Scottish Court of Session Decisions

"[18] In this respect therefore I propose to order a preliminary proof restricted to the pleas relating to time bar and the discretion under section 19A and the averments thereanent. It seems to me that the proof should proceed on the basis that the pursuer's averments as to what happened to her in the home should be taken pro veritate and the issue to be judged on a preliminary basis being entirely directed to whether or not it is appropriate in the circumstances to exercise the discretion under section 19A".

"[S] 31 should not be read as giving an applicant a presumptive right to an order once he or she satisfies the two conditions laid down in s 31(2) of the Act. An applicant for any extension of time who satisfies those conditions is entitled to ask the court to exercise its discretion in his or her favour. But the applicant still bears the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour.

The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that '[w]here there is delay the whole quality of justice deteriorates': R v Lawrence, [1982] AC 510, at 517, per Lord Hailsham of St Marylebone LC. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realize, the deterioration in quality is not recognizable even by the parties. Prejudice may exist without the parties or anybody else realizing that it exists. As the United States Supreme Court pointed out in Barker v Wingo, 407 US 514 at 532 (1972), 'what has been forgotten can rarely be shown'. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody 'knowing' that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence that was available to the parties at the time that the cause of action arose.

...

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 utilize 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):

Even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for wrongs 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.

In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of case may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is 'to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action has to be commenced.' (Sola Optical Australia Pty Ltd v Mills, (1987) 163 CLR 628 at 635). But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has a positive burden of demonstrating that the justice of the case requires that extension".

"In the present case, the learned District Court Judge held that the present respondent was 'placed in a position of serious prejudice having regard to the lapse of time which has occurred'. That being so, his Honour, quite naturally, took the view that an extension of time should not be granted. The learned Judges of the Court of Appeal met the prejudice point by holding 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. But this analysis, with respect, treats the limitation period as little more than a point of reference. It suggests that all that is ordinarily relevant is the marginal prejudice created by the delay. It downplays, if it does not overlook, the second, third and fourth rationales of limitation periods to which I have referred. It treats the parties, subject to the question of prejudice, as if they were on an equal footing. The analysis gives no weight to the fact that the defendant's potential liability expired at the end of that period and that to extend the period may result in the imposition of a new legal liability on the defendant. Indeed, it seems to indicate that a limitation period is a provisional rather than a rigid limit.

If the action had been brought within time, it would have been irrelevant that, by reason of the delay in commencing the action, Dr Chung might have had little independent recollection of his conversation with the applicant and that the defendant might have had difficulty in fairly defending itself. But once the potential liability of the defendant had ended, its capacity to obtain a fair trial, if an extension of time were granted, was relevant and important. To subject a defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the plaintiff of the right to reinstate the lost action. This will often be the case where the plaintiff is without fault and no actual prejudice to the defendant is readily apparent. But the 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.

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. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff's lost right should not be revived than that the defendant should have a spent liability reimposed upon it. This is so irrespective of whether the limitation period extinguishes or merely bars the cause of action".

"The fact remains, however, irrespective of the question of blame, that no steps were taken at the pursuer's instance during the triennium to initiate a claim against Dr Donnelly. As a result he remained in ignorance of the fact that a claim might be made against him until the summons was served on him one month after the triennium had expired. It has not been contended that it would not have been reasonably practicable for the pursuer to have become aware of all the facts relevant to his cause of action against Dr Donnelly as soon as he attained his majority. Had it been otherwise the commencement of the three year period would have had to be postponed until such date as it would have been reasonably practicable for him to have been aware of all these facts. Yet throughout the time when the three year period was running against him the pursuer did nothing to alert Dr Donnelly to his claim. The prejudice caused to Dr Donnelly by this omission may not be very great because, as the Lord Ordinary noted, most of the problems which he would have in defending the action would have arisen anyway even if it had been raised timeously. But ... the effect of the expiry of the triennium is that he is now protected against these disadvantages whereas, if s 19A(1) is operated against him, that protection will be withdrawn, and in this respect he will undoubtedly be prejudiced".

"In the absence of any reasonable explanation for the delay, a court might well decide not to allow the action to proceed, even if it appeared that there would be no internal unfairness in obliging the defenders to go to proof. On the other hand, if there is material prejudice to a defender in having to go to proof, it is difficult to see how, even if there was a reasonable explanation for the delay, the action could reasonably be allowed to proceed".

"Nevertheless, for the reasons we give in the following paragraphs, we consider:

"It should be remembered that the reason for limitation provisions is to protect defendants from the injustice of having to meet stale claims. And a judge, when considering whether to disapply under section 33, particularly where, as here, there is difficulty in testing old and unsupported complaints, should not form a concluded view on their validity for the purpose of determining the existence and extent of potential prejudice to claimants of being deprived of a remedy. Such allegations are so easy to make and so difficult to refute that the danger of injustice is acute. Here, the judge had to bear in mind the possibility of them being fabricated or exaggerated for financial gain in the weight of publicity about Bryn Alyn and about other care homes where similar conduct had been alleged. Yet his findings, both on the substantive issues and the effect of delay on cogency, were based mostly on the strength of the claimants' evidence alone and without rigorous testing by way of cross-examination derived from instructions or contemporaneous records, or of possible contradictory evidence that might have been available if the claims and the trial had been earlier. It was, as he acknowledged in his opening remarks on the section 33 issue, an inherently difficult task, involving inevitable prejudice to the defendants in attempting to meet uncorroborated claims of this sort so long after the event. It was doubly difficult because, for one reason or another, most of the claimants were not obviously reliable witnesses".

"[C]ounsel rightly drew attention to the considerable difficulties for bodies such as local authorities and children's homes in defending stale claims by persons many of whom, for whatever reason, may be highly unreliable. In such cases, as he noted, there is much danger of fabrication and/or exaggeration of evidence which long delay makes it very difficult to identify and refute.

Perhaps [counsel's] criticism would be better expressed as a reminder of the burden on the claimant, particularly in such difficult cases, to persuade a judge of the equity of this application, and of its increasing weight the longer the delay".

"Even allowing for some 'blocking' effect of the abuse so as to prevent his appreciation of 'another' significant injury in the form of long-term psychiatric injury, the sheer length of delay in such a case would, in our view, make it inequitable to allow the matter to proceed. First, the period of delay, whether based on the total period of delay from the end of the abuse -- 24 years -- or on the Judge's implicit assessment of the date of knowledge -- 20 years, was very long. Second, the effect of that delay was bound, given the source and nature of the allegations, to have had a serious effect on his ability properly to assess the cogency of the claimant's evidence, given the absence of other evidentiary support for it and the lack of contemporaneous documents or witnesses by which to test and/or contradict it".

"First, the period of delay, whether based on the total period of delay from the end of the abuse -- 17 years -- or on the Judge's implicit assessment of the date of knowledge -- over 13 years -- meant that the claim was very stale. Second, the effect of that delay was bound, given the source and nature of the allegations, to have had a serious effect on his ability properly to assess the cogency of the claimant's evidence of the 'top dog' régime as it affected him, although there was some general support for his claims in the evidence of another claimant ... and one of the care workers ...".

"First, the period of delay was very long -- nearly 16 years from the last of the abuse and 12 years from the expiry of the primary limitation period -- nearly as long as that in the case of DK. Second, such delay was again likely to have had a serious effect on the cogency of the evidence, particularly that of the claimant himself".

"First, although the period of delay was long -- some nine years after the last abuse and five years after the expiry of the limitation period -- it was significantly shorter than that of some of the other claims. Second, although her account was unsupported, there was some documentation in evidence covering the early part of her period at Bryn Alyn by which it could be, and was, tested. Third, her difficulty in bringing herself to relive the unhappy experience of her abuse at Bryn Alyn would ... be a relevant circumstance in considering the exercise of the discretion under section 33".

"For the reasons we have given earlier in this judgment, his approach was defective. And, in its application to this claim, we are of the view that it would have led to a plainly inequitable result in section 33 terms. First, the period of delay was very long. This is an important circumstance given the purpose of section 33 to protect defendants from stale claims, however strong or weak they may seem when limitation is being considered. As we have said, a judge may walk on uncertain ground when he determines the critical facts in an action and then relies on that determination to vouch for the safety and fairness of embarking on the trial at all. In this case the effect of the delay was bound to have had a serious effect on the Judge's ability properly to assess the cogency of DJ's evidence as a whole. The lack of other evidentiary support and of contemporaneous documents or witnesses by which to test and/or contradict his evidence was aggravated because of his potential unreliability, having had a number of convictions for dishonesty and a history of prolonged use of illicit drugs and alcohol abuse. In our view, it would have been unfair on the defendants to require them, by disapplication under section 33, to meet such a claim arising out of events so long before".

"This is considered by the pursuer to be a pioneering piece of litigation, and it is obvious that any proof would be lengthy. All the teachers who could be traced would be likely to give evidence and there would also have to be expert evidence about dyslexia. The expenses of such a proof are likely to be high, and the defenders are unlikely, even if it were to be successful, to recover their expenses against the pursuer, who is legally aided".

"I accept entirely that a fundamental question to be asked in these cases is whether or not at the end of the day a fair trial is possible, as this court said in the passage which I have already cited from Bryn Alyn. That question has to be answered in its context. The context in the present case is that by the time the claim was brought 28 years had passed since the events which gave rise to the claim; and service of the claim was the first notice that these respondents had of those allegations. The very fact of the claim, which may involve substantial compensation and would undoubtedly in any event involve substantial expenditure of time and money in investigating and seeking to meet it, will cause real prejudice to the respondents.

It is no answer, in my view, to say that the prejudice has only been marginally increased by the fact that the claim was made two years after the limitation period has expired. The Act, with its generous provisions for claimants in personal injury actions for an extension of the primary limitation period so that it starts from the date of knowledge, has, as this court has said in Bryn Alyn, provided the limit of permissible prejudice save in special cases. In other words Parliament has determined in Sections 11 and 14 where the balance of prejudice should normally be struck. It follows that Section 33 should only be available for special cases. And it is for the claimant in any particular case to establish that his claim is one of those special cases.

As the prejudice to a claimant if the claim cannot proceed is, in effect, a given, he is only likely to succeed if he can establish that there is no additional prejudice to a defendant of any sort by reason of the delay. That is likely to be difficult where a claim is brought against a defendant of which the defendant is entirely unaware until after expiry of the limitation period, extended if appropriate under Section 11(4)(b). The mere fact of being asked to deal with a stale claim is itself prejudice; and the staler the claim the greater the prejudice. The policy of law must be to permit people and organizations to arrange their affairs on the basis that there comes a time when they should not be asked to meet such claims. There is therefore by the very nature of a stale claim a hurdle which has to be overcome by a claimant. The judge was fully entitled to conclude that this case did not come within the category of those where an exception can be made under Section 33".

"Statutes of limitations have long been said to be statutes of repose ... The reasoning is straightforward enough. There comes a time, it is said, when a potential defendant should be secure in his reasonable expectation that he will not be held to account for ancient obligations. In my view this is a singularly unpersuasive ground for a strict application of the statute of limitations in this context. While there are instances where the public interest is served by granting repose to certain classes of defendants, for example, the cost of professional services if practitioners are exposed to unlimited liability, there is absolutely no corresponding public benefit in protecting individuals who perpetrate incest from the consequences of their wrongful actions. The patent inequity of allowing these individuals to go on with their life without liability, while the victim continues to suffer the consequences, clearly militates against any guarantee of repose.

The second rationale is evidentiary and concerns the desire to foreclose claims based on stale evidence. Once the limitation period has lapsed, the potential defendant should no longer be concerned about the preservation of evidence relevant to the claim ... However, it should be borne in mind that in childhood incest cases the relevant evidence will often be 'stale' under the most expedient trial process ... In any event, I am not convinced that in this type of case evidence is automatically made stale merely by the passage of time. Moreover, the loss of corroborative evidence over time will not normally be a concern in incest cases, since the typical case will involve direct evidence solely from the parties themselves".

"A home for orphans was turned into a house of horrors by depraved nuns who delighted in making the kids' lives hell.

Youngsters were dragged from their beds and BEATEN, made to clean their teeth with CARBOLIC SOAP and forced to drink MOULDERING milk".

"Lawyer Cameron Fyfe believes it could lead to claims for compensation of up to £100,000.

He said: 'They might well have a case. They would have to prove there was negligence on the part of the organization responsible for employees working in the house.

"A secret Catholic Church slush fund may be used to compensate victims of Scotland's Nazareth House orphanage scandal.

Lawyer Cameron Fyfe, representing 30 inmates abused by nuns as children, believes they could get up to £100,000 each".

"I could not be more convinced that what these nuns did was ritual abuse, sadism and not far away from satanic".

"In common sense terms individuals with the DESNOS features tend to feel isolated, misunderstood and disbelieved in their account of early abuse. The avoidance/amnesia tendencies exacerbate this. However when 'authoritative' sources took an interest in their experience it was my definite impression that individuals who had been reticent before this media disclosure suddenly felt less timid and fearful about describing their experiences. Many of the individuals (of the 18 I have seen) expressed the view that they had felt better 'in themselves' since the media disclosures".

"Various reasons described above [paragraphs [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 18-21 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".

"The problem following most forms of trauma is an inability to forget, rather than a complete expulsion from awareness, and amnesia for violent events is rare".

"A growing body of research indicates that partially or completely inaccurate memories are not uncommon. Memory is vulnerable to suggestion. Implanted false stories can be 'adopted' and subsequently 'remembered' as actually experienced events whose recollections are vivid and subjectively indistinguishable from recollections of actual events".

"Survivors' groups are often supportive, helpful in restoring self-esteem and in reducing shame and isolation ... However, the practice of mixing those who clearly remember abuse with those who are suspected by the therapist of having repressed their memories of abuse ... has been strongly criticised ... because of the risk of suggestion and contagion among group members".

"The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension".

"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. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff's lost right should not be revived than that the defendant should have a spent liability reimposed upon it".

"Such allegations are so easy to make and so difficult to refute that the danger of injustice is acute".