Introductory

"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 Condescendence 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 section 17(2) and confined the inquiry to the discretion, under section 19A, to override the time bar.

" ... 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.

Discussion and decision

" ... the 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 1987 S.L.T. (Sh. Ct.) 81 at page 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."

Section 17(2)(b): the relevancy of the reclaimers' pleadings

"17-(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.

(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 -

(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

(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 of the court, it would have been 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 in 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."

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

"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.

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 a solution 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. ... "

"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", i.e. 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.

(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 subhead (i) of section 17(2)(b).

"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')."

"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.

"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."

"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 Mrs. B 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 Mrs. W, 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 Mrs. W 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 Mr. M, 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 Mr. M to suggest that he was other than aware of the alleged mis-treatment, its alleged consequences upon him over the years and its link to his need for treatment in March 1997. No separate argument as respects Mr. M was addressed to Lord Johnston by counsel for the reclaimers.

" ... it 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 B.C., 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".

Lord Drummond Young's Interlocutors

Lord Drummond Young's Opinion

"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 the 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."

" ... 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."

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."

"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 section 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 section 19A. Indeed, McIntyre v Armitage Shanks Ltd 1980 SC (HL) 46, the decision of the House of Lords that prompted the enactment of section 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 1989 SLT 639. That case, however, was a fairly extreme one and must therefore be seen as somewhat exceptional. It was distinguished in Kane v Argyll & Clyde Health Board 1999 SLT 823.

"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 18-21 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."

"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 ... "

"I am further of opinion that the simple length of the delay is important in the present cases for the reasons discussed above at paragraphs [22], [23] and [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 at paragraph [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 paragraph [109] for the reclaimers' failure to raise actions within the limitation period.

"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 section 19A. That is so notwithstanding the reasons for the failure to raise actions timeously, as summarized in paragraph [109] above."

Discussion

"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 [1978] 3 WLR 1 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 (page 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."

" ... 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 A.F. Stoddard and Co. Ltd; and Elliot v J. and C. Finney 1989 SLT 605).

"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] and [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".

" ... we 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 sections 11 and 14, or in Scotland section 17, with the result that it is other sources of delay that are material for the purposes of section 33 in England and Wales or section 19A in Scotland."

In K.R. 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 sections 11 and 14 (in Scotland section 17). As we have already observed, the decision in K.R. v Bryn Alyn Community (Holdings) Ltd is not without significant difficulty (para. [27] supra). 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 section 17 but is different and separate from delay which is material for the purposes of section 19A. Lord Johnston had expressed the same view in his Opinion earlier in the case. The confusion arises perhaps from the reclaimers' describing as section 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 section 17 but he rejected that argument. So they were not truly section 17(2) issues at all. In these circumstances we are unable to hold that in paragraph [35] Lord Drummond Young was in some way excluding those issues from consideration in the context of section 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 in paragraph [109] as follows:

"[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 section 19A. I will now deal with those other matters."

"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 section 19A.