DK AGAINST THE MARIST BROTHERS AND ANOTHER
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 54
PD1745/15
OPINION OF LADY WOLFFE
In the cause
DK
Pursuer;
against
THE MARIST BROTHERS AND ANOTHER
Defenders:
Pursuer: Hajducki QC et Hughes; Thompsons
Defender: Brown; DAC Beachcroft Scotland LLP
15 April 2016
Introduction
[1] In this action for personal injury, the pursuer seeks reparation for certain sexual and physical abuse said to have been committed against him in the early 1960s, when he attended St Columba’s, Largs, as a full boarding pupil. The pursuer is now 60. This summons was signeted on 22 July 2015 and served on the defenders on 28 July 2015.
[2] As this is a preliminary proof on the issue of time‑bar, it is not necessary to set out in any detail the nature of the pursuer’s allegations.
[3] The pursuer’s primary position is that his claim is not time‑barred. The pursuer relies on a threat said to have been made to him as a child and which, he says, precluded him coming forward until 2013. On the pleadings, though not ultimately in submissions, the pursuer relied on section 17(2) of the Prescription and Limitation (Scotland) Act 1973 (“the Act”) as postponing the commencement of the running of time until September 2013. In the alternative, the pursuer relies on section “19(a)” (sic) of the Act.
[4] For their part, the defenders contend the long negative prescription has extinguished any claim of the pursuer arising from any wrongful act committed prior to 26 September 1984. In the alternative, they contend that the pursuer’s claim is time‑barred. The triennium has long passed. Finally, in respect of any reliance on section 19A of the Act, they contend that the substantial prejudice they would face in defending the pursuer’s action should lead the court to refuse to allow the pursuer’s action to proceed on that basis.
Background
The pursuer’s evidence
[5] For the purposes of this preliminary proof, the defenders did not seek to contradict the pursuer’s account of what he says happened. There was no challenge to his credibility. Essentially, the pursuer’s averments were, insofar as they were spoken to, taken pro veritate insofar as they concerned the merits.
Time-frame for alleged abuse
[6] The pursuer was born in October 1955. He was sent at about the age of 7 years old to a preparatory school in Largs, called St Columba’s and which was run by the Marist Brothers (“the School”). He could not recall if he began in the summer before he turned 7, or the summer after that. He left the School when he was 9. He was at the school for no more than about two years. Thereafter, he left St Columba’s and went onto another school in Dumfries. His older brother was also a pupil for a time at the School.
[7] He boarded from Mondays to Fridays at the School. There were two houses where the boys slept. One of the Marist Brothers responsible for the boys’ welfare, including that of the pursuer, was a Brother Germanus. He was responsible for the dormitory arrangements and it was in that role that he was in a position to commit the abuse alleged. The abuse alleged was said to have extended for a considerable part of the time that the pursuer attended the School. For the purposes of this preliminary proof, the abuse was assumed to be co‑extensive with the pursuer’s attendance at the School.
The threat made by Brother Germanus to the pursuer
[8] The pursuer spoke of a specific occasion when he and his older brother were told by Brother Germanus that their younger brother, “A”, had died in his sleep at home. This was after the abuse had started. He then said that Brother Germanus took him aside, that is outwith the presence of his older brother, and Brother Germanus said to him that if he (i.e. the pursuer) ever spoke of “our little secret” then he would never see his brother A again. The pursuer understood the reference to “our little secret” to refer to the abuse by Brother Germanus of the pursuer. He understood the import of what Brother Germanus meant to be that if he, the pursuer, broke silence, he would never see A again in heaven. He explained that as a pupil, he was taught about heaven and hell and to desire to be reunited with loved ones, such as his deceased brother, in heaven.
[9] The pursuer explained the force of what Brother Germanus said to him at the time. He was a young child, being taught at a Catholic School, and where a religious brother was a figure of authority, especially in such matters. He accepted “as the Gospel truth” what Brother Germanus told him. He understood that if he did not speak out about what had happened to him, then he could be reunited with his brother in heaven, which he dearly wished. It was this threat that affected him deeply and which, he said, precluded him coming forward with the allegations before he did. As he put it, it was his “absolute belief” that if he ever spoke about the abuse he would never see his deceased brother again.
[10] He never told anyone at the School at the time, or for many years thereafter, about the abuse by Brother Germanus. He had once run away from the School. He was brought back to the School but he was never asked why he had run away. The pursuer was adamant that he never told anyone at the School at the time about the abuse or, indeed, anyone else for a very long time afterwards. He explained the feelings of guilt, shame and cowardice that beset him. He wanted to protect his daughters. While visibly upset when giving his evidence, the pursuer explained all of this with great dignity. He gave his evidence in a measured manner.
The trigger for disclosure in or after September 2013
[11] What changed things, in the pursuer’s mind, were certain exchanges with a fellow guest at a family wedding in September 2013. An older woman had approached the pursuer, as she knew his family. The woman, who was from a well-known Catholic family in the area where the pursuer had grown up, mentioned that her husband had also been a pupil at the School. However, when she began to extol the virtues of the Marist Brothers, including Brother Germanus, and how much her husband had enjoyed the School, the pursuer became very troubled. In his wife’s hearing, the pursuer said to this woman that that wasn’t his experience. He had not enjoyed the School. There were certain further exchanges, but the pursuer did not elaborate or disclose anything at that time. The next day, however, the pursuer’s wife pressed him repeatedly to disclose what was troubling him, and that she and his family were fully supportive. She continued to press him to speak about whatever it was that was bothering him. It is not entirely clear how much time passed until the pursuer finally told his wife of the abuse he alleges.
The pursuer’s contact with the Marist Brothers
[12] By January 2014, the pursuer felt able to contact the Marist Brothers. He first did so by contacting them by email to their office in the Netherlands. He had a reply very quickly from a Brother Brendan Geary. The pursuer described the response by the Marist Brothers as very generous. The pursuer was not yet ready to meet with them, but he did eventually speak with Brother Brendan. The pursuer was also put in touch with a Marist Brother in Glasgow, Brother Ronald McEwan.
[13] In relation to Brother Brendan, the pursuer said that he had explained to him about the threat made by Brother Germanus. He said he was looking for clarity from Brother Brendan about what Brother Germanus had said. This was because a man of religion, Brother Germanus, had told him something that he had believed for 50 years. Brother Brendan reassured him to the effect that Brother Germanus was wrong to say this and that he had nothing to worry about in respect of not seeing his deceased brother again.
[14] The pursuer gave evidence to the effect that Brother Brendan told him that what he revealed was a crime and that the pursuer should not go to the police. He said that the Marist Brothers had a protocol in place and that they would contact the police. On behalf of the Marist Brothers, Brother Brendan organised counselling for the pursuer. The defenders paid for this. The pursuer described Brother Brendan as kind and comforting. He followed up to know how the pursuer was getting on with the counselling. The pursuer said that Brother Brendan suggested to him that he make a claim, as the Marist Brothers had a fund and that the pursuer was entitled to claim from it. Later, the pursuer said that Brother Brendan was in touch to say that the lawyers the pursuer had instructed were not the right kind of lawyers. He also said that Brother Brendan had offered to make a large donation to a child charity of his choice in the name of the pursuer. The pursuer declined this.
[15] The pursuer gave evidence that he contacted his current agents, Thompsons Solicitors, in about May of 2015 and proceedings were raised two months later. He explained that the counsellor encouraged him to raise an action as an “end game”, as he was told he would never have closure in respect of the abuse he had suffered.
[16] In cross‑examination, the pursuer confirmed that he had continued to attend church. He had raised his children in the Catholic faith. He confirmed that he had never spoken about the abuse. He had not spoken about it in confession or to any priest. He was not challenged about any of what he alleged by way of abuse. It was accepted that the threat made by Brother Germanus might operate on a small boy. But he was pressed as to whether he thought differently about this threat as he matured into his 30s, 40s or 50s. The pursuer was adamant that he did not believe anything different as he got older. It was a “mindset” he had.
The pursuer’s wife’s evidence
[17] The pursuer’s wife also gave evidence. She and the pursuer had been married for nearly 40 years. They had three grown daughters. She confirmed that up until late 2013, the pursuer had never disclosed anything about the alleged abuse to her. She confirmed that the trigger for the pursuer eventually disclosing to her were the exchanges with the fellow guest at the wedding in September 2013.
[18] She described that in the past the pursuer would become “very, very angry and very upset” if he saw a story about abuse on TV. He did not then say that he was a victim but his reaction was out of proportion to hers. She would be upset by such stories but she described him as inconsolable.
[19] The pursuer had also told her about Brother Germanus’s threat, that if “our little secret” came out then the pursuer would never see his brother again. She explained that this was something the pursuer believed.
Brother Ronald McEwan
[20] The pursuer’s third and final witness was Brother Ronald McEwan. He was a safeguarding officer with the Marist Brothers. He explained that this entailed taking responsibility for anyone who made allegations of abuse by any Marist Brother. His was a pastoral role. He was based in Glasgow. He had been put in touch with the pursuer by Brother Brendan, after the pursuer had contacted the Provincial Office in the Netherlands.
[21] He confirmed that in discussions with the pursuer, the pursuer had disclosed allegations of abuse by Brother Germanus. This included the comment made by Brother Germanus to the effect that if the pursuer ever revealed what happened he would not get to see his brother again. The pursuer was quite clear that this is what Brother Germanus had said to him. When asked his reaction, Brother Ronald explained that he was horrified that such a thing was said to a young boy. It was put to him that the School was responsible for the physical and moral welfare of the boys. He accepted this, but he explained that any moral or doctrinal teaching would be of a very basic kind commensurate with the young ages of the boys.
[22] In respect of the comment or threat made by Brother Germanus to the pursuer, Brother Ronald was asked a number of times about his perception of the effect of this on the pursuer. He accepted that the pursuer believed this as a child. He accepted that the pursuer was distressed when speaking about the allegations. He accepted that it was clear that the pursuer had been troubled by this as a child. However, he was not sure as an adult what the pursuer would have believed. The pursuer was no longer involved with the Catholic Church in any way. The witness repeated that he did not accept, or at least did not know, what the pursuer’s state of mind was as an adult in relation to Brother Germanus’ threat. He confirmed that what the pursuer had been told did not accord with Catholic theology. It was bad theology and the pursuer should never have been told that.
[23] Brother Ronald confirmed that the pursuer’s allegations would have been reported to the police as a matter of course. This was done. He explained that his allegations would also have been reported to the Catholic National Safe-Guarding Office in Glasgow.
[24] In relation to the pursuer’s evidence about a suggested donation, Brother Ronald explained that the pursuer’s initial position had been that he did not want to make a fuss but that he then moved to a position where he wanted a financial outcome. He explained that the Marist Brothers do not make financial payments but it was in that context he had offered to make a charitable donation in the name of the pursuer to a children’s charity. He also confirmed that the Marist Brothers had arranged and paid for the pursuer’s counselling, and that the pursuer had been free to choose his own counsellor.
The defenders’ evidence
[25] The defenders led one witness, Brother Brendan Geary. He was the Provincial for the Marist Brothers Province of West-Central Europe. The Marist Brothers were a religious institution of pontifical right. The Marist Brothers had run the School in Largs. It was a small boarding preparatory school set up in a house that had originally been purchased as a holiday home for the Marist Brothers. He had no information as to when it had opened. The School had closed in June 1982.
The limited records of the School available to the Defenders
[26] After the pursuer contacted him, Brother Brendan had endeavoured to see what information he could find out about the School and about Brother Germanus. So far as he could discover, the only records relating to the School was a box marked “Largs” and which was comprised principally of a large ledger. There were two entries with a surname and first initial that matched the pursuer’s and which he presumed reflected transactions or payments in respect of his schooling. There were no other records relating to the School. There was no information about what students were there at the material time or about who was in which of the two boarding houses. He had not tried to track down anyone who might have been involved in the School back in the early 1960s. This was for the police to do.
The limited information about Brother Germanus
[27] In respect of Brother Germanus, Brother Brendan had only been able to obtain very limited information about him. There was a small personnel file. The Marist Brothers had a fiche system and had recorded the dates and places of appointments. This gave the barest outline of Brother Germanus and his whereabouts. He had died in 1999. The only other source of information was a privately printed volume with short biographical sketches of the Marist Brothers. The entry concerning Brother Germanus ran to less than a page and recorded dates and places of appointments. The witness had prepared an aide memoire from these two sources. This was lodged as 7/4 of Process. It was a single page and contained only limited information. There were no records of any contemporaneous report of allegations by the pursuer in respect of Brother Germanus. So far as he was aware, the pursuer had reported the matter to the police.
[28] In cross‑examination, Brother Brendan confirmed that the Marist Brothers had reported the pursuer’s allegation to the police. There was one other individual who had also come forward with allegations concerning Brother Germanus and these had also been reported to the police. It was put to this witness that the School was an institution responsible for the Catholic formation of boys such as the pursuer, which he accepted. He accepted that at the time the duties incumbent upon a school such as the School would extend to physical, moral and spiritual education. He accepted that the boys at the School would be taught about “heaven and hell”, “truth”, “honesty”, and a belief in the “afterlife”.
Legal submissions
The pursuer’s case
[29] On record the pursuer’s claim is based on breach of common law and the Occupiers Liability (Scotland) Act 1960 (“the 1960 Act”). This latter basis of liability is inexplicable and, in submissions, the pursuer’s senior counsel, Mr Hadjucki, abandoned any case based on the 1960 Act.
[30] The pursuer avers that:
“due to the psychological trauma of the actions of Brother Germanus….the pursuer was unable to bring forward any claim until the raising of the Summons. Reference is made to Section 17(2) of [the 1973 Act]”.
However, in submissions, the pursuer’s senior counsel disavowed any reliance on section 17(2) of the Act. Instead, he endeavoured to advance a case based on section 17(3) of the 1973 Act. (The defenders’ counsel took no issue with this late change of front and endeavoured to meet the case on this reformulated legal basis.)
[31] The pursuer’s pleadings continued. On the esto basis that his action is time‑barred in terms of section 17, he avers that:
“it would be equitable in all the circumstances for the action to be allowed to continue. Believed and averred that the defenders are fully aware of the actions of Brother Germanus and have investigated the circumstances of sexual abuse by him to children at St Columba’s. No prejudice apart from the windfall benefit of the defenders avoiding the consequence of their acts of negligence, could arise from allowing the present action to proceed whereas the pursuer would have no cause of action against any other party in respect of injury sustained. Reference is made to Section 19(a) [sic] of the 1973 Act”.
[32] Mr Hadjucki identified three chapters or issues flowing from these averments:
(1) whether the pursuer’s case has been extinguished by the long negative prescription;
(2) whether the commencement of the triennium has been postponed, now in terms of section 17(3); and
(3) on the hypothesis that the pursuer’s claim is time‑barred, whether the court should exercise the discretion available under section 19A of the Act nonetheless to permit his case to proceed.
Prescription
[33] Mr Hadjucki’s submission on this chapter was short. He referred to sections 11(1) and 7 of the 1973 Act. Under reference to section 7(2), he contended that an obligation to make reparation for personal injuries within the meaning of Part II of the 1973 Act was excluded from the ambit of the long negative prescription. Reference was made to Part II to confirm that the pursuer’s action fell within that part of the Act.
[34] It was noted that by virtue of the amendments effected by the Prescription and Limitation (Scotland) Act 1984 (“the 1984 Act”) to section 7(2) of the Act, the long negative prescription was disapplied to obligations to make reparation for personal injuries. As originally enacted, such an obligation was subject to the long negative prescription. In response to a question about whether the timing of that amendment had any impact on this case, Mr Hadjucki contended that this amendment made no difference to the 1973 Act or the argument he advanced. He was not aware of any transitional provision.
Limitation
[35] Mr Hadjucki next turned to section 17 of the Act. He did not expressly depart from his case on record based on section 17(2), but the only argument advanced in respect of section 17 was under subsection (3). Section 17(3) provides that in the computation of the triennium referred to under section 17(2) “there shall be disregarded any time during which the person who sustained the injuries was under legal disability by reason of nonage or unsoundness of mind”.
[36] The question of the pursuer’s nonage was irrelevant. Put shortly, the pursuer’s position was that he relied on a legal disability by reason of unsoundness of mind. In particular, it was said that Brother Germanus’ threat precluded the pursuer coming forward with his allegations. The pursuer’s unchallenged evidence was that what he was told by Brother Germanus, and which he sincerely believed, stopped him coming forward. There was no challenge to the pursuer’s evidence that a threat was made. There was no challenge to the pursuer’s evidence that the threat stopped him coming forward. The threat was not in accordance with Catholic theology, as Brothers Brendan and Ronald had accepted. There was no challenge to the effect of this threat on the pursuer. At this point, the defenders’ counsel interjected. He explained that while the pursuer’s evidence was accepted that (i) Brother Germanus had made the threat he described; (ii) that that threat had been made with a view to securing the pursuer’s silence, and (iii) that the pursuer may well have believed it as a child, it was not accepted that the threat continued to operate on the pursuer in the way described throughout his adult life.
[37] Mr Hadjucki’s position was that the threat operated on the pursuer as a “complete bar” on the pursuer saying anything. It was only in 2013, that this changed when he sought reassurance and was told that the threat was wrong - in the sense that he should not believe the threat that he would not see his brother in heaven. Before then, as Mr Hadjucki put it, no one had told him the threat was wrong.
[38] In advancing his case, Mr Hadjucki stressed that there was no suggestion that the pursuer was mentally ill or that he had been prevented from speaking out or that he had forgotten the abuse. He had not forgotten anything; he knew what had happened to him and this never changed. Mr Hadjucki accepted that the pursuer had no diagnosable mental or psychological condition. He did not rely on any expert medical diagnosis and no medical evidence was lead. It was accepted that this was not a case of buried memory or “abused‑child syndrome”. The pursuer was aware of what happened. He did not say that he was not aware at any point. It was confirmed that the pursuer was aware of reports in the media in the past of sexual abuse by priests. Notwithstanding all of this, it was argued that if the pursuer said that this threat still affected him, that sufficed as the explanation for his delaying coming forward until now.
[39] In support of this, Mr Hadjucki referred to the definition of “unsound” from the Oxford English Dictionary and its fifth meaning of “not soundly based on reason or fact”. Here, the threat made to the pursuer did not conform to Catholic teaching. It was an unsound doctrine which the pursuer had been led to believe. This was an absolute bar in the mind of the pursuer, it was said, and constituted the kind of “unsoundness of mind” within the meaning of section 17(3) of the Act. Put another way, the pursuer was precluded from speaking out because he believed the threat and this was “unsoundness of mind”.
[40] In response to a question, Mr Hadjucki argued that unsoundness of mind could be something short of a diagnosable mental illness. The test in section 17(3) about unsoundness of mind was, he argued, a subjective one.
Whether it is equitable to permit the pursuer’s action to proceed
[41] He approached this chapter as a matter of prejudice. In the pursuer’s favour was the consideration that if the discretion under section 19A of the Act were not exercised in his favour, then he could not persist in his claim. The merits concerned serious matters. No other factor was identified or advanced as constituting a factor to be weighed in the pursuer’s favour.
[42] In relation to the defenders, Mr Hadjucki suggested there was no prejudice. He referred to the parties’ pleadings in statement and answer 6. However, he accepted that he had not proved the “believed and averred” averments about any investigation on the part of the defenders, and which I have set out above, in paragraph [31]. He endeavoured to argue that it was not good enough for the defenders to say that they “didn’t know”. It was, he said, “inevitable” that the defenders would have kept records about the School.
[43] However, in response to a question, Mr Hadjucki accepted that the witness called by the defenders to speak to such records as there were and the investigations undertaken, Brother Brendan, had not been challenged on these matters. Brother Brendan had not been asked if records were destroyed. He had not been asked if the records might have been stored elsewhere. Mr Hadjucki accepted that the proposition that it was “inconceivable” that the Marist Brothers had not kept records after the School closed in the 1980s was not put to him.
[44] It was then argued that any prejudice now was not materially different than the prejudice that flowed from the fact that Brother Germanus died in 1999. Brother Germanus was, he suggested, bound to deny the allegations. There would be no other relevant witnesses.
[45] Mr Hadjucki did not cite any cases in the course of his submissions. When pressed as to whether there might be any that assisted, his position was that there were none that had factual circumstances similar to those in the instant case.
The Defenders’ submissions
[46] In an ably presented, well‑ordered and concise submission, Mr Brown set out three propositions, as follows:
- the pursuer’s case had been extinguished by the long negative prescription, either
- entirely, or
- to the extent of any wrongful act that pre‑dated the cut‑off point of 26 September 1964 (which was of significance because the 1984 amendment to the 1973 Act was not retrospective).
- To the extent that any aspect of the pursuer’s case was not extinguished by the long negative prescription, it is precluded by the expiry of the triennium. Time could not run during the nonage of the pursuer. The relevant age at which one obtained majority, at the material time, was 18 years (not the age of 16, as pled). The pursuer turned 18 in October 1973. The triennium expired on his 21st birthday in October 1976. The pursuer had abandoned the case under section 17(2). Nothing of what was advanced under section 17(3) was capable of postponing the start of the triennium; and
- The court had a broad discretion under section 19A of the Act. There were cases of high authority to the effect that if there is serious prejudice to the defender, that is conclusive. That was the case here.
Prescription
[47] Turning to develop his submission on the issue of prescription, Mr Brown argued that the case presented on behalf of the pursuer failed to appreciate the difference between the effect of prescription (which extinguished a claim), and limitation (which operated as a procedural bar on a claim proceeding). The scheme of the 1973 Act was to have prescription and limitation operate as parallel regimes. It was necessary to stress this, because the pursuer’s senior counsel had conflated these. In respect of prescription, this ran from the point in time when there was a concurrence of damnum and injuria. The start of the running of prescription was not postponed by any issue of discoverability which, at times, appeared to be Mr Hadjucki’s position. Mr Hadjucki had, he said, simply failed to address the issue of prescription at all.
[48] Furthermore, it was not correct to assert that the amendment to section 7(2) of the Act effected by the 1984 Act, of removing actions for personal injury from the ambit of the long negative prescription, was irrelevant. The mischief toward which the amendment was directed was the prospect that, in certain types of industrial injury cases, the long negative prescription might have operated to extinguish a claim even before the triennium began to run (i.e. because the damage remained latent and was not discoverable). He referred to the discussion of this by the Scottish Law Commission, as referred to in Kelly v Gilmartins’ Executrix 2002 SC 602 at para [31].
[49] The amendment to section 7(2) of the Act introduced in 1984 was not retrospective. Section 5(3) of the 1984 Act contained the transitional provisions. In respect of section 7(2) of the Act, the transitional provisions provided that the amended section 7(2) shall “have effect as regards any obligation which has not been extinguished before the coming into force of this Act”. The 1984 Act came into force on 26 September 1984. Section 7(2) therefore came into force on 26 September 1984. In practical terms, this meant that the long negative prescription continued to apply to an obligation to make reparation until that date. If such an obligation prescribed before 26 September 1984, the date on which section 7(2) in its amended form came into effect, the amended form of section 7(2) was of no avail. Section 7(2) in its amended form applied only to claims not extinguished before 26 September 1984. Accordingly, if all of the conduct complained of occurred before 26 September 1964, any claim by the pursuer was extinguished.
[50] In support of the foregoing, reference was made to the case of Kelly v Gilmartins’ Executrix in both the Outer House (reported at 2002 SC 602 at paragraphs [29] to [32], [336] and [38]) and the Inner House (reported at 2004 SC 784 at paragraphs [13] to [15]). In Kelly the physical abuse complained of ended in 1961. The pursuer in that case tried to argue that a subsequently emergent psychological condition attracted the start of a new prescriptive period. The court rejected this argument and confirmed that an obligation to make reparation was an unum quid. The pursuer in that case had an enforceable right from the end of 1961. The later development of a psychological injury was not to be regarded as a separate damnum or to give rise to a new, fresh obligation to make reparation. On the facts, that case is a fortiori the present one, in that, here, the pursuer did not argue that there was some newly emergent head of claim. For present purposes it sufficed to note that the court in Kelly confirmed that the amendment to section 7(2) of the 1973 Act was not retrospective.
[51] Two subsidiary matters arose: first, what was the evidence about the dates or years when the pursuer attended the School and, secondly, if that evidence were to the effect that there was at least some conduct occurring on or after 26 September 1964, whether the wrong or wrongs said to have been committed by Brother Germanus toward the pursuer was a continuing act, with the effect that the running of the long negative prescription commenced only on the last occurrence of that continuing act, or that the events the pursuer described were each individual assaults and in which case time ran from the date each act was committed.
[52] Mr Brown argued that, properly characterised, what the pursuer sought was reparation for a series of discrete, individual assaults. Each assault was actionable and time began to run upon its completion. He stressed that for the purposes of the long negative prescription, time began to run immediately, notwithstanding that any claim arose during the pursuer’s minority and for which, further, any lack of knowledge on the part of the pursuer was irrelevant. These separate assaults did not constitute a continuing act or wrong. By way of illustration of the latter, he instanced a case of an employee’s exposure to excessive noise or to asbestos, which continued over a period of time, and which cumulatively led to the injury to the employee (e.g. such as hearing loss or asbestosis).
[53] Turning to the evidence, the pursuer’s evidence is that he was at the School between the ages of about 7 and 9. He turned 7 in October 1962 and turned 9 in October 1964. He could not recall the date of his last day at the School. If he started at the School a few months before his 7th birthday, then he attended in his first year for the 1962 to 1963 session and would have left at the end of his second year, in the summer of 1964. If that were correct, the totality of his claim had prescribed before September 1984. Accordingly, he was unable to rely on section 7(2) of the Act.
[54] The issue was: did the very limited evidence support a positive finding that the pursuer was still present at the School after the summer of 1964? The onus was on the pursuer to establish this. Given the significance of this date, one might have expected this to be investigated. There was no evidence, for example of the date when the pursuer moved onto the other school in Dumfries and which was still in existence. If the pursuer failed to prove that he was present at the School on or after 26 September 1964, his claim had prescribed. That was a complete answer to the pursuer’s claim.
[55] In the alternative, if the pursuer were able to prove that he was present at the School for the academic year of 1964/1965, then the question was whether there has been partial prescription of the pursuer’s claim. This depended on whether he had established that the abuse constituted a continuing act, with the effect that prescription only began on the last date of that conduct. If he established that, then it was accepted that none of his case had prescribed. He would be able to rely on section 7(2) in its amended form. On the other hand, if each assault was a discrete, individual act, as the defenders argued, then time began to run on each act as soon as it was completed. In that circumstance, any claim in respect of an act completed before 26 September 1964 had been extinguished. Any claim in respect of an act of abuse after that point had not prescribed.
[56] In support of his contention that the matters described did not constitute a “continuing” Act, Mr Brown referred to section 11 of the Act. Section 11(1) is the statutory enactment of the requirement for the concurrence of damnum and injuria. Section 11(2) provided for the postponement of the start of prescription in the event of a “continuing act” to the date that that act ceased. It was notable, he said, that “continuing act” was in the singular. This accorded with the example he had instanced: that continuing exposure to excessive noise was an act, not a series of acts. Applying that reasoning, it was argued that the individual instances of assault or abuse of the pursuer were each completed acts and in respect of each time began to run upon its completion.
Limitation
[57] The pursuer’s primary case on limitation was that the commencement of the triennium had been postponed and it had not yet expired. In respect of the pursuer’s case under section 17, which was now based on section 17(3) of the Act, Mr Brown began by pointing out that there was no averment on record of section 17(3) or any mental impairment. Had he been aware that this was the way the pursuer’s case was to be presented, he would have undertaken a quite different form of cross examination of the pursuer.
[58] Taking the pursuer’s evidence at its highest, it did not demonstrate the necessary unsoundness, as required by section 17(3). All that it amounted to was a highly irrational but deeply held belief. Mr Hadjucki appeared to equiparate an unsound belief, in the sense of one not in accordance with the teachings of the Catholic Church, with unsoundness of mind. This was wrong. One could be of sound mind, and hold an irrational belief. All that the pursuer described was an irrational subjective belief. That did not amount to the requisite unsoundness. The pursuer’s approach was without authority and contrary to principle.
[59] Reference was made to McE v De La Salle Brothers 2007 SC 556. In that case, the pursuer raised an action in 2000 in respect of physical and psychological abuse said to have been suffered in the early 1960s. He asserted that he had developed suppressed or impaired memory, or induced reticence, flowing from the abuse, and which had the effect of postponing the start of the triennium. The court rejected this. Reliance was placed, in particular, on the observation of Lord Osborne at paragraph [175] where, after quoting section 17(3), he said: “Having regard to that provision in particular, I consider that the running of time cannot be interrupted by a mental condition short of unsoundness of mind”.
[60] The pursuer had not proved any recognised or objectively verifiable mental condition sufficient to establish the requisite unsoundness of mind. Accordingly, to the extent that section 17(3) operated, it was in respect of the pursuer’s nonage. He turned 18 in October 1973. The triennium began then and expired on his birthday in October 1976. As a consequence of the expiry of the limitation period, the pursuer’s action was barred.
Section 19A
[61] Section 19A conferred a broad discretion on the court to allow an action to proceed, where it was equitable to do so, notwithstanding that the expiry of the limitation barred the claim. Reference was made to the extensive discussion of the underlying policy and purpose of limitation periods of Lord Drummond Young from paragraphs [20] to [28] in B v Murray (No. 2) (as it was known in the Outer House) reported at 2005 SLT 982. Particular emphasis was placed on the observations of McHugh J in Brisbane Regional Authority v Taylor (and the cases he cited) and quoted by Lord Drummond Young, about the detrimental effect of delay on the quality of the evidence and the four broad rationales underpinning limitation periods. Lord Drummond Young had found these considerations to be highly relevant to the interpretation of the Act: see paragraph [22]. He had held that the prejudice to the defenders arising from the decline in that evidence was a decisive factor in his decision to refuse to exercise the discretion in favour of the pursuer in that case. The same outcome was urged upon the court in this case.
[62] The case of B v Murray (No. 2) had ultimately been heard by the House of Lords, under the name of AS v Poor Sisters of Nazareth 2008 SC 146. The House of Lords upheld Lord Drummond Young’s decision and endorsed his reasoning. Reference was made to paragraph [24] from the speech of Lord Hope of Craighead for the observation that the onus rested on the pursuer to establish that it was equitable to exercise the discretion in her favour. In considering the factors relevant to the exercise of discretion under section 19A, the issue on which the court must concentrate, it was argued, was whether the defender can show “there will be a real possibility of significant prejudice”: per Lord Hope at paragraph [25]. Mr Brown also referred to the observation a little further on in that paragraph, that “proof that the defender will be exposed to the real possibility of significant prejudice will normally decide the issue in his favour”: ibid.
[63] All that was said on behalf of the pursuer was that the pursuer will lose his claim if he does not succeed under section 19A. For present purposes, it was accepted that Brother Germanus made the threat he did and for the purpose of securing the pursuer’s silence, and that this had an impact on the pursuer as a child. But the cogency of that must decline with the passage of time. The pursuer was articulate and intelligent. If the pursuer clung to an utterly irrational belief that was not a sufficient factor to justify the exercise of discretion in his favour. In any event, it was not clear on the evidence that the threat was the controlling reason for the pursuer staying silent. He had referred to the emotions of shame, fear and cowardice. There was also the evidence of being advised to raise the action as “an end game”. If the pursuer were endeavouring to raise this action within a few years after the expiry of the triennium, that might be one thing. But here the action is being raised 50 years after the events they concern and nearly 40 years after the expiry of the triennium. The only factor advanced by the pursuer, being what he subjectively asserts as the effect of Brother Germanus’ threat, was insufficient.
[64] What had to be weighed in the balance was the severe prejudice the defenders faced. The key witness was dead. It was entirely unknown what his evidence would have been, or whether he would have denied the pursuer’s allegations. Brother Germanus was still alive when the pursuer reached majority. He was alive for 30 years after the expiry of the triennium. It was incorrect to suggest, as the pursuer endeavoured to do, that this did not matter, because there would have been no other witnesses to the abuse. Other circumstantial evidence might have been available: this would have concerned how the School was organised, who was in charge, where the boys were housed and slept, who had access to them, what the regime was. It might have been possible to identify other boys who were there and what they might have observed. It was not possible now to know what evidence was lost. It was not possible to secure evidence that might contradict the pursuer’s account. Even if other boys could be traced, they would be in their 60s. Any staff traced, if alive, would be in their 80s and 90s. In the light of all this, a fair trial was not possible. The prejudice to the defenders was so great that it outweighed any factors advanced by the pursuer. All that the defenders had to show was “a real possibility of significant prejudice”: per Lord Hope in AS. They had done so here.
[65] The final case Mr Brown referred to was a recent decision of Lord Bannatyne in SF v Quarriers [2015] CSOH 82. This case also concerned a preliminary proof into a claim of historic abuse dating back to 1965 and 1971, and where the alleged abuser had died in 1980. The action was raised in late 2006. Lord Bannatyne refused to allow the claim to proceed under section 19A. Reference was made to his observation, at paragraph [148], that:
“it was difficult to envisage a more highly material loss of evidence to the defenders than the denial to them of the evidence of [‘the alleged abuser]. I accept senior counsel for the defenders submission that the loss of [the abuser’] evidence is more gave than the loss of the evidence in the AS v Poor Sisters case where some of the alleged abusers were still alive. It appears to me that where the allegations of abuse are made against a single person and that person’s evidence has been lost to the defenders then it really impossible for the defenders to have a fair trial. The defenders are denied the evidence of what would have been their most important witness. They are not able properly to defend themselves. They cannot, without [the alleged abuser’s evidence], properly cross-examine the pursuer as to the merits of his claim. Nor can they properly cross-examine any witness he may produce in support of his claim….”
Those circumstances applied with the same force here.
[66] He turned to the defenders’ evidence. Brother Brendan had spoken to the paucity of records about the School or Brother Germanus. There had been no cross‑examination of him. In respect of Mr Hadjucki’s assertion that it was “inconceivable” that there were no records, the School had been a small private school. There was no statutory obligation to retain records. In the absence of records, it would be very difficult to trace other witnesses. There had been no challenge to the defenders’ evidence relevant to the issue of prejudice. The pursuer’s case under section 19A should be refused.
Reply by Mr Hadjucki
[67] As Mr Hadjucki had not referred to any cases in his principal submission, and as Mr Brown had referred to a number of cases directly in point, I offered Mr Hadjucki an opportunity to consider these cases and afforded him overnight to do so.
[68] Mr Hadjucki made a further reply the next morning, as follows: first, he said, each case turned on its facts and circumstances. Second, this was not just a case of abuse, but of sexual abuse. In relation to B v Murray (No. 2), the decision of the Lord Ordinary was not relevant. As regards the subsequent consideration of that case by an appellant court, he referred to paragraphs 25 to 26, 28 and 35 of the decision of the Inner House in that case. He contended that expert evidence was not needed. He made no reference to that case in the House of Lords. Under reference to McE v De La Salle Brothers, that was a case of supressed memory but that was not an issue here. He contended that there were no cases under section 17(3) that set out what “unsoundness of mind” meant. He spent a considerable time rehearsing the submissions on the facts made the previous day, to the effect that the pursuer had believed an unsound doctrine or belief and that sufficed to satisfy the test under section 17(3) of the Act.
[69] In respect of section 19A, he argued that there was a causal connection between the pursuer not speaking up and the threat that had been made to him. That sufficed to explain and excuse his delay in raising these proceedings. He referred to a number of paragraphs of SF v Quarriers but did not make any submission about these. In response to a question, he accepted that the facts of that case, concerning supressed memory, might provide a more favourable basis for the exercise of the discretion under section 19A in favour of the pursuer than the present one.
[70] He made no submission on prescription. He made no submission on the burden of proof, as it might operate in relation to prescription. He did not address the other cases referred to by Mr Brown.
Discussion
Prescription
[71] Mr Hadjucki relied on section 7(2) of the Act in its amended form. As amended, section 7(2) of the Act excludes from the ambit of the long negative prescription any obligation to make reparation for personal injury falling within part II of the Act.
[72] However, upon consideration of the transitional provisions in the 1984 Act, of which Mr Hadjucki appeared initially to be unaware (and once aware, did not address), it is clear that the amendment to section 7(2) was not retrospective. In practical terms this means that section 7(2), as amended, does not preserve any obligation to make reparation that was extinguished prior to 26 September 1984. Put another way, notwithstanding the amendment to section 7(2) of the Act, the long negative prescription continued to apply to any obligation to make reparation for any act or omission completed prior to 26 September 1964.
[73] I accept Mr Brown’s submission that the 1984 Act amendment to section 7(2) of the Act is not retrospective. Mr Hadjucki’s submission, that the amendment made by the 1984 Act to section 7(2) of the Act made no difference, is misconceived. It is in any event a surprising submission, given that this is clearly set out in the leading text book on the subject, namely D.E.L. Johnston’s Prescription and Limitation (2nd Ed) at para. 7.06 (fourth bullet point at page 213). This failure to appreciate the non-retrospective effect of section 7(2) in its amended form may explain why no further submission was made in relation to prescription. It may also explain why there was an apparent failure to appreciate the significance of the cut-off date of 26 September 1964 and the need to establish some relevant conduct by Brother Germanus after that date. In this case, that date is of critical importance. If the pursuer commenced at the School in the few months before he turned 7, he would have attended for the two school years 1962 to 1963, and 1963 to 1964. He would have left in the summer of 1964. On the other hand, if he started when he was 7, that is in the autumn of 1963, just short of his 8th birthday, then his first year at the School would have been from 1963 to the summer of 1964 and his second year would have been from autumn 1964 to the summer of 1965.
[74] In relation to the burden of proof for the purposes of prescription, only Mr Brown made some brief reference to this. Mr Brown submitted that it was for the pursuer to lead evidence to enable the court to make a positive finding that the pursuer was still present at the School after the summer of 1964. The onus was on the pursuer to lead the requisite evidence. I note that there is no provision in the Act expressly governing this question. In the absence of such provision, the general rule is that the party affirming a proposition has the burden of proving it. However, the affirmative proposition can be framed in a number of ways: for the pursuer, it is that a substantive claim subsists, notwithstanding the passage of time; for the defender, it is that the pursuer’s claim has been extinguished by prescription. The question of onus in this context is not free from difficulty: see the discussion Dr Johnston’s Prescription and Limitation, (2nd ed., 2009) at paras. 22-14 and 22-15. I have not had the benefit of full argument on this question. As will be seen from my decision of the other issues, the the pursuer’s case fails on the other grounds, regardless of how the question of onus is determined for the purposes of the long negative prescription. In the absence of full argument, I am inclined to the view that the onus of proof rests with the pursuer. This is consistent with the observation of J F Wheatley, QC, sitting as a temporary judge (as he then was) in Richardson v Quercus (unreported, 25 March 1997) to the effect that once the issue of prescription has been raised it is for the pursuer to show that his right subsists. This approach is also consistent with the decision of Lord Menzies in Pelagic Freezing (Scotland) Ltd v Lovie Construction Ltd [2010] CSOH 145. Returning to the evidence, the evidence led amounted to no more than that the pursuer “was 7” when he started at the School and that he “was 9”, when he left. There was no attempt to prove the averment that the pursuer attended for a period “amounting to around 30 months”: at page 6A of the Closed Record. In cross-examination, the pursuer fairly and candidly accepted that he did not know whether he started in the summer before he turned 7 (that is in the summer of 1962), or after (the summer of 1963). He was not challenged on the basis that he was wrong in his evidence in chief.
[75] Taking the pursuer’s evidence as a whole, I do not accept that it has been established on a balance of probabilities that the pursuer did attend as a pupil at the School on or after 26 September 1964. In short, this means that the whole of his claim has been extinguished by the long negative prescription. In the light of that finding, the subsidiary matter argued in respect of the long negative prescription raised by the defenders (and which I record in paragraph [51], above) does not arise. However, in deference to the arguments advanced, I shall make brief reference to this.
[76] Had I found that there was sufficient evidence to make a positive finding that the pursuer was at the School on or after 26 September 1964, it would have been necessary to consider whether the conduct alleged constituted a continuing act such that the commencement of the concurrence of damnum and injuria was postponed until after that date. Very little evidence relevant to this was led, and the preliminary proof was conducted on the basis that the pursuer’s averments going to the merits were treated pro veritate.
[77] On this matter, I accept the analysis advanced by Mr Brown. What the pursuer references are discrete sexual and physical assaults carried out by Brother Germanus against him. Upon completion of each of these assaults, time began to run. This was of a different character than the kind of ongoing continuous “act” or default, advanced by Mr Brown by way of comparison, such as that by an employer exposing an employee to excessive noise or to asbestos on a continuing basis over weeks, or months or years. If the pursuer wished to rely on section 11(2) to establish a continuing act, then it was incumbent upon him to lead evidence to do so. On the whole evidence, such as it was, I would not have found it proved that the conduct described by the pursuer was of the requisite “continuing” character such that time only began to run from the date of the last such assaultative act.
Limitation
[78] I accept the submission of Mr Brown as regards the manner in which the regimes of prescription and limitation under the 1973 Act interrelate. In other words, where prescription and limitation are both at issue, if the pursuer’s claim has been extinguished by the long negative prescription, that is an end to the matter and the issue of limitation becomes irrelevant. As I have found that this is the case, the issue of limitation does not, strictly, arise. However, in the light of the evidence and submissions I have heard, it is only right that I indicate my findings on these matters.
[79] As noted above, Mr Hadjucki departed from the case pled under section 17(2) of the Act. In any event, the evidence he elicited from the pursuer and his wife about the pursuer’s reaction over the years to media stories of abuse would have undermined such a case, as indeed, did the pursuer’s evidence that he has known all along that the abuse committed against him was wrong. In submissions, the case on limitation was presented under section 17(3). Trying to put Mr Hadjucki’s submissions shortly, it was that the pursuer had a genuine and long-held belief in the truth of Brother Germanus’ threat and that the assertion underlying that threat was unsound as a matter of Catholic orthodoxy. The pursuer’s belief in this threat demonstrated an “unsoundness of mind” and that sufficed, it was said, for the purposes of section 17(3).
[80] In considering the argument presented in reliance on section 17(3) of the Act, it is important to have regard to the structure of section 17 and the language used in section 17(3). I turn now to consider section 17 of the Act in more detail.
[81] Section 17 is the first provision in Part II of the Act dealing with limitation of actions. Section 17(1) defines the scope of actions to which section 17 applies. Section 17(2) establishes that a three-year limitation period (or “the triennium”) shall apply to such actions. This is made subject to section 19A (involving the exercise of an equitable discretion to permit actions to proceed notwithstanding the expiry of the triennium) and to section 17(3).
[82] There are detailed provisions in section 17(2)(a) and (b) of the Act concerning the start of the triennium. This may be on the date the injuries were sustained or, if the act or omission were a continuing one, on the date that continuing act or omission ceased: section 17(2)(a). Section 17(2)(b) concerns circumstances where the start of the triennium might be postponed until the date on which the claimant had the actual or deemed knowledge of the matters set out in paragraphs (i) to (iii) of subsection 17(b). The focus is on the state of knowledge of the claimant. However, evidence relevant to a case under section 17(2) is not confined to a claimant’s subjective understanding of matters. This is because of the deemed knowledge of the statutory facts that might be attributed to him.
[83] Like section 17(2)(b), proof of the matters set out in section 17(3) will also have the effect of postponing the start of the triennium. What, then, must a claimant prove in order to bring section 17(3) into play? Section 17(3) provides that for the purposes of the computation of the triennium in section 17(2), “there shall be disregarded any time during which the person who sustained the injuries was under legal disability by reason of nonage or unsoundness of mind”. As already noted, Mr Hadjucki endeavoured to argue that “unsoundness of mind” was subjective. He argued that it was enough, if, as here, the pursuer believed a threat based on unsound doctrine. In offering that argument, he offered no analysis of section 17(3).
[84] This argument is untenable in the extreme. Mr Hadjucki’s submission took no account of the observations of Lord Osborne in paragraph [175] of McE, quoted at paragraph [59], above. More fundamentally, that argument is wholly at odds with the plain meaning and purpose of section 17(3).
[85] In the scheme of the Act, the purpose of section 17(3) is to postpone the commencement of the triennium for the period of time during which a claimant was under “legal disability” by reason of two defined sets of circumstance: nonage and unsoundness of mind. By their very character, the states of nonage and of unsoundness of mind are states of being that are objectively proved or verified. In order to establish legal disability by reason of nonage, for example, the claimant must show that at the material time he was below the age of legal responsibility. In order to establish the unsoundness of mind sufficient to establish “legal disability”, the pursuer must prove that he suffered from some mental condition resulting in “legal disability”. This is likely to entail expert evidence to establish, objectively, that the claimant suffered from some medically recognised condition or state which was so disabling as to deprive him of legal capacity in the sense of being incapable of managing his affairs: see Bogan’s Curater Bonis v Graham 1992 SCLR 920 at 925. Passing reference was made to certain criticisms of the uncertain scope of the phrase “unsoundness of mind”. Whatever the precise scope of that phrase, the evidence of unsoundness of mind must be such as to place the person under a “legal disability”. That is what section 17(3) of the Act requires. Proof simply of a claimant’s subjective belief, whether in accordance with religious teaching or not, will be insufficient. Even accepting the pursuer as an honest witness, giving his evidence in good faith and doing his best to speak to difficult matters from decades ago, a case resting solely on that evidence to establish unsoundness of mind was bound to fail.
[86] Accordingly, even if I had determined the matter of prescription differently, I hold that the pursuer’s case fails under section 17(3) of the Act. I have held that Mr Hadjucki’s approach to that as a matter of law is irrelevant. No relevant evidence was led with a view to establishing any legal disability arising from an unsoundness of mind of the pursuer so as to postpone the start of the triennium. By reason of the expiry of the triennium, the pursuer’s action is now time‑barred.
Section 19A
[87] It should be noted that a claim under section 19A potentially arises if the triennium under section 19 bars such a claim, but only if it has not yet been extinguished by the long negative prescription. It is important to stress this because, as Mr Brown observed, the pursuer’s case was advanced as if the long negative prescription did not operate or as if the running of long negative prescription has been postponed in some way. As noted above, I have held that any obligation to make reparation to the pursuer has been extinguished by the long negative prescription.
[88] I have outlined the parties’ arguments as to the factors they, respectively, rely on. Had this been a live issue, I would have had no hesitation in determining to refuse to exercise that discretion in favour of the pursuer’s claim proceeding.
[89] All claimants can point to the loss of their ability to pursue their claim if the discretion exercised in section 19A is not exercised in their favour. Generally, therefore, something more must be advanced, especially where a defender proves substantial prejudice. While there was some evidence in the communings between the pursuer and Brother Brendan that might have been suggestive of the pursuer being deflected from any claim because he was told not to go to the police, nothing was made of this. In any event, the defenders did report the pursuer’s allegations to the police. In the end, there was no suggestion that there was anything other than the pursuer’s internalised views of the threat that deterred him from coming forward sooner than he did. It was accepted that there was no period of time during which the pursuer had forgotten, or once an adult, did not know, that what had been done to him was wrong. No one other than the pursuer himself was responsible for his not raising proceedings before he did.
[90] What must also be weighed in the balance in the exercise of the discretion under section 19A, is the prejudice to the defenders. I accept in its entirety the unchallenged evidence that, beyond what was spoken to, there are no other records relating to the School or to Brother Germanus. Brother Germanus was long dead. More than five decades had passed since the abuse alleged. I accept the defenders’ submission on all of this evidence and that they cannot but be materially prejudiced if the pursuer’s case were permitted to proceed.
[91] Lord Bannatyne’s observations in the case of SF v Quarriers are apposite here. This, too, is a case involving allegations against a single abuser who was long dead. That circumstance alone meant that the defenders could never know what Brother Germanus’ response would have been to the allegations. They could not, as Lord Bannatyne aptly put it, “properly” advance a case that Brother Germanus did not do these things. In the absence of knowing Brother Germanus’ position, the defenders could do no more than put the pursuer to his proof. They could not properly lead a positive case if they had no basis to so do. The several rationales considered in detail by Lord Drummond Young in B v Murray (no. 2) applied with particular force to a case such as this, where an extraordinary length of time had passed. In all of these circumstances, no fair trial was possible. In the whole circumstances, I refuse to exercise the discretion under section 19A in favour of the pursuer.
[92] The pursuer’s case fails on the basis that any obligation of the defenders to make reparation for any wrong committed by Brother Germanus has been extinguished by the long negative prescription. The defenders are accordingly entitled to decree of absolvitor. Even if I am wrong on that matter, and any or all of the pursuer’s case subsisted after 26 September 1984, I have held that the triennium was long expired with the consequence that any proceedings are barred. In any event, even if some or all of the pursuer’s claim had not been extinguished by the long negative prescription, for the reasons I have just explained, I would have refused to exercise the discretion under section 19A in favour of allowing the pursuer’s case to proceed.