these determined – when the parties are in dispute as to material facts – by way of a preliminary proof ( Clark v McLean , p 413E-G). No doubt there may be cases where the merits are so inextricably interrelated with issues of time-bar that a single proof is appropriate. But where, as here, there is no such demonstrable interrelationship and where the reclaimers have, for reasons which no doubt seemed good at the time, not pursued by timeous appeal their contention under sec 17(2), we are not persuaded that it would be fair or just to permit them now to do so. It was, understandably, not suggested that there should be a further preliminary proof directed to the sec 17(2) issue alone; the prospect of the reclaimers, each of whom might be described as a vulnerable witness, having to give evidence on three occasions is singularly unattractive.

[18] We have reached this view without taking into account the merits of the reclaimers’ cases under sec 17(2), whether as a matter of relevancy or as a matter of prima facie substance on the basis of the evidence advanced at the preliminary proof. In the next section of this opinion we address certain aspects of these cases. Our conclusions on these matters confirm our view that there is no justification in opening up and reviewing Lord Johnston’s interlocutor.

Section 17(2)(b): Relevancy of the reclaimers’ pleadings

[19] In criticising the decision of Lord Johnston that the actions were time-barred under sec 17 of the Act, the principal focus of the submissions of counsel for the reclaimers was on sub-head (i) of sec 17(2)(b). For convenience we now set out the terms of sec 17(1) and sec 17(2) of the Act:

‘(1) This section applies to an action of damages where the damages claimed consist of or include damages in respect of personal injuries, being an action (other than an action to which section 18 of this Act applies) brought by the person who sustained the injuries or any other person.

  1. (2) Subject to subsection (3) below and section 19A of this Act, no action to which this section applies shall be brought unless it is commenced within a period of three years after-
    1. (a) the date on which the injuries were sustained or, where the act or omission to which the injuries were attributable was a continuing one, that date or the date on which the act or omission ceased, whichever is the later; or
    2. (b) the date (if later than any date mentioned in paragraph (a) above) on which the pursuer in the action became, or on which, in the opinion ofthe court, it would have been reasonably practicable for him in all the circumstances to become, aware of all the following facts-
      1. (i) that the injuries in question were sufficiently serious to justify his bringing an action of damages on the assumption that the person against whom the action was brought did not dispute liability and was able to satisfy a decree; (ii) that the injuries were attributable in whole or in part to an act or omission; and
      2. (iii) that the defender was a person to whose act or omission the injuries were attributable in whole or in part or the employer or principal of such a person.’

It is also necessary to note that sec 22(3) of the Act provides that, for the purposes of, inter alia, sec 17(2)(b), ‘knowledge that any act or omission was or was not, as a matter of law, actionable, is irrelevant.’

Submissions of counsel

[20] In summary it was submitted by junior counsel for the reclaimers that, as respects the proper interpretation of sec 17(2)(b), the constructive awareness test provided for by the legislation was mainly objective but contained some subjective elements; and, in considering whether it was reasonably practicable for the respective reclaimers to become aware of any of the ‘statutory facts’ in sub-heads (i) to (iii) of the subsection, comparison with other people similarly abused might be made and other personal characteristics might be relevant. More importantly for present purposes, junior counsel submitted that the first statutory fact under sub-head (i) (seriousness of the injury) required the severity of the injury to be assessed not in relation to the making of complaints or seeking medical treatment but in regard to a realisation by the claimant that the injury called for resort to litigation. The correct approach was that adopted by the Court of Appeal of England and Wales in  KR v Bryn Alyn Community (Holdings) Ltd  in relation to the broadly equivalent provisions of the Limitation Act 1980 (cap 58), namely secs 11 and 14. Among the passages in that judgment to which junior counsel referred and which we understood to be particularly pertinent to this branch of her argument are the passages contained in paras 41 and 42 of the judgment which may be thought to encapsulate the conclusion of the court on the interpretation of the provisions of sec 14 of the Limitation Act 1980 on ‘significant injury’ (see sec 14(1) and (2) of that statute). Those passages read as follows:

’41. Application of the section 14(2) meaning of “significance” to child victims of abuse is often the more difficult because many of them, as in the case of these claimants, come to it already damaged and vulnerable because of similar ill-treatment in other settings. For some such behaviour is unpleasant, but familiar. As Mr. Owen [counsel for the claimants] put it in his supplemental submissions, such misconduct was for many of these claimants “the norm”; it was committed by persons in authority; and they, the claimants, were powerless to do anything about it. Some victims of physical abuse may have believed that, to some extent, they deserved it. And, in cases of serious sexual abuse unaccompanied by serious physical injury of any permanent or disabling kind, it is not surprising, submitted Mr. Owen that they did not see the significance of the conduct in section 14(2) terms, and simply tried to make the best of things.

  1. 42. However artificial it may seem to pose the question in this context, section 14 requires the court, on a case by case basis, to ask whether such an already damaged child would reasonably turn his mind to litigation as asolution to his problems? The same applies to those, as in the case of many of these claimants who, subsequent to the abuse, progress into adulthood and a twilight world of drugs, further abuse and violence and, in some cases, crime. Some would put the abuse to the back of their minds; some might, as a result or a symptom of an as yet undiagnosed development of psychiatric illness, block or suppress it. Whether such a reaction is deliberate or unconscious, whether or not it is a result of some mental impairment, the question remains whether and when such a person would have reasonably seen the significance of his injury so as [sic] turn his mind his mind [sic] to litigation in the sense required by section 14(1)(a) and (2) to start the period of limitation running.’

[21] Senior counsel for the reclaimers sought to develop this submission by contending that, properly construed, sub-head (i) of sec 17(2)(b) was not concerned solely with quantum of damages but was a ‘composite fact’, including what he described as a ‘litigation factor’. He elaborated the question for the court, flowing from the terms of sec 17(2)(b)(i) of the Act, as being whether in the circumstances of the present cases it was:

‘reasonably practicable, prior to May 1997, for the claimants, judged by the standards of the reasonable institutional child abuse victim, to become aware that the injuries in question were sufficiently serious to justify a child abuse victim going to a solicitor with a view to commencing proceedings.’

The provision in question referred to ‘his’, ie the pursuer’s, bringing an action. There was therefore an element of justifiability. In other words, said counsel, there were two discrete factors namely (a) knowledge that the injuries were sufficiently serious and (b) wider knowledge that the circumstances were such that they would justify going to see a solicitor with a view to commencing litigation.

[22] The argument thus summarised was presented against the background of a submission that the reclaimers belonged to a class of people who, it was stated by senior counsel, had certain homogenous characteristics, which senior counsel described as amounting cumulatively to what he described as ‘the silencing effect’. The features ascribed to the class by counsel were: (i) the members of the class came from poor family backgrounds in which recourse to lawyers would not be usual; (ii) they felt shame and embarrassment; (iii) they lacked confidence; (iv) they were socially isolated; (v) they did not think they would be believed; (vi) their life history was such that they would be likely to be inhibited from raising proceedings between aged 18 and 21 years, and for many years thereafter; and (vii) as victims with painful memories they put those memories to the back of their mind and it was simplistic to say that they had a choice. As we understood it, these features were pertinent to the ‘litigation factor’ which senior counsel presented as inherent in his analysis of sub-head (i) of sec 17(2)(b).

[23] Having regard to those features, the ‘silencing effect’ of which counsel for the reclaimers contended should be within judicial knowledge, it was submitted on their behalf that, judged by the standards of the reasonable institutional child abuse victim, the present reclaimers would not appreciate that they might have a claim for damages until alerted to the possibility of bringing proceedings by a series of newspaper articles regarding Nazareth House, the first of which appeared on 18 May 1997. (The media publicity in question is summarised in the opinion of Lord Drummond Young in these actions, paras 43-48.) Since proceedings were commenced within three years of the publication of the first of those articles, it was submitted that the claims were not time-barred. Until alerted by the press to the possibility that they could claim damages in civil court proceedings, the reclaimers were not aware, and could not reasonably practicably have become aware, that their injuries were sufficiently serious to justify their bringing an action of damages. As already mentioned, in support of the general thrust of this submission counsel for the reclaimers pointed to the employment in sub-head (i) of sec 17(2)(b) of the possessive adjective ‘his’ before the gerund ‘bringing an action’. Counsel further referred to the observation of Lord Caplan in  Blake v Lothian Health Board  (p 1251E-F): ‘The word “his” in the statute may be significant as it may relate to the personal situation of the claimant (in contradistinction to a phrase such as “the bringing of an action”).’ [24] The response of counsel for the respondents to this branch of the reclaimers’ argument may be summarised as follows. Irrespective whether one was concerned with actual awareness or constructive awareness, the awareness in issue in sec 17(2)(b) was of certain specified statutory facts, isolated by certain statutory assumptions defining those facts. But the three facts identified in sub-heads (i) to (iii) of sec 17(2)(b) were indeed facts. Appreciation of the possibility of bringing a claim was not a fact. The argument for the reclaimers was an attempt to advance again the argument for the pursuer in  McIntyre v Armitage Shanks Ltd , an argument which failed, the failure being confirmed in what are now the relevant statutory provisions. Properly construed, sub-head (i) was concerned with awareness of the extent of injury, in terms of quantum, that is to say whether in monetary terms the injury was of sufficient extent to be worth the trouble of suing on the statutory assumptions. Awareness of the possibility of resorting to litigation was excluded by virtue of sec 22(3) of the Act.

Discussion

[25] In our opinion the submission of counsel for the respondents on this branch of the argument is to be preferred. As was cogently pointed out by their senior counsel, sub-head (i) of sec 17(2)(b) requires one to assume that liability for the claim is not disputed and that the defender is able to meet the claim; and those two assumptions, together with the provisions of sec 22(3) (absence of awareness of actionability irrelevant), reflect and illuminate the nature of this statutory fact. Since the fact is not concerned with liability or solvency (since both must be assumed), or with knowledge of actionability, the sub-head is concerned only with the extent of the injury, in terms of quantum of damages. In other words, the actual or constructive awareness in relation to this sub-head is awareness that injury has been suffered which is sufficiently serious to be above a minimum threshold in terms of quantum of damages. Time does not run against a claimant who lacks actual or constructive awareness that he has suffered injury or that the gravity of his injury is sufficient to bring it above the minimum – and quite low – threshold of justifying proceedings on the assumptions of admitted liability and a solvent defender.

[26] Whether the likely amount of damages would justify taking proceedings no doubt involves some element of judgment, particularly in marginal cases and, as Lord Caplan noted in  Blake v Lothian Health Board , there are inevitably some inconveniences in taking legal proceedings, even if liability is admitted and the defender is good for the eventual decree. It will also be the case that, as was observed in  Carnegie v Lord Advocate  (per Lord Johnston, p 812, para 16), some subjective, or perhaps more properly, individual personal features may enter into the assessment of quantum in that, by way of further exemplification of the instances mentioned by Lord Johnston, injury to a finger may be of much greater consequence to a concert pianist than to someone whose work and hobbies do not involve fine finger movements. But subject to those observations we consider that the statute can only be construed as intending sub-head (i) to be concerned with quantum, an objective assessment having to be made whether the gravity of the injury to the pursuer in question was such that it would have justified proceedings on the statutory assumptions of undisputed liability and a solvent defender. The sub-head is concerned with a single fact, namely the severity of the injury in so far as the pursuer was aware of it or could reasonably practicably have become aware of it. Having regard to the structure of the legislation we are unable to see that the draftsman’s employment of the word ‘his’ before the words ‘bringing the action’ amounts to more than a careful attention to grammar, but if it is thought to import some personal element, that is accounted for by the fact that, as explained in  Carnegie , the importance of the injury may import personal considerations applicable to the particular pursuer. We would add that all of the Scottish authorities to which we were referred in connection with this aspect of the case are consistent with the foregoing interpretation of sub-head (i) of sec 17(2)(b) head (i). Those authorities include  Agnew v Scott Lithgow Ltd (No 2) ,  Carnegie ,  M v O’Neill  and  Godfrey v Quarriers Homes . [27] As already noted, in advancing the contention that sub-head (i) of sec 17(2)(b) of the Act involved a ‘litigation factor’, counsel for the reclaimers urged us to follow the approach adopted by the Court of Appeal in relation to this aspect in  KR v Bryn Alyn Community (Holdings) Ltd , but, recognising subsequent developments, qualified this invitation to that of following that approach subject only to such modifications to it as might be required by the opinions delivered in the House of Lords in  Adams v Bracknell Forest Borough Council . In this respect we would observe, first, that while the general legislative policy might be similar, the precise terms of the Limitation Act 1980 do differ from those of the applicable legislation in Scotland and those differences may possibly have enabled the members of the court in  Bryn Alyn  to reach a conclusion not available on a construction of the Scottish legislation. More importantly, even in its construction of the legislation in England and Wales, the  Bryn Alyn  decision is not without significant difficulty. It was, as we have indicated, accepted by senior counsel for the reclaimers that its reasoning required to be modified or qualified in the light of the opinions delivered in  Adams v Bracknell Forest Borough Council . Further, the correctness of what was said in  Bryn Alyn  is put in some doubt by the observations and reservations expressed by a differently constituted bench of the Court of Appeal in  Catholic Care (Diocese of Leeds) and anr v Young , to which we were also referred. We would also add that very shortly after the hearing of these reclaiming motions, the soundness of the relevant part of the judgment of the Court of Appeal in  Bryn Alyn  was further questioned by another bench of the Court of Appeal in  McCoubrey v Secretary of State for Defence . In these circumstances we do not consider that the  Bryn Alyn  case provides any real persuasive assistance on the interpretation of sec 17(2)(b) of the Act, which governs the present cases.

[28] However, when one turns to the pleadings for each of the reclaimers we consider that, as was submitted by counsel for the respondents, it is clear that on any view the pleadings do not attempt relevantly to engage sec 17(2)(b) of the Act. It is true that each action contains (if not identically, at least similarly) the following short averments:

‘Section 17(2) (the three year limitation) does not apply in the three year period after the pursuer attained her majority. It does not apply until 1998 when the pursuer was diagnosed as suffering from PTSD arising from experiences in the home. Prior to that date the pursuer did not become aware, nor was it reasonably practicable for her in all the circumstances to become aware (i) that her injuries were sufficiently seriously to justify her bringing an action of damages and (ii) that her injuries were attributable to her experiences in said home. Reference is made to section 17(2)(b).’

However, on examination of the pleadings it is clear that they do not seek in any meaningful way to advance a case that until a date subsequent to May 1997 the respective reclaimers were unaware, and could not reasonably practicably have become aware, that the injuries which they had suffered were of sufficient gravity to warrant proceedings on the statutory assumptions. It is not said, for example, that damages for the physical injury sustained at the time of the alleged assaults while in the respondents’ care would have been of insufficient amount to justify proceeding at that time but that, subsequent to May 1997, a previously latent serious injury emerged which then rendered the taking of proceedings justified on the same statutory assumptions. Nor is it said that there was any unawareness of the extent of injury which could not be overcome by the taking of reasonably practicable steps. On the contrary, the averments for the respective reclaimers contend for an immediate and thereafter successive continuing injury in the shape of the initial alleged physical assaults and other deficits in the standard of care, leading to psychological difficulties; the loss of employment opportunities; and loss of earnings following their leaving Nazareth House.

[29] At the outset of this opinion we sketched, in brief terms, the nature of the injury and loss claimed by the reclaimers. Although there are of course some differences of detail in the averments of loss in each of the three actions, in order to illustrate more fully the nature of the claims and in amplification of what is said in the preceding paragraph, it is sufficient to quote the averments of loss contained in the first-mentioned case AB

‘The pursuer was injured by said assaults. The pursuer felt pain on being assaulted. She felt humiliated. She felt degraded. She experienced fear and distress when she witnessed the assault of other children. Witnessing of the assaults of the others added to her feelings of powerlessness. She had an unhappy childhood. She was not treated with affection. She was not praised. She was not treated with dignity. She had and continues to have no confidence in herself. She was not taught to value herself. Much of her childhood was spent in fear. She missed out on contact with her siblings. She has suffered psychologically for many years. She has suffered severe symptoms of anxiety and clinical depression. She has suffered intrusive thoughts about her experiences. She has made many conscious attempts to avoid such thoughts. Her symptoms are similar to PTSD symptoms. Her symptoms fulfil the criteria for PTSD. She has suffered from bulimia. She had a breakdown in 1996. She has been prescribed Prozac. She has been prescribed Valium. She does not feel safe outside her home. She has difficulty functioning in any area of life outwith her own home. She has to take taxis to and from work. Her estranged husband and her children have to go to the shops for her. She has a very poor quality of life. She was unprepared for life outside the home. She has difficulties in forming relationships. She has now separated from her husband. She no longer has any relationship with her brother and two sisters. She is anxious in bringing up her children. She makes them hurry through meals, homework and bath time. She cannot cook certain foods which she associates with the home. She baths twice a day. She bathed more frequently during her pregnancies. She is anxious that she will wet the bed. Her memories of bed wetting cause her to go to the lavatory repeatedly before going to sleep each night. She has difficulty sleeping. She has difficulty concentrating. The pursuer was not a rebellious teenager. She enjoyed reading. She studied hard. She passed her prelims. She was expected to pass her ‘O’ Grades. She left the home before she sat her ‘O’ Grades. She was unable to sit her ‘O’ Grades. Her intellectual functioning is in the high average range. She could have participated in tertiary education. Instead, her only employment has been as a machinist, cleaner and meat packer. Her income has been reduced and continues to be reduced.

[30] It is also the case that, as already indicated, the pleadings for the respective reclaimers do not properly seek to raise any issue of constructive awareness in terms of the legislation. On the contrary, the pleadings for the pursuers plainly disclose circumstances of actual awareness of the statutory facts prior to the triennium ante-dating the commencement of proceedings.

[31] Thus, in the case of AB, against the background of the averments of loss already quoted, it is averred on her behalf that in 1996: ‘She told her GP, Dr. [D] about some of her childhood. Her GP referred her to a psychologist. The pursuer was not ready to disclose her memories to the psychologist. She suffered a breakdown in 1996.’ It is further averred on behalf of AB that in 1996 she approached the Daily Record newspaper with a view to their publishing an account of her experiences in the home but the Daily Record declined to publish that story unless she would pose for a photograph (which she was unwilling to do). As respects the reclaimer EF, the averments made on her behalf disclose attendance at psychologists, albeit with a reluctance to disclose her experiences, at times well before May 1997. It is also averred that in 1993 EF returned to Nazareth House to discuss her experiences with the Mother Superior. In 1995 she went into a Catholic Church and spoke to a priest concerning her experiences in the home because she wished to be able to forgive the nuns. As respects the reclaimer CD whose case was recognised by counsel for the respondents as being more marginal on the questions of actual knowledge evident from the pleadings, it was nonetheless averred that in March 1997 the reclaimer required antidepressant medication, but there was nothing in the averments on behalf of CD to suggest that he was other than aware of the alleged mistreatment, its alleged consequences upon him over the years and its link to his need for treatment in March 1997. No separate argument as respects CD was addressed to Lord Johnston by counsel for the reclaimers.

[32] We therefore consider that Lord Johnston was entirely justified in proceeding, as he did, on the view that the pleadings for the reclaimers did not relevantly disclose any issue respecting the starting date for the effluxion of time in terms of sec 17(2)(b). Issues respecting whether the reclaimers lacked knowledge that the statutory facts (of which they were aware) gave ground for legal liability in damages, or whether it was reasonable for them, in their circumstances, not to apply their minds to the possibility of taking legal proceedings are factors which may properly and legitimately be considered in the exercise of the sec 19A discretion, but, as we have already indicated, they do not enter into a consideration of the extended starting date for the triennium by reason of lack of awareness, actual or constructive, of the three statutory facts.

[33] Although Lord Johnston’s decision naturally proceeded only upon the basis of averments in the pleadings for the reclaimers, we would record that we were taken by counsel for both sides to various passages in the transcript of the evidence subsequently led before Lord Drummond Young. We have already noted our concerns about the proposition that evidence led for the purposes of a sec 19A


inquiry should subsequently be used for different purposes. However, in the event, we would simply observe that, given the construction of sec 17(2)(b)(i) which we favour, none of the passages to which we were referred controverted the averments in the reclaimers’ respective pleadings which disclosed actual awareness of the statutory facts prior to May 1997. We do not consider it is necessary to refer to these passages in any detail, even if it were appropriate to do so.

[34] Before turning to the submissions respecting the decision of Lord Drummond Young on the exercise of the discretion under sec 19A we should further record that counsel for the respondents did not accept the contention of their counsel that the reclaimers belonged to a class – ‘the reasonable institutional child abuse victim’ – subject to a ‘silencing effect’ said to be within judicial knowledge. As senior counsel for the respondents pointed out, this construct did not accord with the circumstances of the present reclaimers as disclosed by their averments, and their evidence. Thus, at a date well in advance of May 1997 and the appearance of the articles in the press, EF was able to go to Nazareth House and speak to the mother superior; at the same time she consulted her general medical practitioner about her problems and experiences; and sought religious counselling because of the effect on her health. AB wrote in 1994 a letter to her general medical practitioner attributing her then current problems to her childhood experience at Nazareth House. Also, as we have already mentioned, she went to the Daily Record with a view to a press exposé of her mistreatment. Accordingly, it could not be said that either of these pursuers was subject to a ‘silencing effect’. It also appears that CD was able, though reluctant, to tell his solicitor and later his girlfriend and general medical practitioner of his experiences and to relate his problems to those experiences well in advance of May 1997.

[35] We acknowledge that in the unreported decision of the Court of Appeal (Civil Division) in  Ablett v Devon County Council  it was said in the context of allegations of sexual abuse (absent in these cases) that:

‘[I]t is in the nature of abuse of children by adults that it creates shame, fear and confusion, and these in turn produce silence. Silence is known to be one of the most pernicious fruits of abuse.’

However, we do not consider that matters can be so simplified. We agree with counsel for the respondents that the circumstances of the current reclaimers are not consistent with the paradigm or construct of the standard ‘institutional child abuse victim’ advanced at the bar by counsel for the reclaimers. There are differences between individual cases. As is indicated in the speeches in  Adams v Bracknell Forest Borough Council , were it to be contended that the original insult produced a special medical or psychiatric difficulty in the recall of events or their narration to others, that requires to be instructed by appropriate expert evidence. In the proof before Lord Drummond Young that exercise was essayed, but in the event in light of the whole expert evidence the essay was, from the reclaimers’ standpoint, not successful. We are thus unable to accept the assertion of counsel for the reclaimers that there is a special class of abuse victims for whom it is to be taken as a matter of judicial knowledge that there is a ‘silencing effect’.

[36] It is also to be noted that in his opinion Lord Johnston observed (para 5) that insofar as the decision in  Carnegie v Lord Advocate  determined that the emergence of a distinct and specific form of injury might provide a separate starting date for the running of the limitation period, on the averments made in the present cases, a


 Carnegie  type case was not open to the pursuers. Although the soundness of this aspect of the decision in  Carnegie  was the subject of some discussion before us, we understood it ultimately to be accepted by counsel for the reclaimers that the pleadings did not proceed upon the basis of the existence of discrete starting dates for distinct injuries. In these circumstances it has not been necessary for us to form a view on whether this aspect of the  Carnegie  decision was sound and we reserve our opinion on this matter. [37] We turn now to consider the reclaiming motions directed against the interlocutor of Lord Drummond Young in the three cases before us.

Lord Drummond Young’s interlocutors

[38] As already indicated, these are the three respective interlocutors against which the reclaiming motions are taken. In each of the three actions, following the preliminary proof heard by him, Lord Drummond Young by these interlocutors refused leave to bring the proceedings in terms of sec 19A of the Act.

Lord Drummond Young’s opinion

[39] In a very full and careful opinion Lord Drummond Young gave his reasons for coming to that decision. Having regard to the reclaimers’ grounds of appeal and the submissions that were made to us in relation to that decision and to provide a proper context for them, we think it appropriate to try to give a relatively full summary of his approach and conclusions.

[40] After setting out the factual and legal circumstances of the present actions in some detail Lord Drummond Young turned to consider the general approach of the law to questions of limitation. First, he considered the policy underlying limitation statutes in general. Secondly, he gave more detailed consideration to the factors that might be relevant in an application under sec 19A by reference to cases decided both in Scotland and under the equivalent English legislation.

[41] In relation to the policy underlying limitation statutes in general he found the most helpful discussion to be that by McHugh J in  Brisbane Regional Health Authority v Taylor , a decision of the High Court of Australia in a personal injury case on the ground of alleged medical negligence. He quoted extensively from the judgment of McHugh J in that case and commented on the views expressed there in the context of the present actions.

[42] After noting that the applicant for an extension of time bears the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour McHugh J stated (p 551) that the discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. He continued (p 552) as follows:

‘The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing


that they have no liabilities beyond a definite period. As the New South Wales Law Reform Commission has pointed out (Limitation of Actions for Personal Injury Claims ((1986) LRC 50, page 3):

“The potential defendant is thus able to make the most productive use of his or her resources and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided. To that extent the public interest is also served.”

Even where the cause of action relates to personal injuries, it will be often be just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.’

[43] Lord Drummond Young was of the opinion that these rationales were manifestly relevant to the interpretation of the limitation provisions of the Prescription and Limitation (Scotland) Act 1973, as amended. In his view all of them applied to the present cases. Lord Drummond Young also commented on two further aspects of the judgment of McHugh J. The first was his comment that important, and perhaps decisive, evidence may have disappeared without anyone now ‘knowing’ that it ever existed. That consideration was particularly important, in Lord Drummond Young’s view, in a case where events occurred more than 20 years before any action was raised, and where the actual disputes were likely to relate not merely to one or two vivid incidents but to the everyday currency of the daily life of those involved. The present cases were of that nature. Secondly, McHugh J pointed out that a limitation period should not be seen as an arbitrary cut-off point unrelated to the demands of justice or the general welfare of society. It represented rather the considered judgment of the legislature that the welfare of society is best served if causes of action are litigated within the specified period. The limitation period was therefore to be regarded as the general rule. Lord Drummond Young was of the view that from this it followed that the onus was on the reclaimer to establish that in his or her case it was equitable that an extension be granted. And in determining whether an extension should be granted the court must evaluate the injustice or prejudice that either side might suffer by reference to the rationales that underlay the limitation provisions in the Act.

[44] McHugh J went on to consider the issue of such prejudice. To hold that the test for prejudice was whether an order extending time would make the defendant any worse off than it would have been if the action had been commenced within, but towards the end of, the limitation period was not, he said, the correct approach. That did not take sufficient account of the second, third and fourth rationales of limitation periods to which he had referred earlier. If the action had been brought within the limitation period it would have been irrelevant that the defendant might have had difficulty in defending itself by reason of a witness’s failure of recollection. But once the potential liability of the defendant had ended with the expiry of the limitation period, its capacity to obtain a fair trial, if an extension of time were granted, was relevant and important. In the view of McHugh J (p 555):

‘[T]he justice of a plaintiff’s claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action.’


He went on to explain his reason for this conclusion as follows:

‘Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff’s right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff’s action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period.’

[45] Lord Drummond Young considered that approach to be highly pertinent to the present case. He noted that it was closely paralleled in Scotland by the opinion of the court delivered by Lord President Hope in  McCabe v McLellan  (p 98).

[46] Lord Drummond Young next considered the factors which may be relevant in a sec 19A application. He did so by reference to the decided cases brought under sec 19A and also under the equivalent (although differently worded) English provision. He noted, first, that the court has a general discretion under sec 19A ( Donald v Rutherford ). Secondly, the onus is on the pursuer to satisfy the court that it would be equitable to allow the action to be brought ( Thompson v Brown ). Thirdly, the conduct of a pursuer’s solicitor, for which the pursuer must take the consequences, may be relevant ( Forsyth v AF Stoddart and Co Ltd ). Fourthly, further relevant factors which the court may take into account include the conduct of the pursuer since the accident (or other event causing injury) and up to the time of his seeking the court’s authority to bring the action out of time, including any explanation for his not having brought the action timeously; and any likely prejudice to the pursuer, on the one hand, if the action were not allowed to be brought out of time and to the defender, on the other hand, if it were allowed to be brought out of time ( Carson v Howard Doris Ltd ). Fifthly, each case ultimately turns on its own facts, even if a number of claimants present similar claims against the same person ( KR v Bryn Alyn Community (Holdings) Ltd ).

[47] Lord Drummond Young then considered the significance of a pursuer’s ignorance of the legal right to claim damages. He said (para 30):

‘This must obviously be distinguished from the pursuer’s ignorance of facts that are material to his or her claim; ignorance of facts is dealt with by sec 17 of the 1973 Act. It is clear that ignorance of a legal right is a material circumstance in the exercise that a court must perform under sec 19A. Indeed,  McIntyre v Armitage Shanks Ltd , the decision of the House of Lords that prompted the enactment of sec 19A, was a case where the pursuer was ignorant of the existence of a right of action, albeit one induced by statements made by a trade union official.’

He went on to note that there appeared to be only one decided case where ignorance of the existence of a legal right was treated as decisive in allowing an action to proceed. This was  Comber v Greater Glasgow Health Board . That case, however, was a fairly extreme one and must therefore be seen as somewhat exceptional. It was distinguished in  Kane v Argyll and Clyde Health Board .

[48] Lord Drummond Young then considered in some detail  KR v Bryn Alyn Community (Holdings) Ltd . That case had a close parallel with the present actions


because it involved fourteen claims for damages for abuse suffered by children in care homes. The court held that the judge at first instance had misdirected himself. The matter was therefore at large for the Court of Appeal. The court exercised its discretion to allow five of the fourteen claims to proceed. Lord Drummond Young considered in some detail five (not the same five) of the fourteen claims which were allowed to proceed under the judicial discretionary power in order to illustrate the approach taken by the Court of Appeal. He then considered the later English cases of  Adams v Bracknell Forest Borough Council ,  T v Boys and Girls Welfare Service , the unreported Scottish case of  Lannigan v Glasgow City Council  and the Canadian case of  KM v HM . [49] In the following section of his opinion Lord Drummond Young narrated the history of events which had prompted claims against the respondents (as we noted earlier, we were informed that there were several hundred of these). This consisted of media publicity in the form of a number of newspaper articles, the first of which appeared on 18 May 1997, subsequent publicity continuing into 1998. These made detailed allegations of abuse in Nazareth House in Cardonald said to have occurred many years earlier. A number of individuals who had allegedly suffered abuse were named. A named lawyer was quoted as saying that these allegations could lead to claims for compensation of up to £100,000. The story was later taken up by BBC Scotland. In February 1998 they broadcast a ‘Frontline Scotland’ television programme dealing with the issue but the children’s homes concerned, while run by the second respondents, were in other parts of Scotland, not Cardonald.

[50] Having dealt with those relatively general issues, Lord Drummond Young then turned in some detail to the evidence of the three reclaimers explaining their reasons for not making any claim at an earlier stage. In summary, these were because, in the case of AB, she thought she would not be believed; she was not familiar with lawyers and did not realise until she read the newspaper articles that she could bring court proceedings against the respondents. In the case of CD, it brought back very unhappy memories; he thought he would not be believed; and he felt embarrassed and ashamed. In the case of EF, she thought she would not be believed and she was afraid to make any complaint as a result of what one of the nuns had said to her when she left the home.

[51] This chapter was followed by consideration of possible psychological explanations for delay in raising proceedings. In a lengthy passage Lord Drummond Young summarised the evidence given by two experts, Dr Ian Tierney, a chartered clinical psychologist, on behalf of the reclaimers and Dr Janet Boakes, a consultant psychiatrist and psychotherapist, on behalf of the respondents. He quoted Dr Tierney’s overall conclusion as follows (opinion, para 76):

‘Various reasons described above (paras 68-73) are likely to have either prevented or severely restricted these 3 individuals, from making a complaint about the gross childhood abuse they had suffered, both between the ages of 18 and 21 years, and subsequently. When viewed in the light of fear of, or compliance towards, members of the religious order involved, these constraints indicate that a complaint to the authorities was unlikely. That those involved did so finally when, as much older individuals, the media disclosed their history of gross childhood abuse for them, and they could therefore speak as a group, is understandable in the light of the many blighted, and lonely, lives produced by the abuse.’

[52] Dr Boakes, on the other hand, disagreed. She criticised some of the material relied on by Dr Tierney. Her opinion was that survivors of trauma were normally


able to recall what happened to them, even if they wished that they could forget. The three reclaimers had been able to recall what happened to them, and had mentioned it to various individuals; consequently any psychological explanation for an inability to remember was beside the point. Such individuals might be reluctant to speak, but that was simply because recalling events made them embarrassed or upset; no complicated psychological explanation was required (see Lord Drummond Young’s opinion, para 93.1). Lord Drummond Young preferred the evidence of Dr Boakes. Her approach seemed to him to accord with commonsense. Moreover, it fitted the facts of the present case, and in particular the ability of all three reclaimers to remember what had happened and to speak about it to other persons. Lord Drummond Young therefore concluded that no general psychological or other medical explanation had been established for the reclaimers’ delay in reporting the abuse they said they suffered in Nazareth House. Nevertheless, he accepted that there was a degree of force in some of Dr Tierney’s suggested reasons for that delay. In particular, he accepted that all three reclaimers suffered from depression and lack of self-esteem or self-confidence. CD had been in prison on a number of occasions between the ages of 18 and 21 and drank to excess during that period. AB was not prepared for life outside Nazareth House, and had serious family difficulties between the ages of 18 and 21. EF had a number of low-paid jobs and abusive relationships. These factors were relevant to the failure of all three reclaimers to make complaints.

[53] Concluding this part of his opinion, Lord Drummond Young noted that in relation to the injuries which the reclaimers claimed to have suffered as a result of their treatment in Nazareth House, their principal complaint was of psychological injury, with resulting difficulties in forming and maintaining personal relationships and in obtaining employment. But on the evidence their psychological problems in adult life could not be unambiguously related to their treatment while they were in Nazareth House. Lord Drummond Young continued (para 98):

‘Part of the explanation may lie in the reclaimers’ home backgrounds, either through genetic factors or because of their experiences at home before they were taken into care. It may also lie in other experiences that the reclaimers had in childhood or adolescence, unrelated to Nazareth House. At any proof on the merits of the reclaimers’ claims, therefore, an important task facing the court will be to separate the effects of physical abuse by persons for whom the respondents are responsible from the effects of the reclaimers’ family backgrounds and other experiences. A further task may be to separate the effects of physical abuse in Nazareth House from the general effects of institutional care’.

[54] Lord Drummond Young then set out his conclusions on the explanations tendered for the delay in raising proceedings, having first narrated counsel’s submissions on the matter. He accepted (para 109) that all three reclaimers suffered personal and psychological problems which would tend to inhibit them from raising court proceedings, both between the ages of 18 and 21 and subsequently; that all three reclaimers did not think that they would be believed if they made complaints about their treatment in Nazareth House, between the ages of 18 and 21 and for at least a substantial number of years thereafter; and that the reclaimers did not consciously realise until 1997 that they could raise legal proceedings against the respondents, although that was the result of lack of thought rather than consideration and rejection of proceedings. He accepted that all of these factors provided some explanation for the failure to raise proceedings before 1997.


[55] Lord Drummond Young then turned to other matters which he considered relevant to the exercise of the sec 19A discretion.

[56] The first of these was prejudice caused by lapse of time. He noted that the events complained of by the reclaimers occurred between 1961 and 1979; thus the events began 39 years and ended 21 years before the actions were raised. Even allowing for sec 17(3) of the Act, which discounts the periods when the reclaimers were under legal disability by reason of nonage, the relevant limitation periods expired in 1981 for AB, in 1990 for CD and in 1974 for EF. So the delay in raising the actions beyond the statutory limitation period was a minimum of 10 years. His Lordship was of the opinion that these periods of delay were so long that a serious decline in the quality of justice was inevitable. That decline related not merely to the evidence that was directly available from the reclaimers and other witnesses to events. Because of the long periods that had elapsed, it was likely that substantial evidence would have been lost and no one would remember that such evidence ever existed. That inevitably would have a serious effect on the cross-examination of witnesses. Thus it would be impossible to test the evidence effectively and the court could not be confident that it was obtaining an accurate picture of events (see Lord Drummond Young’s opinion, para 111).

[57] The Lord Ordinary was further of the opinion that the simple length of the delay was important in these cases for other reasons which he had previously discussed. He said this (para 113):

‘I am further of opinion that the simple length of the delay is important in the present cases for the reasons discussed above (paras 22, 23, 98). In the first place, attitudes to the physical punishment of children have changed dramatically in the past 30 years or so. It is very difficult today to reconstruct the social attitudes of 30, 40 or 50 years ago. In this respect, it seems to me that there is an inevitable and serious decline in the quality of justice. In the second place, it is clear that all three reclaimers suffered to some degree from the effects of institutional care; matters such as the lack of affection from those in charge of the children and the harsh and inflexible nature of the régime plainly had an effect on them. Institutions like Nazareth House no longer exist in the United Kingdom, fostering having replaced them. When one looks at the life histories of the reclaimers it is perhaps easy to see why this change has taken place. Nevertheless, reconstructing the impact of institutional care on the individual reclaimers, 30 or 40 years after the event, is a task of extreme difficulty. It is a task that would have to be performed, however, because the reclaimers’ legal complaints must relate to physical abuse rather than the general effects of institutionalization; institutional care was normal at that time, and cannot of itself be a ground of fault. In the third place, for the reasons set out (para 98), it would be necessary at any proof on the merits of the reclaimers’ claims to consider the effect that their home backgrounds and other traumatic incidents might have had on their unfortunate life histories. Once again, this is an exercise that would have to be carried out 25 years and more after the event. Once again, a serious decline in the quality of justice seems to be inevitable owing to the lapse of time.’

He concluded (para 116) that in these cases the length of time which had elapsed was sufficient by itself, without regard to any specific prejudice to the respondents, to make it inequitable to allow the reclaimers’ actions to proceed. Twenty-one years had elapsed between the date of the latest of the their allegations and the raising of the present actions. After such a period he was of the opinion that a major decline in the quality of justice was inevitable. That by itself greatly outweighed the reasons described in para 109 for the reclaimers’ failure to raise actions within the limitation period.


[58] Secondly, Lord Drummond Young considered the question of prejudice caused by changes in the law since the statutory time-limits expired. He noted the case of  Lister v Hesley Hall Ltd , which substantially extended the previously accepted view of the law of vicarious liability for the criminal acts of employees and other agents. In that case employers were held vicariously liable where the care of children was entrusted to an employee and the employee abused his position of trust. Previously it was generally understood that this would be unlikely to give rise to vicarious liability because the criminal acts in question were not within the scope of the perpetrator’s employment. Lord Drummond Young concluded that there was significant prejudice to the respondents as a result of this change in the law.

[59] Thirdly, he considered the question of prejudice caused to the respondents by loss of evidence. It was clear that the delay in raising the present actions had deprived them of the opportunity to trace many relevant witnesses and to recover a number of relevant documents. On the basis of the evidence which he heard in relation to this matter Lord Drummond Young made detailed findings in fact. In summary, he found (para 124) that the respondents were seriously prejudiced by the non-availability of witnesses, the absence of documents, and the inability of such witnesses as had been traced to remember specific details of what happened at Nazareth House during the 1960s and 1970s. Citing authorities to which he had referred earlier, he continued as follows (para 124):

‘These authorities make it clear that actual prejudice, even of a fairly limited nature, will usually be sufficient to preclude any extension of the limitation period. In the present case I am of opinion that actual prejudice to the defenders has been shown. I consider such prejudice to be clear, and also to be serious. In these circumstances I am of opinion that the existence of such prejudice is by itself a sufficient reason for not allowing the actions to be brought under sec 19A. That is so notwithstanding the reasons for the failure to raise actions timeously, as summarised in para 109.’

[60] Fourthly, Lord Drummond Young considered the question of prejudice caused to the respondents in relation to the scale of the litigation and the recoverability of expenses. He was satisfied that significant prejudice would be caused to them by the scale of the litigation involved in the present actions. The expense of defending them was likely to be very great and could be described as disproportionately large by comparison with the likely value of the reclaimers’ claims. This was a factor which Lord Drummond Young took into account in exercising his discretion, although he did not regard it as conclusive in itself. A further relevant factor which prejudiced the respondents was that since the reclaimers were all legally aided the respondents were unlikely to be able to recover their expenses if they were to succeed in their defence to the actions.

[61] Fifthly, Lord Drummond Young considered the question of prejudice caused to the respondents by media publicity and the methods used to investigate the claims. He concluded that the media publicity in 1997 and 1998 gave rise to a risk of prejudice to them. In particular, there was an obvious risk that the statements in the press attributed to a prominent solicitor that compensation could be of the order of £100,000 could lead to ill-founded or exaggerated claims. Lord Drummond Young did not consider the risk to be sufficient by itself to lead to the refusal of a sec 19A application. It was, however, a relevant factor to be taken into account. He came to a similar conclusion in relation to the methods used by the reclaimers’ Glasgow solicitors in preparing the present cases. These had involved the use of ‘tick list’


questionnaires to discover the nature of the allegations made by claimants. The risk of prejudice in relation to that matter, however, was a fairly minor one. [62] Sixthly, Lord Drummond Young considered the question of prejudice to the parties through loss of their legal rights. He noted that if the discretion under sec 19A were not exercised in the reclaimers’ favour, they would lose any right to compensation. On the other hand, if the discretion were exercised, the respondents would lose their right to rely on the defence of limitation. Lord Drummond Young was of the opinion that these elements should be balanced against the background that the limitation period was the norm enacted by the legislature and that the discretion under sec 19A was an exception to the norm. Consequently, the onus was on the reclaimers to satisfy the court that special circumstances existed, which justified the exception.

[63] Finally, Lord Drummond Young considered the conduct of the parties’ solicitors since 1997 but found nothing in their conduct which was a significant factor in reaching his decision.

[64] Lord Drummond Young decided to exercise his discretion under sec 19A in favour of the respondents and to refuse to allow the reclaimers to bring the present actions. He considered that the two principal reasons for his decision, namely, the length of time that had elapsed since the events complained of and the actual prejudice which the respondents demonstrated caused by loss of evidence, were extremely powerful. He regarded either of these reasons by itself as sufficient to refuse to allow the actions to proceed (para 143).

Submissions of counsel

[65] Junior counsel for the reclaimers submitted first that Lord Drummond Young had erred in law by restricting the scope of the preliminary proof in a way which Lord Johnston had not envisaged when he ordered it. Lord Drummond Young had restricted himself to the narrow interpretation of sec 19A of the Act and excluded what were described as sec 17(2) issues. These issues related to the reasons and, in particular, the psychological reasons which it was said led to the reclaimers acquiring the knowledge (or constructive knowledge) only after many years that the injuries they complained of were sufficiently serious to justify their bringing the present actions. Lord Johnston had held that those reasons were not relevant for the purposes of sec 17(2)(b)(i). The question raised by that provision had to be determined by the facts of each case. The question was at what date had the requisite knowledge or constructive knowledge been acquired as a matter of fact. The reasons why it had been acquired then rather than at some other date were irrelevant for the purposes of sec 17(2)(b)(i). But those reasons were relevant for the purposes of sec 19A. She referred to Lord Johnston’s opinion (para 15). In considering in which way to exercise his discretion under sec 19A, however, Lord Drummond Young made no allowance for the fact that until May 1997 (when the first newspaper articles appeared in the press) the reclaimers did not know that they could raise an action in respect of their treatment in Nazareth House. He had followed the unduly restrictive approach to the English equivalent to sec 19A adopted by the Court of Appeal in  KR v Bryn Alyn Community (Holdings) Ltd . Reference was made to paras 35 and 106 of his opinion.

[66] Junior counsel further submitted that Lord Drummond Young’s approach to sec 19A was flawed in that he failed to give proper recognition to what was described as the ‘clean hands’ argument put forward on behalf of the reclaimers. At


the stage of preliminary proof it had to be assumed that the respondents were responsible for the abuse of the reclaimers; their averments on that matter had to be taken pro veritate. It was that abuse which had effectively silenced the reclaimers until they gained the confidence to come forward after the media publicity in May 1997. The respondents should not be allowed to rely on the results of their own misdeeds so as to deny the reclaimers a remedy. Reference was made to  Hawkins v Clayton and ors . Lord Drummond Young had been referred to that case at the preliminary proof but he had not mentioned it in his opinion. He had taken no account of this point when considering the reasons for the reclaimers’ delay in raising proceedings. Reference was made to para 109 of his opinion. In any event, he had not balanced that factor with the other factors relevant to the exercise of discretion under sec 19A. He had therefore not balanced the equities as the exercise of his discretion under sec 19A required him to. Reference was also made to  Donald v Rutherford 

. [67] Junior counsel further criticised Lord Drummond Young for an over-reliance on what was said by McHugh J in  Brisbane Regional Health Authority v Taylor . On its facts that case was so different from the present case that it was of little assistance. The principle in relation to ‘clean hands’ enunciated in  Hawkins v Clayton and ors  formed no part of the rationales identified by McHugh J; and Lord Drummond Young had thus failed to give proper recognition to the principle. Reference was also made to the Canadian case of  KM v HM .

[68] It was submitted next that in exercising his discretion under sec 19A Lord Drummond Young had taken into account a number of factors which were irrelevant. It was irrelevant that the respondents were a charity (see paras 115, 128). This was particularly so in light of the findings in relation to the respondents’ insurance cover (para 139). It was irrelevant to form the view that it would not be in the reclaimers’ best interests to proceed (para 143). In paras 133 and 135 Lord Drummond Young had said that there was a risk of prejudice to the respondents in the form of ill-founded or exaggerated claims arising from the media publicity in 1997 and 1998 and from the methods used by the reclaimers’ Glasgow solicitors in preparing their and other claimants’ cases, but that ran counter to the notion that the reclaimers’ evidence had to be taken pro veritate. It was therefore irrelevant to take account of this matter in the exercise of discretion under sec 19A. In any event, on the evidence there was no such prejudice in the present actions. AB and EF had both set out their allegations in considerable detail before the first newspaper article was published in May 1997. Of the reclaimers CD was the only one who had received a ‘tick list’ questionnaire from the Glasgow solicitors. He did not remember the questions but he did remember being assaulted in Nazareth House. Junior counsel also challenged the Lord Ordinary’s finding of prejudice as a result of changes in the law (paras 117-119). Prior to the decision in  Lister v Hesley Hall Ltd  there could still have been a claim of the kind now made based on the vicarious liability of the respondents. There was expert evidence to that effect. Indeed, the present actions had been raised before  Lister  was decided. All that the decision in  Lister  did was to make the reclaimers’ case based on vicarious liability a little easier to establish.

[69] Junior counsel then submitted that Lord Drummond Young was in error in respect that he had made assumptions as to changes in social attitudes since the 1960s and 1970s and as to the difficulty in assessing evidence against that background (paras 22, 113). He had assumed that corporal punishment was the norm at that time, although in terms of the


Administration of Children’s Homes (Scotland) Regulations 1959 corporal punishment was to be avoided. Moreover, there was evidence that the reclaimers had an expert report as to the standards of care expected and the position of corporal punishment at that time. Lord Drummond Young was also in error in regarding the reclaimers’ actions as being of relatively small value in monetary terms (para 127). Any compensation had to be measured by the injuries suffered, not by the standards of the time (para 22). [70] Junior counsel next submitted that Lord Drummond Young had erred in concluding that the respondents would suffer prejudice because they were unable to trace witnesses and recover documents. On the evidence a number of important witnesses were still available. There was also a considerable amount of relevant contemporaneous documentation. The absence of some witnesses might be prejudicial to the reclaimers rather than the respondents. In concluding that the prejudice caused to the respondents by loss of evidence was by itself a sufficient reason for not allowing the actions to proceed Lord Drummond Young had got the balance wrong. He was also wrong on the evidence to reject the diagnosis of PTSD in relation to AB (paras 93.7, 96).

[71] Since Lord Drummond Young had erred in the exercise of his discretion the matter was at large for this court. Having regard to the serious abuse which the reclaimers claim had taken place, together with the silencing effect of the abuse, which meant that it was the abuse itself which had led to the delay in their coming forward with their actions, the court should now exercise its discretion under sec 19A in their favour.

[72] In response junior counsel for the respondents invited us to hold that Lord Drummond Young had not erred in the exercise of his discretion and to refuse to interfere with his decision. In para 29 of his opinion he had encapsulated the approach in Scots law to sec 19A. There had been no criticism of that. In reviewing a Lord Ordinary’s exercise of discretion an appellate court could interfere only if the Lord Ordinary had misdirected himself or otherwise transgressed the limits of his discretion ( Donald v Rutherford ).

[73] Junior counsel replied to the points made by junior counsel for the reclaimers in a slightly different order. Dealing first with what had been said to be an over-reliance by Lord Drummond Young on what was said by McHugh J in  Brisbane Regional Health Authority v Taylor , junior counsel pointed out that it had not been said that the principles enunciated by McHugh J did not reflect the position in Scotland. It had, however, been said that they were incomplete in that they did not reflect the position in relation to ‘clean hands’. But McHugh J had in fact recognised the point in the passage quoted by Lord Drummond Young, and which we have further quoted at para 44, where McHugh J made it clear that what he had in mind was a defendant ‘who is not guilty of fraud, deception or concealment in respect of the existence of the action’. In  Hawkins v Clayton and ors  in the High Court of Australia only Deane J had decided the case on grounds approximating to the ‘clean hands’ principle; the case was rather concerned with an ongoing wrong. With regard to the Canadian case of  KM v HM  and the consideration that a wrong must be righted, that was plainly implicit in the discussion of discretion by both McHugh J and Lord Drummond Young. If there was no wrong to be righted, there would be no prejudice to the reclaimers at all to consider in the balancing exercise. Any possible difficulty in reconciling McHugh J’s dicta in  Brisbane  with Scots law was removed by Lord President Hope’s observations in  McCabe v McLellan . Reference was also made to Lord Prosser’s observations in  Kane v Argyll and Clyde Health Board .


[74] In relation to the scope of the preliminary proof junior counsel for the respondents submitted that Lord Drummond Young had not excluded what had been described as sec 17(2) issues. In dealing with the case of  KR v Bryn Alyn Community (Holdings) Ltd  all he had said was that where the limitation period had been extended in terms of sec 17 for a particular reason, that reason was not material for the purposes of sec 19A. The reclaimers were unable to point to any sec 17(2) issues which Lord Drummond Young had excluded. In fact, in para 109 he had taken them into account. In para 106 he had not been dealing with these issues but with the reclaimers’ ignorance as to their rights in law.

[75] In response to the submissions that Lord Drummond Young had taken into account a number of matters which were irrelevant, junior counsel for the respondents pointed out that those submissions did not challenge any of the evidence which underlay Lord Drummond Young’s decisions on those matters. It was not irrelevant that the reclaimers were a charity. It was relevant in considering the question of proportionality. In any event, this point was no more than an ‘add-on’ to Lord Drummond Young’s reasons for coming to his conclusion. In para 139 he had merely noted that on the evidence the respondents’ insurance cover might not be total. This was in the context of the reclaimers’ argument that in so far as the respondents were insured they themselves suffered no financial prejudice (see also para 115). Lord Drummond Young’s expression of view (para 143) that it was not genuinely in the reclaimers’ interests to rake over their unhappy memories of childhood, which is what proceeding with their actions would involve, was justified on the evidence of each of the reclaimers. In any event, this was also an ‘add-on’ to Lord Drummond Young’s reasons. With regard to the risk of prejudice to the respondents from the media publicity in 1997 and 1998 and from the use of questionnaires by the reclaimers’ Glasgow solicitors, junior counsel explained that the reclaimers had set up a psychological explanation for the delay in raising their actions. Part of that related to the positive effects of the media publicity in 1997 and 1998, which had given them the strength to come forward. It was part of the respondents’ response to show that there was possibly a less benign effect from that publicity and from the use of the questionnaires. Dr Boakes had given evidence to that effect and it had been accepted by the reclaimers’ solicitor and, to some extent, by Dr Tierney. Lord Drummond Young accepted this evidence. However, the evidence was of a risk of prejudice, not actual prejudice. In coming to his decision (para 143) Lord Drummond Young relied only on actual prejudice. This was therefore another ‘add-on’. It was, however, plainly a relevant factor which Lord Drummond Young was entitled to take into account to the limited extent that he did. He was also entitled to take into account the apparent change in the law brought about by the case of  Lister v Hesley Hall Ltd . Again, however, this was an ‘add-on’.

[76] With regard to what Lord Drummond Young had said as to changes in social attitudes since the 1960s and 1970s and the difficulty in assessing evidence against that background (paras 22, 113), he was entitled to make those observations on the basis of judicial knowledge. In any event, the reclaimers’ expert report had acknowledged those changes in social attitudes. So far as Lord Drummond Young’s observations on the value of the reclaimers’ actions were concerned, on the basis of his experience he was entitled to say that in all the circumstances they were not of high monetary value.

[77] With regard to Lord Drummond Young’s conclusion that the respondents would suffer prejudice because they were unable to trace witnesses and recover documents, there were two points to be made. The first was that


Lord Drummond Young’s findings on this matter were not challenged. The second was that it was a question for him as to how much weight he put on the lost evidence, how seriously he assessed it. He found (para 120) that many relevant witnesses had died or were unable to give evidence and a number of relevant documents were missing. These were specified in para 121. In the last sentence of para 30 the Lord Ordinary had said: ‘What matters … is whether the loss of evidence is material, not whether it is total.’ Junior counsel for the reclaimers had not taken issue with that. As for the Lord Ordinary’s rejection of the diagnosis of PTSD in relation to AB, that was of no moment. It was accepted that what were described as the PTSD-type symptoms were present and that they were a part of the psychological explanation for AB’s delay in bringing her action

. [78] Senior counsel for the reclaimers adopted his junior’s submissions. With regard to the prejudice found by Lord Drummond Young to have been caused to the respondents by the length of the delay in raising the present actions, different policy considerations applied in cases of abuse from those such as  Brisbane Regional Health Authority v Taylor . This was a case where ‘wrongs must be righted’. Reference was made to  X (Minors) v Bedfordshire County Council and ors  and  KM v HM . In the present case Lord Drummond Young had fettered his discretion under sec 19A by wrongly excluding a sec 17(2)(b) factor. In each of the present actions the reclaimer had averred that the delay in raising proceedings was at least in part due to the abuse they had suffered by reason of its silencing effect. Lord Drummond Young had failed to take account of this factor, the ‘clean hands’ argument. He had been referred to  Hawkins v Clayton and ors  by counsel for the reclaimers in the context of sec 19A. He had not addressed that point and so must be taken to have excluded it. Reference was made to  M v O’Neill . In that case Lord Glennie had accepted the argument (para 92). Since sec 19A involved a balancing of the equities, the respondents must have clean hands. Here they did not. In that situation the court should disregard any equities favouring the respondents and concentrate on those favouring the reclaimers. Lord Drummond Young should therefore have allowed the reclaimers to bring their actions under sec 19A.

[79] In reply senior counsel for the respondents also adopted his junior’s submissions. In relation to the ‘clean hands’ argument, he submitted that it had not been overlooked by Lord Drummond Young. The point had been subsumed in the judgment of McHugh J in  Brisbane Regional Health Authority v Taylor  in the passage therefrom quoted by Lord Drummond Young, set out at para 44.  Hawkins v Clayton and ors  was a case of concealment by the solicitor in question. The Canadian case of  KM v HM  was more relevant for present purposes. Lord Drummond Young had considered that case at para 41 of his opinion. He rejected counsel for the reclaimers’ argument that the reasoning of La Forest J (pp 301, 302) in that case applied in the present case. In  M v O’Neill  (which had been reclaimed) Lord Glennie had, on the evidence, rejected the argument that the respondents in that case, by abusing the reclaimer, had caused or contributed to the reclaimer’s failure to bring her action in time. On the evidence in this case the respondents similarly had not caused or contributed to the reclaimers’ failure to bring their actions in time. They had not been silenced by the alleged abuse.

Discussion

[80] As Lord Drummond Young observed (para 29), sec 19A of the Act has been the subject of considerable judicial discussion. As a result it has been clearly


established that the court has a general discretion under the section. There was no dispute between the parties about that. In  Donald v Rutherford  Lord Cameron, with whom the other members of the Extra Division agreed, quoted the section and then said this (p 75):’The test then is whether “it seems equitable” to the court: this, in my opinion, means and can only mean that the discretion thereby conferred upon the court is unfettered.’

Lord Cameron noted that that interpretation was in line with that adopted by the Court of Appeal in England and Wales in  Firman v Ellis  and approved by the House of Lords in  Thompson v Brown  in relation to the equivalent provision in the statute then in force in England and Wales. In the latter case Lord Diplock had said (p 752):

‘The onus of showing that in the particular circumstances of the case it would be equitable to make an exception lies upon the plaintiff; but, subject to that, the court’s discretion to make or refuse an order if it considers it equitable to do so is, in my view, unfettered.’

[81] Lord Cameron expressed the view that these observations were equally applicable to the proper construction of sec 19A and he adopted them. Later in his opinion he said this (p 75):

‘I must emphasise that the discretion of the court is unfettered, although in every case the relaxation of the statutory bar can and must depend solely upon equitable considerations relative to the exercise of a discretionary jurisdiction in the particular case, having regard to the fact that it is for the party seeking relief to satisfy the court that it is, in the view of the court and in the circumstances of the case and of the legitimate rights and interests of the parties, equitable to do so … [T]he primary issue is not whether this court considers it equitable to permit the action to proceed, but whether the Lord Ordinary in the exercise of a discretion unfettered by definition, had misdirected himself in law or otherwise transgressed the limits of the discretion reposed in him so as to permit an appellate court to intervene and set aside his decision.’

(See also  Forsyth v AF Stoddart and Co Ltd ;  Elliot v J & C Finney .)

[82] In the present case Lord Drummond Young began by considering the general approach of the law to questions of limitation. He considered first the policy underlying limitation statutes in general. He found the most helpful discussion of that policy to be that of McHugh J in  Brisbane Regional Health Authority v Taylor , a decision of the High Court of Australia. We are not surprised at his choice. Counsel for the reclaimers did not criticise the substance of anything said by McHugh J and we see no reason not to accept his discussion of the policy as appropriate in the context of Scots law. Nor was Lord Drummond Young’s discussion of what was said by McHugh J subject to any criticism. It was, however, submitted that Lord Drummond Young was in error in relying on what McHugh J said in  Brisbane  in respect that the case was concerned with medical negligence and what was said by McHugh J was therefore said to be of little assistance in an action concerned with historical child abuse. We reject that submission. In our view what McHugh J said in  Brisbane  in the dicta quoted by Lord Drummond Young was not confined to the circumstances of that case but was of general application. We see no reason why his observations should not be found to be of assistance in cases of the present kind. On the contrary, and notwithstanding the use in the authorities of the expression


‘unfettered discretion’, we do not regard the discretion conferred by sec 19A of the Act to be so wide as to justify the decision taker’s disregarding – where it would otherwise be appropriate to take them into account – rationales, such as those identified by McHugh J, which may be applicable to limitation periods generally. We agree with Lord Drummond Young when he said (para 22) that all of the broad rationales for the enactment of limitation periods which were identified by McHugh J apply to the present case

. [83] It was said that the principle in relation to ‘clean hands’ enunciated in  Hawkins v Clayton and ors  formed no part of the rationales identified by McHugh J and that Lord Drummond Young had failed to give proper recognition to the principle. It is convenient to deal with this point at this stage. It is true that McHugh J did not in terms refer to Deane J’s judgment in  Hawkins v Clayton and ors  (and it should be remembered that Deane J was the only member of the Bench of the High Court of Australia in that case who based his judgment on the ‘clean hands’ principle) but it was submitted on behalf of the respondents that he did in effect recognise the principle in the passage at p 555 of his judgment, which is quoted by Lord Drummond Young at para 26 of his opinion and reproduced in para 44 of this opinion. In that passage McHugh J accepted that the defendant must not be guilty of fraud, deception or concealment (none of which is alleged of the respondents in this case). To that extent he was acknowledging that the defendant must have clean hands. Whether he also had in mind the particular aspect of the ‘clean hands’ principle which is contended for in this case, namely, that it was the alleged wrongful act itself – the alleged abuse in this case – which caused the delay in bringing proceedings is more open to doubt since, of course, that was not a live point in  Brisbane . But so far as the criticism made of Lord Drummond Young is concerned, a large part of the preliminary proof was indeed devoted to the factors which were said to have caused the reclaimers to delay in bringing their actions, including those said to be referred back or related to the alleged abuse. Lord Drummond Young set out his conclusions on that evidence in paras 99 to 109 of his opinion. In para 102 he recorded that counsel for the reclaimers had submitted that the reclaimers had wanted to block out their experiences in Nazareth House; and consequently they were very reluctant to speak to anyone about the matter. In para 107 he accepted that all of the reclaimers were reluctant to speak about their experiences in Nazareth House, because they found it distressing and embarrassing to relive those experiences. However, he did not regard this as of great significance and when he weighed up all the factors (para 109), he found that those in favour of the reclaimers were heavily outweighed by the factors in favour of the respondents. Lord Drummond Young therefore dealt with the question whether the alleged abuse suffered by the reclaimers was itself the cause of their delay in raising proceedings. He also carefully considered the Canadian case of  KM v HM , on which the reclaimers relied, but for the reasons which he gave found it of no assistance in this case. We do not consider that conclusion to be open to successful challenge. For these reasons, and assuming for present purposes that the allegations are soundly based, the reclaimers’ submissions in relation to the ‘clean hands’ principle are in our opinion not well-founded. We would add that the argument advanced by the reclaimers in respect of this branch of their submissions reflected in large measure the contention, advanced in the context of the discussion of sec 17(2)(b)(i), that the reclaimer belonged to a class, namely ‘the reasonable child abuse victim’, members of whom were subject to a ‘silencing effect’ which should be a matter of


judicial knowledge. For the reasons given earlier, in paras 34 and 35 we do not accept that contention.

[84] Lord Drummond Young then went on to give detailed consideration to the factors that might be relevant in an application under sec 19A, by reference to cases both in Scotland and under the equivalent legislation in England and Wales. In an extensive review of those cases he gave particular consideration to the decision of the Court of Appeal in England and Wales in  KR v Bryn Alyn Community (Holdings) Ltd . That case had a close parallel with the present case in that it involved a number of claims of abuse suffered by children in care homes. As we have just noted, he also considered the case of  KM v HM . He then considered the evidence led at the preliminary proof in relation to the various matters that might be relevant to the exercise of the court’s discretion under sec 19A. He set out his approach as follows (para 42):

‘I intend first to explain the events that brought about the raising of the present actions. Thereafter I will consider the explanations put forward on behalf of the three pursuers for their failure to raise proceedings within the normal limitation period. These fell into two categories, explanations of a general nature and explanations based on expert psychological evidence. Finally I will consider a range of other matters that are relevant to the exercise of the court’s discretion. The most important of these are prejudice caused by the lapse of time since the events on which the claims are based and prejudice caused by the loss of evidence during the intervening period.’

When Lord Drummond Young came to consider the prejudice caused to the respondents by (i) the lapse of time since the events on which the claims are based and (ii) the prejudice caused to the respondents by the loss of evidence during the intervening period he concluded that each of these factors was sufficient by itself to make it inequitable to allow the reclaimers’ actions to proceed (paras 116, 124). It is important to note that Lord Drummond Young identified those matters as being decisive. Having done so, Lord Drummond Young went on to record that he also considered that prejudice would or might be caused to the respondents in a number of other respects if the actions were allowed to proceed, but none of those respects was in itself decisive. In this sense they were what was described by counsel for the respondents as ‘add-ons’.

[85] We have thought it appropriate to set the matter out in this way because we consider it to be in this context that the reclaimers’ criticisms of Lord Drummond Young’s decision should be viewed. We turn now to consider those criticisms more specifically.

[86] First, it was submitted that Lord Drummond Young had erred in law by failing to allow to its full extent the preliminary proof envisaged by Lord Johnston. If we may paraphrase, Lord Johnston had said (opinion, para 15) that issues which the reclaimers had raised in the context of sec 17(2) in relation to the psychological and other explanations for their not having raised their actions earlier were not relevant for the purposes of that provision, but might be relevant for the purposes of sec 19A. Before us these were referred to by counsel as the sec 17(2) issues. In our opinion there is no merit in this criticism. Counsel for the reclaimers pointed to what Lord Drummond Young had said in para 35 of his opinion. In the relevant part of that paragraph he quoted the following passage from the judgment of the Court of Appeal in  KR v Bryn Alyn Community (Holdings) Ltd  (para 80):

‘[W]e consider: … (iii) that, if the date of knowledge test in section 14 is properly applied so as to provide a claimant with an extension of the period by


reference to it, the weight to be given to his reasons for delay thereafter should, in normal circumstances, be limited … [T]he law has already catered for his delay in starting proceedings that is due to excusable ignorance of material facts as distinct from his knowledge that they may give him a good cause of action in law.’Lord Drummond Young then said this:

‘The third of these points emphasizes that delay caused by excusable ignorance of the facts should be taken into account under secs 11 and 14, or in Scotland sec 17, with the result that it is other sources of delay that are material for the purposes of sec 33 in England and Wales or sec 19A in Scotland.’

In  KR v Bryn Alyn Community (Holdings) Ltd  the Court of Appeal held that in the circumstances of that case it was relevant to take account of the reasons for the claimants’ delay in bringing their actions in the context of secs 11 and 14 (in Scotland, sec 17). As we have already observed, the decision in  KR v Bryn Alyn Community (Holdings) Ltd  is not without significant difficulty (para 27). But in that passage the Court of Appeal was making a general point. So was Lord Drummond Young, namely, that delay caused by excusable ignorance of the facts is a matter for consideration in the context of sec 17 but is different and separate from delay which is material for the purposes of sec 19A. Lord Johnston had expressed the same view in his opinion earlier in the case. The confusion arises perhaps from the reclaimers’ describing as sec 17(2) issues the psychological and other reasons for their not having raised their actions earlier. It is true that the reclaimers argued before Lord Johnston that they were relevant issues in the context of sec 17 but he rejected that argument. So they were not truly sec 17(2) issues at all. In these circumstances we are unable to hold that in para 35 Lord Drummond Young was in some way excluding those issues from consideration in the context of sec 19A. In any event, what actually happened in the preliminary proof was that Lord Drummond Young heard a great deal of evidence not only from each of the reclaimers but also from experts dealing with the psychological and other reasons why the reclaimers had not raised their actions earlier. He summarised his conclusions on that evidence as follows (para 109):

‘In summary, accordingly, I conclude that (i) all three pursuers suffered personal and psychological problems that would tend to inhibit them from raising court proceedings, both between the ages of 18 and 21 and subsequently; (ii) all three reclaimers did not think that they would be believed if they made complaints about their treatment in Nazareth House, between the ages of 18 and 21 and for at least a substantial number of years thereafter; and (iii) the reclaimers did not consciously realize until 1997 that they could raise legal proceedings against the respondents, although that was the result of lack of thought rather than consideration and rejection of proceedings. I accept that all of these provide some explanation for the failure to raise proceedings before 1997. Even when they are taken together with the reluctance of the reclaimers to speak about their experiences in Nazareth House, however, I am of opinion that these factors are heavily outweighed by a number of other matters that are relevant to the exercise of the court’s discretion under sec 19A. I will now deal with those other matters.’

[87] It can be seen from this, therefore, that Lord Drummond Young fully considered the so-called sec 17(2) issues and weighed them in the balance against the other factors that he considered relevant to the exercise of his discretion under sec 19A. There is no indication whatever that he gave them less weight than they


deserved because they had been erroneously alluded to earlier in the context of sec 17(2) before Lord Johnston.

[88] The reclaimers next submitted that Lord Drummond Young took into account a number of irrelevant factors, which are set out in para 68. The first of these was that the respondents are a charity. Reference was made to paras 115 and 128. The context of para 115 is Lord Drummond Young’s consideration of prejudice caused to the respondents by lapse of time. In that paragraph he noted that one of the standard rationales for the imposition of limitation periods was that it was oppressive to defenders to allow actions to be brought long after the circumstances that gave rise to them had occurred. He then illustrated that point by reference to the respondents’ present charitable work. In our opinion it cannot be said that he erred in doing so. In paras 128 and 139 Lord Drummond Young noted that the respondents had insurance cover, although it was not clear to what extent it might cover the present claims. It was said, therefore, that any prejudice that the respondents’ present charitable work might suffer would to that extent be restricted. That is no doubt true so far as it goes but it overlooks the context in which Lord Drummond Young was speaking in para 115, which is prejudice caused by lapse of time. It also overlooks the third of the broad rationales identified by McHugh J in  Brisbane  and quoted in para 42, which expressly applies to insurers. In our opinion there is no substance in this point.

[89] It was next submitted that Lord Drummond Young was in error in expressing the view that it was not genuinely in the reclaimers’ best interests to proceed. This was under reference to his concluding remarks in para 143. In our opinion there is also no substance in this point. It may be observed that in the context of the structure of the opinion of Lord Drummond Young, this view was stated after he had expressed his conclusion. Lord Drummond Young was there expressing a humane and entirely understandable view on the basis of the distress that each of the reclaimers had already suffered when giving evidence in the preliminary proof. Moreover, as we have indicated, he had just made it absolutely plain that this factor was immaterial to his decision to refuse to allow the reclaimers to bring the present actions.

[90] It was further submitted that Lord Drummond Young was in error in paras 133 and 135 in finding and taking into account risk of prejudice to the respondents from the media publicity in 1997 and 1998 and from the methods used by the reclaimers’ Glasgow solicitors in preparing their and other claimants’ cases. It was said that to take account of this factor ran counter to the notion that for present purposes the reclaimers’ evidence had to be taken pro veritate. In paras 133 and 135 Lord Drummond Young fully explained his reasoning for his view in relation to these factors. We are not persuaded that he fell into error in what he said.

[91] Equally we are not persuaded that he was in error in finding that prejudice was caused to the respondents by changes in the law in recent years and in taking that factor into account (paras 117-119).

[92] We turn now to the submissions that Lord Drummond Young was in error when he made a number of assumptions (see para 69). It is sufficient for us to say in relation to this point that we prefer the submissions made in reply by junior counsel for the respondents (see para 76). In our view Lord Drummond Young did not fall into error in respect of these matters.

[93] A possibly more substantial criticism on behalf of the reclaimers was that Lord Drummond Young erred in concluding in para 120 that the respondents had suffered prejudice in that the delay in raising the present actions had deprived them


of the opportunity to trace many relevant witnesses and to recover a number of relevant documents. It was said by counsel for the reclaimers that a considerable amount of contemporaneous documentation was available and many witnesses could be traced. In our opinion, however, this is nothing to the point. As Lord Drummond Young correctly observed at para 30, what matters is whether the loss of evidence is material, not whether it is total. In paras 121 to 123 he set out in detail the evidence which has been lost. In our opinion he was fully justified in concluding, as he did (para 124) that the respondents were’seriously prejudiced by the non-availability of witnesses, the absence of documents, and the inability of such witnesses as have been traced to remember specific details of what happened at Nazareth House during the 1960s and 1970s.’

He was also in our opinion justified in concluding, on the basis of the authorities which he cited, that that prejudice was by itself a sufficient reason for not allowing the present actions to be brought under sec 19A.

[94] It was submitted finally that the Lord Ordinary was in error in rejecting the diagnosis of PTSD in relation to AB (para 96). The evidence on which that finding was made is set out in paras 80 and 81 and on the basis of that evidence Lord Drummond Young was in our opinion entitled to come to the view he did.

[95] It can be seen from what is said above that much, if not all, of the criticism directed at Lord Drummond Young by counsel for the reclaimers was on matters which were not central to his decision. For the reasons we have given he was not in our opinion in error in any of the ways contended for on behalf of the reclaimers. We are not in any event persuaded that he erred in any way in the exercise of his discretion under sec 19A. His central conclusions, having taken into account all the various factors which he did and notwithstanding the reasons for which the proceedings were not commenced until after the press publicity, were that (1) the prejudice caused to the respondents by the lapse of time in raising the present proceedings was by itself a sufficient reason for not allowing the actions to be brought under sec 19A and (2) the prejudice caused to them by the actual loss of evidence was by itself also a sufficient reason for not allowing the actions to be brought under sec 19A. On the basis of the evidence before him and the authorities cited by him we are of the opinion that not only was Lord Drummond Young entitled to come to those conclusions but also that he was correct to do so.

Decision

[96] For all of the reasons which we have given in the respective sections of this opinion we shall refuse the reclaiming motions.

The Court refused the reclaiming motions.

Drummond Miller WS – Simpson & Marwick WS

[2007] SC 688

Please note that victims of abuse may be triggered by reading this information. These links are generally UK based.

  • The Sanctuary for the Abused [A] has advice on how to prevent triggers.
  • National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups.
  • One in Four [C]
  • Havoca [D].
  • Useful post on Triggers [E]  from SurvivorsJustice [F] blog.
  • Jim Hoppers pages on Mindfulness [G]  and Meditation [H] may be useful.
  • Hwaairfan blog An Indigenous Australian Approach to Healing Trauma  [J]
  • Survivors UK for victims and survivors of male rape or the sexual abuse of men [K]
  • Voicing CSA group [L] helps arrange survivors meetings in your area
  • A Prescription for me blog Various emotional support links [M]
  • ShatterBoys -“Male Survivors Of Childhood Sexual Abuse Inspiring change, Through Shared Experience Whilst Building Connections…Together We Can Heal” [N]

Links

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About cathy fox blog on Child Abuse

the truth will out, the truth will shout, the truth will set us free...
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2 Responses to Survivors v Poor Sisters of Nazareth 6 Jun 2007 Court of Session

  1. Pingback: An Index and Timeline of Court and Court of Appeal Documents on Cathy Fox Blog | cathy fox blog on child abuse

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