Bowden (AP) v Poor Sisters of Nazareth and others & Whitton v Poor Sisters of Nazareth and others 2008

The case concerned former residents of a children’s home in Scotland called Nazareth House which was run by the Defendants. As a result of extended media attention on the topic, the Claimants raised separate actions for damages in the Court of Session, claiming that they had suffered physical abuse during their time there, which had been more than two decades before. The media attention had also resulted in several hundred similar actions being raised against the same religious order, as well as several hundred more against other institutions operating children’s homes during that period.

In addition to denying the allegations, the Defendants said that the actions were time barred due to the length of time that had passed.

The 1973 Act

Part II of the Prescription and Limitation (Scotland) Act 1973 sets out the law of Limitation of Actions in Scotland. Section 17, as substituted by section 2 of the Prescription and Limitation (Scotland) Act 1984, applies to a claim for personal injury claimant. Section 19A, giving the court the discretion to override section 17 in allowing an action to be brought, was inserted by section 23(a) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 after the decision in McIntyre v Armitage Shanks Ltd 1980 SC (HL) 46.

Section 17(2) states as follows:

“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 -

1. 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;
2. that the injuries were attributable in whole or in part to an act or omission; and
3. 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.”

Subsection (3) of that section provides that in the computation of the period specified in subsection (2) the time during which the person who sustained the injuries was under legal disability by reason of non-age or unsoundness of mind is to be disregarded.

To this effect the Claimants’ disability by reason of non-age ceased when they reached the age of 18: Age of Majority (Scotland) Act 1969.

Section 19 A(1) of the 1973 Act states as follows:

“Where a person would be entitled, but for any of the provisions of section 17, 18, 18A or 18B of this Act, to bring an action, the court may, if it seems to it equitable to do so, allow him to bring the action notwithstanding that provision.”

Subsection (2) of that section provides that its provisions are to have effect on the rights of action accruing after the section’s commencement as well as those accruing before that date in respect of which a final judgment has not been pronounced, which was where the Claimants’ actions fell.

FACTS:-

The Claimant Mrs Bowden was born on 6 January 1963 and resided in Nazareth House from the age of three (1966) to sixteen (1979). The period of three years referred to in section 17(2)(a) of the 1973 Act ended on 6 January 1984. Several articles published in the News of the World and other newspapers from May 1997 to 1998 described events taking place in Nazareth House many years prior. Mrs Bowden went to a solicitor on 5 June 1997 and a psychologist’s report was provided on 21 August 1998 diagnosing her as suffering from post traumatic stress disorder as a result of her experiences.

The Claimant Mrs Whitton was born on 25 November 1953. She resided in Nazareth House from the ages of eight (1961) to sixteen (1969). The period of three years referred to in section 17(2)(a) of the 1973 Act ended on 25 November 1974. A solicitor was consulted on 6 December 1997 and the psychologist’s report on 11 August 1998 showed her symptoms to be comparable to post traumatic stress disorder as a result of her experiences.

In May 2000 both Claimants raised their actions in the Court of Session.

Mr DM, also a child resident of the home, brought his claim at the same time and his case was heard together with those of Mrs Bowden and Mrs Whitton, but was unable to appeal to the House of Lords due to legal aid refusal.

The Defendants included pleas that the actions were time barred. The Claimants’ responded that the limitation period could be delayed under section 17(2)(b) until May 1997, as this was when they learned that they had a right of action due to the publicity of the allegations. They further argued that if, contrary to their averments, they were time barred it would be equitable to allow them to bring their actions under section 19A of that Act.

The cases were sent to the procedure roll. On 30 July 2004, Lord Johnston sustained the Defendants’ plea to exclude all reference to section 17, and stated that there should be a preliminary proof restricted to the question whether the court should exercise its discretion in the appellants’ favour under section 19A of that Act.
The appellants did not appeal to the Inner House, and a preliminary proof in each case was held (2005 SLT 982) with an adverse decision to the Claimants by Lord Drummond Young, which was reviewed and affirmed by the Inner House.(AS v Poor Sisters of Nazareth [2007] CSIH 39, 2007 SC 688.)

The Issues

The Claimants’ primarily argued that the procedure adopted in the Court of Session on the section 19A issue was unfair, thus preventing the Claimants from pleading their full case. Nothing was put forward in support of the section 17(2)(b) argument which was rejected. They went on to plead against the following:

1. The terms of Lord Johnston’s interlocutors. The Claimants submitted that Lord Johnston’s interlocutors should be set aside and the cases sent back to the Outer House They requested the issue of time – bar to be re-examined by a proof at large before a different Lord Ordinary and at which evidence would be led on all issues, reserving all pleas relating to time bar and to relevancy.
2. Lord Drummond Young had erred in his handling of a) the silencing effect of the abuse due to fear and confusion; b) taking into account that persons who are so inhibited cannot reasonably be expected to seek the legal advice; and c) the unfairness of the Defendants escaping liability by time bar. Lord Drummond Young had made it clear at the outset that the preliminary proof was to proceed on the assumption that the appellants’ factual averments were correct. The Claimants’ contended that he reached this conclusion because the facts they were speaking to were the subject of averments in article 2 of the Condescendence, not those in article 6 referred to in Lord Johnston’s interlocutors on which the preliminary proof was to focus.
3. This reading of the interlocutors made it impossible for the Claimants’ cases to be fully explored and tested in evidence on the cause and effect of the psychiatric injuries which they had suffered.
4. Lord Drummond Young’s approach to the exercise of his discretion under that section. The Claimant’s said that he had misdirected himself by, among other things, deciding the three cases before him as test cases and by approaching the case on the basis that it was for the Claimants to make their case for justifying a departure from the normal limitation rules.
5. The way the preliminary proof was conducted obscured the differences between the individual appellants, creating the risk that their cases were being treated as part of a generic group rather than claims by individuals.
6. Lord Drummond Young had failed to exercise his discretion in the manner required by section 19A, by following the Court of Appeal in KR v Bryn Alyn Community (Holdings) Ltd [2003] QB 1441 which had now been disapproved in A v Hoare [2008] 2 WLR 311, for example by giving too much weight to prejudice caused by the media publicity and by failing to consider the effects of the delay to the Claimants.

HELD:-

LORD HOPE OF CRAIGHEAD dismissed the Claimants’ argument on Lord Young’s discretion mainly due to the fact that the way in which it was exercised had already been reviewed by the Inner House on appeal. He further stated that matters of procedure would not be interfered with by the House Girvan v Inverness Farmers Dairy 1998 SC (HL) 1, 21.
On the matter of procedure, he found against the Claimants. He stated that in cases such as this, where there were disputed facts on to the exercise of the court’s discretion under section 19A, a proof was necessary. This was due to the fact that the more time that had passed since the events, the more likely it would be that the defender would be able to maintain that he has been prejudiced by the delay and that he ought not to have to face a proof on the merits until the issue of time bar has been disposed of (McCabe v McLellan 1994 SC 87). As there was no dispute before Lord Johnston on the facts, the issue to be judged was on whether or not it was appropriate in the circumstances for the discretion to be exercised: 2004 SLT 967, para 18. The Claimants had the opportunity to reclaim against Lord Johnston’s interlocutors, but acquiesced in them. Further, the Defendants pointed out that the Claimants did not produce the first report of their medical witness or make reference to his explanation for the delay in the averments that were before Lord Johnston. Therefore the Defendants were found not responsible for the possibility that the scope of the proof was inhibited by the terms of Lord Johnston’s interlocutors.

The question whether Lord Johnston’s interlocutors should be opened up under the power under rule 38.8(1) of the Rules of the Court of Session 1994 was rejected. This issue had already been debated in the Inner House: 2007 SC 688, paras 14-18.

On the matter of the exercise of Lord Drummond Young’s exercise of his discretion under section 19A, Lord Hope of Craighead stated that since the Claimant’s allegations had been taken pro veritate for the purpose of considering where the equities lay, they had to be taken in context in of a procedure where Lord Drummond Young could not form a view as to their credibility. On the Claimants’ argument that Lord Drummond Young had not addressed himself to their cases as individuals, Lord Hope of Craighead stated that the treatment of their evidence was an inevitable consequence of the fact that the case had not been fully investigated at that point. Therefore the full assessment of the veracity of the allegations was something to be dealt with in the future, leaving Lord Young with no other choice than to use a level of generality.

Regarding Lord Drummond Young’s discretion being fettered by following KR v Bryn Alyn Community (Holdings) Ltd [2003] QB 1441, Lord Hope dismissed the argument. He stated that Lord Young had conducted a broader assessment of the legislation in this area, and with regard to the policy of the limitation statutes he had focused on the discussion of McHugh J in the High Court of Australia in Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541. This case had been closely paralleled in Scotland by an opinion two years earlier by the First Division in McCabe v McLellan 1994 SC 87, and Lord Young had actually adopted the analysis of McHugh J in this case, that the fundamental legislative policy was to avoid the real possibility of significant prejudice.

Lord Hope further found Lord Young as not being in error in his assessment. He quoted Lord Ross from Carson v Howard Doris Ltd 1981 SC 278, 282 that the power conferred by Section 19A was to be exercised sparingly and with restraint, in order for the court to determine what would be equitable in all the circumstances. The issue for the court is whether the defender can show that, in defending the action, there will be the real possibility of significant prejudice. This is a question of degree for the judge by whom the discretion under section 19A is to be exercised.

In Bryn Alyn the Court of Appeal had discussed the exercise of the discretion under section 33 of the Limitation Act 1980. In A v Hoare [2008] 2 WLR 311, para 25, it was pointed out that this issue had become confused by the decision in Stubbings v Webb [1993] AC 498. This had led to the need for claimants who had suffered sexual abuse and had to seek the exercise of the discretion of the court under section 33 to allege that the abuse was the result of, or accompanied by, some other breach of duty to be brought within the language of section 11 of the 1980 Act. In para 42 of the judgment in Bryn Alyn Auld LJ stated that the court had to consider whether such an already damaged child would have turned his mind to litigation in the sense required by section 14(1)(a) and (2) of the Act to start the period of limitation running under section 11. This dictum was disapproved in Hoare, in which the decision in Stubbings v Webb was departed from.

Lord Drummond Young had also rejected the Claimants’ argument in Bryn Alyn. He stated that the test imposed by section 17(2) was independent of the exercise that the court had to perform under section 19A. His references to Bryn Alyn were directed instead to the passages about the exercise of the discretionary power which are not controversial. His main conclusion was that the Defendants had been prejudiced by the lapse of time, and taking into account resulting the loss of sufficed in not allowing the actions to be brought under section 19A.

The Claimants’ appeal was dismissed.