Act: Barne; Drummond Miller LLP

Alt: McGregor; Balfour + Manson LLP

31 March 2009

[1] The reclaimer and respondent are uncle and niece. The respondent by this action seeks damages from the reclaimer on the ground that she has suffered psychological damage as a result of sexual abuse alleged to have been perpetrated upon her by him between 1975, when she was about 7 years of age, and 1997, when she was approaching 30. The reclaimer responds to these allegations with simple denials. The reclaimer was prosecuted on certain charges, including charges involving the respondent. His initial trial proved abortive. He was subsequently indicted a second time and convicted but his appeal against conviction was allowed (N v HM Advocate 2003 J.C. 140).

[2] The present proceedings were commenced in January 2004. The respondent admits that for more than three years prior to that commencement she was aware of the facts specified in section 17(2)(b) of the Prescription and Limitation (Scotland) Act 1973. She asks, however, the court to exercise its discretion under section 19A of that Act to allow the action to proceed. The Lord Ordinary, having heard a debate directed primarily to the reclaimer's contention that the respondent's averments in support of the exercise of that discretion were irrelevant and lacking in specification, not only rejected that contention but proceeded, without first having heard any evidence, forthwith to exercise the discretion in favour of allowing the action to proceed.

[3] In this reclaiming motion the reclaimer renews his contention that the respondent's averments directed to the exercise of the section 19A power are irrelevant and lacking in specification; he renews his submission that the action be dismissed, arguing in the alternative that there should be a preliminary proof on the matter of section 19A. The respondent does not seek to support the Lord Ordinary's decision to exercise the section 19A power on the basis of the pleadings but seeks a proof before answer on the whole case, including the merits of the action.

[4] The principal thrust of the reclaimer's submission was that, on the respondent's own averments, she had a clear alternative remedy against solicitors who had acted for her in 1998 and for some time subsequently. Her position on record may be summarised as follows. The conduct complained of having ceased in September 1997, the respondent spoke to the police about it early in 1998. Some short time thereafter, on the advice of the police family unit, she consulted a firm of solicitors with a view to making a claim for Criminal Injuries Compensation consequent on the abuse. The firm she consulted on that matter had already acted for her, in particular with regard to her matrimonial affairs. An application for Criminal Injuries Compensation was completed on 27 April 1998 and submitted on the respondent's behalf on 1 May. In May of the following year a judicial factor was appointed to that firm and its files, including that relating to the respondent's compensation claim, passed to another firm. The solicitor who had handled the respondent's affairs for the first firm joined the second firm but was dismissed from it in July 1999. In November 1999 another solicitor joined the second firm as a partner and a number of files, including that containing the respondent's compensation application papers, were passed to him. Having noted that the respondent's claim was still awaiting determination, the solicitor passed the file to an assistant. The claim was not finally adjudicated upon until September 2001, when the respondent was awarded £17,500. Her averments continue:

"She was not advised at any time that potentially she had a civil claim in damages against the defender. In any event, while the trials and appeal were outstanding, the pursuer was not in a position to contemplate pursuing an action for damages. She was in a state of extreme distress and was struggling to manage her life and that of her family."

She then sets out some of the difficulties which she had experienced as a witness in the two criminal trials in which the reclaimer was the accused, adding:

"Before the first trial began in July 1999, she was reassured by Karen McGlone of the Procurator Fiscal's office dealing with the case that the pursuer did not need a lawyer since the Crown would look after her interests. The pursuer understood this to mean that there was no need for the pursuer to take further steps in relation to consulting a lawyer with regard to the sexual abuse as the Crown would advise and assist her. The pursuer was unaware that any claim she might have might become time barred."

[5] The respondent learned of the reclaimer's successful appeal against conviction from a newspaper article printed in May 2003. She then consulted her present solicitors about bringing a private prosecution "or reviving the public prosecution". At that time she was made aware for the first time of the possibility that she had a claim in damages against the reclaimer. Over the following months various steps, including having the respondent seen by a clinical psychologist, were taken with a view to instituting civil proceedings. These were commenced, as we have said, in January 2004. The respondent further avers:

"Even if the pursuer had been made aware earlier of the possibility of pursuing an action for damages, she was not in a fit state to undertake such a course of action while the trials and appeal were pending. Furthermore, the delay in raising proceedings is attributable to the sexual abuse and the effect it had on the pursuer. ... The nature and effects of childhood abuse have an inhibiting affect (sic) on the ability of victims to bring the abuse into the public domain. Further, the defender will suffer no prejudice if the action is allowed. The facts relevant to the claim would have been fully investigated and preserved as part of the criminal proceedings and subsequent appeal. This material will still be available to the defender. Further, it will be highly prejudicial to the pursuer if the action is not allowed. The pursuer achieved some comfort for her past trauma from seeing the defender convicted. The allowance of the defender's appeal has undermined that comfort. It would assist the pursuer in coping with the effects of the sexual abuse to see her allegations vindicated by the Court."

[6] In answer the reclaimer states that he does not know or admit the nature of any advice the respondent received from solicitors. Most of the respondent's averments on the exercise of the equitable jurisdiction are covered by a general denial. The reclaimer founds on the fact that by 1999 the respondent had applied for Criminal Injuries Compensation and had engaged solicitors "and thus has a right of action against these solicitors for failing to raise the current proceedings timeously. On the hypothesis of fact advanced by the pursuer [certain named solicitors] failed to advise the pursuer that she had a right of action for damages against the defender. No solicitor of ordinary skill and competence acting with ordinary care would have failed to so advise." The reclaimer also makes averments that by reason of the lapse of time evidence to refute the respondent's allegations of abuse is no longer available. He adds:

"The pursuer has previously made false allegations of rape, having asserted to police on a previous occasion that she had been raped by two Asian men. The two men were arrested and held at Mill Street Police Station, and subsequently released when the pursuer withdrew her allegations. As a result of the lapse of time, there is now no prospect of the defender tracing the men against whom these false allegations were made."

[7] It should be added that in the course of the discussion we were advised that the respondent had, on the basis of professional advice received, raised "protective" proceedings against the two firms of solicitors who had previously acted for her; these proceedings had, prior to any defences being lodged, been sisted to await the outcome of the present proceedings. That state of affairs has led to an admission by the respondent that she had by 1999 engaged solicitors "and thus has a right of action against those solicitors for failing to raise the current proceedings timeously. Admitted that no solicitor of ordinary skill and competence acting with ordinary care would have failed so to advise."

[8] The Lord Ordinary, having summarised the respondent's averments about her dealings with her former solicitors, says at para.[22]:

"On these averments it is anything but clear that the pursuer does have a good or any claim against her solicitors or which of them. The fact that it is not a good cause is not conclusive either way. It is merely a factor to be considered [Anderson v Glasgow District Council 1987 S.C. 11 at pages 24-5, referring to Forsyth v AF Stoddart & Co Limited 1985 S.L.T. 51]. This is not a case of missing a deadline but of a failure by someone to advise a damaged woman in the midst of criminal trials and an appeal as well as a CICB claim. There is also the complication of the advice from the Procurator Fiscal."

[9] Mr McGregor for the reclaimer criticised the Lord Ordinary's treatment of the respondent's "alternative remedy". He had, in effect, rejected or ignored the respondent's own admissions that she had a right of action against the former solicitors for failing to raise the current proceedings timeously and that no solicitor of ordinary skill and competence acting with reasonable care would have failed so to advise. Against these admissions it could not properly be said that "it is anything but clear that the pursuer does have a good or any claim against her solicitors or which of them".

[10] As Mr Barne for the respondent acknowledged, the possibility of an alternative remedy against a legal adviser is a relevant factor to be taken into account - together with the prospects of such a remedy - when the court comes to exercise its equitable jurisdiction. In Anderson v Glasgow District Council the Second Division at page 25 held that the sheriff had erred in thinking that the factor that there might be an alternative remedy could only have weight if he was able to say that the pursuer was almost certain to succeed in such an action. It also criticised an apparent treatment by the sheriff of that aspect of the matter as conclusive. It continued:

"As pointed out in Forsyth v AF Stoddart & Co Limited the broad question is - where do the equities lie? And there are a number of factors which fall to be taken into account."

In Forsyth Lord Justice Clerk Wheatley had said at page 55:

"In my opinion it is not illegitimate to have in consideration the strength of the case against the third party and the likelihood of a successful prosecution of such a case, but again that is just a factor."

[11] In the present case the respondent has received professional advice, including advice from a practitioner experienced in what was to be expected of solicitors in the particular circumstances presented in 1999 and subsequently, which has allowed her to raise, on a protective basis, proceedings against her former solicitors. The respondent has very properly reflected that position in her pleadings in this action. The protective proceedings have been sisted without defences yet having been lodged. It is accordingly not known whether, and if so, on what basis liability may be disputed. Contrary professional or other advice may be available to the defenders in these proceedings. Moreover, a complication may arise by reason of the respondent having attained majority in 1985 (and the triennium arguably having expired in 1988 rather than 2000). While the respondent's prospects against her former solicitors seem prima facie favourable, her prospective case is not as straightforward as some - such as where a solicitor expressly instructed to pursue a civil claim has manifestly failed to meet a statutory time limit. Hers is not a "cast-iron" case (cf. Thompson v Brown [1981] 1 W.L.R. 744). While the Lord Ordinary may have undervalued the respondent's prospects of success against her former solicitors, he was correct to hold that any right she had in that respect was not conclusive but only a factor to be taken, with other factors, into account. The reclaimer could succeed in his contention that the respondent's pleadings were on the matter of section 19A irrelevant only if he was able to demonstrate that even if all her averments on that matter were proved the court was bound to refuse to exercise the discretion in her favour. He falls significantly short of such demonstration.

[12] The strengths and weaknesses of the other factors cannot properly be assessed without enquiry. It is impossible at this stage to reach a confident view as to whether the reclaimer has been materially prejudiced by the loss of important evidence. In contrast to other cases which have been brought, on the basis of vicarious liability against the former employers of alleged abusers, the defender is here alleged to have perpetrated the abuse personally. His own direct evidence is accordingly available. There have also been two criminal trials in which evidence against him has been led and tested. One witness who testified there (the respondent's mother) has since died but the significance of her non-availability cannot at this stage be evaluated. The record of her evidence in the criminal proceedings will be admissible in the present action. The reclaimer also alleges that the respondent previously made false allegations of rape against two Asian men, which allegations she subsequently withdrew. These men, it is averred by the reclaimer, can no longer be traced. But if the respondent did make allegations against certain individuals which she later withdrew, that sequence of events (which is not said to be now unprovable) can, on the assumption that evidence in support of these allegations is not inadmissible (as being on a collateral matter), upon which we express no opinion, be the subject of proof. Apparently this matter was raised with the respondent in cross-examination at the reclaimer's trial. So far as presently appears, the evidence of the individuals complained against is not vital. The respondent's averred explanations for the delays which have occurred must be explored.

[13] In relation to failure to raise proceedings earlier Mr McGregor submitted that the respondent was responsible for the omission in that respect by her former solicitors. Reference was made to Forsyth v AF Stoddart & Co Limited where Lord Wheatley at page 54 said:

"While a pursuer has to accept responsibility for [failure by her solicitors to raise proceedings timeously] the weight to be attributed to the fault will depend on a variety of circumstances, such as the reason for the failure to raise the action timeously and the extent to which the pursuer himself had contributed to or had been responsible for the failure."

No doubt, under the law of agency, a principal may in certain circumstances have to bear responsibility for an omission on the part of his or her agent - at least in so far as within the scope of the agency - but the question which arises under section 19A is whether it is equitable to allow the pursuer to bring the action notwithstanding the expiry of the limitation period. It is clear from Lord Wheatley's own words that the circumstances of the omission by the former solicitors may be important, as will be any personal contribution or responsibility on the part of the particular pursuer. These factors cannot be resolved at this stage in the present proceedings.

[14] In AS v Poor Sisters of Nazareth 2008 SC (HL) 146 Lord Hope of Craighead at para.[25] commented adversely on an observation made by Lord Ross, as Lord Ordinary, in Carson v Howard Doris Limited 1981 S.C. 278 at page 282 that the power conferred by section 19A "should be exercised sparingly and with restraint". Lord Hope commented:

"There is a risk that if that approach were to be adopted the court would fail to do what the section requires, which is to determine what would be equitable in all the circumstances."

Section 19A is expressed in wide terms (compare the equivalent English provision - Limitation Act 1980, section 33). Unless all the relevant factors are undisputed on the pleadings or the pursuer's averments are manifestly irrelevant, it will ordinarily be necessary to hear evidence before the discretion can be exercised on a duly informed basis. Although in this case there are some elements which are not seriously in dispute, there remain significant areas of fact to be resolved.

[15] One of these relates to what precisely passed between the respondent and her former solicitors during and after April 1998. The respondent in her pleadings gives a narrative of various procedural steps which took place (mainly in connection with her application for Criminal Injuries Compensation), concluding with an averment that she was not at any time advised by either of these firms of solicitors that she had a civil claim in damages against the reclaimer. He does not admit the nature of the advice she received. Otherwise his response to these averments is a general denial. That denial similarly covers averments by the respondent that she was during the relevant period not psychologically fit to contemplate pursuing an action for damages. These differences between the parties require to be resolved by the hearing of evidence.

[16] Mr McGregor submitted that the respondent's averments as to what passed between her and her former solicitors were lacking in necessary specification. We are unable to agree. The respondent has made the assertion that she received no advice at any time from these solicitors that she potentially had a civil claim in damages. It will be open to the reclaimer (by the use of documents which may be recoverable by diligence, by cross-examination or otherwise) to rebut that assertion if he has a basis for doing so. The respondent requires to give no more detail in her pleadings.

[17] The respondent maintains that, if she is denied leave to proceed with this action, it will be highly prejudicial to her by reason that it would assist her in coping with the effects of the sexual abuse to see her allegations accepted by the court. There was some discussion before us as to whether that was a proper use of civil proceedings. It is unnecessary for present purposes to reach a view on that matter, upon which we reserve our opinion.

[18] In the foregoing circumstances the respondent's application to the court to exercise its discretionary power under section 19A in her favour is supported by sufficiently relevant and specific averments to warrant enquiry by proof into that issue.

[19] The parties differed as to whether this should, as the reclaimer urged, be a preliminary proof or, as urged by the respondent, a proof at large encompassing the merits of the action. In the present case we are satisfied that a proof at large is appropriate. The respondent's averments as to the sexual abuse which she claims she experienced at the hands of the reclaimer and the psychological consequences which allegedly flowed from it have a bearing upon aspects of her case under section 19A, including her psychological state both between 1998 and 2001 and in the earlier protracted period during which, although an adult, she did not report to the authorities what was being done and had been done to her. The respondent's averments about the alleged abuse itself, although covering a substantial track of time, are within a relatively narrow evidential compass; the reclaimer simply denies the respondent's allegations, offering no explanation in answer. If two proofs took place there would be likely to be some common witnesses and a material duplication of evidence. The respondent, we were informed, remains in a delicate psychological state. In a case of this kind it is desirable that there should be an expeditious final disposal.

[20] For these reasons we shall allow the reclaiming motion, recall the Lord Ordinary's interlocutor of 5 December 2008 and allow to parties a proof before answer of their respective averments on record, all pleas remaining standing.