[1] The pursuers in each of these three actions were at one time residents of a children's home run by the Congregation of the Poor Sisters of Nazareth, an order of nuns who are the second defenders in each case; the first defender is the Religious Superior of the order. In each case damages are claimed on the basis that the pursuer suffered physical abuse during the time when he or she was under the charge of the second defenders; in each case individual nuns are said to have been directly responsible for the abuse. The three actions were raised in May 2000. Approximately 290 other actions were raised at the same time on similar grounds against the same defenders. I was informed that a large number of other broadly similar actions have been raised against other bodies that ran children's homes between the 1950s and the 1980s; these include Quarrier's Homes, Barnardo's and the De La Salle Brothers.

[2] The initial difficultly that confronts each of the pursuers is that the limitation period specified in section 17 of the Prescription and Limitation (Scotland) Act 1973 has expired. Mrs B was resident in the second defenders' home at Nazareth House, Cardonald, between 1966, when she was three years old, and 1979, when she was 16 years old. Her date of birth is 6 January 1963; consequently she attained majority on 6 January 1981, and the basic three-year limitation period laid down in section 17 accordingly expired on 6 January 1984, some 16 years before her action was raised. Mr M was resident in the same home between 1975, when he was six years old, and 1978, when he was nine years old. He was born on 9 January 1969 and attained majority on 9 January 1987; the basic three-year limitation period therefore expired on 9 January 1990, 10 years before his action was raised. Mrs W was resident in Nazareth House, Cardonald, between 1961, when she was seven or eight years old, and 1969, when she was 16 years old. Her date of birth is 25 November 1953. Consequently she attained majority on 25 November 1971, and the three-year limitation period expired on 25 November 1974, 25 years before her action began.

[3] In each of the three present actions the defenders have tabled a plea of time bar. Each action was appointed to the procedure roll on the time bar plea and the defenders' pleas to relevancy; I am not concerned with the relevancy issues that were thereafter discussed. A procedure roll discussion was subsequently held before Lord Johnston. The pursuers sought to argue that the limitation period in section 17 of the Prescription and Limitation (Scotland) Act 1973 did not apply to them because of the terms of section 17(2)(b) of the Act. This provides as follows:

It was argued for the pursuers that they did not have knowledge of the matters set out in section 17(2)(b) until newspaper articles about homes run by the second defenders appeared in 1997; consequently the limitation period only began to run at that time. Lord Johnston rejected this argument, holding that the limitation periods ran from the dates when each of the pursuers attained majority, in accordance with section 17(3) of the Act. He accordingly sustained the defenders' pleas to relevancy to the extent of excluding all reference to section 17(2)(b) from further consideration.

[4] That is not the end of the matter, however. Section 19A of the 1973 Act is in the following terms:

At the procedure roll discussion before Lord Johnston the pursuers sought to rely upon this provision to permit the actions to proceed. Lord Johnston held, however, that he was unable to deal with this issue without evidence. The pursuers had argued that any proof should deal with the merits of the three cases as well as the section 19A issue, but Lord Johnston decided that a proof at large was inappropriate. He expressed his conclusion as follows:

In his interlocutors Lord Johnston allowed a preliminary proof on the issues focused in condescendence 6 and answer 6 in each record in relation to section 19A of the 1973 Act. As indicated in his opinion, the proof is to proceed on the assumption that the factual averments made by the pursuers are correct. I will begin by summarizing those averments. Evidence was led from each of the pursuers in support of those substantive averments. No contrary evidence was led, however, and indeed it is clear that the cases had not been investigated on the merits by the defenders; consequently there was little cross-examination directed to the substantive allegations made by the three pursuers. In the circumstances it was obviously impossible for me to reach any concluded view on the credibility or reliability of the pursuers' evidence on the substance of their claims. All that I intend to do at this stage, accordingly, is to summarize the general nature of the substantive allegations that are made by each pursuer.

1. Mrs J W

[5] Mrs W was resident in Nazareth House, Cardonald, from 1961 to 1969. She was aged seven or eight when she first went to live there. Her younger sister went with her, but Mrs W avers that contact between the sisters was not encouraged by the nuns in charge of them. She avers that she was part of what was known as the red group; the nun in charge of that group was Sister E. When Mrs W was aged about ten or eleven, Sister E was replaced by Sister J M who was assisted by a girl called I M. Mrs W avers that she was taken to Nazareth House by a social worker and immediately afterwards met Sister E. Sister E grabbed the pursuer's hair by her fringe and roughly fixed a grip into her hair, in such a way that her head bled. She told Mrs W that she was filthy, that she was covered in nits and lice, and that she stank. She sent Mrs W to be bathed and deloused by an older girl.

[6] Thereafter, Mrs W avers, she was regularly assaulted by a number of nuns. Sister E assaulted her daily, hitting her with whatever implements were available. On one occasion a hairbrush was used, which broke in consequence of the blow. Mrs W was also hit on the back with wire coat hangers and canes. Canes were used on Mrs W's hands, shoulders and back. On one occasion Sister E nipped and twisted Mrs W's flesh. She hit Mrs W with a wet cloth on one occasion because Mrs W had allowed the cloth to fall on her bed. Sister E also slapped Mrs W's face, pulled her hair and pulled her ears, on occasion causing bruising. Some of the assaults were in front of other children. She had knocked together the heads of the pursuer and another girl called B N. Mrs W was also caned by a nun called Sister N. Sometimes she was punished by being made to wait for two or three hours outside Sister N's cell, waiting for punishment. Mrs W was also occasionally assaulted by Sister M, who on one occasion pulled the pursuer by her hair and swung her round off the floor. Sister M on one occasion encouraged a group of children to jump on Mrs W, kicking her and pulling her hair. Other assaults are averred.

[7] Apart from regular assaults, Mrs W makes complaints about a number of other aspects of life in Nazareth House. These included punishment for bedwetting and for visiting the lavatory during the night. Mrs W was forced to eat food that she disliked, including cabbage, and if she were sick she was made to eat that too. On occasion she was told that she was going to a party but was then prevented from doing so. She was compelled to attend school even when she felt unwell, and on one occasion received very unpleasant medical treatment for a problem with her ear. The nuns also made derogatory remarks about Mrs W's mother and grandmother.

[8] It is fair to say that Mrs W's complaints about life in Nazareth House are wide-ranging, and apply to many aspects of her life in the institution. She avers that she was unable to complain about her treatment. On two occasions she complained to Sister N about Sister E's actions, but Sister N told her that she was a liar and a troublemaker, and caned her. Mrs W avers that the nuns did not allow her mother to visit her, and that her father visited her on about four occasions. Social workers visited her on two occasions, but nuns were present throughout the visits.

[9] On the basis of the allegations of fact summarized above, Mrs W avers that throughout her time at Nazareth House she was subjected to a brutal, violent and cruel régime by the nuns working there. She was subjected to degrading and inhumane methods of punishment; she was ill-treated by the nuns; and the standard and quality of care provided for her welfare were poor. Such treatment was systematic and regular, continuing throughout the entire period of Mrs W's residence at Nazareth House. As a result it is said that she suffered loss, injury and damage. The individual nuns were acting in pursuance of the operation of Nazareth House as a residential children's home, and were doing so under the control of the defenders. Consequently it is said that the defenders were responsible for the nuns' acts. It is further averred that the defenders failed in their duty to take reasonable care for the health, safety and welfare of the children residing at Nazareth House, including Mrs W. The particular duties of care cover both inadequate supervision of individual nuns and the general running of the premises. In addition, a statutory case is pled based on the Administration of Children's Homes (Scotland) Regulations 1959. In this connection, it is averred that the defenders did not make adequate arrangements for the well-being of the children resident in Nazareth House, administered punishment in a manner inconsistent with the Regulations, and failed to keep adequate records as required by the Regulations.

2. Mrs A B

[10] Mrs B was a resident at Nazareth House, Cardonald, from about 1966, when she was three years old, to about 1979, when she was sixteen. Initially she was in the nursery section , but subsequently she was placed in the green group, along with her two older sisters; the girls were separated from their brother. During her time in Nazareth House Mrs B was under the charge of a series of nuns, namely Sister Do, Sister Ca, Sister Cu, Sister J, Sister J S and Sister B. A carer named M K was also responsible for her for much of her childhood.

[11] Mrs B avers that children in Nazareth House, including her, were regularly subjected to assaults and cruel punishments. The assaults regularly had no reason. Details are given of a number of assaults on Mrs B. These relate particularly to Sister Ca, who had a club foot and placed that on children to prevent them from escaping while she assaulted them. Sister Ca also punished Mrs B by making her kneel on tiles with her arms above her head or with her arms stretched out in front of her, and force fed her. Force feeding continued after a child had vomited, and was sometimes followed by assaults in full view of everyone in the dining hall. Mrs B avers that she was subjected to that treatment on several occasions. Sister Ca also punished her by putting carbolic soap in her mouth. Particulars are given of a number of specific assaults on the pursuer by Sister Cu, Sister J S and Sister B. The assaults are averred to have included kicking and punching. On one occasion Mrs B avers that she was knocked unconscious when Sister B pushed her against a wall; when she recovered consciousness Sister B was on top of her, battering her head against the floor.

[12] In addition to the averments relating to repeated assaults, Mrs B avers that she and other children in Nazareth House were regularly punished for bedwetting. She also makes allegations about poor food and poor personal care. On the basis of those averments of fact, she states that the defenders failed in their duty to take adequate care for the safety and welfare of the children resident in Nazareth House, including her. She alleges breach of the defenders' duties not to assault children and not to sanction or use excessive, cruel and unusual punishments. She also alleges a series of failures in the defenders' supervision of Nazareth House. In this connection various particular duties are averred; these include caring for and nurturing the children in the home, serving adequate food, providing adequate personal care, taking reasonable care to see that children were not humiliated and ridiculed, and encouraging family relationships where possible. As a result of those breaches of duty it is said that Mrs B suffered loss, injury and damage. An alternative statutory case is made under the Children's Homes (Scotland) Regulations 1959. This is broadly similar to be case made by Mrs W.

3. D M

[13] Mr M was resident at Nazareth House, Cardonald, from about 1975, when he was six years old, until about 1978, when he was nine years old. Thereafter he was sent to another home at Smyllum Park, Lanark, run by another order of nuns. Two of his brothers were resident in Nazareth House at the same time. The nuns responsible for his care were Sister D and Sister J S. Mr M avers that he and the other children were assaulted regularly for no reason. Sister D assaulted him approximately twice a day every day, using implements that included a hockey stick and a garden cane. She assaulted him on all areas of his body, but particularly his head. On one occasion Mr M ran away, but was found by the police in Greenock. He told the police that he had been assaulted by the nuns but they did not believe him and they returned him to Nazareth House. As a punishment he was made to stand naked all night in a corridor. Children including Mr M were regularly assaulted at mealtimes by Sister D. It is averred that Mr M was punished for bedwetting. Sister J S also punished him. On one occasion he saw her hit his brother R on the head with a hockey stick, rendering him unconscious. Mr M and his other brother were made to clean up the blood, and were terrified.

[14] In addition to the allegations of assault by the nuns, Mr M avers that he was punished by a violin teacher, who rapped his knuckles on Mr M's head if he made mistakes. He claims that he was punished by the nuns when an attempt to have him fostered did not work and he was sent back to the home. He was made to eat carbolic soap as a punishment for lying, and became terrified of dying because of remarks that the nuns made to him. Mr M's father died when he was in Nazareth House, but he was not allowed to attend the funeral. The nuns told him that his father was a "drunk", and said that he should not want to go to the funeral. Mr M became very upset as a result. He avers that he frequently tried to run away and was assaulted for doing so. When he was taken on bus trips his socks and shoes were removed and he was made to sit on the floor in an attempt to prevent him from trying to run away. Mr M also makes complaints about the very structured régime in Nazareth House and the poor quality of the food there.

[15] On the basis of the foregoing averments of fact, Mr M alleges that the defenders failed in their duty to take care for the safety and welfare of the children resident in Nazareth House, including him. He also alleges breach of duties not to assault children and not to sanction or use excessive, cruel and unusual punishments. Further breaches of duty are averred in relation to the inadequate supervision of the home. Generally speaking, these averments are very similar to those made on behalf of Mrs B. As a result of the breaches of duty, it is said that Mr M suffered loss, injury and damage. An alternative statutory case is pled, based on the Children's Homes (Scotland) Regulations 1959; this is similar to the statutory case made by Mrs W.

[16] All three pursuers aver that they were injured in the assaults that they suffered. In addition all three make averments about the long-term consequences of the treatment that they received in Nazareth House. These involved various forms of psychological injury and problems with personal relationships and obtaining employment.

[17] Mrs W avers that she suffered trauma and psychological damage as a result of her treatment. In 1998 she was diagnosed as suffering from severe depression and anxiety. It is averred that her symptoms are comparable to those experienced by persons suffering from post-traumatic stress disorder. I comment on this matter in detail in the part of this opinion dealing with psychological and psychiatric evidence, but only for the purpose of assessing the explanations advanced for the pursuers' failure to make claims at an earlier date; what I say there should not be taken as affecting the substance of the pursuers' claims, which I am obliged to assume are well-founded. Mrs W further avers that she has suffered from insomnia, has low self-esteem, has been involved in abusive relationships and has had difficulty forming relationships. She is socially isolated and has a poor quality of life. It is further averred that she did not have the self-confidence to proceed to further education, although she was intellectually capable of doing so. Consequently she has been employed in less rewarding jobs and has been unemployed.

[18] Mrs B avers that she felt humiliated and degraded as a result of her treatment in Nazareth House, and experienced fear and distress when she witnessed assaults on other children. She avers that she has no confidence in herself, and suffered psychologically for many years. It is averred that she has suffered intrusive thoughts about her experiences and has made conscious attempts to avoid such thoughts. As in the case of Mrs W, it is averred that Mrs B's symptoms are similar to PTSD symptoms, and fulfil the criteria for PTSD. She avers that she has suffered from bulimia and had a breakdown in 1996. She has been prescribed Prozac and Valium. She does not feel safe outside her home, and has difficulty functioning in any area of life outwith her home. Her estranged husband and children have to go to the shops for her, and she has a very poor quality of life. She has had difficulties in forming relationships, and has separated from her husband. She has difficulty in relating to her children. She suffers from anxiety, in particular that she may wet the bed, and that causes her practical difficulties. She avers that she has difficulty sleeping and concentrating. She was intellectually able to undertake further education, but instead had only been employed as a machinist, cleaner and meat packer.

[19] Mr M avers that he was humiliated by things that the nuns at Nazareth House said to him, and was distressed at not knowing where his father was buried. He has been prescribed anti-depressant medication since 1997. He was referred for psychological intervention in 1997 but did not continue with the treatment. He avers that he currently suffers from moderate to severe anxiety and severe depression. It is also averred that he experiences intrusive thoughts and avoidance behaviour associated with PTSD. In addition, he is said to exhibit obsessive compulsive symptoms to a high level. It is averred that he has attempted suicide and has suffered from nightmares, during which he attempted to jump out of the window. It is said that he was unable to form relationships with women, and found it difficult to trust the partner with whom he lived for a number of years. His quality of life is extremely poor. It is further said that his relationship with his own children has been severely affected by his treatment in Nazareth House. A reference is made at this point to sexual abuse, but the averments of fact do not contain any such allegation. It is further averred that Mr M had a number of criminal convictions and had been sentenced to periods of imprisonment. He had also abused alcohol.

[20] I intend next to consider the general approach of the law to questions of limitation. This falls into two parts. First, I consider the policy underlying limitation statutes in general. Secondly, I give more detailed consideration to the factors that may be relevant in an application under section 19A of the Prescription and Limitation (Scotland) Act 1973, by reference to cases decided both in Scotland and under the equivalent English legislation

[21] I have found the most helpful discussion of the policy underlying limitation statutes to be that by McHugh J. in Brisbane Regional Health Authority v Taylor, [1996] 186 CLR 541, a decision of the High Court of Australia. That case involved the interpretation of section 31(2) of the Queensland Limitation of Actions Act 1974. That section provided that the court might order the extension of a limitation period by one year if two conditions were satisfied. The conditions were, first, that a material fact of a decisive character relating to a right of action was not within the means of knowledge of a prospective plaintiff until a date after the commencement of the year last preceding the expiration of the limitation period and, secondly, that there was evidence to establish the right of action apart from the effect of limitation. The section is clearly different from section 19A, but McHugh J.'s discussion of limitation statutes generally is nevertheless illuminating. He stated (at 186 CLR 551-554):

[22] The rationales identified by McHugh J. for the setting of limitation periods by the legislature are in my opinion manifestly relevant to the interpretation of the limitation provisions of the Prescription and Limitation Act 1973. All of them apply to the present case. The first, the loss of evidence, is of particular importance; this comprehends both the actual loss of items of evidence and a decline in the quality of the evidence that is available. This is closely related to the initial consideration discussed by McHugh J., the general deterioration of the whole quality of justice with the lapse of time. The loss of evidence and the decline in its quality are especially important when the delay following the events complained of is measured in decades rather than years. Cases involving such a delay present one particularly difficult feature. This is the proper understanding and assessment of events that occurred at a time when social attitudes were markedly different from those that now prevail. It would be quite unfair to judge events by any standards other than those that prevailed at the time; the social attitudes of today cannot be the test of matters that occurred twenty or thirty years ago. Consequently a judge who is called upon to decide a question relating to events of the 1950s, 1960s and 1970s must assess the propriety of what happened against the standards that then prevailed in society. That is not easy. It involves historical reconstruction not of events themselves but of the underlying perceptions and attitudes that underlay those events, which is a much more subtle exercise. This point is especially well illustrated by the present cases. The pursuers' complaints relate in large measure to the administration of corporal punishment. In the 1960s, and probably also in the 1970s, corporal punishment was the norm in Scottish schools and homes. Now it has been abolished in schools, and is to be substantially restricted even in the home. It can scarcely be doubted that these changes in practice reflect changes in the general attitudes that prevail in society. Nevertheless, the allegations of excessive corporal punishment must be assessed not against the norms that would be considered reasonable today but against the norms that were considered reasonable between twenty-five and fifty years ago. No doubt it can be said that anyone who was at school in the 1950s and 1960s will be aware that attitudes to corporal punishment were different, and will indeed probably have had direct experience of those different attitudes. It may also be possible to point to contemporary documents that indicate the sort of standards that were considered acceptable at the time. What is required for a proper assessment of events, however, is an appreciation of the cultural climate that prevailed in schools and homes at that time. This is relevant not merely to determining whether there was an excess of corporal punishment in any particular case. It is also relevant, if there was such an excess, to determining how serious the resulting injury is likely to have been, and what is reasonable compensation for such an injury. Such compensation must be measured against the standards of the time when the individual pursuers were in the care of the defenders, not the standards of today. A beating that today seems clearly excessive might have seemed only slightly above the norm at that time, and the compensation for it would have to be reduced accordingly. Moreover, it must be borne in mind that the most serious injuries complained of by the pursuers are psychological in nature. What they seek compensation for is not so much the pain and suffering caused by any particular beating but the cumulative psychological effects of repeated physical punishment. Once again, the relevant standard is the social and educational norms of the 1960s and 1970s, not to those of today. When physical punishment was widespread, the effect of any individual instance was clearly less than would be the case today. All of these matters make the judge's task, at a range of between 25 and 45 years, peculiarly difficult.

[23] The problem of the decline in the quality of evidence is not restricted to the assessment of corporal punishment and its effects on the individual pursuers. It also extends to other factors that might have had a significant impact on the ultimate psychological state of a particular pursuer. One of these is the effect of institutional care. Once again this is an area where there has been a profound change in social attitudes since the 1970s; institutions for the care of children such as the homes run by the defenders have been closed, and the fostering of children in ordinary households is now the almost universal practice. What must be considered in the present cases, however, is the effect that institutionalization of the sort encountered twenty-five to fifty years ago is likely to have had on an individual pursuer; that includes a whole range of matters such as the lack of affection, the lack of continuous personal contact with any single adult, and the impersonal nature of the discipline that is almost inevitable in an institution. Once again this involves a substantial degree of historical reconstruction. Once again, too, the underlying attitudes and perceptions of society are relevant, and once again assessing these is a peculiarly difficult task. This is not to say that such assessment is impossible; clearly some sort of exercise can be performed to reach a judgment on past events, in the same way as a social historian might reach an opinion. Nevertheless, in any such exercise there is a plain decline in the quality of the evidence that is available by comparison with the evidence that would be found in a case involving events during the last five or ten years. The evidence available to a social historian is rarely, if ever, as good as the evidence that is normally available to a court.

[24] Two further aspects of McHugh J.'s opinion call for particular comment in the present case. The first of these is his comment that important, and perhaps decisive, evidence may have disappeared without anyone now "knowing" that it ever existed. That consideration is particularly important in a case where events occurred more than twenty years before any action was raised, and where the actual disputes are likely to relate not merely to one or two vivid incidents but to the everyday currency of the daily life of those involved. The present cases are of that nature; while a few specific incidents are highlighted in the pursuers' pleadings, the major part of their complaints relates to a culture where repeated physical punishment was the norm. It seems very obvious that many of the details of daily life so long ago will have been forgotten, and will be incapable of retrieval. That inevitably results in a marked deterioration in the quality of justice.

[25] Secondly, McHugh J. points out that a limitation period should not be seen as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents rather the considered judgment of the legislature that the welfare of society is best served if causes of action are litigated within the specified period, even if in consequence good causes of action may be defeated. The limitation period must accordingly be regarded as the general rule and the extension provision as an exception designed to deal with the justice of individual cases. Two important conclusions follow from this analysis. First, the onus is on the prospective pursuer to establish that in his or her case justice requires an extension. Secondly, in determining whether an extension should be granted, the court must evaluate the injustice or prejudice that either side may suffer by a reference to the rationales that underlie the limitation statute.

[26] McHugh J. subsequently considered the issue of such prejudice. On this matter he stated (at 186 CLR 554-555):

[27] In my opinion the foregoing approach follows inevitably from the earlier analysis of the rationales and structure of limitation provisions, and I consider it highly pertinent to the present case. Three points are significant. First, in considering prejudice to a defender, it is important to keep in mind that an extension period reimposes a liability that the defender would otherwise have escaped. Secondly, because of that, it is not material that the prejudice suffered by the defender is no worse than would have been the case had the action been raised towards the end of the limitation period. Thirdly, if a defender can show actual prejudice in defending the action, or the real possibility of significant prejudice, it will normally not be appropriate to grant an extension. This is because the fundamental legislative policy underlying limitation statutes is to avoid the possibility of such prejudice, and if the prejudice can be shown to be real, rather than merely a possibility, that legislative policy applies with its full force and must be given effect. Consequently the existence of actual prejudice to a defender must always be of the greatest importance in considering whether an extension should be granted.

[28] The approach taken by McHugh J. to questions of prejudice is closely paralleled in Scotland by the opinion of Lord President Hope in McCabe v McLellan, 1994 SLT 346, a case where the pursuer raised a claim against the general practitioners who had treated him as a child for failure to treat congenital glaucoma. In respect of one of the doctors, the action was raised one month after the pursuer's 21st birthday, when the limitation period expired. That doctor had no memory of the pursuer's family and would accordingly have been prejudiced even if the action had started timeously, within the limitation period. The court refuse to allow the action to proceed against that doctor. Lord President Hope stated (at 354):

[29] Section 19A has been the subject of considerable judicial discussion. The same is true of its English equivalent, section 33 of the Limitation Act 1980; section 33 is framed differently from section 19A, but it fulfils the same essential function and the authorities on its interpretation are accordingly of assistance in Scotland: Donald v Rutherford, 1984 SLT 70. A number of matters have been clearly established. First, the court has a general discretion under section 19A; the crucial question that must be considered has been stated to be "where do the equities lie?": Forsyth v AF Stoddard & Co. Ltd., 1985 SLT 51 at 55, per LJC Wheatley; Elliott v J & C Finney, 1989 SLT 605 at 608F per LJC Ross. Secondly, the onus is on the pursuer to satisfy the court that it would be equitable to allow his claim to proceed: Thompson v Brown, [1981] 1 WLR . 744, at 753 per Lord Diplock. Thirdly, the conduct of a pursuer's solicitor may be relevant to the exercise of the court's discretion, and the pursuer must take the consequences of his solicitor's actings: Forsyth, supra, at 1985 SLT 54. Fourthly, relevant factors that the court may take into account include, but are not restricted to, three matters identified by Lord Ross in Carson v Howard Doris Ltd., 1981 SC 278, at 282; these are "(1) the conduct of the pursuer since the accident and up to the time of his seeking the Court's authority to bring the action out of time, including any explanation for his not having brought the action timeously; (2) any likely prejudice to the pursuer if authority to bring the action of time were not granted; and (3) any likely prejudice to the other party from granting authority to bring the action out of time". Fifthly, each case ultimately turns on its own facts, a principle which applies even if a number of claimants present similar claims against the same person: ibid.; KR v Bryn Alyn Community (Holdings) Ltd., [2003] QB 1441, at paragraph 45 per Auld LJ.

[30] One issue relevant to the present case that has been discussed in earlier decisions is the significance of a pursuer's ignorance of the legal right to claim damages. 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. Nevertheless, there appears to be only one case where ignorance of the existence of a legal right was treated as decisive in allowing an action to proceed. That case is Comber v Greater Glasgow Health Board, 1989 SLT 639. The pursuer in that case had been disfigured in an operation, and partly as a result of her disfigurement she tended to withdraw from the world. Lord Morton of Shuna appeared to accept that she was ill-informed about modern society to a degree described as "strange"; he also accepted that neither the pursuer nor her parents had any appreciation of what lawyers do and what remedies the law provides. He held, accordingly, that until a relatively late stage the pursuer did not know that there was any possible right to claim compensation for her condition. The case is accordingly a fairly extreme one. It is also significant that in that case there was no suggestion that the defenders had suffered any prejudice other than losing the right to claim limitation; there was no suggestion that any witness had been lost or that any witness could not remember any crucial matter or that the relevant medical records were in any sense incomplete. The case must therefore be seen as somewhat exceptional. It was distinguished in Kane v Argyll & Clyde Health Board, 1999 SLT 823, a case where the pursuer claimed that she had had no knowledge of lawyers, legal remedies or the availability of legal aid, but her evidence on the matter was not accepted. The Lord Ordinary, Lady Cosgrove, described the pursuer as having a degree of worldliness and self-confidence, and she held that no reasonable explanation had been provided for the failure to seek legal advice. Her decision was upheld in the Inner House. Kane is also significant because of certain of the observations made by Lord Prosser in delivering the opinion in the Inner House. He stated (at 1999 SLT 828):

The emphasis in this passage on the importance of prejudice to the defender echoes the analysis of McHugh J. in Brisbane Regional Health Authority v Taylor, supra. In Kane it was held that the defenders had suffered prejudice as a result of the delay, in that one of the surgeons who had dealt with the pursuer could not recall her case and the relevant records had been destroyed. That provided an additional reason for refusing to allow the action to proceed. It should be noted that in Kane the defenders were not deprived of any evidence; the surgeon who performed the operation was available to give evidence, and expert evidence would be available as to proper medical and surgical practice at the relevant time. What matters, accordingly, is whether the loss of evidence is material, not whether it is total.

[31] Certain cases decided in England and Wales also contain pertinent observations on the application of section 33 of the Limitation Act 1980, the equivalent of section 19A of the Prescription and Limitation (Scotland) Act.

[32] The most significant of these cases is KR v Bryn Alyn Community (Holdings) Ltd., supra. That case has a close parallel with the present case because it involved a number of claims for abuse suffered by children in care homes. The abuse varied in nature, and included sexual abuse as well as physical and emotional abuse. The abuse was said to have given rise to long-term psychiatric injury. The Court of Appeal allowed all of the claims to proceed on the basis that, until the plaintiffs received counselling several years after the abuse complained of, they could not be said to have had knowledge of the fact that the psychiatric injury that they had suffered was significant. Section 11 of the Limitation Act 1980 provided that the three-year limitation period should run from the later of the date on which the cause of action accrued and the date of knowledge of the person injured. Section 14 of the Act defined the date of knowledge as the date when the plaintiff first had knowledge that he or she had suffered a "significant" injury. In holding that the plaintiffs had no knowledge that they had suffered significant injuries, therefore, the Court of Appeal delayed the date from which the triennium was held to run. Sections 11 and 14 of the Limitation Act 1980 are the equivalents of section 17 of the Prescription and Limitation (Scotland) Act 1973; in particular, they can be said to parallel section 17(2). Thus this part of the Court of Appeal's decision is relevant to the application of section 17, the matter that was considered by Lord Johnston in the procedure roll discussion conducted last summer. Counsel for the pursuers submitted that it was also relevant to the construction of section 19A, in that it reduced the extent to which a Scottish court could place reliance on English decisions under section 33. His submission, if I understood it correctly, was that the English courts had adopted a particularly wide construction of the equivalent of section 17(2), and that this might lead them to take a narrower construction of section 33, the equivalent of section 19A. In Scotland, by contrast, a wide construction of section 17(2) had not, or not yet, been adopted, with the result that the courts should take a more expansive view when considering whether an action should be allowed to proceed under section 19A. In my opinion such an argument must be rejected. The test imposed by section 17(2) is quite independent of the exercise that a court may perform under section 19A; that is obvious both from the differences in the wording of the two sections and from the fact that, if the test in section 17(2) is satisfied, the court is obliged to allow the action to proceed, whereas under section 19A it has a discretion. Exactly the same can be said of sections 11 and 14 and section 33 of the Limitation Act 1980. I am accordingly of opinion that the cases in England and Wales on the interpretation of section 33 remain highly relevant to the exercise of the court's discretion under section 19A. I should add that that reflects well-established practice, dating back to at least the decision in Donald v Rutherford, supra. In the present case, any issues that arise under section 17 have already been decided by Lord Johnston, and they do not form any part of the subject matter of the present proof.

[33] In KR v Bryn Alyn Community (Holdings) Ltd., supra, the judge at first instance, Connell J., decided that the court's discretion under section 33 should be exercised in the plaintiffs' favour. The Court of Appeal reversed his decision on this point in respect of the majority of claims. In doing so they made a number of important observations on the discretionary power. Their treatment of the individual claims is also of interest, as illustrating how the power may be exercised in cases with close similarity is to the present. The Court of Appeal stated the starting points for the exercise of the court's discretion as follows (at paragraph 74):

[34] The Court of Appeal criticized the balancing exercise carried out by Connell J. (paragraphs 75-78). He had given undue weight, almost to the exclusion of any other circumstance, to his conclusion that the claimants' reasons for delay were a product of the alleged abuse that he had found and that therefore it would be unjust to deprive them of a remedy. In the opinion of the Court of Appeal, to the extent that those reasons resulted from the abuse, they might more appropriately call for consideration under section 14 rather than section 33. The judge was also criticized for failing to discriminate sufficiently between instances of sexual and physical abuse when considering the reasonableness of the time taken by the claimants to seek advice. The Court of Appeal thought that, in the case of physical abuse, the claimants' arguments had far less force. Finally, the judge was criticized for failing to discriminate between claims where the delay was very long, in some cases 20 years or more from the end of the abuse, and claims where the delay was much less. This was important because the longer the delay in any particular case the less justifiable it is likely to be and the greater is the risk of prejudice to a defendant.

[35] The Court of Appeal expressed their conclusions on this area as follows (at paragraph 80):

The third of these points emphasizes that delay caused by excusable ignorance of the facts should be taken into account under section s 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.

[36] The Court of Appeal then made the following general observations (at paragraph 82):

This emphasizes that, when the evidence of claimants is considered, the court must bear in mind the difficulty, or in some cases impossibility, of any effective cross-examination to test the credibility and reliability of such evidence. This point was developed (at paragraphs 91 and 92) as follows:

All of these points are in my opinion clearly pertinent to the present cases.

[37] The Court of Appeal went on to consider the application of its discretion under section 33 to each of 14 individual cases. It decided that only five should be allowed to proceed under that section. The approach taken by the Court can be illustrated by reference to five particular cases. The first of these is KR (paragraphs 137-152 of the transcript of the Court of Appeal's judgment; the individual cases are not dealt with in the reported version). This claimant had been resident in one of the first defendant's homes between 1973, when he was just under 15, and 1975. Previously he had enjoyed a reasonably stable and happy home background, and had shown some ability at school, at least until he fell into bad company. After he was admitted to the home, he was sexually assaulted by one member of staff and physically abused by others. The judge at first instance had found that the abuse resulted in very significant damage, in the form of post-traumatic stress disorder. In this case, however, the Court of Appeal would not have allowed the claim to proceed under section 33. They stated (at paragraph 146):

The second example is DK (paragraphs 153-165). He was resident in one of the first defendant's homes between 1979, when he was 14, and 1982. He had previously been a difficult child, described by the judge as overanxious, wilful, assertive and egotistical. In the home he was subjected to systematic violence. The Court of Appeal would not have exercised their discretion under section 33. They stated (at paragraph 159) that the Judge's approach led to a plainly inequitable result in section 33 terms.

The third example is CGE (paragraphs 166-177); this claim is perhaps closest to the present three cases. This claimant was resident in two of the first defendant's homes between 1980 and 1983, when he was aged between 13 and 17. He had been systematically assaulted by members of staff. The assaults included hair pulling, punching and kicking, and some were clearly serious. The claimant was described as displaying features of an emotionally unstable personality disorder. There was some evidence of disturbed behaviour prior to his admission to the first defendant's homes, but the psychiatric evidence was that his experiences in the homes would undoubtedly have contributed greatly to the further development of his personality problems. Once again, the Court of Appeal declined to exercise their discretion under section 33 in the claimant's favour. They did so notwithstanding a finding (at paragraph 169) that part of the long-term disabling effect of the abuse on his personality and appreciation of what had happened to him was an inability to face up to it and to discuss it with others. The court indicated (at paragraph 170) that allowing an action to proceed would have led to a plainly inequitable result.

The fourth example is RM (paragraphs 178-186). She had been resident in one of the first defendant's homes from 1988 to 1990, when she was aged between 15 and 17. She had had a very troubled childhood, and was very badly disturbed when she was first admitted to the home. In the home she was assaulted in various ways by members of staff; this included punching, kicking, pulling her hair and on one occasion lifting her using a broom handle placed under her chin. She raised proceedings nine years after the last abuse complained of and five years after the expiry of the limitation period. In this case the Court of Appeal would have allowed the action to proceed under section 33. They stated their reasons as follows (at paragraph 183):

The fifth example is DJ (paragraphs 213-225). He had been resident in one of the first defendant's homes from 1975 until 1981, between the ages of 10 and 15. He had been in care previously, and had been assaulted and sexually abused. At the first defendant's home, he was subjected to repeated sexual abuse from two members of staff, much of it of a very serious nature indeed. He also suffered serious assaults from members of staff. After leaving the home he acquired what was described as an "unenviable" criminal record. In this case the judge at first instance disapplied the limitation period, notwithstanding the long delay of nearly 12 years from its expiry, because he considered that the claimant had successfully blocked his memories of the abuse during the intervening period. The Court of Appeal considered that this approach was defective. They stated (at paragraph 221):

The foregoing cases give a flavour of the approach of the Court of Appeal in Bryn Alyn to individual claimants. As I have mentioned, only five of the 14 cases considered by the Court of Appeal would have been allowed to proceed under the discretionary power conferred by section 33. In all of those five cases (JM, CD, RM, GS and JS) the period that had elapsed since the end of the abuse was 10 years or less. The Court of Appeal refused to set any particular time limit beyond which the discretion could not be exercised. Nevertheless, it is clear from the details of the opinion that long periods of delay, in excess of 10 years, are a factor that counts very strongly against the disapplication of the normal limitation provisions.

[38] The next decision of the courts in an England and Wales dealing with the application of section 33 in circumstances broadly similar to the present was Adams v Bracknell Forest Borough Council, [2005] 1 AC 76. That case involved a claimant who suffered from dyslexia, which caused him serious difficulties as an adult. He had attended the defendant council's schools between 1977 and 1988, and his claim was that his dyslexia was not diagnosed and treated adequately. In 1999, when he was 27, he met by chance an educational psychologist who suggested the possibility of dyslexia. The diagnosis was subsequently confirmed, and in 2002 the claimant began proceedings against the council. The House of Lords refused to exercise the discretion under section 33 in the claimant's favour. In doing so, they adopted the reasoning of Sir Murray Stuart-Smith in Robinson v St Helens Metropolitan Borough Council, [2003] PIQR P128 at 139-140:

The House of Lords concluded (at paragraph 55) that in Adams the uncertainties of causation and quantification meant that in the event of success an award was likely to be relatively modest. The council was in a very difficult position, and there were no special features about the reasons that the plaintiff left his claim so late to tilt the balance in his favour.

[39] In Scotland, a claim for dyslexia was considered by Mr R.F. Macdonald QC sitting as a temporary judge in Lannigan v Glasgow City Council, 12 August 2004. In that case the action was raised less than one year are after the expiry of the triennium, and less than five years after the initial diagnosis of dyslexia. The Judge nevertheless declined to exercise his discretion to allow the action to proceed. A major factor in the decision was that the pursuer had a right of action against his solicitors, who had been responsible for delay in raising the action following the receipt of instructions from the pursuer. Thus the pursuer was unlikely to suffer prejudice beyond the need to raise proceedings for professional negligence. The judge also held that the defenders would be prejudiced if the action were allowed to proceed; on this matter his stated (at paragraph [31]):

Because of the passage of time there were potential difficulties about the availability and recollection of the teachers and learning support staff who had been involved, but the judge considered that those difficulties affected both parties equally. The passage that I have quoted appears to me to be very pertinent to the present case.

[40] The most recent decision on section 33 by the Court of Appeal in circumstances that their some resemblance to the present is T v Boys & Girls Welfare Service, [2004] EW CEA Civ 1747 (21 December 2004). In that case the claimant, who was 41 at the date of the hearing, claimed that he had been sexually abused as a child between 1975 and 1976 when he was resident in a children's home managed by the defendant. The abuse was clearly very serious. In 1986 the abuser was convicted of offences of indecency relating to other complainers. In 1993 the claimant in T provided a statement to the police in which he described some of the abuse, and he was subsequently called as a witness at an inquiry into abuse in children's homes in North Wales. In 1997 the claimant instructed a claim for compensation to the Criminal Injuries Compensation Authority. No claim was intimated against the defendant until 2002. The court held that the effective date of the plaintiff's knowledge of the facts relevant to his claim was 1997; thus the action was two years late. The judge at first instance declined to allow the action to proceed, and his decision was upheld by the Court of Appeal. The Court of Appeal made it clear (at paragraph 4) that the discretion under section 33 was essentially a matter for the judge. Nevertheless, Latham LJ made the following significant observations in relation to the exercise of the discretion (at paragraphs 12-14):

In my opinion these observations, which repeat many of the important points made by McHugh J. in Brisbane South Area Health Authority v Taylor, supra, are of the greatest importance in the present case.

[41] To conclude this review of the authorities, I should refer to the Canadian case of M.(K.) v M.(H.), (1992) 96 DLR (4th) 289, to which reference was made by the pursuers' counsel. That case involved a claim made by a daughter against her father for incest. The acts began when the plaintiff was eight years old and continued until she left home at the age of 17. Proceedings were raised 11 years after the abuse ceased and six years after the relevant time bar would normally have come into operation. The Supreme Court of Canada allowed the action to proceed, the main ground being that the plaintiff could not be said to have discovered the wrongful nature of the defendant's acts until she entered therapy. The case was thus, in Scottish terms, one where section 17(2) was relevant rather than section 19A. Counsel for the pursuers nevertheless referred me to the following passage in the opinion of La Forest J. (at 301-302):

Counsel submitted that that reasoning applied equally to cases such as the present, involving the physical abuse of children. In my opinion it does not, for a number of reasons. First, M.(K.) v M.(H.) was a claim brought against the actual perpetrator of the incest. It was not a claim brought against an institution based either on vicarious liability for the acts of employees or on a failure to control adequately the practices followed in the institution. The equities in favour of a claim against the actual perpetrator are clearly much stronger than those in favour of a claim against an institution whose liability is essentially derivative in nature. This is plainly recognized in the passage that I have cited from the opinion of La Forest J.. Secondly, where a claim for sexual abuse is brought against the actual perpetrator, the critical evidence is likely to be that of the two parties involved. Serious sexual abuse is not something that is likely to be forgotten by the perpetrator, and thus the risk that evidence will be lost through the passage of time is less serious than in other types of case. Thirdly, cases involving incest and other forms of sexual abuse of children are in a significantly different position from cases involving physical abuse, even physical abuse of a relatively serious nature. Especially in cases involving allegations of excessive physical punishment, a major difficulty is the application of the social standards that prevailed 20, 30 or even 40 years ago. That problem does not, however, apply to cases of sexual abuse. Sexual contact with children is always wrong, and always has been. No qualification of that statement is necessary, or indeed possible. Consequently the only question is whether such contact occurred; if it did, there is a civil wrong, and the only questions are the extent of the consequences of the wrong and the assessment of appropriate compensation. For all these reasons, I am of opinion that M.(K.) v M.(H.) is not of assistance in the present cases.

[42] Against the foregoing summary of the authorities, it is now necessary to consider the evidence led at the proof in relation to the various matters that might be relevant to the exercise of the court's discretion under section 19A. 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.

[43] On Sunday 18 May 1997 an article (generic production no 13) appeared in the News of the World newspaper, under the headline "Nazareth", dealing with events that were said to have taken place many years previously in Nazareth House, Cardonald. The article began:

The article went on to allege that some of the victims had been tracked down, and that many were still suffering mental torment. A number of individuals were named, and the events that were said to have happened to them were set out in some detail; these included beatings and punishment for bedwetting. A further article appeared in the News of the World the following Sunday, 25 May 1997, under the headline "Wicked nuns left us scarred for life" (generic production no 14). This contains a number of other detailed allegations made by named individuals who had been resident in Nazareth House.

[44] The author of both of these articles, Michael Jarvis, described in evidence how the articles came to be written and the reaction to them. He stated that unprecedented numbers of people came forward spontaneously in reaction to the initial article. Somewhere between 12 and 20 individuals came forward in the first week, and over the first two weeks after 18 May he spoke to between 30 and 35 individuals. Mr Jarvis stated that those concerned were in their fifties or older. Almost all were very distressed when they spoke, and said that they were delighted that the articles had been written. Mr Jarvis was asked specifically to comment on the defenders' contention that the alleged victims should have come forward sooner. He stated that his opinion was that that was not realistic, in view of the distress that had been suffered. Mr Jarvis was then asked whether any of those who had spoken to him had said anything about this matter. At that point counsel for the defenders objected, on the ground that the evidence was hearsay. I allowed Mr Jarvis to answer the question, reserving all questions of admissibility. Mr Jarvis stated that the alleged victims often felt that they would not be believed, and felt safe in coming forward with others. I now repel the objection, on the ground that hearsay evidence is now permissible in civil cases. Nevertheless, I did not find this evidence of any assistance. The present case is concerned with three particular pursuers, and it is their reasons for coming forward that are relevant. All three pursuers have spoken about their own reasons, and there has been considerable psychological and psychiatric evidence on the matter. Mr Jarvis' evidence on this matter was of a largely anecdotal nature, and the individuals concerned were not of course subject to cross-examination. In my opinion it added nothing of value to the pursuers' case.

[45] A third article appeared on Sunday 1 June 1997 (generic production no 15), under the headline "Cardinal to probe house of horrors". This contains further specific allegations from named individuals. Prior to 1 June Mr Jarvis had been in touch with Mr Cameron Fyfe, the Glasgow solicitor who has subsequently acted for most of the claimants against the defenders, including the three present pursuers. The article of 1 June contained the following passage:

Mr Jarvis stated that the figures mentioned in the article were obtained from Mr Fyfe on the basis of a "theoretical" quotation. Mr Fyfe also gave evidence; he stated that the quotation attributed to him was exaggerated. He had been asked by Mr Jarvis if the claims could be worth as much as £100,000, and he said that that was possible. He had also been asked if he was willing to act for claimants, and he replied that he was. I accept Mr Fyfe's evidence on this matter. Nevertheless, in assessing the risk of prejudice in consequence of media publicity, it is what was published that matters, not what Mr Fyfe actually said. A further, much shorter, article appeared on Sunday 8 June 1997, under the headline "Cops step up probe on abuse" (generic production no 16). This stated that police investigations had begun. It also stated that "Glasgow lawyer Cameron Fyfe is handling claims for compensation"; he was quoted as saying that he had been told "absolutely horrendous stories" and that the treatment "amounted to just sadism". A further article appeared on 29 June 1997, under the headline "Church's secret fund for abuse" (generic production no 18). A subheading stated "Nazareth House victims hope for £100,000 payout". The article began

[46] More articles appeared later in the year and into 1998, both in the News of the World and in other newspapers. One article, in the Daily Mail of 26 January 1998 (no 7/49 of process), contained the following quotation attributed to Mr  Fyfe, who is described as the lawyer for the alleged victims:

A paraphrase of that quotation appeared in large print underneath the headline, next to a photograph of Mr Fyfe. The quotation was repeated in a further article in Scotland on Sunday of 25 January 1998 (no 7/50 of process). Mr Fyfe in his evidence denied that he ever provided such a quotation. I did not hear evidence from the authors of the two articles in question, and consequently I find it difficult to reach a definitive view on the origins of the quotation. On the basis of Mr Fyfe's evidence, however, I have no reason to doubt his denial that he said anything of the sort. If that is so, the quotation must be fictitious, made up by the author of the Daily Mail article and presumably repeated uncritically by the author of the article in Scotland on Sunday. Nevertheless, in assessing possible prejudice as a result of media publicity it is what was published that matters, not what Mr Fyfe actually said, because that is what potential claimants would have read.

[47] The story was subsequently taken up by BBC Scotland. In January 1998 they organised a meeting in Partick Burgh Halls to which they asked most, if not all, of those who had come forward. At the meeting the individuals who have come forward were encouraged to speak to one another about their experiences, and several were interviewed. BBC Scotland subsequently, in February 1998, broadcast a "Frontline Scotland" programme dealing with the issue. In the course of the programme a number of former residents of children's homes maintained by the second defenders described their experiences in the homes. I was shown a video of the programme, but I did not find it of assistance in dealing with the present cases. Most of the individuals interviewed had been resident in the second defenders' home in Aberdeen, and some others had been in the homes in Lasswade and Kilmarnock. Their recollections, which were not of course subject to cross-examination, had no direct bearing on the situation in Cardonald. In any event, for the purposes of the present proof I must assume that the pursuers' substantive allegations are true. In these circumstances the fact that other individuals have made similar claims seems quite irrelevant.

[48] I have summarized the evidence about the media stories regarding the second defenders' children's homes in some detail for two reasons. First, all three pursuers stated that it was reading the articles in the News of the World that first prompted them to contact Mr  Fyfe to discover whether they could make claims against the defenders. Secondly, counsel for the defenders submitted that the media publicity was liable to taint the evidence given by the pursuers, and indeed other claimants, by suggesting events that might have happened to other residents. I will deal with the second of these matters below, in discussing the psychiatric evidence led on behalf of the defenders and in paragraphs [130]-[133] of my conclusions. First, however, I will turn to the explanations given by the three present pursuers for the fact that they did not make claims against the defenders before May 2000.

[49] In their evidence the three pursuers explained their reasons for not making any claim at an earlier stage. That evidence was as follows.

1. Mrs J W

[50] I found Mrs W to be a pleasant and straightforward witness, and I found her account of the events leading to her making a claim to be credible; I deal with the reliability of her evidence in the paragraphs that follow. It is also clear that she is intelligent; her evidence was set out in a series of letters written to Ross Harper and to Cardinal Winning, all of which are remarkably clear and well written. Mrs W was not asked specifically why she delayed until October 1997 before contacting a solicitor. Nevertheless, her evidence indicated that she did not think that she would be believed; no one would believe that nuns could be so cruel. When she was in the home children had run away on occasion, but they had merely been brought back by the police and punished; no one had believed their stories of cruelty. Her attitude to being believed by others was perhaps summed up in one response: "Who would believe a nun would do these things?" Mrs W also indicated that she had been frightened of the nuns and that, when she left the home, one nun, Sister M, had told her that "her eyes and ears" would be everywhere. Consequently she stated that she was afraid to make any complaint about her treatment in the home. It was clear that she had not forgotten what had happened to her at Nazareth House.

[51] Mrs W's sister drew her attention to one of the articles that appeared in the News of the World in May 1997. She stated that the newspaper reports had "brought memories back". Thereafter, in late May or early June, she wrote a letter to Cardinal Winning, giving an account of her treatment in Nazareth House. She had received a sympathetic response from Cardinal Winning, and initially had not wanted to raise legal proceedings. Subsequently, however, she saw the BBC Frontline Scotland programme in February 1998, and was incensed by remarks made in the course of the programme by Bishop Conti to the effect that the claims made against the defenders were ill founded and that the persons making them merely hoped to recover compensation. Thereafter she had got in touch with Mr Fyfe. She stated that she had not realized that she could take legal action against the defenders until she spoke to him. She qualified this, however, by stating that before she spoke to him she thought that no one would listen to her, but he did. That remark is inconsistent with the fact that she had clearly received a sympathetic hearing from a number of individuals previously.

[52] Mrs W had spoken to a number of people about her treatment in Nazareth House prior to 1997. She had mentioned the matter to her general practitioner in February 1995, and specifically mentioned the convent (no 7/1/153 of the W process). She also mentioned her experiences in Nazareth House to a minister in the Church of Scotland and his wife, from whom she received counselling, to nuns in Paisley with whom she was friendly, and, in the company of some of those nuns, to the Mother Superior at Cardonald at some point during the 1990s. It is accordingly clear that Mrs W was able to mention her experiences at Nazareth House. It must be said, however, that discussing her treatment there caused her very considerable distress; that was obvious from her demeanour in the witness box. Nevertheless, the fact that she was able to confront the Mother Superior at Cardonald indicates that by then she did not have any great fear of the Church or of nuns; indeed, she had clearly developed friendships with the nuns in Paisley. Mrs W did not suggest in her evidence that the persons to whom she spoke did not believe her, with one exception. This was a Catholic priest to whom she had spoken, a Canon G, who had been unpleasant towards her. Nevertheless, her hearing from the others to whom she spoke was generally sympathetic. Mrs W had had previous contact with a solicitor, when she obtained a divorce from her husband.

2. Mrs A B

[53] Mrs B was on medication at the time when she gave her evidence, to deal with symptoms of depression and anxiety. She nevertheless came across as an intelligent witness who was able to give coherent evidence. She was also clearly very familiar with the documentation relevant to her case, including the social work records. I found her evidence to be generally credible; I deal with its reliability in the following paragraphs. Mrs B stated in her evidence that she had not made any complaints about her treatment by the defenders because she did not think that anyone would believe those complaints, especially as they related to treatment at the hands of nuns. She had told her own husband, but he had not believed her until the articles appeared in the News of the World and other newspapers from May 1997 onwards. At that time, although she and her husband were separated, he came back end apologized for not having believed her previously. She stated that she had not realized until she read the newspaper articles, which referred to the involvement of a lawyer, that she could bring court proceedings against the defenders; she had not been familiar with dealing with lawyers. It should be noted, however, that she had had dealings with the Govan Law Centre as a result of serious problems that she had experienced with her neighbours; consequently she cannot have been ignorant of the possibility of obtaining legal advice. This point only emerged in cross-examination. She stated that her desire was not to obtain money but to have it accepted by the defenders that abuse had happened, in order that she could obtain closure on the matter. She was upset at the length of the time that the case was taking, and felt that it had had detrimental effects on her health.

[54] Mrs B also spoke to the reaction of the authorities to complaints when she was a resident in Nazareth House. When children ran away, they were invariably brought back by the police, and the police did not investigate any complaints. Mrs B's own father had complained to a social worker about her treatment at the hands of the second defenders, and offered to show the bruises that his daughter had suffered. Nevertheless the social worker was not sympathetic. She had not realized that anything was wrong with her treatment until she reached the age of about 14, when she witnessed an assault on another child. Until then she had thought that her treatment was part of normal childhood.

[55] In her evidence Mrs B stated that the memory of events in Nazareth House was always there; "it was just suppressed". She accepted, however, that she had always remembered the incidents to which she spoke in her evidence. Consequently her reference to the memory's being "suppressed" indicates no more than a reluctance to speak. Prior to 1997 Mrs B had spoken to a number of individuals about her treatment in Nazareth House. As mentioned above, she had spoken about it to her husband. She mentioned it to her general practitioner as long ago as July 1991. She may also have mentioned it to a third person. At one point prior to 1997 she had approached a reporter who worked for the Daily Record with a view to the publication of an article on her experiences at Nazareth House; she stated that she wanted those experiences to be exposed. This had come to nothing because the reporter had insisted on a photograph of her, and she was concerned that that might have an impact on her children. After the articles in the News of the World, she gave an interview to the BBC, took an active part in the meeting at Partick Burgh Hall organized in connection with the Frontline Scotland programme, and provided documentary material to a journalist. It is clear, accordingly, that Mrs B was able to speak about her experiences. Her allegations involved serious assaults, and she was plainly well aware that what she claims happened to her was wrong.

3. D M

[56] Mr M gave evidence that he had not wanted to mention the treatment that he had suffered when he was in Nazareth House because it brought back very unhappy memories. He had mentioned his treatment in the home to the partner with whom he had lived for a number of years. Initially she had not believed it, and had laughed at Mr M and mocked him. Eventually, however, she had read one of the articles in the News of the World, and had believed it after that. She had suggested that Mr M should make contact with Mr Fyfe. Initially Mr M was reluctant to do that, because he wanted to block out his memories of the past and not to remember them. He stated that sitting in court he was made to feel as if it were his fault. More specifically, Mr M stated that people believe that a priest might sexually abuse a boy but not that a nun might mentally and physically abuse him. Consequently treatment at the hands of nuns was not something that one would want to share with other people. At one point, when he was about 17 or 18, Mr M had commented on his treatment in Nazareth House to the lawyer who acted for him in criminal matters. The lawyer had clearly not believed him. Mr M stated that he was upset at giving evidence about what had happened to him, and that the experience would stay with him for months.

[57] Mr M accepted that the memories of his treatment in Nazareth House were always there at the back of his mind. He did not mention what had happened to other people because he felt embarrassed and ashamed. He did mention it to his then partner, and when she did not believe him that reinforced his reluctance to speak. He was also familiar with dealing with lawyers, as he had been the subject of criminal proceedings on a number of occasions when he was in his teens.

[58] Mr M was adamant that he was not interested in compensation. The matter that upset him most was the fact that, when his father died, he had not been allowed to attend the funeral. That was apparent from a passage in his cross-examination when he was asked about his initial contacts with Ross Harper in October 1997. He had had a telephone conversation with a representative of the firm, Mrs Taylor, on 21 October 1997 (referred to in no 6/3 of the M process). He stated that Mrs Taylor had stated that he had a claim for damages, but he stated that he was telephoning say what had happened, not to make a claim for damages. He stated that all he wanted back was his father's funeral. It might look as if he were chasing a pot of gold, but that was wrong. At a later point Mr M stated that he had told Mr Fyfe that he was not bothered with compensation, but Mr Fyfe had said to get his story across anyway. I should state that Mr M did not appear to be motivated by a desire to hold those responsible for his treatment to account, or to back up other claimants.

[59] Evidence about possible psychological explanations for the pursuers' delay in raising proceedings was led from the Dr Ian Tierney, a chartered clinical psychologist, on behalf of the pursuers and from Dr Janet Boakes, a consultant psychiatrist and psychotherapist, on behalf of the defenders. For reasons that are set out subsequently, I prefer approach taken by Dr Boakes, although I consider that certain of the points made by Dr Tierney are still valid. I intend to summarize the evidence of Dr Tierney and Dr Boakes, and then to state my reasons for preferring the views of Dr Boakes. Thereafter I will state my conclusions on this part of the evidence, including the points made by Dr Tierney that appear to me to be relevant.

[60] Dr Tierney is, as I have already mentioned, a chartered clinical psychologist. In 1983 he founded the Keil Centre, an independent applied psychology unit based in Edinburgh and Glasgow. From 1983 to 2003 he was Clinical Director of the Keil Centre. By 2003 the Keil Centre employed nine chartered psychologists, who worked in the areas of clinical and occupational psychology. Dr Tierney also dealt with a significant clinical and legal case load. He continued with that work after he retired from the Keil Centre in June 2003.

[61] Initially the pursuers had sought a generalized explanation for the delay in making claims, and Dr Tierney was instructed to look for such an explanation. Following those instructions, Dr Tierney produced a report (generic production 7) dated 12 February 1999 in relation to 11 cases, described as "test" cases; these included the three present pursuers. Dr Tierney produced a further report on those three pursuers dated 28 December 2004 (generic production 10). In addition, the three pursuers, together with other claimants, had been interviewed by a colleague of Dr Tierney, Valerie Gray Taylor, and she produced detailed psychological reports on each of the persons that she had interviewed. Miss Gray Taylor did not give evidence, although reference was made to her reports in the course of Dr Tierney's evidence; Dr Tierney did, however, state that he had discussed the cases with her on a regular basis, and I took the view that he was able to speak adequately to the terms of her reports.

[62] Miss Gray Taylor's reports on the three pursuers (number 6/1 of each of the relevant processes, dated 8 April 1998 for Mr M, August 1998 for Mrs W and April 1998 for s B) contained a section dealing with the relevant pursuer's psychological history since leaving Nazareth House. In relation to Mr M, he was described as currently depressed, and it was noted that he had been prescribed antidepressant medication since March 1997. He had been seen by a clinical psychologist in November 1997, when he was described as "a severely damaged and disturbed young man". He had not, however, continued with treatment at that time. His sleep was uneasy; he had nightmares once or twice a week, and some of those were of a repeating nature. He was also noted as having a fear of opening doors or finding himself alone. After he left institutional care he had tried to commit suicide by swallowing a variety of pills. It was further noted that, according to Mr M's partner, he kept trying to jump out of the window during nightmares. As a result the bedroom windows has to be kept nailed shut. Mr M also reported that he was "paranoid" about people looking at him. He did not like going out, and remained in the house in self-imposed isolation every day. His partner reported that he spent a lot of time sitting in the bedroom by himself, and would not let her in, putting a dressing table across the door. Mr M also had obsessional habits, including turning all of the items in the kitchen cupboard to face the same way. Miss Gray Taylor's conclusion was that Mr M presented with symptoms that led to a diagnosis of moderate to severe anxiety and severe depression. She considered that he was also experiencing the kind of intrusive thoughts and avoidance behaviour that is associated with post traumatic stress disorder, and that he exhibited obsessive compulsive symptoms to a high level.

[63] In relation to Mrs W, Miss Gray Taylor noted that she had been prescribed antidepressant medication since 1988 and was prescribed medication for anxiety and panic symptoms in 1989. She had been referred for counselling in 1995, and appeared to have stopped antidepressant medication for a time. In 1997 she had again suffered from depression, and at this stage had mentioned physical abuse in Nazareth House to her doctor; following that she was prescribed further antidepressant medication. Miss Gray Taylor also noted that Mrs W's IQ was in the high average range. Her conclusion on Mrs W was that she had been clinically depressed for many years and that she presented with symptoms that fulfilled the criteria for a diagnosis of post traumatic stress disorder.

[64] In relation to Mrs B, Miss Gray Taylor noted that she had described a very frightening time on leaving Nazareth House and she had not been prepared at all for life outside a children's home. She did not know how to carry out operations such as travelling on a bus, using a cooker, buying food or making meals. Miss Gray Taylor administered a number of psychological tests, which indicated a high score in relation to perceived everyday worries and problems. Miss Gray Taylor's conclusion was that Mrs B currently experienced intrusive thoughts about her experiences in Nazareth House, as well as avoidance behaviour, to a level consistent with those who have a diagnosis of post traumatic stress disorder. She was currently severely clinically depressed and had been for a number of years. She was also noted as being extremely anxious and very frightened all the time. She only left the house when that was absolutely necessary. Her quality of life was described as extremely poor; on four measures it was in the lowest percentile. Mrs B's intellectual functioning was thought by Miss Gray Taylor to be at a level that indicated ability to attend college or university, although her only employment had been as a machinist, cleaner and meat packer. Mrs B had no memory of living anywhere else prior to Nazareth House and had had no contact with her mother until she was 31 years old. Miss Gray Taylor accordingly thought that it could be said that a major cause of her present poor quality of life, lack of occupational attainment, episodes of clinical depression and inability to trust others and form friendships was that of being raised in the non-nurturing environment of Nazareth House.

[65] Dr Tierney's first report (generic production 7) was designed to deal with an inquiry as to whether there were common elements in the personal and psychological histories of eleven named individuals, including the present three pursuers, who were resident in institutions managed by the defenders in Aberdeen, Cardonald and Lasswade or in another institution at Smyllum Park, Lanark. Dr Tierney was asked in particular to indicate to what degree individuals with such histories avoid talking about their experience to others, and indicate fear that they would be disbelieved or attract some form of retribution if they had raised complaints in a formal way. Dr Tierney noted that all eleven individuals reported remarkably similar experiences of physical and psychological ill treatment. There was a consistent history while in the institution of being physically struck on the head, being subject to extremes of temperature, very poor quality food, repeated degrading verbal abuse, impersonal attention amounting to neglect and experiencing a pervasive fear of harm of various sorts from the nuns who had charge over them. Dr Tierney then considered, as a matter of psychological theory, the effects of severe ill treatment at an early age on subsequent development. In doing so, he relied in particular on a book, "Traumatic Stress", by van der Kolk, McFarlane and Weiseath (1996). This is described in the report as one of the most authoritative summaries of research on the topic, involving a discussion of what is described as the most recent consensus view of the general effects of severe ill-treatment at an early age in later life. It is clear from this part of the report that Dr Tierney relied in particular on a diagnosis of Disorder of Extreme Stress Not Otherwise Specified (DESNOS). I discuss this disorder at paragraphs [82] and [93.2] below; it is, in effect, a residual category designed to cover cases that do not fall within previously recognized disorders such as post traumatic stress disorder.

[66] Dr Tierney went on in his first report to identify similarities in the psychological and behavioural histories of the eleven individuals under consideration. These included significant difficulties in forming and maintaining relationships in eight out of the eleven cases, difficulties with alcohol in five cases, suicide attempts in five cases, imprisonment in five cases, somatization (an unusually high number of visits to the doctor) in all seven cases where medical records were available, and failure ever to be employed in four cases. The quality of life of eight was measured on a conventional scale, and it was found that seven of these were in the lowest 5% of the population, with four in the lowest 1%.

[67] The reasons for failing to make complaints earlier were then discussed. Dr Tierney stated that there was a very consistent pattern in the reasons given by the eleven individuals for their lack of complaint. Three of the eleven individuals had in fact made disclosures previously, one to the police, one (Mrs W) to the authorities in Nazareth House, Cardonald when she revisited it in 1993, and one to the Daily Record newspaper in the early 1990s. Five of the named individuals indicated that they were afraid that the Catholic Church would take action against them if they make complaints. Two individuals were recorded as holding a firm belief that they had been in the wrong and had deserved the punishment that they had received at Nazareth House. Six of the eleven did not speak out earlier because they were convinced that no one would believe them. Six of the eleven are recorded as reporting "a pervasive desire to avoid remembering their ill treatment in the institutions and their sense of hopelessness, lack of nurturing, fear, and degradation". The reasons for speaking out now were stated in the following terms:

Dr Tierney's conclusion was that the eleven individuals whose behaviour had been assessed conformed very closely to the DESNOS criteria incorporated into two internationally recognized standards, DSM-IV and ICD-10. With one exception, difficulty in modulating anger, their psychological histories fulfilled these criteria to what the Dr Tierney described as a remarkable degree. Dr Tierney stated in addition that the various assessments of avoidance behaviour in the group indicated an unusually high prevalence of the defensive behaviour that is typical of DESNOS. His general conclusion, accordingly, was that the eleven individuals whose cases he had considered suffered from the residual category of disorder known as Disorder of Extreme Stress Not Otherwise Specified.

[68] Dr Tierney's second report (generic production 10) gave further consideration to a number of possible reasons for delayed disclosure of abuse to the police or legal advisers. The first of these was memory deficit arising from post traumatic stress disorder caused by childhood abuse. In support of this factor, Dr Tierney relied on two papers by J.G. Bremner and others, "Deficits in verbal declarative memory function in women with childhood sexual abuse-related posttraumatic stress disorder" (J Nerv Ment Dis 2004 Oct; 192 (10): 643-9) (generic production no 22) and "Neural correlates of declarative memory for emotionally valenced words in women with posttraumatic stress disorder related to early childhood sexual abuse" (Biol Psychiatry, 2003b May 15; 53(10): 879-89) (generic production no 23). These papers, in particular the first, indicated that women who had suffered abuse in childhood and consequent PTSD experienced deficits in verbal declarative memory by comparison with women who had been abused without suffering PTSD and women who had not been abused. By comparison, there were not significant differences in relation to visual memory. In that paper the authors considered possible explanations for the phenomenon. The preferred hypothesis was that stress might lead to alterations in the part of the brain known as the hippocampus, which plays a critical role in memory. Dr Tierney stated that that hypothesis was controversial, but that related only to the explanation for what was observed, not what was observed. The paper indicated that early abuse causes changes in the brain which affect the memory.

[69] Dr Tierney's view in relation to the present three cases was that the pursuers had experienced difficulties with verbal memory. If they suffered trauma as children, their problems with verbal memory were typical, according to Bremner's paper. He considered that Bremner had been responsible for the most authoritative studies of the effects on adults of abuse as children. The particular problem experienced in these cases related to the verbal, or declaratory, memory; the visual memory was not affected. In other words, the subject can remember what happened but cannot speak about it. Dr Tierney conceded, however, that the exact mechanism is the subject of dispute.

[70] The second possible reason for the delayed disclosure discussed in Dr Tierney's report was dissociative symptoms and amnesia arising from childhood abuse. In this connection, he relied on a paper by J.A. Chu and others, "Memories of childhood abuse: dissociation, amnesia, and corroboration" (Am J Psychiatry 1999 May; 156(5): 749-55) (no 7/97 of the W process). Dr Tierney stated that observations of dissociation are sometimes used to explain the theoretical concept of repression, a defence mechanism which consists of an enduring pattern of protective behaviour designed to provide a defence against an awareness of something that is anxiety-producing. He conceded, however, that repression was a concept rarely used today, at least in practice.

[71] The third possible reason for delayed disclosure related to the patterns of disclosure by the claimants who had been interviewed by Dr Tierney and his colleagues (34 in number). While a few of the individuals affected did disclose the history of childhood abuse to individuals who were either emotionally close to them or who had a duty of care and confidentiality (such as a general practitioner), the majority tried to forget about their experiences and did not talk about them, even to close family. That indicated that the failure to disclose was widespread.

[72] Dr Tierney's fourth and fifth reasons for non-disclosure related to the life histories of the claimants, first between the ages of 18 and 21 and secondly at the time of psychological assessment. He noted that the great majority of those interviewed (26 out of 34) reported or were reported as having clinically significant behavioural or psychological symptoms in middle or late adolescence. The most common of these were those associated with affective disorders or PTSD. At assessment, 20 out of 34 interviewed were diagnosed as suffering from recurrent depression. Dr Tierney noted that the lack of energy, anhedonia (inability to enjoy life), poor concentration and loss of interest, plus the self-deprecating fault and guilt, all of which are primary features of depression, meant that those affected would have had very little motivation or incentive to instigate a complaint about the abuse that they had experienced. Dr Tierney also noted that at assessment nearly half of the affected individuals (16 out of 34) were diagnosed with significant symptoms of PTSD, a condition that he thought would almost certainly have been present between the ages of 18 and 21 years, given that their experience of childhood abuse was the initial