SF AGAINST QUARRIERS

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SF AGAINST QUARRIERS

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 82

A82/05

OPINION OF LORD BANNATYNE

In the cause

Pursuer;

against

QUARRIERS

Defenders:

Pursuer: I Mitchell QC, Jamieson; Kennedys Scotland

Defender: Moynihan QC, Rolfe Solicitor Advocate; Simpson & Marwick

25 June 2015

Introduction
[1] The pursuer who was born on 22 April 1958 raised an action, which was signetted on 17 December 2004, against the defenders in respect of injuries allegedly sustained between 1965 and 1971 while he was a resident in a care home run by the defenders.

Procedural history of the action
[2] Following being signetted, by interlocutor dated 30 May 2006, the cause was appointed to the procedure roll on the defenders first and second pleas-in-law which were in the following terms:

“1. The action being time barred it ought to be dismissed.

2. The pursuer’s averments being irrelevant and lacking in specification, the action should be dismissed.”

[3] A procedure roll debate was heard on 23 June 2006 and the Lord Ordinary thereafter having resumed consideration of the cause on 10 October, 2006 issued the following interlocutor:

“Refuses the pursuer’s motion for a proof before answer leaving all pleas standing; allows the parties a preliminary proof of their respective averments on record in respect of the pursuer’s fifth plea-in-law only; appoints said preliminary proof to proceed on [ ]; grants diligence for citing witnesses and havers; reserves, meantime, the question of expenses.”

The pursuer’s fifth plea-in-law was in the following terms:

“Esto the action is time barred (which is denied), it being equitable in terms of section 19A of the Prescription and Limitation (Scotland) Act 1973 to allow the pursuer to bring the action, proof should be allowed.”

[4] Section 19A of the Prescription and Limitation (Scotland) Act 1973 (“the 1973 Act”) provides as follows:

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

(2) The provisions of subsection (1) above shall have effect not only as regards rights of action accruing after the commencement of this section but also as regards those, in respect of which a final judgment has not been pronounced, accruing before such commencement.

(3) In subsection (2) above, the expression “final judgment” means an interlocutor of a court of first instance which, by itself, or taken along with previous interlocutors, disposes of the subject matter of a cause notwithstanding that judgment may not have been pronounced on every question raised or that the expenses found due may not have been modified, taxed or decerned for; but the expression does not include an interlocutor dismissing a cause by reason only of a provision mentioned in subsection (1) above.

(4) An action which would not be entertained but for this section shall not be tried by jury.”

[5] After sundry procedure, including a reclaiming motion challenging, on behalf of the pursuer, the interlocutor of 10 October 2006, which was refused by interlocutor of 18 February 2010, a preliminary proof in respect of the fifth plea-in-law was again allowed in terms of an interlocutor of 7 November 2012.

[6] There was further sundry procedure involving the discharge of the said preliminary proof. Finally by interlocutor dated 31 January 2014 a preliminary proof in respect of the said issue was again allowed.

[7] Thus the present matter came before me for a preliminary proof in which the pursuer sought the court to exercise in his favour the said power in terms of section 19A of the 1973 Act.

[8] The question for the court is accordingly this: Is it equitable to allow the pursuer’s claim to proceed? The onus in relation to this issue rests with the pursuer.

The courts approach to the merits of the claim
[9] It was a matter of agreement between the parties that the correct approach for the court at a preliminary proof was adopted by Lord Johnstone in B v Murray 2004 SLT 967, namely: a preliminary proof was not an appropriate forum for ascertaining the truth and reliability of the averments which formed the basis of the pursuer’s substantive case. Rather it was parties agreed position that I should proceed on the hypothesis or assumption that the abuse complained of by the pursuer did in fact occur. The court should make no findings in fact in relation hereto. In light of the foregoing agreement there was little cross‑examination of the pursuer regarding the events which he spoke to as occurring while a resident in the defenders care. However, it was also accepted that the court would require to assess the cogency of the pursuer’s evidence.

The pursuer’s substantive case
[10] As a matter of background it is appropriate at this stage to set out the core elements of the pursuer’s substantive case as set out on averment and spoken to by the pursuer in evidence. The pursuer complained that while residing in cottage 20, between 1965 and 1971, within the defender’s home he was physically and mentally abused by the house parent in the said house a Miss D. In particular at night, if he was caught talking in his bedroom, Miss D would call him down and spank him on the bare bottom. He would then be put in a shed which was dark and left for periods of up to an hour. The shed was locked. This happened on numerous occasions. The spanking was very sore and he was terrified by being locked in the dark. Miss D was aware that he was particularly scared of the dark.

[11] Beyond the foregoing the pursuer also complained of what might be described as emotional abuse, namely: that on occasions he was made to call Miss D “mummy” and he did not like this as his own mother was alive at the material time.

[12] On occasions Miss D made him eat all the food that was served to him even if he did not like it. He had to finish everything on his plate.

[13] He had a problem with bed‑wetting and on occasions Miss D would humiliate the pursuer regarding this in front of other children who were residents in the home. He in particular referred to an incident which had occurred while he and other children from the home were on holiday at a house in Turnberry.

[14] The pursuer’s case against the defenders was founded on the defenders vicarious liability for the actings of Miss D. The pursuer’s pleadings were that Miss D had breached the following common law duties:

“to exercise the degree of skill and care to be expected of a reasonably careful parent in looking after children entrusted to her care, such as the pursuer. In particular it was her duty to take reasonable care for the safety and wellbeing of the children in her care. It was her duty to take reasonable care to employ a suitable discipline regime which did not involve excessive beatings. It was her duty to take reasonable care not to use as part of a discipline regime the repeated locking up of children who were afraid of the dark, such as the pursuer, in a dark room for long periods of time.”

[15] So far as loss, injury and damage is concerned the position averred and spoken to in evidence by the pursuer was of long term psychological damage resulting from the treatment he had received at the said time.

The pursuer’s core position on averment and in evidence regarding section 19A

[16] The pursuer’s position can be summarised as follows:

“When he came to leave the home at the age of 13 and reached a place of safety (he had returned to live with his father) he ceased to have any memories of the abuse he had suffered. The process by which that occurred was not a conscious decision on the part of the pursuer to avoid the memories of abuse or otherwise to put them out of his mind. It was an involuntary process known as dissociative amnesia.” (see: article 7 of the condescendence at p21 E to p22 B)

Evidence

The pursuer
[17] The pursuer gave evidence regarding the abuse he had been subjected to by Miss D during his time in Quarriers which evidence was in line with the averments on record. I do not detail his evidence on these matters as for the purposes of this proof I assumed he had been abused.

[18] As to his life after leaving Quarriers he said this: he was married in October 1980; he had five children; he had a number of jobs but was generally in employment; he described enjoying life and leading what might be described as an ordinary, unremarkable life.

2003
[19] His position was that until 2003 he had no memory of the abuse (hereinafter referred to as “the bad stuff”). He then described watching a Frontline Scotland programme about Quarriers. He then wondered if Quarriers had records about him. He obtained these (it was accepted at all hands that these were entirely anodyne in nature). He then went to Epsom on a training course for a job and read the records in his spare time and said the effect was: “as if opened door”. He described going up the M25 and intending to kill himself. He was at this point admitted to Penrith Hospital. He said he broke down crying and said that he had been abused at Quarriers. He then described that since that time there had been a big change in his life: he did not work; did not go out; he really did nothing. He described the abuse playing “like a video”.

Cross‑examination of the pursuer
[20] He described seeing the bad stuff constantly in Epsom. In cross‑examination he spoke of being sexually abused by another boy while at Quarriers (he had not mentioned this in examination in chief). When asked about not having memories pre 2003 he said:

“It was blocked out – when left Quarriers with father – all things shut out – all bad things.”

The pursuer’s medical records

[21] The pursuer was taken through his medical records in some detail by senior counsel for the defenders and entries put to him. He was asked about suicidal thoughts pre 2003: said one occasion but was not intending to kill himself. He was asked about suffering from depression in 2002. He did not remember some of what was put to him in the records. In particular he said he had no memory about considering killing himself in 2002 by CO poisoning by using his car. He accepted he had a personality disorder.

[22] He denied attempting suicide at age 15 and then said he may have said that to doctors but this was just messing about – not a real attempt (same position as in relation to other attempted suicide referred to in records).

[23] He accepted that when asked about the memories by people such as doctors and other medical professionals he would say this: “blocked out”, “blanked out” – he said that as left Quarriers with father – he had no memories of the journey home – and his memory had been blocked out and it was like “a shutter coming down”.

[24] When asked again about records of attempted suicides – he said “don’t think I tried to commit suicide” and said “don’t remember saying that”. The pursuer, when the issue of “attempted suicides” referred to in the records was raised with him, would not accept he had attempted suicide.

[25] When asked about running away from Quarriers the pursuer accepted that on two occasions he had run away and gave some details about both occasions. He said that these memories had returned to him only after the TV programme in 2003. His position was that they did not result from abuse, but for other reasons.

[26] When asked about his father hitting him, the pursuer maintained despite medical records to the contrary that his father had not hit him.

[27] When asked about bullying at Quarriers, he said references in the medical records relative to bullying did not relate to Quarriers and then gave this answer in the context of being asked about the issues of references to bullying and running away in the pre 2003 medical records:

“Memories of Quarriers blanked out – shutters came down and memory blocked out day drove off with father”

The answer fitted in with the position senior counsel for the defenders had earlier put to him about the fairly precise way he always described forgetting. Answers of this type, using these phrases were repeated a number of times in his evidence.

[28] Senior counsel for the defenders took the pursuer through the medical records relating to his admission to Penrith Hospital in some detail. The pursuer maintained his position that he clearly remembered saying to the staff there that he had been abused, although this was not mentioned in the records.

[29] When asked what in the records had triggered his memories he answered: “seeing programme and seeing records was the unlocking of the door”.

[30] With respect to the pursuer’s re – examination I will discuss this later in this opinion.

[31] The pursuer’s position overall regarding bullying, running away, attempted suicides and being hit by his father was as set out by senior counsel for the defenders and I set this out later in my opinion. I have attached as an appendix to this opinion, 3 tables detailing the places in the medical records which related: first to his bullying and running away; his being hit by his father; and his attempts to commit suicide pre age of 21.

[32] The pursuer in his evidence spoke to his returning to Quarrier’s on a number of occasions between 1971 and 2003 without this causing the memories of the bad stuff to return.

Non expert evidence
[33] The pursuer’s wife gave evidence which was in fairly short compass: principally she spoke to the complete change in the pursuer since 2003 and described him since then as being a totally different person. The only other piece of evidence of any moment which she gave was this: the pursuer did not say to her why he wanted his Quarriers records. She was not cross – examined.

[34] Mr Gary Thomson, the pursuer’s instructing solicitor, gave evidence about seeking to find four persons who it was understood had been residents in cottage 20 while the pursuer was there. The results of his enquiries had been: one was dead; one remained untraced; one who on an unsolicited basis had been approached, Mr A had been upset and distressed by the unsolicited approach and a fourth had been discovered and it was hoped would give evidence. (This was Mr J and he did give evidence under reservation of all issues of competence and relevance.)

[35] Mr J gave evidence on behalf of the pursuer. He was a resident at Quarriers in cottage 20 at the same time as the pursuer. His evidence as to abuse by Miss D was somewhat different from the pursuer’s: his position – smacked by her during the day not at night and he remembered being placed in the shed but this was after school and before tea. He was not cross – examined.

[36] Evidence was given by Josephine Bell who was the present after care worker and archivist at Quarriers and was in charge of their records. She said that records were digitised. In answer to a question could she find records of persons in cottage 20 she said this: It would be very difficult, records could only be searched by names of individuals and were not cross-referenced by cottages in which they stayed. In any event she described the records as not very detailed. She accepted that software could be updated but did not go beyond that. She was wary about the idea of unsolicited approaches. She described it as being very emotional talking about childhood. She accepted that in relation to a government programme “Time to be Heard” there had been contact with certain former residents.

[37] Claire Crawford, a solicitor who had acted for Quarriers gave evidence. She described how when cases were intimated she sought information from Quarriers archivist and from a Mr Dunbar who worked at Quarriers for a long time who could on occasions point to where she might get information and be able to tell her whether people were alive. She advised that there were no documents which related to specific cottages.

[38] Mr Bill Dunbar, who had been referred to by Miss Crawford gave evidence. He had worked at Quarriers in various capacities between 1962 and 1997. When asked whether he could give an insight into what happened in particular cottages: he said no. He said each cottage was individual and had its own rules. He remembered Miss D and could remember her taking a particular interest in a particular child and helping him. He was not able to assist with names of home assistants, he said they tended to come for short periods and move on. He had no recollection of the home assistants in cottage 20 named in 7/26 of process. In cross‑examination he described Miss D as “old school”. He said at the time corporal punishment was used and involved smacking on the bottom. With respect to codes relative to punishment at the time he referred to 7/24 of process.

Expert evidence
[39] The expert evidence given on behalf of the pursuer came from Professor Freeman. It was evident he was an extremely well qualified expert regarding the issues which arose in the instant case. He had a wealth of practical experience. He had been involved in both the Piper Alpha and Lockerbie disasters. He had regularly prepared expert reports and given expert evidence in court. He spoke to and maintained his position as set out in his reports 6/5, 6/6 and 6/11 of process. He described the pursuer as being severely distressed during the course of the interview with him when discussing the abuse. He described the pursuer as fairly typical of those who had suffered trauma saying about one third of such suffered from amnesia. The amnesia was a protective factor. It was important for the purposes of diagnosis of dissociative amnesia, that the memories had come flooding back. This supported the diagnosis.

[40] Professor Freeman dealt at some length with the concept of false memory syndrome. For reasons which I articulate later in this opinion it is not necessary to set out in detail this evidence as it did not become an issue, due to a change in the views of Dr Janet Boakes (the defenders’ expert).

[41] He described the process that had been at work in the pursuer as this: repression of memory, which was an unconscious process. Thus he was suffering from dissociative amnesia. He said the following facts supported this diagnosis:

because his account was consistent over interviews with a number of experts
when now talks about Quarriers his memories are fairly complete
memories came back in a rush, not developed over a period in therapy

[42] With reference to his second report 6/6 of process he set out in some detail the debate about recovered memory. Again for reasons I will elaborate upon later in this opinion. I do not require to set this evidence out in detail.

[43] Professor Freeman’s position can be summarised by reference to this section of 6/6 of process:

“1.13 In the many patients I have seen it does not appear that the forgetting/repression occurs shortly after the traumatic events usually when the individual has attained a place of safety but it is difficult to be certain as most patients cannot say when they could no longer remember. I have not come across any patient who was able to give an account where they remembered until adulthood and then forgot/repressed their memories. In my opinion on the balance of probability (the pursuer) no longer had access to his traumatic memories from some point shortly after he left Quarriers homes and certainly well before his 18^th birthday.

2.1 In my opinion this is the mechanism that has operated in (the pursuer’s) case. As documented in my main report there is no evidence that (the pursuer) recovered his memories during therapy or by suggestion, they were triggered by the television programme that he watched and then by receiving his notes.”

His position regarding Dr Boakes’ evidence can be summarised thus:

“3.1 As far as I can determine from Dr Boake’s report there is no scientific evaluation of the nature of (the pursuer’s) memory, of his forgetting or of the recovery of his memories No scientific evidence is presented.

3.2 In my opinion there is a clear difference between simple forgetting, conscious avoidance of memories and dissociation/repression. In my opinion it is the latter that has operated in (the pursuer’s) case and this is an unconscious, automatic process not under the individual’s control.

3.3 The statement by Dr Boakes that the memories were always there is of course correct, if they were not there (but not accessible) then they could not be remembered. The fact that Dr Boakes concedes this is important because it indicates that (the pursuer) was not simply making up stories about his past experience.”

[44] Turning to his cross‑examination, much of this dealt with narrowing down the issue in the case between the experts.

he accepted Dr Boakes’ position at the time of proof was that not all recovered memories were false
he accepted that not all recovered memories were true
he accepted that in order to test whether someone was reliable about his forgetting one could look at his medical records to test falsity or accuracy
he accepted the pursuer suffered from a personality disorder
he accepted the pursuer suffered from persistent depressive disorder
he accepted that there was a debate about some parts of the definition in DSM V of dissociative amnesia.
he accepted that to make the diagnosis of dissociative amnesia it was self‑evident that in the pursuer’s case he had to show that he did forget between 1971 and 2003.
he accepted to make the diagnosis the process had to be more than ordinary forgetting
he accepted that the question of whether the pursuer did forget during this period was a question for the court and not for psychiatrists
he accepted that in order to reach his diagnosis of dissociative amnesia he had to hold the opinion that the pursuer was giving honest and accurate information

[45] Senior counsel for the defenders then took the professor to a number of points relative to dissociative amnesia to seek to highlight points of agreement between the experts. The degree to which agreement was reached I will detail in the discussion section of this opinion.

[46] Dealing with borderline personality disorder Professor Freeman accepted that persons diagnosed with this disorder often exhibited inconsistency in accounts. The professor in the course of his evidence relied on a number of articles and I will deal with certain of these later in my opinion.

[47] Dr Janet Boakes gave evidence on behalf of the defenders. She again was someone who frequently gave expert evidence and prepared expert reports. She appeared to me to be like Professor Freeman someone who was well able to opine on the issues before the court. She in particular had served in a working group which had looked at the issue of recovered memories. She had prepared two reports 7/4 and 7/18 of process.

[48] Again, as with Professor Freeman, senior counsel for the defenders begun by seeking to set out areas of agreement between her and Professor Freeman. She accepted the following:

the pursuer suffered from a personality disorder
the pursuer suffered from persistent depressive disorder
that all recovered memories were not false
memories recovered through therapy of which the person had had no previous memory were false.

I did not understand this last view to be materially different from that expressed by Professor Freeman who in the course of his evidence appeared to accept this point. She accepted and relied on certain papers and research done by Geraerts and I will refer to this further at a later stage.

[49] She felt that the pursuer’s memory return had not been entirely spontaneous, in that his memories were not immediately triggered by watching the TV programme, rather his memories developed over a period of time (following upon the recovery of his records and his then proceeding to Epsom). She also felt that the pursuer had been introduced to the idea of dissociative amnesia at an early stage in his treatment with effects, which I will turn to later in my discussion. These were factors which tended to push her away from a diagnosis of dissociative amnesia. Overall she said in evidence that her position was summed up by what she said at paragraph 10.13 of her second report which was this:

“His memory: The main area of difference between Professor Freeman and myself lies in his memory recovery. I am very sceptical that if he had been seriously ill treated he would have forgotten it within 4 years, return to the home several times to fit carpets without recalling anything, and thirty years later would be surprised by what was revealed on the Frontline Scotland Programme. In my view the most convincing explanation is that his experience at Quarriers was not particularly memorable and he did not dwell on it.”

[50] Her position was that what the pursuer said he had been subjected to in the context of the 1960’s, was not very memorable.

[51] She adopted the position put forward by McNally and Geraerts in their 2009 paper which she summarised at paragraph 10.14 as this:

“McNally and Geraerts 2009 outline some alternative possibilities to explain the apparent forgetting and later recovery of memories.

The abuse was not particularly traumatic at the time and has simply not been thought about. Some people may only realise in adult life that what they experienced was abuse and this new understanding and interpretation may be very upsetting. It is possible that this accounts for (the pursuer’s) recall after seeing the TV programme. Against that is the two month period before he started to get his memories and they came in the form of flashbacks rather than memory.

Reminders of the abuse were absent. Memories of abuse, like other memories, will fade away in the absence of reminders. If the victim moves away, or the perpetrator either dies or leaves the area, there may be nothing to remind the person of what happened. This clearly does not explain (the pursuer’s) loss of memory as he was a constant visitor to Quarriers.

People may make a deliberate attempt to forget what happened. This is not a very effective method and the alternative is to turn ones thoughts away from a distressing memory in an effort at distraction.”

[52] In discussing forgotten remembering as put forward by Geraerts, her position was that once repression was unblocked that was it.

[53] Dr Boakes did not accept dissociative amnesia: it did not makes sense, it was put forward that it was to protect the mind of the child. This did not work in the pursuer’s case because until he left Quarriers he remembered abuse, so why when he left did the mind operate to protect him, as he no longer needed protection.

[54] She believed that the pursuer’s borderline personality disorder was a relevant issue when considering the reliability of his evidence because of the tendency of people suffering from such a condition to misperceive situations.

[55] She referred to the following further points which tended, in her opinion, to undermine the diagnosis put forward by Professor Freeman:

he does not refer to abuse when first at Penrith
the events founding the amnesia were not particularly traumatic in the context of the time at which the pursuer sustained them
at the time of his “breakdown” in 2003 there were so many other problems in his life

[56] She felt that looking to the whole circumstances that there were a large number of possibilities to explain what had been happening to the pursuer regarding memories.

[57] In re‑examination she said the following passage in the McNally and Geraerts 2009 paper summed up her views:

“The repression interpretation does not withstand empirical scrutiny (McNally, 2003, pp. 186‑228; McNally, 2004; Piper, Pope, & Borowiecki, 2000). More specifically, although repression theorists have adduced data from many studies in support of the claim that trauma victims are often unable to remember horrific experiences (Brown et al., 1998; Brown, Scheflin, & Whitfield, 1999) these data are subject to interpretations more plausible than the repression one. In some studies, the memory problems actually refer to everyday forgetfulness that occurs after a trauma, not an inability to remember the trauma itself. Other examples include mistaking a failure to encode an experience with an inability to recall it, assuming that not thinking about something for a long time implies an inability to remember it, confusing reluctance to disclose a trauma with an inability to recall it, confusing attempts to forget a trauma with the ability actually to do so, and mistaking organic amnesia for psychic repression of trauma.

Moreover, an analysis of studies involving corroborated traumatic events uncovered no convincing evidence that victims had forgotten, let alone repressed, their trauma (Pope, Oliva & Hudson, 1999). Genuinely traumatic events are highly memorable, as dramatically exemplified by PTSD.” (at p127).

Submissions on behalf of the pursuer
[58] Senior counsel commenced his submissions by setting out what he described as the pursuer’s two core submissions which were these:

1. The pursuer, through no fault of his own, had forgotten, by a process other than “ordinary forgetting” that the abuse in question had occurred, from a date prior to expiry of the period under section 17 of the 1973 Act until in or about June, 2003, following the recovery of his records and

2. That, although both the pursuer and the defenders suffered prejudice as a result of the delay between the expiry of the triennium and the date of the pursuer raising the action in December, 2004, in the whole circumstances of the case the relative weight of the respective prejudice was such that it was equitable for the court to allow the pursuer to proceed with his action under section 19A, and, accordingly, the court should pronounce an interlocutor in terms of the fifth plea-in-law for the pursuer. The balance of equity he submitted favoured the pursuer.

[59] Senior counsel then proceeded to outline the legal context of his submissions.

[60] With respect to section 17 of the 1973 Act he said that it represented in Scotland a principle that existed in many jurisdictions, namely: society has an interest in seeing that there is a cut-off point after which stale claims will not be allowed to be pursued.

[61] However, such a rigid role was capable of producing injustice and thus section 19A of the 1973 Act was introduced.

[62] The Scottish Provisions were mirrored, although the wording was somewhat different, in section 11 of the Limitation Act 1980 and a similar power to bring an action outwith the triennium in section 33 of the said Act. Senior counsel then drew my attention to the judgment of McHugh J sitting in the High Court of Australia in the case of Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541 where certain observations were made with respect to analogous Australian provisions. The observations of McHugh J were heavily relied upon by Lord Drummond Young in his decision in B v Murray (No 2) 2005 SLT 982. (see: in particular at paragraph 21). When considering the proper approach by the court to section 19A, Lord Drummond Young founded significantly on the public policy issues identified by McHugh J and at paragraph 138 Lord Drummond Young said this:

“The limitation period is the norm enacted by the legislature; the discretion under a provision such as section 19A is an exception to that norm. Consequently the onus is on the pursuers, who seek to invoke the exception to satisfy the court that special circumstances exist. If they fail to do so, they must lose their legal rights; that merely gives effect to the legislative policy.”

[63] Senior counsel accepted that these matters were taken up by the House of Lords in AS v Poor Sisters of Nazareth 2007 SC (HL) 688 and in particular Lord Hope of Craighead at paragraph 25 made these observations:

“As McHugh J pointed out in Brisbane South Regional Health Authority v Taylor (page 255) it seems more in accord with the legislative policy that the pursuer’s lost right should not be revived and that the defender should have a spent liability reimposed on him. The burden rests on the party who seeks to obtain the benefit of the remedy. The court must, of course, give full weight to his explanation for the delay and the equitable considerations that it gives rise to. But proof that the defender will be exposed to the real possibility of significant prejudice will usually determine the issue in his favour. This is a question of degree for the judge by whom the discretion under section 19A is to be exercised. I do not think that Lord Drummond Young, who examined all the issues on either side of the argument, was in error in his assessment of the test or of the underlying policy of the statute.”

[64] Senior counsel contended that it was important to properly understand what could be taken from these observations and in particular submitted that the observations should not be taken too prescriptively.

[65] In elaboration of the foregoing general assertion he said this: the rationale was, indeed, that one started from the premise that society had decided, in principle that defenders ought to be protected from stale claims, and accordingly it must follow from that premise that the onus in satisfying the court that special circumstances existed lay upon the pursuer.

[66] That was apparent from the circumstance that Lord Hope’s comments dealt explicitly with the overcoming of a burden. If the burden were not capable of being overcome, section 19A would be deprived of any meaningful content, especially bearing in mind the legislative context in which it was enacted, namely: the provision of an equitable remedy to pursuers who might find themselves caught by the hard black lettered law of section 17. In addition, it did not follow: (1) that, once a defender could demonstrate any degree of prejudice, that that was sufficient to defeat an attempt to invoke section 19A, (2) nor was it the case that the circumstances in which the pursuer came to delay the raising of the action would be irrelevant, even when the defender could demonstrate prejudice and (3) the prejudice to the defender would have to come up to the standard of “the real possibility of significant prejudice”. This he submitted was underlined by the comment made by Lord Hope, that the court must “give full weight to” the explanation for the delay “and the equitable considerations that it gives rise to”. Even then, that would “usually”, (but not invariably) determine the issue in the defender’s favour. As Lord Hope pointed out, it was a question of degree for the judge to consider.

[67] Senior counsel sought to emphasise this: the court should be careful not to slip into an error of this type, namely: seeing superficial similarities between the instant case and B v Murray (No 2) and AS v Poor Sisters. What the court should be careful not to do was to hold: because Lord Drummond Young came down in B v Murray (No 2) against the exercise of the equitable power and was upheld in the House of Lords that the court of necessity in the instant case must come to the same conclusion. This would not be a proper approach, first because the facts as they affected both parties in the present case were materially different from those in B v Murray (No 2) and secondly, even if the facts were substantially similar, it was inherent in the exercise of any discretion that different judges, looking at identical circumstances may reasonably come to different conclusions. His position was this: considered properly, the House of Lords in AS v Poor Sisters did not go beyond the conclusion that Lord Drummond Young’s exercise of his discretion did not fall outwith the range of decisions to which a judge might reasonably have come. It was his position in summary that B v Murray (No 2) and AS v Poor Sisters were of only limited, if any use, as precedents in relation to the issue before this court; namely: the actual exercise of the equitable power in section 19A. Individual cases depended upon their own individual facts and given that the range of outcomes based on a particular set of facts to which a court might reasonably come might result in either the exercise of, or of the refusal, to exercise the equitable power.

[68] Senior counsel also drew my attention to A v Hoare [2008] 1 AC 844. He in particular drew my attention to the observations of Lady Hale made at paragraph 60 where she stated:

“It may well be more satisfactory to transfer the question into the exercise of discretion under section 33. Then the injustice to a claimant who may be deprived of his claim, perhaps as the result of the very injuries which gave rise to it, can be balanced against the injustice to a defendant who may be called upon to defend himself a long time after the event where important evidence may no longer be obtainable. I fully support the more generous approach to the exercise of discretion which is adopted in particular by Lord Hoffman. The reasons for the delay are highly relevant to that exercise, as of course are the prospects of a fair trial. A fair trial can be possible long after the event and sometimes the law has no choice. It is even possible to have a fair trial of criminal charges of historic sex abuse. Much will depend upon the circumstances of the particular case. But the policy argument applies just as much to the whole ‘date of knowledge’ provision as it does to the definition of significance with which we are concerned. With a properly directed discretion one should not need the date of knowledge provision at all. Nor are the difficulties faced by a defendant, whose breach of a strict statutory duty may have resulted in some insidious industrial disease necessarily less deserving of consideration than the difficulties faced by a defendant whose deliberate and brutal actions towards a vulnerable person in his care may have resulted in immediate physical harm and much later serious psychiatric sequelae.”

[69] In addition senior counsel generally drew my attention in the said case to the speech of Lord Hoffman at paragraphs 49 to 52 and Lord Brown of Eaton-under-Heywood at paragraphs 84 to 87. Senior counsel went on to refer to one further authority in which against the background of AS v Poor Sisters and A v Hoare the court of appeal gave guidance on the criteria to be considered in the exercise by the court of its equitable power and this was the case of B and Others v Nugent Care Society [2010] 1 WLR 516. The approach which the court should take was summarised at paragraphs 24 and 25 where this was said:

“This echoes Smith LJ’s own formulation, which we believe to be consistent with our approach in paragraph 73:

‘It seems to me that, in the exercise of the discretion, the basic question to be asked is whether it is fair and just in all the circumstances to expect the defendant to meet this claim on the merits, notwithstanding the delay in commencement. The length of the delay will be important, not so much for itself as to the effect that it has had. To what extent has the defendant been disadvantaged in his investigation of the claim and/or the assembly of evidence, in respect of the issues of both liability and quantum? But it will also be important to consider the reasons for the delay. Thus, there may be some unfairness to the defendant due to the delay in issue but the delay may have arisen for so excusable a reason, that, looking at the matter in the round, on balance, it is fair and just that the action should proceed. On the other hand the balance may go in the opposite direction, partly because the delay has caused procedural disadvantage and unfairness to the defendant and partly because the reasons for the delay (or its length) are not good ones.’”

[70] From the foregoing authorities senior counsel sought to take the following points:

Although the onus lies upon the pursuer to satisfy the court to exercise its equitable power under section 19A, it is simply that – a question of an onus on the pursuer to satisfy the courts as to the existence of special circumstances which justify the exercise of the power.What it is not is a distortion of the balancing exercise which has to be carried out by the court unfettered.Although, in the words of Lord Hope, “the real possibility of significant prejudice will usually determine the issue in (the defender’s) favour” it most certainly does not follow that as soon as the defender shows such a prejudice, that gives him a “free pass” irrespective of the circumstances which effected the pursuer and led him to delay in raising the action.If that were so, then the very mischief which the legislation was introduced to address would go in large measure unremedied, and defenders would be placed in a uniquely privileged position which goes beyond the legitimate protection which they gain from this onus of showing special circumstances being placed upon the pursuer.Nor is it what the case law above suggests:the requirement was for the court to perform an unfettered and even handed assessment of the balance of prejudice, viewed in the context of the whole circumstances of the case.
[71]      Senior counsel having set the legal context submitted that the primary question for the court was this: whether the pursuer had proved his averment that he forgot the abuse which he had suffered at the hands of Miss D and that the process by which he forgot was involuntary? Within that question there were two elements, namely: the evidence as to fact and the expert evidence.

[72]      With reference to the evidence of fact counsel submitted this: The pursuer, though he had had a borderline personality disorder with associated problems throughout his life from his teenage years, undoubtedly suffered a major breakdown on or about 7 June 2003, when he was admitted to hospital in Penrith. The trigger to that event, which he referred to in his evidence, was the returning of memories of the abuse at the hands of Miss D. That he suffered a major breakdown in June 2003 was incontrovertible - he went from a man who, despite his problems, managed to hold down a series of jobs and support his family, who had active interests and went on trips, who helped about the house to one who became almost entirely dysfunctional. Senior counsel then asked in the light of the foregoing this question: If the breakdown did not happen for the reason given, what other cause was there? In answer to this question he said that no alternative had been suggested in the evidence. He submitted that the pursuer’s evidence as to the return of his memories of abuse by Miss D should be accepted as an account which provided the only plausible explanation of the deterioration in his condition in 2003. It was his position that if there had not been a return of memory of the abuse by Miss D, and the pursuer had always remembered that abuse prior to June 2003 and continued to remember it from June 2003, then there was no explanation for the undoubted change in his condition.

[73]      Senior counsel conceded that even if the pursuer’s evidence were accepted with respect to the above matters that did not lead automatically to the conclusion either that he had forgotten that he had previously remembered or that the process of forgetting was involuntary. Rather the starting point in relation to the proposition on behalf of the defenders that the pursuer had forgotten what he had remembered was the evidence disclosed in the medical records, which could be used as a cross check of the evidence given by the pursuer.

[74]      Senior counsel’s response to the points sought to be made by the defenders arising from the medical records, was this: the pursuer’s evidence was quite straight forward – it was not that he had forgotten the whole of his time at Quarriers, nor even that he had forgotten Miss D and his time in the cottage with her. It was simply that he had forgotten what he described as “the bad stuff”. Against that, he conceded that the medical records disclosed that he had previously given accounts of running away from the home, bullying and being hit by his father, though he at proof denied having given such accounts. Although the pursuer in evidence sought to give explanations for the apparent entries in the notes, the court may take the view that these explanations, at any rate for the most part, were not entirely convincing (though it may be that they did at least provide a context for his comments from time to time on his relations with his wife – it is probable that his perception of that relationship might have varied over the years, and the evidence of his wife may be of some assistance in testing the objective reality). If the court did take that view, then it would be the case that his evidence of not having made the comments would fall to be treated as unreliable, although through no fault of his own.

[75]      Again that, however, was not the end of the matter. First, it was entirely consistent with what was known of the pursuer’s condition and with the expert evidence. It was entirely probable that he might have forgotten making the comments attributed to him. Second, it was certainly necessary to be clear about what it was that he was said previously to have made comment upon. The point about this was: what he said, that he had forgotten was “the bad stuff”, but by no means everything about Quarriers or even about Miss D. It was the very selectivity of this censoring of memory that rendered it all the more remarkable that he could previously have remembered the subject matter of the comments attributed to him, yet not remember the abuse by Miss D. The abuse, as he now described it, was, as was clear from his evidence, particularly upsetting for him.

[76]      Senior counsel said that support for the pursuer’s position was to be found in the evidence of Mr J. His position with respect to the competency and relevancy of that evidence was this: it was both competent and relevant, not only as to indicating that the evidence of other witnesses was available, but also for the purposes of giving the court a context in which to assess the cogency of the pursuer’s evidence. The present case was one where it appeared from the evidence of Mr J that corroboration may potentially be available for the pursuer’s account. He submitted that Mr J’s evidence painted a picture of a particularly harsh regime within Miss D’s house at Quarriers at the relevant time. He also spoke to the disproportionate effect on the pursuer, whom he described as a “cry baby”. Mr J spoke of how he, had to be tough to withstand what was done to the children by Miss D, yet in the manner in which Mr J gave his evidence the court may have detected a vulnerability which the self-defensive carapace which he had grown did not altogether protect.

[77]      Senior counsel submitted that when the evidence of the pursuer and Mr J was considered it was perfectly possible to see that the physical abuse suffered by the pursuer at the hands of Miss D was of an entirely different order from, for example, any punishment which he received at the hands of his father or bullying by other children within the home. These things were relative. Because the pursuer said that his father may have hit him from time to time that did not necessarily amount to any more than normal chastisement, falling well short of the abusive treatment meted out by Miss D, likewise with bullying. Furthermore the actual process of running away may have been as a consequence of the treatment given to the pursuer by Miss D or may merely have been as a result of general disaffection with life in Quarriers. Mr Dunbar gave evidence to this effect: children trying to run away from the home was a common problem, but whatever the reason, the actual running away and “life on the run” was entirely different from the very particular store of memories - “the bad stuff” which had been involuntarily self-censored. Senior counsel went on to submit that the most telling piece of evidence, which supported the proposition that even if the pursuer gave accounts about: bullying, running away and being hit by his father he had nevertheless not remembered the abuse from Miss D was to be found in the medical records. He submitted this: on a detailed examination of these records nowhere was there any note of the pursuer having said at any time prior to the breakdown in June 2003 that he had been abused by her. This he argued was all the more remarkable given the wide and extensive medical interventions covering that period. Had he made such complaints, one would have expected to have seen some mention of them, and if he was giving information about being hit by his father, bullying at school and running away, it was utterly remarkable that he would not have also mentioned the abuse by Miss D. It flowed from the foregoing that the only plausible explanation for his not having done so was this: it was not something which was present in his memory. Similarly, although there was reference to apparent suicide attempts by the pursuer during his teenage years, this was not evidence of his having remembered the abuse at these points. There was no evidence in the medical notes or in his evidence to any linkage between events at Quarriers and these attempts at suicide, should the court accept that they were seriously intended attempts at suicide, which the pursuer in any event denied. It was submitted that, on the balance of probabilities, abuse at the hands of Miss D had not been in his memory from the point at which he was driven by his father’s car down the drive on leaving Quarriers.

[78]      More particularly within the records there was this note dated 17 September 1991 (7/2 of process beginning at page 192). On page 194 this was said:

“Didn’t like school, was bullied – didn’t know why – ran away from the home – denies any abuse. Father wouldn’t take him out of home. Younger brother also in the home. Pt looked after him.”



[79]      Senior counsel said: there was a record of the pursuer remembering bullying at school and running away but having no memory of abuse. This was particularly significant in that: it was not a mere omitting to mention abuse, but rather was a specific denial of abuse in response to specific questions about that issue.

[80]      The next issue within the factual evidence, related to the pursuer’s evidence as to the process by which he forgot. The pursuer’s evidence on this was short and sharp: as he was driving away from the school with his father, “the shutters came down”.

[81]      It was the evidence of Professor Freeman that this was consistent with the process of dissociative amnesia, which kicked in when the patient reached a place of safety. With respect to the line advanced on behalf of the defenders that being with his father was not for the pursuer, a place of safety, it was submitted that this suggestion should be rejected, first because being hit by his father did not necessarily equate to abuse and in any event, as Professor Freeman explained, what mattered was that one was in a place which one perceived as being one of relative safety.

[82]      The second element in this discussion was the expert evidence: senior counsel accepted that in relation to a number of matters there was a large measure of agreement between the experts. However, there were he submitted important differences.

[83]      With respect to the expert evidence senior counsel submitted I should prefer Professor Freeman’s evidence to that of Dr Boakes.

[84]      Generally he submitted regarding Professor Freeman: he was an impressive witness, he was both credible and reliable. His extensive experience and qualifications were impressive both from an academic perspective and a clinical one. He had unrivalled practical experience in the field of memory, with his extensive involvement in the major disasters of Lockerbie and Piper Alpha as well as treating serviceman returning from combat. He was measured and gave his evidence in a coherent and firm manner. Although he spoke of the bitterness of the “memory wars”, he had not been associated with either camp, and gave his evidence from a perspective which was informed not only by his academic involvement but also from his unrivalled practical experience.

[85]      With respect to Dr Boakes senior counsel said this in his written submissions:

“6.15    Dr Boakes’ practical experience was distinctly more limited, having actually treated only (as she admitted in cross examination), one or two patients in this area, and having had no recent clinical experience at all following her retirement in 2005. Her account of how she got involved in dealing with so-called ‘False Memory Syndrome’ (which she acknowledged was not a recognised syndrome) as well as her experience as an expert witness exclusively on one side of that debate does display her commitment to one side of the ‘Memory Wars’. It is not suggested that this is in any way disreputable, and it is not to be doubted that it comes from a genuine belief in the theories which she propounds. It is submitted that the reason why she takes those positions springs from how she approaches the concept of dissociation. At paragraph 9.10 of her Report of 29^th October, 2014 she cites a curiously partisan paper, which describes those who believe that there is such a thing as repressed memory which can be recovered as ‘mavens and true believers’, before going on to develop her theme in the following paragraphs that ‘there is no scientific support for an unconscious, automatic process not under the individual’s control that gives rise to amnesia’. This she highlights as a point of disagreement which she has with Professor Freeman. In the reference to ‘scientific support’ lies the key to understanding the disagreement. Dr Boakes approaches the matter from an academic perspective: it is for those who support the hypothesis of dissociative amnesia to present proof of its existence. In this context ‘proof’ means scientific proof, not proof on the balance of probabilities as it would be understood by a lawyer. Dr Boakes asserts that there is no such proof. If that be so, the fallacy in her approach is that, if it cannot be established by scientific proof, it does not exist. In the event, her repeated assertion that there is no evidence for dissociative amnesia shifted under cross examination to there being no evidence which she would accept for dissociative amnesia.

6.16      There are other aspects of her evidence which demand caution from the Court in the way in which her evidence is approached:

- In cross examination she was extremely combative.

- She was given to making sweeping assertions which she did not vouch, for example the assertion that there is no evidence for dissociative amnesia, the assertion that ‘you don’t forget abuse’ (despite the papers which suggested that one can forget abuse and Professor Freeman’s practical experience of traumatic events being forgotten) and the assertion that once you remember something, you don’t forget it again (despite Professor Freeman’s clear evidence that it is a function of dissociative amnesia that things remembered can be forgotten again).

- She did assert ‘Disassociation is rather ambiguous. I wouldn’t completely pooh pooh it’ but qualified that by saying ‘I’m not sure I’m going to accept Dissociative Amnesia in the way it is used [under reference to the DSM V scale]. She made it clear that she simply did not accept the DSM V category of Dissociative Amnesia, albeit that formed a widely accepted international standard. This is at least inconsistent with her stance as an expert witness in BV Murray (No.2) where she had criticised the pursuer’s expert witness for not accepting DSM IV. (Parenthetically, it is worth mentioning that Dissociative Amnesia was referred to by Lord Walker in A v Hoare at paragraph 47 as a ‘recognised mental disorder’).

- There was also the extremely combative way that she dealt with cross examination on the question of whether Persistent Personality Disorder is a major condition, especially her imperious dismissal of the diagnostic criteria which were set out in the DSM V, even when her attention was being drawn to the circumstance that those criteria had all been met.

- Was she properly prepared? Professor Freeman had produced in advance of the proof the papers which he relied on in his first Report (though not the papers in the later Reports). It is curious that, although Dr Boakes had cited a number of papers in her reports, no attempt had been made to lodge any of them, and an attempt to cross-examine on this was rebuffed on the basis that she had not had an opportunity to refresh her memory.

- There was also the attempt to bolster her own evidence by referring to the paper of Professor Brandon to which she had contributed and which she described as a ‘consensus document’. It was only in cross-examination that it emerged from her that the document was not a consensus document and was not supported by the Royal College of Psychiatry, an institution which she described ‘as suffering from an excess of democracy’. She simply had no knowledge of the role Professor Freeman undertook in response to the concerns that Report caused for psychotherapists.

- There is also the extent to which it is submitted that her evidence was tainted by her seeking to continue to rely on False Memory Syndrome as at least one explanation for the Pursuer’s condition. Despite the focussed nature of her examination in chief, the fact remains that her reports still offered false memory syndrome as an explanation, and indeed, strayed beyond the limits of what is the proper role of the expert in offering her view that (in effect) (the pursuer’s) memories of abuse were false. This was exacerbated by gratuitous and unfair comment upon (the pursuer’s) credibility and reliability (the comment that he was ‘economical with the truth’, which she accepted under cross-examination was a euphemism for lying, was particularly egregious in this respect). This tendency to stray is one which has several times caused difficulties for her in giving expert evidence in England, most recently in the Court of Criminal Appeal in England in H v The Queen [2014] EWCA Crim 1555. Reference is made in particular to the comments of Sir Brian Levison P at paragraphs [21] [22] [41] and, especially [42].

- In similar pejorative vein to her characterisation of the pursuer as being ‘economical with the truth’ was her reference to ‘magical mechanisms’ (albeit that the word ‘magical’ was subsequently withdrawn by her) and her analogy of proving the existence of Dissociative Amnesia as being subject to the same requirements as proving the existence of unicorns”.

[86]      Senior counsel’s position was that the expert evidence which the court should accept, was this: Professor Freeman’s evidence which supported the view that the pursuer had involuntarily forgotten the “bad things”.

[87]      The position put forward by senior counsel in his written submissions regarding the evidence of Professor Freeman was as follows:

“6.19    Professor Freeman provides an explanation (which, in common with all of the expert evidence, it is for the Court to test against the facts) in the form of Dissociative Amnesia. It is the explanation which best fits the facts, unless one starts from the premise that the existence of Dissociative Amnesia has not been established and therefore the pursuer cannot be suffering from it. If one takes the latter approach, then it leaves one struggling to find an explanation which is consistent with the facts, as will be discussed below. It is submitted that the Court should accept Professor Freeman’s explanation. To take Dr Boake’s approach is to conflate the separate issues of what is dissociative amnesia and what causes it (for example, a process of memory repression). It is a phenomenon which Professor Freeman form his vast clinical experience was able to identify as having encountered on many occasions, and there is academic research which tends to support the existence of the condition (whether that research is acceptable to Dr Boakes or not) and, indeed, the evidence of its existence is sufficient to have persuaded the profession as a whole to accept it internationally to the extent of listing it, along with diagnostic criteria, in DSM V. Even if Dr Boakes is correct, and the scientific research does not provide an explanation for what causes the phenomena listed as Dissociative Amnesia, that does not mean that the condition does not exist. To argue otherwise is rather like the analogy put to Dr Boakes by the Pursuer’s Senior Counsel that because we do not know what causes cancer, that does not mean that we can assert that it has not been proven that cancer exists.

6.20      Here one gets caught up in the issue of ‘false memory syndrome’. As discussed above, Dr Boakes’ Reports make reference to the ‘syndrome’ as a possible explanation. This theory comes as a natural outgrowth of the position which Dr Boakes took in the false memory debate. If there is no such thing as dissociative amnesia, then that throws into doubt the existence of repressed memories which can be recovered, and increases the probability that memories which purport to have been recovered are false. The science has advanced between 2007 (when she wrote her original report and a year after she gave evidence in B v Murray (No.2)) and 2014, and during that period her views have taken account of some of that research, to the extent that she is not now as emphatic that recovered memories are likely to be false, taking instead the reasonable view (which is shared by Professor Freeman) that recovered memories might or might not be false. However, the critical thing is that this change in her view has not come about as a result of any increased willingness to accept a process of dissociation as causing amnesia – a process which she still refuses to countenance. To that extent, her evidence remains coloured from where she has come from in the debate, as opposed to Professor Freeman, who, the Court may accept, has never ‘taken sides’ in this debate and has approached the question with an open mind.

6.21      There is a very specific issue in which this difference of approach becomes critical. Reference was made above to Dr Boake’s unvouched assertion that ‘you don’t forget trauma’. It is understandable why she might come to that view, considering the premise from which she starts, for if there is no such thing as dissociative amnesia, then the explanations for forgetting are limited, with the most likely explanation being ‘ordinary forgetting’ and, indeed, trauma is perhaps not the sort of thing that could be forgotten by a process of ‘ordinary forgetting’ – it is not something which is forgettable. However, the many instances of forgetting of traumatic events spoken to by Professor Freeman from his extensive clinical experience (let alone the cases mentioned in the literature – though this not research which accepted by Dr Boakes) demonstrates that people do forget traumatic events, and once that is accepted as an observed phenomenon, that challenges the underlying premise accepted by Dr Boakes and rejected by Professor Freeman and the DSM V that there is no such thing as dissociative amnesia.

6.22      Also arising from this dispute is the significance, if any, of the pursuer having been given an explanation for his condition by an unidentified practitioner that he has ‘locked up’ his memory, that it was ‘on the back burner’ and ‘simmering away’. It is contended by the defender that this in effect taints his whole evidence. Superficially attractive though that might sound, it does not stand up to close examination. This theory is first mentioned in a passage starting at paragraph 8.7 of Dr Boakes’ first report, with the comments being made about what he was told at paragraph 8.10 (pdf page 903). The discussion is held in the context of false memory syndrome. This is manifest at paragraph 8.13:

‘He has also expressed disappointment that during his therapy Dr Cohen failed to help him to recover memories. This strongly suggests that he believed that he had “blocked out” memories that were lurking in the undergrowth awaiting recovery. In other words, he has been introduced to the theory of repression and memory recovery’.

The apprehended tainting is in relation to persuading the pursuer that he had repressed memories to recover, with the concomitant danger that any ‘memories’ which were recovered would be false. Incidentally, that does not hold together as there is no suggestion that any memories were ‘recovered’ during therapy, but, in any event, if one leaves out of account that supposed danger, what, if any, real tainting is there of the pursuer’s evidence by his being provided with such an explanation (which Professor Freeman said was, in any event, a perfectly reasonable explanation to have given him)?

6.23      If the issue in this case had been whether the pursuer’s memories were false, then one can see the rationale of Dr Boake’s position, but that is not an issue. In relation to the real issue in the case (that the pursuer by an involuntary process had forgotten his abuse at the hands of [Miss D], it is submitted that such information did not taint his evidence in any meaningful way, if at all. By the time he was seeking an explanation, he had already undergone his breakdown in 2003. His perception of what happened is irrelevant to the facts to which he spoke in evidence, which are recorded in the medical records and which are spoken to by himself and his wife. Put another way, what he thought as to the mechanism of his forgetting and remembering has no bearing on the fact of his forgetting and remembering. It might have done, had the Court been asked to rely upon [the pursuer’s] explanation as to the mechanism of his forgetting and remembering, but of course, the court is not being asked so to rely.

6.24      Also of importance is the fact of sudden remembering in 2003, which engages the issue of whether Persistent Personality Disorder is a major disorder. Professor Freeman’s position is that the normal trajectory of Borderline Personality Disorder is that the patient improves with age, and a sudden deterioration in the condition of a patient of the pursuer’s age is very unlikely. If the pursuer developed a persistent personality disorder (which, in Professor Freeman’s opinion is a major disorder) then the most probable explanation which Professor Freeman can find is the return of the pursuer’s memories at the time of his breakdown. If however, persistent personality disorder is not a major disorder, then it follows that there is no need to look for an explanation for a deterioration in the pursuer’s condition, or, at any event, it opens up the door for alternative hypotheses, such as ‘malignant regression’ (Dr Boakes’ first Report paragraph 7.7) a diagnosis rejected by Professor Freeman.

6.25      If dissociative amnesia is rejected as an explanation, and, for the reasons discussed ‘false memory syndrome’ (which was in any event not urged upon the Court by the defender’s counsel) is also rejected, what explanations are left? These are found in paragraph 11.4 of Dr Boakes’ second report (page 1011 of the pdf) and appear to consist in ‘ordinary forgetting’ or not thinking about it, combined with having now forgotten that he had previously remembered.

6.26      So far as ‘ordinary forgetting’ is concerned, Dr Boakes posited that this would arise if the events were not memorable. Given the evidence of the pursuer and the evidence of [Mr J], what they speak of hardly seems to be events which are not memorable. Whether or not [Mr J] corroborated every individual detail of the pursuer’s evidence he certainly painted a picture of a harsh and brutal regime, which he, [Mr J], vividly remembered many years later. Of course ‘memorable’ is not an abstract concept. What is memorable is what is memorable to the individual concerned. In light of [Mr J’s] evidence that the pursuer was a softie, a cry baby, then it is likely that the sort of regime which Mr J and the pursuer describe would be even more memorable for the young [pursuer]than for [Mr J]. In other words, it is inherently improbable that what the pursuer describes could have been forgotten by a process of ordinary forgetting.

6.27      That leaves the possibility of the pursuer consciously not thinking about the matters concerned. If that were so, those matters would have been continuously in the pursuer’s memory – he would not have forgotten about them at all. However, the evidence of the medical records, especially the note in which the pursuer is noted as having denied abuse, together with the pursuer’s account of remembering in 2003 and the deterioration in his condition which, it is submitted, could only have been caused by the coming into memory of something which had been truly forgotten to conscious thought, all combine to deny any credible support to the speculation that the pursuer had really known all along but not thought about it.

6.28      In all of these circumstances, it is submitted that the Court should accept the explanation that [the pursuer] had involuntarily forgotten his abuse at the hands of [Miss D] through a process of dissociative amnesia”.

[88]      Turning to the issue of the balance of equities senior counsel commenced by referring to Lord Drummond Young’s decision in B v Murray (No 2) and submitted that it was important to understand that this decision was in no sense a precedent, rather it had to be remembered that each case turned on its own facts.

[89]      Thereafter turning to his specific submissions as regards the balance of equities in this case his position was that when looking at the prejudice asserted by the defenders what was important to consider was the actual prejudice shown rather than merely assumed.

[90]      Senior counsel conceded that the inability to call Miss D plainly caused prejudice to the defenders. However, it did not cause the real possibility of significant prejudice. He further appeared to suggest that it did not weigh materially in the balance of equity against the pursuer.

[91]      With respect to time he submitted this should not of itself be taken as prejudice. What required to be considered was its effect on the defenders with respect to their ability to obtain a fair trial. With reference to this senior counsel made certain comments on the evidence regarding the state of the defenders records. These submissions were as follows:

“Josephine Bell gave evidence in relation to the records to which she had access. She spoke to the records relating to individual residents. At first blush, it did appear as though the records might be difficult to search in order to extract information (such as individuals who may have been in cottage 20 with the pursuer), but, as her evidence progressed, it emerged that the records had been digitised, although the present ability to search those digitised records was limited. She said that it would be possible, in conjunction with the IT provider, to modify the fields which were searchable. It is submitted that this raises the possibility of greatly improved searchability of the records. However, a real concern arose as to the extent to which Miss Bell was aware of the extent of the Records which were available to the defender. It was clear that staff records had been maintained as the productions contained a one page photocopy of a sheet from a Register of Housemothers. The existence of the Register of Housemothers ‘came as quite a surprise’ to Ms Bell. This had been given to her by Mr Bachelor. Although on the defender’s witness list in this case, Mr Bachelor did not give evidence. Fuller staff records (7/26 of process) were made available by the defender immediately prior to Mr Dunbar’s evidence, but why their existence had been unknown to the defender’s archivist was a question which was not answered. Indeed, the averments at page 25C-E and at page 28 disclose that someone from Quarriers had given information about cottage log books, which would not be part of the records managed by Ms Bell. Ms Bell as the archivist for Quarriers had no idea what records are held by the defenders’ agents. This raises doubts as to whether the defender has disclosed the full extent of the records available to it, and, without knowing this, it makes it difficult for the Court to be satisfied as to what extent, if any, the defender is prejudiced by the availability and state of its records. Furthermore, it is not clear whether the passage of time has adversely affected the availability of records, both for the reason that is unclear what is the extent of the records, but also because it is unclear as to what records were maintained in the first place and whether any have been lost over time. How is the court to know the extent of any prejudice in the absence of evidence as to the totality of the available records beyond that which the defender has chosen to produce? How does the court know that records have been misplaced or lost? The short point is that it cannot. Ms Bell was not instructed by the defender to take any steps to identify or trace any potential witnesses, either staff or children resident in the home at the material time.

Claire Crawford spoke to her work for Charles Hennessy who was the solicitor in Glasgow dealing with the claims against Quarriers. In relation to records, Ms Crawford stated that the cottages did not have records, yet the defences state at page 28 that the cottages had some records but they have gone or been misplaced. It is known that the police took records but not what records, and it is known that Ms Crawford relied upon the archivist.

Mr Bill Dunbar gave evidence, but shortly before his doing so a further copy of the House Parents Register was lodged as 7/26. This was far more extensive than the single sheet the provenance of which has been discussed above. He had worked in a senior position at Quarriers and after he retired became an archivist there. In his role as an archivist, he, like Miss Bell, was concerned only with children’s records. Because of his earlier senior position in the home before he retired, he could identify many of the individuals referred to in the records. He confirmed that members of staff who were serving in individual cottages at any given time could be identified through the payroll records and indeed, starting with the information recorded in 7/6 of process, it should be possible to trace the Dutch female assistant [who, the court will recollect, had been identified by the pursuer in the photographs], although he had never been asked to make any enquiries regarding staff. This raises the question of what efforts (if any) have been made by the defender to contact other staff in investigating this claim? There is no clear answer to this, save that from Mr Dunbar’s answer (beyond Mr Mortimer, who had not been not speak to specific allegations in any event), there appears to be no such efforts. As to the issue of prejudice claimed on Record, Mr Dunbar’s evidence shows the averments about this are overstated and again there is no evidence of steps taken at all as regards contacting other members of staff.

7.6       In summary, the position in relation to documents appears to be that it is far from clear just what the full extent of the documents may be, and to what extent delay has adversely affected the availability of the documents (indeed, on one view, the digitisation of the records may even have improved their accessibility and searchability). It is submitted that, whatever is asserted, the defender has not shown actual prejudice.

7.7       In relation to witnesses, it is clear that, even on the documents known to be available, it is possible for the defenders to trace other members of staff, including at least one assistant who served in cottage 20 while the pursuer was there, and who therefore ought to be able to give evidence as to the way in which she saw Miss D interact with the pursuer and other children in the cottage, yet the defender had made no attempt to do so. This might also be supplemented with evidence from Mr Dunbar, who was able to give a very clear account of the background, standards and individuals at Quarriers. He was not able to say what happened within the four walls of cottage 20, but he was able to give a favourable account of [Ms D] in relation to efforts she went to in respect of a boy from Dundee who had got into trouble, and he was able to give a very full account of the standards expected at Quarriers and in wider society at the time. This evidence came from a position of authority which he had held in the home during his working life. Additionally, Ms Crawford had identified Mr Mortimer as a person who could provide an overview of life in the home. Although he was now deceased, Ms Crawford was able from her notes to recount that Mr Mortimer’s impression was that [Miss D] was ‘old school’, probably untrained and probably quite strict”.

[92]      Senior counsel submitted that despite what he described as the “unfortunate reaction” of Mr A, a person approached by the pursuer’s solicitors to give evidence about his time in Quarriers, that it was appropriate for the defenders to approach further residents of Quarriers. He relied in support of this submission on the following: Miss Bell had given evidence as to the manner in which records were given regarding previous residents of the home in a controlled way so as to minimise possible upset, and also how there was a large pool of such residents who had approached the home from time to time seeking access to their records and being given those records, in respect of whom, therefore there could be no risk of an adverse reaction. Further, there was a pool of former residents who have been approached by the defenders for the purpose of a Government project, “time to listen”, before approaching those persons the defenders either had not been inhibited by concerns of provoking an adverse reaction, or took the view that it would be able to control or handle such reaction where it to occur. There existed a pool of several hundred residents who had received their records through their participation (both solicited and unsolicited) in that project, and, likewise, in respect of whom there would be no basis to view an adverse reaction. No attempt had been made by the defenders to contact any of these potential witnesses.

[93]      He submitted that on the basis of the foregoing the circumstances in the instant case were very different from those in B v Murray (no 2) where Lord Drummond Young held it was undesirable to approach former residents in this way.

[94]      With respect to the issue of the law in relation to vicarious liability it was his position that there had not been a change in legislation, but a development of common law principles in the case of Lister and Others v Hesley Hall Ltd [2002] 1 AC 215. The issue related to the vicarious liability of an employer for sexual assaults committed by a warden in its employment. It was a principle of common law that an employer was not vicariously liable for unauthorised actions of its employees outside the scope of their employment, but was vicariously liable where the actions were done within the scope of employment, but in an unauthorised manner. The problem arose because of a decision in the court of appeal in Trotman v North Yorkshire County Council [1999] LGR 584 that, specifically, a sexual assault was not something which lay within the scope of employment so there could be no vicarious liability. The House of Lords in Lister overruled that decision. The present case was not one of sexual assault, but of physical assaults and similar actions carried out in the course of Miss D’s duties as a house mother. This, it was his position, was something which fell within the wider common law principle, and even while Trotman was thought to represent the law, the vicarious liability of the defenders would not have been affected by it. In these circumstances, the short answer to the defenders position regarding a change in the law was: that there had been no change in the law which had caught the defenders. Even if the conduct had been excluded from giving rise to vicarious liability under Trotman, it was of the essence of common law that it was not created in the way that legislation is created, so what occurred in Lister was merely that the pre-existing common law was clarified, not that it was changed. However in any event, it may be questionable how much weight should really be placed upon the loss of the “protection” afforded by a distortion in the common law which was subsequently corrected. He submitted that this was an altogether different thing from Parliament making illegal an act that previously had been lawful.

[95]      However, it was senior counsel’s contention that the principle factor in considering the balance of equity was this: the reason why the pursuer did not bring the action until he did. It was not a case that he felt inhibited from doing so, so attempts to equiperate his position with that of the pursuers in B v Murray (No 2) were wholly inappropriate and misguided. Rather, it was a case where he had dissociative amnesia itself caused by the legal wrong in respect of which he now sought to bring proceedings. Because of this condition, it would have been absolutely impossible for him to have known that he had a claim. To deny him the opportunity to pursue such a claim now that his memory had returned would be an injustice so grave that, even though the onus lay on the pursuer to satisfy the court that there were special circumstances justifying the exercise of discretion under section 19A, these were clearly special, if not even unique, circumstances. It would take a very substantial prejudice to the defenders to outweigh the inequity to the pursuer. It was submitted that such prejudice as the defenders had demonstrated was not of that order. In short the balance of equity he contended was in favour of permitting the pursuer to proceed with his action. He referred to B & others v Nugent Care Society at paragraph 22:

            “On the other hand if the claimant's evidence is compelling and cogent that the abuse occurred, and it is said that it was the abuse that inhibited him from commencing the proceedings, that is surely a compelling point in favour of the claimant.”

The pursuer’s submissions can be summarised as follows.
The pursuer had succeeded in establishing that he forgot the abuse meted out to him by Miss D, and that his forgetting was the result of an involuntary process.
He had established that his failure to bring proceedings within the triennium came about as a result of his having forgotten the abuse.
Given the reason why the action was not previously brought, not to permit him now to proceed would constitute manifest and grave injustice.
Even taking into account the prejudice suffered by the defenders as a result of Miss D no longer being available to give evidence, the totality of the prejudice suffered by the defenders fell far short weighed against the inequity suffered by the pursuer.
In these circumstances the pursuer had overcome the onus upon him to satisfy the court that there were special circumstances justifying the court in exercising its powers under section 19A.

The reply on behalf of the defenders
[96] It was submitted on behalf of the defenders that the evidence in this case had centred on a single averment in article 7 of condescendence, namely:

“When he came to leave the home at the age of 13 and reached a place of safety (he had returned to live with his father) he ceased to have any memory of the abuse he had suffered. The process by which that occurred was not a conscious decision on the part of the pursuer to avoid the memories of abuse or otherwise to put them out of his mind. It was an involuntary process known as dissociative amnesia.” (p21 E to p22 B).

[97] Given how the evidence had developed the defenders advanced two broad submissions:

(a) Even if the foregoing key averment was proved, it was not equitable to allow the action to proceed given the material prejudice that the defenders had suffered, principally with the death of Miss D on 30 January 1980 shortly after the expiry of the triennium (the primary argument).

(b) In any event, the pursuer had failed to prove the key averment (the secondary argument).

The defenders primary argument
[98] In development of this primary argument senior counsel submitted that the present case could not be distinguished from the decision of Lord Drummond Young in B v Murray (No 2).

[99] Briefly in that case the evidence had been this: the three pursuers had led evidence from a psychologist, Dr Tierney, of repression of memory. They primarily relied on a diagnosis of “disorder of extreme stress not otherwise specified” (DESNOS) but they also relied, as did the present pursuer, on dissociation and amnesia as the second possible reason for delayed disclosure. Dr Boakes gave evidence for the defenders.

[100] Senior counsel contended that the decision of Lord Drummond Young could be broken down into two parts:

He substantially preferred the evidence of Dr Boakes on the general topic of repression of memory and hence he rejected the pursuers’ case in that regard.
However, crucially he did accept that each of the three pursuers did suffer from psychiatric or psychological disorders which, taken along with a variety of other personal difficulties that they faced, explained the delay in them commencing proceedings.Despite holding that the pursuers had demonstrated reasons for delay he held that it was not equitable to allow the action to proceed because of the prejudice suffered by the defenders on a number of grounds, principally the loss of some, although not all, of the material witnesses.

[101] It was accepted on behalf of the defenders that the first part of Lord Drummond Young’s decision was not a precedent as it was a fact based conclusion. However, what was advanced was this: the Lord Ordinary’s second conclusion was a precedent in that it was directly applicable to the instant case and was adverse to the pursuer. Proof that the pursuer suffered from dissociative amnesia did no more than place the pursuer in an equivalent position to the pursuers in the B v Murray (No 2), each of whom was accepted to be suffering from specific psychological or psychiatric disorders that contributed to the delay in commencement of the proceedings. Nonetheless the pursuers in B v Murray (No 2) were held not entitled to an extension of time under section 19A because of the prejudice suffered by the defenders. The defenders primary position flowing from that analysis became this: a diagnosis of dissociative amnesia was no more sufficient to overcome the prejudice suffered by the pursuer in the present case than the range of psychological and psychiatric disorders from which the pursuers suffered in B v Murray (No 2). The balance of the equities, on the authority of the B v Murray (No 2) case remained with the defenders.

[102] Senior counsel turned to look in some detail at Lord Drummond Young’s decision and to elaborate on his position that the B v Murray (No 2) case was indistinguishable from the instant case, even if the pursuer was suffering from dissociative amnesia. Senior counsel highlighted the following points:

Lord Drummond Young held that the DESNOS criteria did not command general recognition in psychiatry.He also held that it had not been proved that the pursuer suffered from either PTSD or “dissociative symptoms of amnesia resulting from childhood abuse”.He consequently rejected the first three reasons for non‑disclosure advanced by Dr Tierney.
However, he partially accepted that the remaining three psychological or psychiatric factors that Dr Tierney identified and said had contributed to the delay in commencement of proceedings by each of the three pursuers.Consequently, he accepted that each of the pursuers had suffered psychological harm that might have inhibited the bringing of court proceedings.

[103] However, despite accepting the above Lord Drummond Young had at paragraph 109 said this:

“In summary, accordingly, I conclude that (i) all three pursuers suffered personal and psychological problems that would tend to inhibit them from raising court proceedings, both between the ages of 18 and 21 and subsequently; (ii) all three pursuers did not think that they would be believed if they made complaints about their treatment at Nazareth House, between the ages of 18 and 21 and for at least a substantial number of years thereafter; (iii) and the pursuers did not consciously realise until 1997 that they could raise legal proceedings against the defenders, although that was the result of lack of thought rather than consideration and rejection of proceedings. I accept that all of these provide some explanation for the failure to raise proceedings before 1997. Even when they are taken together with the reluctance of the pursuers to speak about their experiences in Nazareth House, however, I am of the opinion that these factors are heavily outweighed by a number of other matters that are relevant to the exercise of the courts discretion under section 19A.”

[104] In reaching that conclusion senior counsel submitted that Lord Drummond Young had based his reasoning on the rationale for limitation periods as identified in the judgement of McHugh J in the Australian case of Brisbane South Regional Health Authority v Taylor. A critical point to be taken from the discussion was this: the law of limitation reflected the presumption that the quality of justice deteriorated with delay. The significance of a loss of material evidence was that it transformed presumed prejudice into actual prejudice to the quality of justice and plainly a claim should not be allowed to proceed if the quality of justice had deteriorated. That was particularly so given, as Lord Drummond Young observed in paragraph 22, the loss of material witnesses was combined by the inevitable deterioration in the quality of evidence that remained available because of the long passage of time.

[105] Senior counsel particularly relied on one passage in McHugh J’s judgement:

“Legislatures enact limitation periods because they make a judgement, inter alia, that the chances of an unfair trial occurring after the limitation period has expired is sufficiently great to require the determination of the plaintiff’s right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff’s action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff’s lost right should not be revived than that the defendant should have a spent liability reimposed upon it. This is so irrespective of whether the limitation period extinguishes or merely bars the cause of action”.

[106] In light of the foregoing senior counsel submitted the relevant question for the court was this: whether the defenders had suffered prejudice of a significant kind?

[107] Senior counsel sought to tie in Lord Drummond Young’s observations on prejudice with the prejudice which he submitted had been sustained in the present case and made the following detailed points:

The impact of delay on witnesses’ availability he submitted could be prejudice of a significant kind.It was important to notice that in B v Murray (No 2) the defenders did not found on total loss of relevant witnesses.That some of the nuns who it was alleged had abused Mrs B and Mr M and a carer who was also alleged to have been an abuser by Mrs B were alive and able to give evidence.However, the loss of some, but not all, witnesses was accepted by Lord Drummond Young as relevant prejudice.He said this:“… actual prejudice, even of a fairly limited nature, will usually be sufficient to preclude any extension of limitation” (see:paragraph 124.)
This position was endorsed by the Inner House: “What matters is whether the loss of evidence is material, not whether it is total” (see: 2007 SC 688 at page 722 paragraph 93.)
The pursuers argued in B v Murray (No 2) that the defenders could make up for the loss of some witnesses by contacting other children who had been in care, but Lord Drummond Young accepted the defenders evidence of reluctance to make unsolicited approaches to former residents (see:paragraph 123).Accordingly, the possibility of tracing children who had been in care did not negate the prejudice suffered by the defenders.
In addition to accepting prejudice in the form of a loss of some critical witnesses, Lord Drummond Young accepted that there was prejudice on a number of other grounds.With respect to the present case those of relevance were:(a) the passage of time since the alleged offence occurred;(b) the change in the law in Lister v Hesley Hall that makes it easier to satisfy the court that an employer should be vicariously liable for the acts of an employee like Miss D (see:paragraphs 126 to 129);(c) the irrecoverability of expenses.

Lord Drummond Young’s decision in B v Murray (No 2) was upheld in the Inner House and in the House of Lords. Senior counsel directed my attention to one particular passage in the speech of Lord Hope in the House of Lords:

“In Carson v Howard Doris Ltd (p 282) Lord Ross said, shortly after the provision was enacted, that the power conferred by the section should be exercised sparingly and with restraint. There is a risk that if that approach were to be adopted the court will fail to do what the section requires, which is to determine what would be equitable in all the circumstances. But the context in which that discretion is to be exercised is plain enough. Its effect will be to reimpose a liability on the defender which has been removed by the expiry of the limitation period. The issue on which the court must concentrate is whether the defender can show that, in defending the action, there will be the real possibility of significant prejudice. As McHugh J pointed out in Brisbane South Regional Health Authority v Taylor (p 255) it seems more in accord with the legislative policy that the pursuer's lost right should not be revived than that the defender should have a spent liability reimposed on him. The burden rests on the party who seeks to obtain the benefit of the remedy. The court must, of course, give full weight to his explanation for the delay and the equitable considerations that it gives rise to. But proof that the defender will be exposed to the real possibility of significant prejudice will usually determine the issue in his favour. This is a question of degree for the judge by whom the discretion under sec 19A is to be exercised”. (see: paragraph 45).

[108] Senior counsel before turning to examine the evidence in the instant case relative to the issue of prejudice to the defenders made certain observations with reference to the decision in A v Hoare. He said this: translating that decision to the equivalent Scottish provisions, it held that the test under section 17(2) of the 1973 Act is an objective one but the claimant who was subjectively unaware of relevant facts can carry over that subjective lack of knowledge to the section 19A assessment: (see, in particular, paragraphs 34 and 42 to 45). In that case it was argued that one of the claimants had, “blocked out his memory”, or put his memories, “in a box with a tightly sealed lid in the attic” (see: paragraph 42). It was held that the claimant had, “in some sense suppressed” (see: paragraph 45) relevant knowledge i.e. knowledge that would be relevant in Scotland under section 19A. Senior counsel submitted that the present pursuer would undoubtedly rely on that decision to argue that the suppression of memory as a result of dissociative amnesia is relevant to section 19A. That may be so, but it was crucial to note that Hoare was decided before the hearing of AS v Poor Sisters in the House of Lords. He submitted that it would be apparent from the foregoing summary that each of the three pursuers was able to found on psychological or psychiatric disorders as contributory factors in the delay in commencement of proceedings and therefore Hoare was germane to their cases and relied upon by them. Hoare was discussed by the House of Lords in AS v Poor Sisters (see: Lord Hope at paragraphs 26 and 27). The decision in that case was therefore subsumed within the conclusion of the House of Lords in AS v Poor Sisters and for present purposes the key guidance was that quoted in the speech of Lord Hope above. Suppression of memory, whether as a result of dissociative amnesia or otherwise, and other grounds in which a claimant may subjectively have lack of knowledge of relevant facts are factors relevant to the section 19A assessment, “But proof that the defender will be exposed to the real possibility of significant prejudice will usually determine the issue in his favour” (see Lord Hope above). The prejudice suffered by the defenders in B v Murray (No 2) was sufficient to outweigh the pursuer’s reasons for delay. The same he submitted was true in the instant case.

[109] Senior counsel submissions regarding the prejudice suffered by the defenders in the instant case fell under a number of heads and can be summarised as follows:

In some respects the loss of evidence in the instant case was graver than in B v Murray (No 2).In B v Murray (No 2) some of the alleged abusers were alive and able to give evidence.Here the allegations related only to a single person, namely:Miss D and she died on 30 January 1980.She was an essential witness.She was alive during the triennium, which expired in April 1979, and it was simply unknown as to what answers she could have given to the allegations made by the pursuer.The prejudice occasioned by the absence of Miss D’s evidence had been said by Mr Mitchell QC to be “self-evident” during the course of the proof.
Available records, namely:from Quarriers, medical sources and the social work department are poor and are no substitute for Miss D’s evidence.
The passage of time was of itself significant.The events in question ended in 1971, more than 33 years before the action commenced in December 2004 and more than 43 years before the preliminary proof.
The passage of time inevitably had had a bearing on the quality of the available evidence.Both Mr Bill Dunbar and Mr Mortimer (the latter hearsay evidence from Ms Crawford) can only give the most generalised of evidence.
The law on vicarious liability, i.e. Lister v Hesley Hall, had moved in favour of the pursuer and against the defenders.
The defenders were exposed to substantial irrecoverable cost because the pursuer was legally aided.The Inner House appeal was a five judge case and the defenders would not recover the expense of that.The same would undoubtedly apply to the expenses of the present eight day proof.That was a level of irrecoverable cost out of proportion to the sum sued for namely £50,000.

[110] So far as the points made by the pursuer in seeking to answer the above prejudice senior counsel said this: with respect to numerous other witnesses being available that could speak to the issues in dispute in the case and in particular the averred persons who were said to be available and had been resident in cottage 20 at the relevant time and the pursuer had named four children. One, Mr D A, was confirmed to be dead and Mr D J was not traced by those acting for the pursuer. Evidence was led by one of the four, Mr J, belatedly. Mr Gary Thompson gave evidence that a second potential witness, Mr A, had been traced. With respect to Mr J’s evidence senior counsel sought to make one point in relation to the issue he was presently discussing: the potential availability of evidence from other children who had been in care was a point raised by the pursuers in the B v Murray (No 2) case to offset the prejudice caused to the defenders by the death of certain significant witnesses. Accordingly this was not a point in which the instant case could be distinguished from B v Murray (No 2) on the contrary, Lord Drummond Young sympathised with the defenders reluctance to make unsolicited approaches to individuals who were formerly in care (see: paragraph 123). Mrs Bell had given evidence of the difficulties in searching Quarriers records to identify those who were in cottage 20 at the relevant time and in re-examination she was wary of unsolicited approaches because of the potential to cause distress. That potential had been borne out in the present case following upon the approach by the pursuer’s agents to Mr A. He submitted that had the action been raised timeously the defenders would only have required to have gone to Miss D for a comprehensive answer to the allegations. Given the obvious and inevitable risk of creating distress, it was quite intolerable to expect the defenders, more than 30 years from the events, to undertake a speculative trawl for witnesses who might be able to assist in the absence of Miss D. That was all the more intolerable when the underlying premise was contrary to principle anyway. But the defenders did not need to show prejudice to the extent of a loss of all relevant witnesses; it was sufficient that they had suffered a loss of material evidence and it was his position that that was undeniable in the present case.

[111] Senior counsel in particular drew my attention to the fact that according to the evidence of Mr Dunbar there had not been much communication between house parents and therefore he was unable to name anyone who might assist. He was aware of the register of house parents who assisted and doubtless it may be said that by using that register the defenders might be able to trace some of the assistants who worked in cottage 20 from 1965 to 1971. However, even if that were to be so, it would only bring the matter closer to the facts of the case of B v Murray (No 2). It would bring the case to the point where like in B v Murray (No 2), some but not all of the relevant witnesses were missing. It was his position that given the highly personal nature of the allegations against Miss D, her absence was sufficient prejudice to the defenders. Senior counsel then moved on to look at the evidence of Mr J and it was submitted that his evidence was not relevant to the section 19A proof.

[112] Senior counsel put forward two detailed submissions in support of the above contention:

On any view Mr J was a late witness, but at one level his potential relevance was no more than a degree of confirmation of the proposition in article 7 of condescendence that there may be “numerous living witnesses” who can speak to the issues in dispute.However, that general proposition did not negate the prejudice that the defenders had suffered as a result of the death of Miss D, and that remained true whether one simply hypothesised that other witnesses might be available or actually heard from one of them.If anything, Mr J’s evidence reinforced the prejudice to the defenders.In the absence of evidence from Miss D the defenders could no more cross‑examine Mr J’s account of life in cottage 20 than they could challenge the pursuer’s account.
On the other hand, it may have been the intent of the pursuer to allow Mr J’s evidence in support of the concluding averment in article 6 of condescendence that the pursuer’s memories were genuine because, in effect, they could be corroborated by the similar experiences of other persons in the care of the defenders at the same time.He submitted that it was important to note that Mr J’s evidence did not provide unqualified corroboration for the pursuers allegations.There was what he described as tantalising conflicts between the evidence of Mr J and that of the pursuer on certain key matters.He gave two examples:the first related to being locked in the “shed” or play area that the pursuer claims had a particular impact on him because he was afraid of the dark.Mr J confirmed that children were sent to the shed but he could not say if this happened at night.He recalled being put there in the day time between coming home from school, at tea time or weekends.Sending a child to the playroom in the hours of daytime was not redolent of abuse.The second example of which he referred related to being smacked by Miss D.The pursuer said that children were called downstairs and smacked if they were caught talking in the dorm at night.Mr J said that punishment was being grounded for about one week.The foregoing observations, like the entirety of the evidence from Mr J to which they related, were merely incidental given that this was a section 19A proof and the court was not being asked to determine the merits of the case.That would be so generally in a section 19A proof but it was particularly so in the present case because the ground on which section 19A was invoked was a claim that the pursuer was suffering from dissociative amnesia.That required proof that the pursuer ceased to have memory of the substance of the allegations from 1971 to 2003.Mr J’s evidence had no bearing on that point.

[113] In conclusion, in terms of this branch of the argument, senior counsel’s position was this: the present case was a classic case within the guidance given by the House of Lords in AS v Poor Sisters:

“The court must, of course, give full weight to his explanation for the delay and the equitable considerations that it gives rise to. The proof that the defender will be exposed to the real possibility of significant prejudice will usually determine the issue in his favour”.

[114] Even if dissociative amnesia was to be accepted as the explanation for the delay there was real prejudice to the defenders on the various grounds, put forward and that was determinative. For these reasons the pursuer’s fifth plea in law should be repelled.

The defender’s secondary argument
[115] Senior counsel then turned to his secondary argument, namely: that the pursuer had failed to prove dissociative amnesia.

[116] In development of his secondary argument senior counsel commenced by making certain general observations regarding the admissibility of expert evidence: the proof proceeded with both sides aware of the limit of admissible expert evidence. Expert evidence could not be led on matters that were within the experience of the judge or the jury: Lawson v Her Majesty’s Advocate [2009] JC 336 at paragraph 58; Gage v Her Majesty’s Advocate [2012] SCCR 161; and Kennedy v Cordia Services [2014] SLT 984 at paragraph 15. Counsel contended that the reliability of human memory was, at one level at least, a matter of common human experience and therefore not a matter for expert evidence. However, in this case that point was complicated by the fact that the pursuer relied on the presence of a specific psychiatric disorder, namely: dissociative amnesia and therefore there was no alternative but to lead evidence from psychiatrists. However, the building blocks of the diagnosis were familiar jury questions:

Did the events alleged occur?
Were they forgotten?
Were they the kind of event that “ordinarily” might be forgotten?

Beyond that senior counsel submitted that there was a fourth question which he intended to look at later: did the events in question cause injury?

[117] Senior counsel observed that the first three questions could as readily have been approached without the benefit of expert evidence. The significance of the expert evidence, on that view, was no more than this: it confirmed that issues such as: (a) the inconsistencies in the pursuer’s account of his relationship with his father; (b) documented references to running away were not incidental details. They were objective signs of true unreliability.

[118] Senior counsel accepted that the first question which he had posed above gave rise to a dilemma in a section 19A proof which was not intended to be the forum for ascertaining the truth of the allegations. Rather he submitted the evidence had, correctly, focused on the second question; and it had done so on a tacit assumption: assuming that the events described by the pursuer did occur, were these events forgotten between 1971 and 2003? The defenders did not invite the court to make any findings on the first issue. It would not be appropriate to make such findings in a section 19A proof. It was submitted that a clear finding could be made on the second issue. Essentially the second issue focused on the question of whether the key averment had been proved. Determination of that issue in the defenders favour was sufficient for disposal of the case.

[119] Having regard to the proper limits of expert evidence senior counsel’s approach was that there were two issues which arose from the expert evidence: first consideration had to be given to the diagnosis of dissociative amnesia from the perspective of the psychiatric evidence. The second was this: to pick up wider indications of the unreliability of the pursuer evidence. These two issues, were, of course, not separate because if general considerations indicated that the pursuer was unreliable, that may affect the foundation of the medical diagnosis. Doctors may assume that a patient had given them a reliable account and on that basis they may arrive at a diagnosis. However, that diagnosis ought not to be accepted by the court, if the account given was held by the court to be unreliable.

[120] Senior counsel’s approach to the evidence of the two expert witnesses was to this general effect: (1) to concentrate on the areas in which the two doctors agreed and (2) on the basis of the extent of that agreement to submit that the court should not seek to resolve what he characterised as the “memory wars”. It was his position that the issues requiring to be resolved by the court did not require resolution of that particular issue.

[121] He contended that the experts agreed on the following:

The pursuer suffered from a borderline personality order and was first diagnosed with that condition in 1978.
He also suffers from persistent depressive disorder and, with greater or less frequency, suffered from periods of depression for many years before 2003.
The debate on “false memory syndrome” had moved on since 2006 and, in particular, both experts accepted the findings in the paper by Geraerts et al, “Recovered memories of childhood sexual abuse:Current findings and their legal implications” appended to 6/5 of process.His position was that the following propositions could be taken from the Geraerts‘ paper.
People who reported recovering memories of childhood abuse over a period of time, particularly in therapy, were more prone to false memories;whereas people who report “spontaneous” recovery of memory were less susceptible to creating false memories (page 170).
People who report “spontaneous” recovery of memory have an increased tendency to forget prior instances of remembering (pages 170 to 171).
Even when a prior instance of remembering can be objectively demonstrated, such people are more likely to deny having remembered on that prior occasion (page 171).
Given the third point above, more information was needed to sort out the nature of the individual’s recollection of previously forgotten information (page 173).

[122] Senior counsel having outlined the above propositions submitted this: the court did not need to look beyond the Geraerts’ paper in relation to the expert evidence. In elaboration of that argument he submitted: a diagnosis of dissociative amnesia began with the simple proposition that information had been forgotten. Different scenarios were discussed in evidence, Professor Freeman primarily spoke of his experience with soldiers who were immediately deprived of memory of dramatic events. The pursuer was not in that category because he was alleged to have suffered delayed onset forgetting beginning at the age of 13, the contention being that “the shutters came down” as he drove away from Quarriers to a place of safety at his father’s home. He then identified the two reasons, which he submitted justified not moving beyond Geraerts:

(a) The first was this: there was evidence of “forgotten remembering” by the pursuer, which called into question whether he truly forgot “the bad things” between 1971 and 2003.

(b) Secondly, the pursuer exhibited one of the common signs of “forgotten remembering”: the tendency to deny objective evidence of prior remembering.

[123] It was senior counsel’s position regarding forgotten remembering that the pursuer’s key averment was that when he reached a place of safety, “he ceased to have any memory of the abuse he had suffered” until 2003. However, in relation to two of the allegations (bullying and running away from the children’s home, see: the closed record at page 7B) there was evidence of prior remembering. Despite the pursuer’s denial in chief and cross to any memories of the substance of his complaints between 1971 and 2003, there was evidence that the pursuer must have had a memory of at least some of the relevant events between those dates. This evidence disproved his case that he had ceased to have memory of the “bad things” in that period.

[124] Counsel in support of the above contention analysed in some detail the evidence and these submissions are conveniently set out in his written submissions and were as follows:

“31. (the pursuer) moved to Cottage 34 just before his 13^th birthday in 1971 and in chief he described two incidents of bullying on his 13^th birthday when he got in to trouble with Mrs S (the house parent) because he had dirtied two sets of clothing. Given his age we can safely assume that he was at secondary school when these incidents occurred.

32. He was specifically asked in cross whether bullying was something that he had forgotten until 2003 and he answered in the affirmative.

33. There are however references in his medical notes in the period 1971‑2003 showing he remembered such.

34. In cross (the pursuer) was first asked about the letter of 19 February 1987 that simply mentions being bullied at school. This was explained as a reference to an incident when he was 6 (i.e between stays at Quarriers) and was picked up from school by his mother. He said that it could not have been a reference to him being bullied at Quarriers because he did not have a memory of that then.

35. He was then taken to the manuscript notes of the interview to which that letter relates. Those notes refer to being bullied at both primary and secondary school with the added assistance of a contextual reference to trying to run away. His explanation was that bullying at primary school was a reference to the incident previously described when he was 6 and he then added that he was also bullied at secondary school after he had left Quarriers. His evidence was that it was not possible that these references were to bullying at Quarriers because the memory was not there, it had been wiped out. Even the reference to running away did not move him; the memories were blanked (or blocked) out, the shutters came down after the drive home.

36. Given the contextual reference to running away it is suggested that these are most likely to be references to a memory of having been bullied during his time at Quarriers. His poor attempt to give an alternative explanation for these entries is evidence of the tendency referred to in Geraerts’ to deny objective evidence of prior remembering. Furthermore, we can plainly see the impact of the contamination of his evidence by the past professional advice that he has received. He could not explain these entries and hid behind the mantra that he had blocked or blanked his memory.

Running away

37. Running away provides even clearer evidence of the tendency to which Geraerts referred.

38. Like sexual abuse, this was a point omitted in chief but it required only a gentle prompt to bring out a lengthy and lucid account of running away twice from Quarriers. The pursuer’s evidence was that he can even now picture being in the coal bunker and said that this was one of the memories that came back after the BBC programme.

39. [There are references in his medical records to these events in the period 1971‑2003] and begin with a non-specific reference (tried to run away – while at primary school), progressing to a slightly more specific reference (‘ran away from the home’), finishing with an unambiguous statement (‘ran away from the children’s home’).

40. In cross (the pursuer) first said that he had no memory of having said that he had run away. Later, asked to address the 1991 entry (‘the home’), he said that this must be referring to his home with his father. Questioned on the use of the definite article (the home) he then said that he could not explain that; he was not talking about Quarriers to the best of his memory. He again referred to memories being blanked out and suggested some error on the part of the doctors. Finally, taken to the unambiguous reference to running away from the children’s home he is noted as having replied:

I do not remember saying that. If I said that then why did the memories not come back then, and not had a break down at that point instead of 2003. I would have remembered about Quarriers back then. I have no memory of saying that to the doctor.

(Can I say) If I am so bad from the age of 13 onwards, you’ve tried to say it comes from my father and mother. I think it comes from Quarriers. I was moody, all I wanted was to go home.

41. The Court is invited to look at the general context of these entries. It is clear that these entries are referring to his time at Quarriers. They cannot reasonably be construed as references to running away from his father’s home.

42. These entries are objective evidence that the pursuer must have had a memory at times between 1971 and 2003 of at least some of the ‘bad things’ of which he now complains to have had no memory until 2003. Again, his poor attempts to give an alternative explanation for these entries is evidence of the tendency referred to in Geraerts’ to deny objective evidence of prior remembering.

43. In some of his questions Mr Mitchell QC with respect tried to split hairs; perhaps (the pursuer) remembered running away but not the reason for it. On that view, it might be argued that having some memory of running away is not inconsistent with forgetting the ‘bad things’. That argument would be contrary to the evidence of [the pursuer]. He was asked directly in cross whether he had any memory of running away before the Frontline Scotland programme in March 2003 and he answered in the negative. The Court should not entertain a theory that is inconsistent with the pursuer’s answer to that question. The argument presupposes that, contrary to his evidence, the pursuer had some memory and leads inevitably to speculation about the full extent of his memory but no reliable conclusion can be reached because, again, we encounter the insurmountable obstacle that his evidence relating to the state of his memory is now contaminated.

[125] On the basis of the foregoing evidence senior counsel invited the court to hold that the pursuer had memory of at least some of the events giving rise to the action before 2003 and that that was inconsistent with him suffering from dissociative amnesia.

[126] Beyond that he submitted:

“45. It is acknowledged on all sides that, in medical terms, the pursuer would be termed a poor historian. He has very little recall of his medical history. That can be contrasted with his present clarity in relation to the details of his allegations. His, ‘utter preoccupation’, means that he can spontaneously recount his allegations. Despite his current assertion that he had no recall of the abuse until he read his notes in Epsom, one can understand why he was repeatedly asked in chief what had aroused his ‘curiosity’ to ask for his notes from Quarriers the day after the TV programme. Something must have aroused his curiosity. It is not without some significance that when asked in re-examination what had prompted him to ask for access to his records in April 2003, he said something along the lines that he remembered that [Miss D] kept records in a cupboard in her study. That betrays relevant memory of the detail of his time at Quarriers. To that one can add that by his own admission he had never forgotten [Miss D] and, of course, by the time he approached Quarriers for his records he knew that she was dead. Taken with the unequivocal evidence of memory of running away prior to 2003, [the pursuer] plainly must have had a greater range of memories before 2003 than he now acknowledges. A failure to think about events is not to be confused with amnesia. It need not be concluded that the pursuer has lied. It suffices to conclude that he is an unreliable witness for the reasons discussed in this submission and, as already submitted, we probably have an unknown psychologist or psychiatrist to thank for the critical problem running through this case. The pursuer is now firmly of the view that his memory was ‘blanked’ or ‘blocked’ and the shutters had come down when he drove down the driveway as he left Quarriers in 1971 but that is no more than an unfounded assertion. It does not stand up to scrutiny.

46. Professor Freeman correctly accepted that it is oxymoronic to expect an individual who has forgotten something to be able to say when he or she first forgot it. The pursuer’s evidence, not only that he forgot the events of which he now complains, but also that he can recall that he forgot it on the drive home from Quarriers (which is when the shutters came down) is simply not tenable”.

[127] There were in addition to the above two matters other factors which senior counsel relied on in contending that the evidence of the pursuer could not be relied upon. The first of these factors was contamination of the evidence. In the evidence of the pursuer’s wife, she was asked in chief by senior counsel for the pursuer whether she had ever had a discussion with the pursuer regarding why he had been “like this” since 2003, she responded broadly in the following terms:

“Why do you feel suicidal? Just because (pause) I think what happened, the psychiatrist explained it was like what the memories in his mind was put somewhere safe, to keep him safe and that programme was like turning the heat on and all the memories came out.”

He then turned to the evidence of Dr Boakes who had said: the explanation that the pursuer was given by a psychologist and/or a psychiatrist had contaminated his evidence. As a consequence neither Professor Freeman nor Dr Boakes could get a clear explanation of: (a) the state of his memory prior to 2003; or (b) the precise trigger for his “recall” of the memories in 2003. In his evidence to the court the pursuer resorted to what counsel described as “mantra like repetition of the statement that ‘the shutters came down’” as he drove away from Quarriers and from that point his memories of the “bad things” were “blank” or “blocked”. Particularly given the evidence of forgotten remembering one could only conclude that the whole edifice of repression of memory was built on, and derived from, the explanation that some unknown psychiatrist or psychologist had given to the pursuer probably in 2004.

[128] The second factor was this: the implications of the pursuer’s diagnosis as suffering from borderline personality disorder. Both Professor Freeman and Dr Boakes were agreed on this point. Borderline personality order would make the pursuer prone to inconsistency in his account of his relationships and senior counsel submitted that that had been seen in the course of the evidence relating to his father. In summary there was a clear contradiction between what the pursuer said to Professor Freeman (that his father hit him around the ears) and his repeated denials in cross‑examination that he had been hit by his father. The significance of this point was that it went to the heart of Professor Freeman’s hypothesis that the pursuer was able, subconsciously, to repress his memories of the abuse when he reached a place of safety. Dr Boakes in her evidence questioned the hypothesis that memories may be forgotten when a person reaches a place of safety but the court need not resolve that debate. The simple fact was that, standing the contradictions in his evidence, the pursuer had simply failed to prove the premise that his father’s home was a place of safety. The contradictions on this issue of whether his father hit him were sufficient to reach that conclusion, but these doubts were magnified by the evidence of attempts at suicide between the ages of 13 and 21. The point was this: if the pursuer was in a place of safety then why did he attempt suicide?

[129] The pursuer’s key averments required proof of two facts:

(1) That the pursuer was in a place of safety from the age of 13;

(2) He ceased to have any memory of the abuse he had suffered from 1971 until 2003.

[130] Proof of these two facts was also critical to Professor Freeman’s theory of dissociative amnesia. His premise was that subconscious repression of memory may occur as a protective mechanism when some victims of abuse or trauma reach a place of safety. Of course, even if the pursuer was in a place of safety, that merely provided the environment in which it was claimed that amnesia may occur. The second question was whether amnesia did occur in the pursuer’s case. The determination of each of those two facts was uniquely dependent on the reliability of the pursuer’s evidence because only he spoke to each of these matters. On the first point his reliability was undermined by the complication of his borderline personality disorder. As for the second, his reliability was undermined by the fact that his evidence was contaminated by professional advice that he had received. The pursuer’s section 19A argument could and should be rejected on the basis of these two grounds alone. The court ought not to accept contaminated evidence from the central point of issue in the case and certainly should not accept expert evidence where the factual foundation of the expert’s opinion, namely: the assumption that the pursuer was in a place of safety from the age of 13 was contrary to the evidence. The evidence of forgotten remembering provided confirmation of the strength of these two points.

[131] Having looked at the unreliability of the pursuer’s evidence with regard to the medical diagnosis of dissociative amnesia senior counsel submitted that the pursuer’s unreliability went beyond this and into his general evidence which he submitted was riddled with indications of unreliability.

[132] There were four specific areas within the evidence of the pursuer which highlighted this submission:

Being hit by his father.
Attempts at serious suicide prior to the age of 21.
The state of his marriage.
The impact of the sexual abuse.

[133] From these four factors senior counsel submitted as follows in his written submissions:

“52. We do not know the truth of these matters but that is not the issue. It is the fact that there are contradictions between the pursuer’s evidence and those entries that raises questions about his reliability. We can perhaps set the state of his marriage to the side because the explanation given in evidence may be tenable: the differing accounts in his medical records may be historical in the sense that they reflect the state of his marriage at the time of the various consultations with doctors. The three other matters cannot be dismissed so readily.

53. The case based on dissociative amnesia proceeds on the basis that when he left Quarriers at age 13 and reached, ‘a place of safety (he had returned to live with his father) he ceased to have any memory of the abuse he had suffered’. That can be broken down in two parts:

(a) was the pursuer in a place of safety from age 13?

(b) did he cease to have any memory of the abuse from age 13 until 2003?

54. It has already been submitted that being hit by his father does not fit with the picture of being in a place of safety from age 13. (The pursuer) strongly denied in his evidence in Court that he was hit by his father but he had no explanation for the references in [his medical records]. As already observed, any thought that the problem lies in mistaken note-taking can be ignored because we have the unchallenged evidence of Professor Freeman in both chief and cross that the pursuer told him that he was hit by his father.

55. Of course, Professor Freeman did temper the evidence of hitting by saying that the pursuer told him that there was a distinction between his father and [Miss D], the difference being that what the father did was appropriate for the time. That is irrelevant. What is crucial is that his account to Professor Freeman of being hit by his father was flatly contradicted by (the pursuer’s) evidence in Court.

56. The conclusion that the pursuer has failed to prove the key averment (that he was in a place of safety from age 13) is reinforced by the lack of satisfactory explanation for the multiple references to attempts at suicide from age 15 [as listed in his medical records]. Asked at the end of chief if he had felt suicidal before 2003 he gave an odd answer: ‘No, not that I can remember’. At the start of cross, asked about, ‘suicidal thoughts’ before 2003, he mentioned one incident in 1974 aged 16 when he was upset and went in to the bathroom and put a chain around his neck but he said that he did not want to kill himself for any reason. Later in cross, asked about attempting suicide aged 15, he denied having done so but accepted that he may have told people that he had and he mentioned a second incident, aged 15, at a summer camp in Aberdeen, when he was playing with the cord of venetian blinds, which he again denied was an attempt to commit suicide. On Day 2 his explanation was this:

‘When I look back I did not attempt to kill myself at 15’.

Why then, in December 2002, was there the reference to ’17 tried to hang self’ in the context of suicidal ideation in 2002? Finally there is the allegation of sexual abuse. It has to be recalled that this is no more than an allegation. It was omitted from his evidence in chief, but he need only to be lightly prompted in cross. The ability of the pursuer to give a lucid account of this allegation (of sexual abuse) is another example of his obsessive preoccupation with his allegations and is in sharp contrast to the tenor of the rest of his evidence, which was hesitant and largely betrayed a lack of detailed recollection. He has told us that subsequent to his breakdown he reported the sexual abuse to the police who interviewed the individual in question. The individual denied it and the police decided to take the matter no further, though the investigation is apparently still ‘open’. Though he said that this incident was only 0.5% of what ran through his head compared with the 99.5% contribution for the abuse by [Miss D], the peculiarity is that the pursuer contends that he rarely speaks of it because he finds it too upsetting to talk about. Two points can be taken from this:

(a) As with the reports of attempts at suicide from an early age, the significance of the alleged sexual abuse has itself been reinterpreted by the pursuer. Gone is the belief in August 2003 that his depression from an early age may have been attributable to the sexual abuse and now he believes that it is solely due to the abuse by [Miss D]. Reinterpretation of events by a man so far obsessed with this case that doctors in the NHS will not treat him until the case is over is a clear mark of unreliability. That is reinforced by the denial in cross that there ever was a period when he ruminated on the sexual abuse, which is contrary to the medical entries in June 2004 and January 2005.

(b) Professor Freeman and Dr Boakes are agreed that, other things being equal, the allegations of sexual abuse are on the minor end of the scale and ought not to have had a material bearing on the pursuer’s mental health. That said, in cross, Professor Freeman conceded that it was paradoxical that the pursuer was willing to speak about the physical abuse but less willing to speak about the sexual abuse. That paradox is a further mark of unreliability”.

[134] Next senior counsel in relation to the second branch of his submissions addressed the issue of causation.

[135] Senior counsel accepted that establishment of causation formed no part of the preliminary proof. However, he submitted that the issue did have certain relevance:

“58. Both Professor Freeman and Dr Boakes agree that the pursuer’s condition deteriorated after the trip to Epsom. Professor Freeman argued that because, in his opinion, there was no cause for the deterioration other than recall of his memories, this deterioration confirms that the pursuer must have been suffering from amnesia before that date. Professor Freeman, with respect, fell in to the trap of the post hoc, ergo propter hoc fallacy. The paradox concerning the sexual abuse undermines the assumption made about the cause of the deterioration but, in any event, there is reason to doubt even the account of a spontaneous recall of the memories while at Epsom.

(a) If, as the pursuer maintained in both chief and cross he cried when he was admitted to the hospital in Penrith and told the doctors that he had been abused at Quarriers, why is that not recorded in the medical records? Why does the Penrith note refer to other stressors in his life at that time?

(b) Both Professor Freeman and Dr Boakes have struggled to understand what the trigger might have been for his recall of the memories of the abuse. The Quarrier notes are frankly anodyne. The best that Professor Freeman could do was to suggest in chief that the notes were an indirect trigger. His belief was that the pursuer had first read his notes in Epsom. The pursuer’s evidence was that Pam Barr had read over the notes to him at Quarriers. In cross Professor Freeman told us that he was unaware of that fact Professor Freeman candidly accepted that this makes the trigger all the more difficult to understand.

(c) There may be a simple explanation here. Professor Freeman gave evidence that memories are affected by the context in which they are recalled. The example that he gave was a trip to Disneyland but in cross he accepted that the Penrith note shows a number of stressors at play on 27 June 2003 that are bound to have coloured the pursuer’s perception of his time at Quarriers. Far from it being the case that the pursuer was recovering memories forgotten since 1971, the most likely explanation is that in 2003 he found himself, in a dark situation, thinking over memories that he may not have thought about in recent times. That is consistent with the other evidence of ‘forgotten remembering’ and is not consistent with amnesia.”

[136] Before concluding his submissions in relation to branch two there was one further broad submission made by senior counsel and that related to what he described within his written submissions as the alternative theory. In terms of this part of his submissions it is conveniently summarised within his written submissions as follows:

“47. In re-examination Professor Freeman seemed to modify his theory. He postulated an explanation for the possibility that the pursuer might have occasionally remembered matters such as running away; he argued that dissociative amnesia can be continuous or episodic. The psychological mechanism that may cause periods of amnesia was not explained but we need not pursue that matter. The fact that there may have been periods of remembering is all that matters. There is a grave risk that one gets distracted by the pursuer’s whole life story. The proper focus is on the question whether the pursuer has proven a reason for him having failed to raise proceedings during the triennium, which means before he turned 21. The period when he was aged between 13 and 21 is the vaguest period in his life and subject to the gravest questions about his reliability on points of detail such as his relationship with his father and the references in his medical records to attempts to commit suicide. Those will be discussed later in this submission. Far from providing an answer, the alternative theory accentuates the problem. It leaves wide open the possibility that the pursuer had memory of the events during the period from age 13-21 and that is fatal to his case.

Dr Boakes

48. The examination in chief of Professor Freeman proceeded on a number of mistaken assumptions regarding Dr Boakes’ evidence. One has already been commented upon. A second mistaken premise was that Dr Boakes was open to criticism for not committing herself to any one explanation as an alternative to dissociative amnesia. Dr Boakes is not open to criticism. She cited the McNally & Geraerts article in 2009 that postulates a number of alternative explanations. She told us of some of the relevant possibilities. In chief her evidence was that she could not be more specific because of the uncertainties in this case. That is an entirely proper approach to take. Indeed, given the wide range of inconsistencies and contradictions, it is settling on one conclusion (dissociative amnesia) that is unjustified”.

[137] Senior counsel summarised his position on the second branch of his argument as follows: one of the propositions advanced in Geraerts’ article is that more information was needed to sort out the nature of the individual’s recollection of previously forgotten information. The court now had the benefit of more information in the form of the pursuer’s evidence to the court and during this proof detail emerged of which the experts were unaware at the time they examined him. He submitted that two conclusions could be drawn:

The pursuer was generally an unreliable witness.
More specifically in relation to dissociative amnesia, the proven instances of forgotten remembering were contrary to the key averment of dissociative amnesia from the age of 13.
He invited the court to ask itself this question:on the assumption that the alleged abuse took place, has it been proved that proceedings were delayed until December 2004 because the pursuer was suffering from dissociative amnesia from 1971 to 2003?The court was invited to answer that question in the negative.He submitted that the pursuer was so unreliable a witness that no positive conclusion could be reached in his favour.In summary, there was evidence of forgotten remembering that warranted a negative answer adverse to the pursuer.

Discussion
Introduction to discussion
[138] I would at the outset wish to express my appreciation for the careful and comprehensive submissions of both senior counsel.

I would intend to consider the questions before me in the order in which senior counsel for the defenders looked at them in the course of his submissions, namely: to examine first this question: assuming that the pursuer has proved that after leaving Quarriers at age 13 he ceased to have any memory of the abuse he suffered, due to an involuntary process known as dissociative amnesia, is it equitable to allow the action to proceed?

[139] In considering the above question I have adopted the approach of: McHugh J in Brisbane South Regional Health Authority v Taylor as followed by Lord Drummond Young in B v Murray (No 2) and approved by the House of Lords in the AS v Poor Sisters.

[140] The proper approach to the above question is encapsulated by Lord Hope in AS v Poor Sisters where after considering the judgment of McHugh J he says this:

“The court must of course give full weight to the explanation for the delay and the equitable considerations that it gives rise to. But proof that the defenders will be exposed to the real possibility of significant prejudice will usually determine the issue in his favour. This is a question of degree for the judge by whom the discretion under section 19A is to be exercised.”

[141] It was a matter of agreement between parties that the burden of establishing that the court should exercise its discretion in terms of section 19A to allow the action to proceed falls on the pursuer. He has, as McHugh J observes in Brisbane South Regional Health Authority v Taylor: “The positive burden of demonstrating that the justice of the case requires that extension.”

[142] The starting point is therefore to examine the pursuer’s explanation for the delay and the equitable considerations it gives rise to. In accepting, for the purposes of considering this question that the reason for the delay in raising the action was dissociative amnesia it follows that: first the pursuer’s failure to bring the action timeously was through no fault on his part and secondly the dissociative amnesia was caused by the legal wrong which gives rise to the present proceedings.

[143] I accept that as said by Lord Hoffman and Lady Hale in A v Hoare that the reasons for delay are highly relevant in the exercise of the discretion (Lord Hope in AS v Poor Sisters says the same in the passage above quoted). Whereas here I am assuming that there was no fault on the part of the pursuer in the delay in raising the action and moreover the delay resulted from the legal wrong which is the subject of the action these are factors which should weigh heavily in favour of the pursuer when striking the balance of equities.

[144] However, it appeared to be senior counsel for the pursuer’s position that the observations made by Lady Hale and Lord Hoffman in A v Hoare undermined or put a gloss on the observations of Lord Hope as to the approach to the exercise of the discretion as set out above. I am persuaded that this assertion by senior counsel for the pursuer is wrong. A v Hoare was cited and considered in AS v Poor Sisters. Lord Hoffman was one of the Justices sitting in AS v Poor Sisters and he dismissed the appeal for the reasons given by Lord Hope. Accordingly, Lord Hope’s guidance was given in the light of what had been said earlier in A v Hoare and therefore nothing said in A v Hoare in any way undermines what was said by Lord Hope in AS v Poor Sisters. I agree with senior counsel for the defenders submission: the decision is A v Hoare is subsumed within the conclusion of the House of Lords in AS v Poor Sisters. The key guidance given on the questions before me is that given by Lord Hope.

[145] However, accepting that the late raising of the pursuer’s action was not due to his fault did no more than place him in the same position as the pursuers in B v Murray (No 2), where it was accepted by Lord Drummond Young that the failure to raise the action timeously was not due to fault on the part of the pursuers, but rather due to various conditions from which they suffered.

[146] For reasons which I will now discuss I am persuaded that the equitable factors in favour of the exercise of the discretion in favour of the pursuer are far outweighed by the significant prejudice to the defenders if the action were to proceed. I believe, if the case were to proceed, the defenders could not be given a fair trial.

[147] I now turn to consider the issue of prejudice in the instant case. I would observe that I have reviewed and been greatly assisted by the most helpful exposition of the development of judicial opinion on the approach to be adopted by the court in considering the exercise of its discretion in terms of section 19A and the relevant factors to which the court should have regard when considering the exercise of its discretion by Lord Drummond Young in B v Murray (No 2). The key question in considering prejudice is this: have the defenders as a result of the delay in raising the proceedings suffered prejudice of a significant kind?

Prejudice to the defenders case by the loss of evidence
[148] In this case the allegations of abuse are directed against a single person, namely: Miss D. It was not a contentious matter that Miss D died at a date that was within the triennium, namely: on 30 January 1980 (see 7/9 of process).

[149] I am persuaded that it is difficult to envisage a more highly material loss of evidence to the defenders than the denial to them of the evidence of Miss D. I accept senior counsel for the defenders submission that the loss of Miss D’s evidence is more grave than the loss of 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 is 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 to properly defend themselves. They cannot, without Miss D’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 such as Mr J.

[150] Beyond the above it was clear from the evidence that it would be extremely difficult to find other witnesses who were present in cottage 20 at the material time. Miss Bell in her evidence made it clear that the defenders records (which were now in a digitised form) were held under the names of individual children and could not be searched by the entry of “cottage 20” and thus identify children who resided in that cottage at the material time. Thus the defenders in order to seek to identify children who were in cottage 20 at the material time would have to check through all of their records. That appears to me to be a hugely time consuming and very expensive exercise.

[151] Suggestions were made by senior counsel for the pursuer in the course of his cross‑examination of Miss Bell, that new software could perhaps search the records more speedily and identify who was present in the cottage at the material time, however, Miss Bell was unable to give any concluded view on this and no expert evidence was led as to whether such searches could be carried out on these digitised records.

[152] Even, if such children could be identified, there is clearly an issue as to whether it is appropriate to approach such children, unsolicited and out of the blue, about events which occurred many years ago. Miss Bell in her evidence was wary of such approaches. Lord Drummond Young at paragraph 123 in B v Murray (No 2) said this about such approaches:

“Dr Abernathy stated that the defenders were reluctant to make unsolicited approaches to children who had been in care at the material time to discover whether they had any relevant evidence, even if the current whereabouts of such children could be traced. I find this entirely understandable. Records are available and in respect to visitations undertaken by the second defenders at Cardonald. These are in very general terms, however, and the individuals responsible for the visitations are now all dead apart from one who is resident in Australia.”

[153] If any confirmation were needed as to why such reluctance is justified it was provided in this case by what occurred following upon the unsolicited approach by the pursuer’s agents to Mr A which was this: he was upset and distressed by the approach.

[154] Senior counsel for the pursuer sought to advance an argument that such approaches were appropriate, despite what he described as Mr A’s “unfortunate reaction”. He referred to people who approached the defenders and obtained their records. There was evidence from Miss Bell that such approaches were made. That is an approach by the former resident, not an unsolicited approach and is completely different from what senior counsel for the pursuer was suggesting. He also referred to residents being approached in terms of a Government project. Again that type of controlled project seems very different from the approach which would have to be made by the defenders.

[155] The raising of their childhood with persons who have spent time in a children’s home is clearly a very sensitive issue. It may raise all sorts of memories for that person. In such circumstances it appears to me that the defenders are right to be wary about making unsolicited approaches to such persons.

I am satisfied that it is entirely inappropriate for the defenders to make unsolicited approaches to such persons where the results can very easily be of the type exhibited by Mr A.

[156] With respect to seeking to identify other staff members who may have relevant evidence in relation to this matter, it is clear that the only members of staff who could be approached would be those who worked in cottage 20 at the material time. Mr Dunbar in his evidence made it clear that each cottage was an individual unit and each cottage had its own rules. Thus those working in other parts of Quarriers at the material time would not be in a position to give any real insight into what may have been happening at cottage 20 at that time.

[157] 7/26 showed the names of two assistants who worked in cottage 20 at the material time. However, I accept senior counsel for the defenders argument that even if these two persons could be traced at this distance from the events, this does not make up for the absence of Miss D. The allegations against Miss D could properly be described as highly personal and for the reasons I have already given the finding of these assistants could not make up for the loss of her evidence. It is noteworthy that the most serious allegations of abuse made by the pursuer against Miss D appear to have happened in private and at night. In any event even if they could be found, as submitted by senior counsel for the defenders, this would put the defenders in no better position than the defenders in B v Murray (No 2).

Prejudice caused by lapse of time
[158] The length of delay is of itself an important factor prejudicing the defenders position. The triennium expired on 22 April 1979. The first notification of the claim to the defenders was dated 22 July 2004 and the present action was signetted on 17 December 2004. The events which are the subject of the action date from more than 40 years ago, namely: between 1965 and 1971. Thus these events ended 33 years before the raising of the action. This action by the date that it was raised was very stale. This raises the issue of not simply the entire loss of evidence but the decline in the quality of evidence that is available.

[159] Lord Drummond Young in B v Murray (No 2), considers the possible prejudice which may arise in a case of such age and makes the following observations at paragraph 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 20 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.”

[160] In my view the above observations are pertinent to the circumstances of this case; which is even staler than the cases in front of Lord Drummond Young and where again the complaint relates to a culture put in place by Miss D within cottage 20. I agree with his conclusion that in these circumstances even if witnesses could be obtained: “details of daily life long ago will have been forgotten and will be incapable of retrieval” and that the result is “a marked deterioration in the quality of justice”. I am persuaded that given how stale the instant case is and the nature of the case the decline in the quality of justice would be material. It flows from the above, as observed by Lord Drummond Young, that inevitably this will have a serious effect with respect to the cross‑examination of witnesses.

[161] There is a further aspect to the issue of delay and this is described by Lord Drummond Young at paragraph 22 in B v Murray (No 2) as follows:

“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 20 or 30 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 25 and 50 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 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 be the case today. All of these matters make the judge’s task, at a range of between 25 and 45 years, peculiarly difficult.”

[162] Senior counsel for the pursuer’s position with respect to this factor was that it was not relied upon by the defenders. I do not believe that he is correct in saying this. The defenders’ submission on delay were made in the context of what Lord Drummond Young had opined in B v Murray (No 2). In their written submissions they relied on this at page 9:

“The passage of time is itself significant. The events in question ended in 1971, more than 33 years before the action commenced in December 2004 and more than 43 years before the preliminary proof.”

[163] Against that background I believe I am entitled to have regard to the issue of social mores and the changes in these since these events occurred. Senior counsel for the pursuer’s position was that in this case the change in social mores was not in any case relevant given the nature of the abuse. I am not persuaded by this argument. The abuse founded upon by the pursuer includes: being required to call Miss D “mummy”, “being forced to eat all his food” and the way Miss D dealt with bedwetting. On all these matters, social mores I am sure, have changed markedly over the last 40 years. Equally in relation to excessive physical chastisement, what he complains of in terms of degree is not very different from what the complainers in the B v Murray (No 2) case alleged (see: paragraphs 5- 15). Accordingly, I am satisfied that the delay in bringing this action causes further prejudice in that it would be difficult to reconstruct the social attitudes of the 1960s and this again leads to a serious decline in the quality of justice.

Prejudice caused by changes in the law
[164] In relation to the effect of the decision in Lister and others v Hesley Hall Ltd senior counsel for the pursuer’s first argument was that because the pursuer’s case involved physical and not sexual abuse Lister and others v Hesley Hall Ltd had not altered the law, it only having altered the law in relation to vicarious liability in the sphere of sexual assault.

[165] I do not believe that the above is a correct understanding of the law. In Lister and others v Hesley Hall the House of Lords were looking at what was known as the Salmond test which with respect to vicarious liability drew a distinction between unauthorised conduct on the part of an employee and an unauthorised mode of carrying out work.

[166] The perceived difficulty with that test was said by the House of Lords to be highlighted in the judgment of Butler‑Sloss LJ at page 591 in Trotman v NY County Council at paragraph 18:

“Having looked at some of the relevant decisions on each side of the line, it is useful to stand back and ask: applying general principles, in which category in the Salmond test would one expect these facts to fall? A deputy headmaster of a special school, charged with the responsibility of caring for a handicapped teenager on a foreign holiday, sexually assaults him. Is that in principal an improper mode of carrying out an authorised act on behalf of the employer, the council, or an independent act outside the course of his employment? His position of caring for the plaintiff by sharing a bedroom with him gave him the opportunity to carry out the sexual assaults. But availing himself of that opportunity seems to me to be far removed from an unauthorised mode of carrying out a teachers duties on behalf of his employer. Rather it is a negation of the duty of the council to look after children for whom it was responsible. Acts of physical assault may not be so easy to categorise, since they may range, for instance, from a brutal and unprovoked assault by a teacher to a forceful attempt to defend another pupil or the teacher himself. But in the field of serious sexual misconduct, I find it difficult to visualise circumstances in which an act of the teacher can be an unauthorised mode of carrying out an authorised act, although I would not wish to close the door on the possibility.”

[167] It is evident from the above passage that the Salmond test was equally applicable to sexual and physical assaults and that at least at the end of the spectrum relating to physical assaults by an employee on a child that was generally believed to fall within the category of unauthorised conduct for which there was no vicarious liability. The principal allegation made by the pursuer against Miss D is of repeated physical assaults and he is submitting that these amounted to criminal acts in the same way as if he had been sexually abused by a member of the staff while at Quarriers.

[168] It appears to me that Lord Drummond Young’s observations at paragraph 118 in B v Murray (No 2) first when considering the state of the law prior to Lister and then his observations as to the change in the law following upon Lister accurately reflect the law before and after Lister. He observed as follows:

“Lister can perhaps be regarded as an example of a more liberal approach to vicarious liability that has developed over the last 10 or 15 years; the speeches in the House of Lords seem to support such a view. Sheriff A G McCulloch, who when still in practice as a solicitor had acted as Edinburgh agent for the pursuer, was asked in cross‑examination about this matter. He was a very experienced personal injuries lawyer, and his views are accordingly worthy of note. He accepted that the question of vicarious liability had been clarified by the decision in Lister. He further accepted that in the 1980s the attitude of the legal profession to the present claims might have been different, although he stated that he would like to think that the pursuers would not have been turned away without a remedy. He did accept that these cases involved to some extent pushing out the boundaries of the law.

I think it is clear that, if the present cases had been brought within the statutory time limits, that is to say, by at the latest 9 January, 1990, it would have been difficulty if not impossible for the pursuer to establish vicarious liability on the part of the defenders for the criminal actings of individual nuns. It is perhaps significant that the members of the House of Lords attach particular importance to two Canadian cases decided in 1999. That illustrates how recent developments in this area of the law have been. I accordingly conclude that there is significant prejudice to the defenders as a result of changes in the law since the statutory limitations periods expired.”

[169] I am persuaded that if the instant case had been brought within the statutory time limits and thus prior to the decision in Lister, the pursuer’s case founded principally, as I have said, on the alleged criminal assaults on him by Miss D it would have been difficult if not impossible for him to be successful, in that it would have been difficult if not impossible to establish vicarious liability for the acting’s of Miss D against the defenders. Senior counsel put forward a second argument on this issue and it was this: even if the conduct was excluded pre-Lister, a change in the common law was different from a change in the law by means of statute. I am not persuaded by this argument. In the context of prejudice to the defenders the point is this: if the pursuer’s action had been brought within the triennium the matter would have been dealt with as the law was understood pre-Lister. On the other hand if the action was allowed to proceed now it would be dealt with as the law now is understood post‑Lister. Under the law pre‑Lister as I have above said the pursuer’s most serious allegations, namely: the physical assaults would not have resulted in the establishing of vicarious liability on the part of the defenders or it would have at least been very difficult to establish vicarious liability on the part of the defenders. In terms of the law post‑Lister there is no question that the defenders would be vicariously liable for such actings by Miss D. Thus the defenders have been significantly prejudiced by the change in the law and it is irrelevant how that change in law has been brought about.

[170] For all of the above reasons I am clear that the defenders position has been significantly prejudiced by the change in the law affected by Lister, which changes have occurred since the expiry of the triennium period.

Prejudice to defenders by the cost of the litigation and the irrecoverability of expenses
[171] A further factor which requires to be considered is the likely level of award to be made to the pursuer if he were to be successful. This was held to be a relevant factor for consideration by the court in the exercise of its discretion in provisions similar to section 19A in Adams v Bracknell Forrest Burgh Council 2004 UKHL 29 at paragraph 33.

[172] A further factor which is of relevance is the expenses incurred and likely to be incurred by the delay in the defending of the action see: Forsyth v A F Stoddard & Co Ltd 1985 SLT 51 at paragraph 29 and Lannigan v GCC 2004 GWD 26-562 at paragraph 39.

[173] As to the likely level of award in this case the pursuer only concludes for £50,000. As to what the pursuer would eventually recover there are clearly other factors at play in his condition beyond what is said to result from his alleged abuse at Quarriers. The pursuer admits on record his long history of psychiatric and psychological problems and he has been seen by psychiatric services from the 1970s. He has a personality disorder. He suffers from a depressive condition. There have been various other difficulties in his life. Against that whole background, any award made, may not be a particularly large one.

[174] Turning to the issue of expenses there has already been a five judge appeal in this case in which the defenders were successful. Further there was a procedure roll in which the defenders were successful. In addition the matter has had to call for procedural hearings before this court on a large number of occasions. The preliminary proof before me lasted for eight days. Further investigation of this case as in all cases of historical abuse would be difficult and costly. The pursuer is legally aided and the result of this would be that any award of expenses in favour of the defenders would in practical terms not be recoverable.

[175] Taking all those circumstances into account I believe the costs would be disproportionate to any award likely to be made to the pursuer. I believe this factor is a minor one, however, it is a factor I am entitled to take account of in the overall balancing exercise.

[176] In this case I am satisfied that the prejudice caused by: the loss of evidence; the lapse of time; and the change in the law brought about by the decision in Lister each on its own results in significant prejudice to the defenders. Taken together they clearly, I am persuaded, amount to significant prejudice to the defenders. In addition there is a further, if less significant factor, of the irrecoverable costs. Having regard to that level of prejudice I conclude that the defenders could not receive a fair trial. I do not believe it would be fair and just to require the defenders to meet the claim on the merits standing the material prejudice I have set out. I believe as I stated at the outset that the factors in favour of the exercise of discretion are far outweighed by this prejudice.

Second issue
[177] My above decision is sufficient to decide the matter before me, however, having regard to the submissions made before me I believe it appropriate to consider the second broad issue in the case: Did the pursuer: (1) establish he was suffering from dissociative amnesia? And (2) establish the key averment at article 7 of condescendence?

[178] The first question for the court in considering the above questions is: assuming that the abuse happened, was it forgotten?

[179] It is convenient at this stage to set out certain evidence in relation to which there was no dispute between the experts:

First on the evidence there was no dispute that:

(a) the pursuer suffers from a borderline personality disorder and was first diagnosed with that condition in 1978

(b) he also suffers from persistent depressive disorder and with greater or less frequency, suffered from periods of depression for many years before 2003.

[180] Beyond that, I would observe, that in order to decide the questions regarding the key averment it has not been necessary to consider and come to a view upon what the literature and the two medical experts described as the memory wars. On a reading of the pleadings and in the early stages of the proof it appeared that the issue of false memory syndrome was a live one. However, by the stage of submission it was clear that this syndrome did not form an issue. It became clear on hearing the evidence that both experts held the view that not all recovered memories were false. Dr Boakes, had changed her view between the preparation of her first and second reports, it having originally been her position that all such recovered memories were false. She had altered her view in light of developing research in the area.

[181] There seemed, as submitted by senior counsel for the defenders, to be a coming together of the two experts views around the opinions expressed in two papers in which one of the authors was Elke Geraerts. These papers were: Recovered memories of childhood sexual abuse; current findings and their legal implications (see: appendix to 6/5 of process) and Geraerts E et al 2007 on The reality of recovered memories, Corroborating Continuous and Discontinuous Memories of Childhood Sexual Abuse.

[182] In her evidence Dr Boakes relied on this second paper. It was referred to at paragraph 8.12 of her report 7/18 of process.

[183] With respect to Professor Freeman he cited the first of these papers in his report 6/5 of process. He accepted in his evidence that both he and Dr Boakes were using Geraerts’ papers. He agreed with what Dr Boakes said at paragraph 8.12 of her second report about Geraerts’ 2007 paper and agreed with the research and opinions contained therein. Beyond these first two papers was a third paper involving Geraerts. This was McNally & Geraerts 2009: A New Solution to the Recovered Memory Debate (7/27 of process). Dr Boakes relied on this paper. She described Professor McNally as the foremost authority in this area and said that the significance of the paper was that it put forward a non-polarised view and took a look at how some recovered memories could be true. Professor Freeman found McNally and Geraerts’ paper supportive of dissociative amnesia He agreed that Professor McNally was highly respected and that the paper by McNally and Geraerts had a degree of standing and was based on a respected body of opinion. He said that what the authors had described as repression of memory he called dissociative amnesia. He accepted that the McNally and Geraerts’ paper showed there was a responsible debate surrounding dissociative amnesia. On reviewing his evidence I could not find any point at which Professor Freeman expressed disagreement to any material context with the views put forward in the first two papers by Geraerts. With respect to the third paper involving McNally and Geraerts he found some support for his views on dissociative amnesia. He accepted that the McNally and Geraerts’ paper showed there was a responsible debate surrounding dissociative amnesia.

[184] On reviewing his evidence Professor Freeman in particular, as I understood it, accepted that the first three of the four propositions which in the course of his submission, senior counsel for the defenders sought to take from the first Geraerts’ paper were correct.

[185] Against that background of agreement between the two experts I turn to consider the questions which I set out at the start of this section of my discussion.

[186] Given the measure of agreement between the experts as above noted it appears to me that the appropriate starting point is to consider the issue of forgotten remembering.

[187] There were two broad categories of what senior counsel for the defenders contended was forgotten remembering: (a) bullying and (b) running away by the pursuer from Quarriers.

[188] With respect to these matters their context was notes in the pursuer’s medical records which referred to him speaking of bullying and running away. The pursuer sought to explain these entries while maintaining his position of not remembering any of the bad stuff until 2003. Senior counsel for the pursuer accepted in his submissions that the explanations given by the pursuer relative to these matters were not entirely convincing. I am clearly of the view that the explanations given by the pursuer were entirely unconvincing in relation to these issues. I accepted all of the submissions made by senior counsel for the defenders in relation to whether the pursuer’s explanations were convincing. For all these reasons I hold that they were not convincing. The most telling factor in in so holding was this: his explanations when looked at could not be fitted to any extent with what was said within the contemporaneous records.

[189] As senior counsel for the pursuer submitted, merely because I have not accepted the pursuer’s explanations as convincing that does not mean that these are examples of forgotten memory. It was his position that the matters relied on by senior counsel for the defenders were not properly understood elements of “the bad stuff”.

[190] With respect to running away I am persuaded that on the evidence this was as a result of the bad stuff and should properly be understood as an element of the bad stuff and therefore of forgotten remembering.

[191] The pursuer’s position was that he ran away from Quarriers twice and that this was one of the memories which came back to him in 2003. Senior counsel for the pursuer, sought to suggest that this was not part of the bad stuff and may have been as a result of general disaffection with life in Quarriers. I am not persuaded by this submission. First the pursuer said it was one of the memories which came back in 2003, which by definition, shows that it was part of the bad stuff. If it was not part of the bad stuff why had he remembered it, according to him, only in 2003?

[192] Secondly, in evidence he said that on two occasions he had run away. It was noteworthy that on record at article 4 of Condescendence at page 7 letter B at the end of a section dealing with abuse which the pursuer alleged happened at Quarriers there is the following averment: “The pursuer ran away on two occasions”.

[193] The above averment I believe must refer to the two incidents to which the pursuer spoke in evidence. There is I believe no explanation for the foregoing averment being made on behalf of the pursuer at this point within the narration of his case unless it had been said to the pursuer’s agents by the pursuer that those incidents of running away flowed from the bad stuff that had been done to him by Miss D.

[194] I conclude that the entries relied upon by the defenders in relation to running away are examples of forgotten remembering. It seems to me that this is a significant example of forgotten remembering.

[195] Equally with respect to the bullying I am persuaded that this is another example of forgotten remembering. Again senior counsel for the pursuer sought to explain this in broadly the same way as he had sought to explain the running away, namely: that it did not form part of the bad stuff. Again I do not accept this explanation. Once more the pursuer accepted in evidence that this was something he had forgotten about until 2003 and therefore by definition it forms part of the bad stuff which he had forgotten due to dissociative amnesia.

[196] Senior counsel for the pursuer further in response to these points regarding forgotten remembering argued this: he pointed to the very extensive records relating to the pursuer which contained no reference to the bad stuff and on a single occasion contained in 7/2 of process at page 194 this entry “denies any abuse”. It was his position that if the pursuer had at any stage prior to 2003 remembered any of the bad stuff then given these extensive records there would be some reference therein to the bad stuff. I have considered that submission and I do not believe that it answers the above points regarding bullying and running away. These specific references in his records I believe do show, despite the lack of mention elsewhere of the bad stuff, memory of elements of the bad stuff by the pursuer prior to 2003.

[197] In summary I believe that the objective evidence shows that the pursuer had some memory of certain of the bad stuff pre‑2003. I conclude that this being the case, that such evidence is inconsistent with his suffering from dissociative amnesia until 2003.

[198] It is perhaps convenient at this point to deal with what senior counsel for the defenders described as Professor Freeman’s alternative theory: this was to the effect that dissociative memory could be continuous or episodic and this could explain the pursuer’s memories pre 2003 relative to these matters. However, this does not assist the pursuer for the reason advanced by senior counsel for the defenders, namely: for the purposes of considering the issues before the court it is sufficient that he has at some point pre 2003 remembered some element of the bad stuff.

[199] Another matter which strongly tended to undermine the pursuer’s position that he had no memory of the bad stuff pre-2003 was this: the lack of explanation as to what following the TV programme aroused the pursuer’s interest to recover his records from Quarriers? When asked in evidence in chief about this he simply said that after he saw the programme – went for records. He was again asked about this at the start of re‑examination and said that he “wanted to see if Quarriers had records relative to me” then asked “what made him curious?” and answered: “don’t know it was after programme – wondered if any records – can’t explain”. The matter was returned to by senior counsel for the pursuer at the end of re‑examination and when asked about what about the Frontline Scotland programme motivated him to go to see the records the pursuer answered:

“I can’t say why- wondered if they had any records”.

Senior counsel for the pursuer then asked:

“Was there a specific focus to your curiosity?”

The pursuer answered:

“If said no records I wouldn’t have enquired further.”

Senior counsel for the pursuer did not leave the issue but rather asked a further question:

“Why did this specific programme make you curious?”

The pursuer answered:

“No records given to father when left. Remembered Miss D kept records in a cupboard – curiosity – nothing specific – just curiosity.”

Once more senior counsel for the pursuer pursued the matter and asked:

“Why want to find out what happened to Quarriers?”

The pursuer answered:

“Not what happened curious to know if had records.”

The pursuer continued by saying that it was when he went down to Epsom following upon his having received the records that the bad stuff came back to him.

[200] I believe that the pursuer’s answers regarding this matter completely lacked plausibility. There must have been something which aroused his curiosity and made him seek his records. His position that he just wanted to see if Quarriers had records relative to him made no sense. Why did he want to know if they had any records relative to him? There is according to his evidence no trigger for this request. There is not said to have been anything about the programme which he watched on television which appears to have been a trigger. Senior counsel for the pursuer, as I have set out above, repeatedly in re‑examination sought from the pursuer an explanation for his actings, however, he could obtain none. The repeated questioning by his senior counsel relative to this point, it seemed to me, emphasised the importance of this section of the evidence and the oddity of the pursuer’s position which again was very repetitive and had a mantra like feel to it It appears to me that the common sense and obvious explanation for his seeking his records is that he had some memories of the bad stuff at that time, namely: before he had the records and went down to Epsom when he said these memories returned. In my view this conclusion is reinforced by the pursuer’s evidence which was to the effect that there was nothing in particular in what was shown in the programme that triggered his application for the records. Accordingly I believe it must have been memories on his part which already existed of the bad stuff which caused him to then apply for the records.

[201] I believe that the above evidence is strongly indicative of the pursuer having memories to some extent pre‑2003 of some element of the bad stuff. His evidence of going to Quarriers to get his records is inexplicable unless he had some such memories.

[202] For all the above reasons I am persuaded that the pursuer had memories of the bad stuff pre 2003.

[203] I now turn to the issue of the pursuer’s explanation as to when he forgot. Throughout his evidence the pursuer maintained that he could remember when he forgot and referred to his memories of the bad stuff being “blanked” or “blocked” and the shutters coming down when he was being driven away by his father from Quarriers.

[204] Senior counsel for the defenders referred to Professor Freeman accepting that it was oxymoronic to expect an individual who says he has forgotten something, nevertheless, to remember when he forgot it. It was, however, the position that the pursuer insisted he remembered when he had forgotten. That assertion makes no sense and cannot possibly be correct. This piece of evidence I am persuaded fundamentally undermines the acceptability of the pursuer’s evidence.

[205] Moving on, I turn to the issue of the pursuer’s general reliability and that was addressed under three heads by senior counsel for the defenders:

attempted suicide
being hit by his father
impact of sexual abuse

[206] The pursuer’s case on dissociative amnesia proceeded on the basis that when he left Quarriers and returned to his father he was in a place of safety.

[207] Both, within the medical records and in the evidence of Professor Freeman there was reference to the pursuer having been hit by his father. This was denied by the pursuer in evidence.

[208] There are two separate aspects to this evidence. First, was returning to his father a place of safety for the pursuer. Senior counsel for the defenders submitted it could not be regarded as such given this evidence. On the other hand senior counsel for the pursuer’s position was that there was a difference in scale between what was normal chastisement by the father and the abuse by Miss D and that the pursuer could have perceived his father’s home as a place of safety and perception was according to what Professor Freeman had said in evidence was what was important. On balance I prefer senior counsel for the defenders’ position regarding this, the pursuer’s evidence regarding whether his father had hit him was contradictory. On top of this were the references to his attempted suicide following his return to his father. On the basis of this I could not hold myself satisfied that the pursuer regarded his father’s home as a place of safety.

[209] The second aspect of this evidence is this: how does this evidence affect the pursuer’s reliability. I am in no doubt that this evidence undermines the pursuer’s reliability. The pursuer’s evidence on this aspect is clearly unreliable. The entries in the records were not challenged. The pursuer’s explanations for these entries were again implausible. His evidence was contradictory.

[210] With reference to the suicide attempts I have set out above how I believe these interrelate with the father’s behaviour towards him and cause me to find that it was not established that he regarded the father’s home as a place of safety. With respect to the reliability of the pursuer’s evidence his position on these matters (which was not to accept what the records said regarding the suicide attempts) once more appeared unreliable. His explanations regarding the records on this issue did not seem plausible. His evidence was contradictory.

[211] Finally on the issue of general reliability there was the evidence of alleged sex abuse. With respect to this I agree with the submission made by senior counsel for the defenders that there was a radical reinterpretation of matters by the pursuer which again points to his unreliability. I also agreed with senior counsel for the defenders secondary submission on this aspect of the evidence relative to the paradox as to what the pursuer was prepared to speak about in evidence and this again was a marker of unreliability.

[212] There was I believe a further clear marker of unreliability in the pursuer’s evidence which was this: one of the major reasons put forward by senior counsel for the pursuer as to why I should accept the evidence of the pursuer was that the memories of the bad stuff came flooding back to him when he was in Epsom and that there was no other explanation for his breakdown which followed on from his period in Epsom.

[213] I believe it is worth examining this contention in a little detail.

[214] First I would observe that it is very striking that there is a complete lack of reference to abuse at Quarriers when the pursuer is admitted to the hospital in Penrith (following what he says was the flooding back of these memories in Epsom). If the cause of his breakdown was the flooding back of the memories of the bad stuff one would have expected that there would have been reference in the medical records at that time of this. There is none (see: 7/1 of process at pages 113 to 119).

[215] Beyond the above the notes give a number of other possible reasons for his breakdown:

“depressed for as long as can remember”
“feels low all the time”
“can’t hold down a job”
“can’t cope with people”
“argues all the time with wife”
“wife will be cross with him for giving up job”
“says they are £40,000 in debt”
“also in trouble for harassing phone calls ”
“over eats for comfort”
“he can’t sleep”
“no hope for the future”

[216] This catalogue of stressors when taken together I conclude provide an obvious possible explanation for why the pursuer, a man with a pre-existing history of mental health difficulties, had a breakdown at that time. Thus there is a clear alternative explanation why the pursuer had a breakdown at this time and thus I reject senior counsel for the pursuer’s submission in relation to this.

[217] The pursuer’s position in evidence was, as I understood it, that he had been abused at Quarriers and the medical staff were advised of this. However, there is no reference to this, so far as I can identify in the hospital records at Penrith. The only reference to Quarriers is this:

“Spent most of childhood in care

‘unhappy’”

I believe that the records of his admission at Penrith strongly undermine the reliability of the pursuer’s evidence that there was a flooding back of memories at Epsom.

[218] In summary I broadly agree with the submissions of senior counsel for the defenders regarding the pursuer’s reliability based on the Penrith records.

[219] Beyond the above there is the issue of the pursuer’s borderline personality disorder, it was agreed by the experts, that this would make the pursuer prone to inconsistency and this was shown clearly in the sections of the evidence relied on by senior counsel for the defenders and particularly with reference to whether his father had hit him.

[220] There is then the issue of the tainting of the pursuer’s evidence by what he had been told at one stage by his psychiatrist or psychologist about the mechanism as to how his memories had been suppressed. It is, I believe, not easy to be clear as to the extent to which the pursuer’s position has been tainted by this information. However, I am persuaded it is another factor which tends towards showing that the pursuer is unreliable.

[221] In summary I conclude: that for the foregoing reasons the pursuer is an unreliable witness. His evidence was littered with unreliable evidence. I believe Mr Moynihan was correct when he said this:

“The pursuer is so unreliable a witness that no positive conclusion can be reached in his favour.”

For the foregoing reasons I conclude:

that the pursuer is an unreliable witness
that the basis upon which Professor Freeman arrived at his diagnosis was that he had been given a reliable account
that given that the pursuer is an unreliable witness the underpinning of Professor Freeman’s diagnosis collapses and there is no factual foundation to Professor Freeman’s opinion
that within the pursuer’s evidence there are examples of forgotten remembering of elements of the bad stuff or put another way there was evidence of the pursuer remembering elements of the bad stuff pre 2003

[222] It follows from the above, I am persuaded that I cannot conclude the pursuer suffered from dissociative amnesia until 2003.

[223] I conclude that the proceedings were not delayed until December 2004 because the pursuer suffered from dissociative amnesia.

[224] There was considerable discussion in the submissions of senior counsel for the pursuer, as to which expert I should prefer. I do not believe that I am required to opine on that matter. I believe for the purpose of deciding this second issue I was able to do so on the basis of the measure of the agreement between the experts to which I have earlier referred. I was able to deal with the issue on the basis of looking at the factual evidence from which Professor Freeman’s opinion was based without entering into the wider reaches of the academic debate about the theory of repression of memory and dissociative amnesia about which there was a dispute between Professor Freeman and Dr Boakes.

[225] There was one final issue raised which arose from the objection made by senior counsel for the defenders to the relevancy and competency of the evidence of Mr J. For the reasons advanced by senior counsel for the defenders I do not find it of any relevance with respect to the matters before me.

Decision
[226] For the foregoing reasons I am not prepared to exercise the discretion in terms of section 19A in favour of the pursuer and accordingly refuse to allow the pursuer to bring the present action. I have not been addressed on the issue of expenses and I reserve all questions of expenses.

Table 1: bullying and running away

Date	Information	Production	Digital
19 February 1987	“He was [unhappy] at school and was bullied”	7/2/207 @ 208	865
19 February 1987[1]	“School – Bullied at 1⁰ tried to run away “ [i.e. Bullied] at 2⁰ couldn’t stand up for self”	7/1/230 @ 231	641
17 September 1991	“Didn’t like school – doesn’t know why Ran away from home – Denies any abuse”	7/1/192 @ 194	604
10 December 1993	“He was bullied at school and would run away from the children’s home”	7/2/153	809

Table 2: references to being hit by his father

Date	Information	Production	Digital
19 February 1987	He says they [his parents] never showed him any love and there was a lot of violence at home	7/2/207	864
	[Manuscript notes relating to that letter] “Never showed love hit a lot god a belt taken to him”	7/1/230 @ 232	642
31 March 1992	“Not a happy childhood. In + out of homes. F hit him a lot – from [about] age of 4”	7/1/196 @ 197	607
19 April 1993	“Lived with dad from 13 yrs (arrow) used to hit him used to drink heavily at weekends Never calls him dad”	7/1/203 @ 167	614
12 August 1993	Believes compulsive eating stems from when he returned to live with his father aged 1. He started eating excessively as his father was violent towards him and he was afraid of being alone in the house	7/2/166 @ 167	823
2 July 2003	In box “Father” – “went back to live with him at 13, hit him all the time”. In box “Childhood” – Describes this [as] being very unhappy Father hit him regularly first memory aged 4”.	7/1/233 @ 236	647

Table 3: references to attempts to commit suicide pre-21

Date	Information	Production	Digital
20 October 1978	4 suicide attempts in the past three months	7/2/216	873
17 September 1991[2]	“As a teenager tried to hang himself x2” but denies any suicide intent then or now	7/1/192	602
27 June 2003	Penrith- “first tried to hang himself aged 15 yrs. But not further suicide attempts since until now”	7/1/112 @ 113 and see also 115	522 & 525
17 December 2002	In context of recent plan to take his car and think about carbon monoxide poisoning – “Last time – 17 tried to hang himself”[3]	7/1/209	619
17 December 2004	Summons – He first attempted suicide at age 15 and then again at age 16.	1 of Process	8
24 August 2005	GP records – attempted suicide from age 15	6/2/2 & 19	16 & 33

[1] Date taken from corresponding letter: 7/2/207 (864)

[2] See 7/2/185 (841) – these notes written by Dr Hickey

[3] Letter relating to this consultation is 7/2/107 (763) – does not mention incident at age 17

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