[2013] CSOH 185



Sitting as a temporary judge

in the cause







Pursuer: J Mitchell, QC, Stirling; Drummond Miller LLP

Defenders: Duncan, QC, Reid; Simpson & Marwick

3 December 2013


[1] In this action the pursuer seeks damages from the defenders in respect of sexual abuse sustained by him at the hands of a parish priest, FJR, in a parish within the Archdiocese while the pursuer was a pupil at a primary school and then secondary school there between 1989 and 1992. FJR died in 2006. He avers that the defenders operated and/or managed and/or were responsible for religious provision within these schools. As well as being a pupil at these schools, the pursuer was a parishioner within the relevant parish. The pursuer condescends upon five specific occasions of abuse between 1989 and 1992. The pursuer bases his claim (at 16D) on vicarious liability at common law, averring that the "relationship between the Archdiocese and FJR was a relationship akin to employment" and that the "abuse perpetrated by FJR was closely connected to that relationship".

[2] The pursuer was born on 5 October 1980. He attained 16 years of age on 5 October 1996. In terms of section 17(3) of the Prescription and Limitation (Scotland) Act 1973, the triennium in respect of the abuse condescended upon ended on 5 October 1999. The summons in the action was served upon the defenders on 7 September 2012. The defenders have tabled accordingly a plea of limitation. The defenders have in addition a general plea to relevancy.

[3] The parties joined issue on two discrete chapters of dispute, namely limitation in terms of section 17 of the 1973 Act, and relief as sought by the pursuer in terms of section 19A of the Act.

Submissions for the defenders: section 17

[4] Section 17 of the 1973 Act provides as follows:

"17. Actions in respect of personal injuries not resulting in death.

(1) This section applies to an action of damages where the damages claimed consist of or include damages in respect of personal injuries, being an action (other than an action to which section 18 of this Act applies) brought by the person who sustained the injuries or any other person.

(2) Subject to subsection (3) below and section 19A of this Act, no action to which this section applies shall be brought unless it is commenced within a period of 3 years after -

(a) the date on which the injuries were sustained or, where the act or omission to which the injuries were attributable was a continuing one, that date or the date on which the act or omission ceased, whichever is the later; or

(b) the date (if later than any date mentioned in paragraph (a) above) on which the pursuer in the action became, or on which, in the opinion of the court, it would have been reasonably practicable for him in all the circumstances to become, aware of all the following facts -

(i) that the injuries in question were sufficiently serious to justify his bringing an action of damages on the assumption that the person against whom the action was brought did not dispute liability and was able to satisfy a decree;

(ii) that the injuries were attributable in whole or in part to an act or omission; and

(iii) that the defender was a person to whose act or omission the injuries were attributable in whole or in part or the employer or principal of such a person.

(3) In the computation of the period specified in subsection (2) above there shall be disregarded any time during which the person who sustained the injuries was under legal disability by reason of nonage or unsoundness of mind."

[5] Senior counsel for the defenders' argument in terms of section 17 can be put short thus: the defenders, on the pleadings of the pursuer, having engaged section 17(2)(a) of the 1973 Act, the pursuer requires in turn to engage any one (and only one) of the statutory facts set out in section 17(2)(b)(i), (ii), or (iii) within the three year period ending with the date of service of the summons (ie from 7 September 2009 to 7 September 2012) in order to defeat the time bar challenge; and the pursuer by his own averment at 17B-C being unable so to engage (2)(b)(i) or (ii), and through his position as developed in argument being unable ever to engage or have engaged (2)(b)(iii), had accordingly failed before the court to offer to discharge the onus upon him to meet the limitation challenge advanced on behalf of the defenders.

[6] Senior counsel advanced the following propositions of law distilled by him from a skilful review of the authorities in the following terms:

1. In order to rely upon section 17(2)(b)(iii) to postpone a triennium, the pursuer must show that he was not aware and could not reasonably practicably have been aware of the facts referred to in that provision on a date on or before 7 September 2009, the onus being on the pursuer to aver upon awareness in terms of such a timescale.

2. The said provision itself is concerned with the identity of the wrongdoer, or of a person who is vicariously liable for the wrongdoer (Murray v National Association of Round Tables of Great Britain & Ireland 2002 SLT 204 at para.13; and Scottish Law Commission Report No. 207, December 2007, para.2.28).

3. The provision is not concerned with the question of whether as a matter of law someone is vicariously liable for a wrongdoer, because the provision is not concerned with any legal consequences arising from the fact of there being a relationship between the wrongdoer and the person sued, being instead simply concerned with awareness of the fact of the relationship (McIntyre v Armitage Shanks Ltd 1980 SC(HL) 46 per Lord Fraser of Tullybelton at 62 to 63).

4. In order to have actual awareness, a pursuer does not need to know all the relevant facts; a relatively modest level of awareness is enough, the correct question being whether a pursuer has or had awareness of sufficient facts to make it reasonable for him or her to investigate a case (Agnew v Scott Lithgow Ltd (No.2) 2003 SC 448, paras.23 and 24).

5. Where a pursuer claims not to have actual awareness of certain individual facts, he or she must, in order to engage section 17(2)(b), go further and aver that it was not reasonably practicable to be aware of these facts, and a pursuer who fails to aver upon constructive knowledge duly fails to engage the provision, a mere assertion to the effect that this was not reasonably practicable necessarily failing thereby to engage the provision absent further averments as to why it was not reasonably practicable to be aware of these facts.

6. The proper approach to consideration of constructive awareness is to ask first what facts did a pursuer actually know, then to ask what other facts it would have been reasonably practicable for him to know, and finally to ask whether, taken together, these meet the threshold for reasonable practicability. (A v Hoare [2008] 1 AC 844, per Lord Hoffman at para.35; and Johnston, Prescription and Limitation, 2nd ed., paras.10.29 and 10.30).

7. In asking what is reasonably practicable, it is not legitimate to consider a lack of intelligence or ignorance, the constructive awareness requirement necessarily proceeding on the basis of the ignorance of the pursuer of a fact.

Senior counsel for the defenders developed his argument, observing that at 17C the pursuer averred that he was not aware of what he avers as the statutory fact set out in section 17(2)(b)(iii) until he consulted solicitors in May 2010 (which is within, of course, the three year period preceding service of the summons). While this line of averment was not the argument developed by senior counsel for the pursuer in submission, nevertheless, the contention for the defenders was that the pursuer's critical lack of awareness was a lack of awareness as to the Archdiocese being vicariously liable for the wrongs of a parish priest, which was a legal consequence, not a factual matter. The clue, senior counsel submitted, to the wrong thinking of the pursuer in his approach to the limitation issue could be found in the averments by him at 18B to the effect that there was "no case law in Scotland establishing the liability of an Archdiocese for sexual abuse perpetrated by a parish priest on a child". The pursuer's focus was on legal consequences, not matters of fact. The point at which illumination on the part of the pursuer appeared in the pleadings arose at 17E-18A when he avers that his solicitor "told him that the defenders were the principal of FJR". The pursuer then simply makes an assertion anent reasonable practicability with no explanation advanced as to why it would not have been reasonably practicable for the pursuer to have achieved even the modest level of awareness required to commence limitation. The pursuer's averments in the chapter dealing with his lack of knowledge of church hierarchy at 17C-E bear to relate to his personal ignorance of certain facts and indicated, it was submitted, a shying away from facing up to the substantive issue, which was simply not permitted in terms of the section 17(2)(b) framework: Lord Glennie in M v O'Neill 2006 SLT 823 at para.36. There was a distinct emphasis in the pursuer's pleadings upon legal advice from his solicitor, which was simply irrelevant in respect of the true position under section 17(2)(b). In respect of the critical question in the case, namely why the pursuer did not go earlier to see a solicitor, the pursuer's answer on the face of the record was simply, in terms, that he did not think about it (17B-C). His reluctance to escalate the matter by way of speaking to the police was illustrated in pleadings on two occasions, namely at 19D and 20D. The pursuer therefore, not having even thought about legal advice, could not place himself within the framework of section 17(2)(b), it was contended.

[7] It was important to bear in mind, it was argued, the background advanced in the pursuer's own averments. He has averred at 17A-C that he "was aware from at least August 1999 that he had suffered an injury which was sufficiently serious objectively to justify the bringing of an action of damages", and further that "the injury was attributable to acts of FJR". He accordingly could not, on his own pleadings, place himself within section 17(2)(b)(i) and (ii) of the 1973 Act within the three years preceding 7 September 2012. The pursuer's pleadings failed to disclose that he was actually unaware of facts bearing upon section 17(2)(b)(iii) prior to 7 September 2009, and further he had failed to aver why it was not reasonably practicable for him to be aware of the relevant facts prior to that date.

Submissions for the pursuer: section 17
[8] Senior counsel for the pursuer advanced an argument that he himself described as "novel". He accepted, as he addressed the arguments put for the defenders, that section 17(2)(b)(iii) deals with facts, not assumptions or beliefs, and advanced the self-evident proposition that a belief that one has a good cause of action is not a fact. He argued that the facts required (the statutory facts) under section 17(2)(b) were precise in their terms. Contrary to the argument put for the defenders, it was not the identity of the defenders that was referred to in (iii). The pursuer's argument, on his pleadings, was to the effect that the Archdiocese was responsible in terms of vicarious liability for the actings of FJR, yet the statutory fact that was precisely required in terms of (iii) was that the Archdiocese was the employer or principal of FJR. Established authorities in England over a period from 2009 to 2013 had now demonstrated in a settled manner that the nature of liability to be attached to an Archdiocese for its priests cannot be said to be based on employment or on the law of principal and agent, but was and is based upon "close connection" or a relationship "akin to employment". Put short, the pursuer's position, advanced by senior counsel, was that the pursuer could not and even now cannot be aware that the Archdiocese is the employer or principal of FJR on the simple basis that the law is well settled that they are not so. The pursuer did not take issue with the position advanced by the defenders before the court to the effect that the statutory facts deal indeed with facts, not with questions of law or actionability. The defenders, senior counsel contended, disputed the applicability of vicarious liability in this case in their pleadings at 9A and 25B-C. In advancing his primary position, senior counsel observed that it was rather rich for the defenders to insist that the pursuer be aware of something that the defenders themselves assert is not so.

[9] The section 17(2)(b)(iii) date in terms of which the pursuer became or ought reasonably practicably to have become aware pertained to the fact that these defenders were the employer or principal of the wrongdoer. This required a precise construction of (iii), and was a mixed question of fact and law, to which one could not apply the law until one knew the whole facts. Case law from England bore out the proposition in this case that the defenders were never the employer or principal of FJR. While this was terra incognita for Scots law, it was now settled in England that vicarious liability has the consequences of a contract of employment, but is not per se a contract of employment. In short, the pursuer's position rested on the broad proposition which senior counsel drew from this to the effect that the Archdiocese is not and never had been the employer of its priests, including FJR. Nevertheless, the pursuer advanced his action on the related proposition that the defenders' vicarious liability for FJR was based on close connection (not employment).

[10] Senior counsel addressed the court on a tract of authority commencing with Maga v Archbishop of Birmingham [2010] 1 WLR 1441, and developed by the Court of Appeal in E v English Province of Our Lady of Charity [2013] QB 722, in the course of which Ward LJ held that the law of vicarious liability had "moved beyond the confines of a contract of service" (para.73), employing tests of control, organisation, integration and entrepreneurship. In respect of the organisation test, Ward LJ observed at para.77:

"Translating that into secular language, there is an organisation called the Roman Catholic Church with the Pope in the head office, with its 'regional offices' with their appointed bishops and with 'local branches', the parishes with their appointed priests. This looks like a business and operates like a business. Its objective is to spread the word of God. The priest has a central role in meeting that target. Ministering, as he does, to the souls of the faithful, can be seen to be the very lifeblood of the church, vital to its existence. "

[11] In considering the integration test at para.78, Ward LJ observed that: "the role of the parish priest is wholly integrated into the organisational structure of the church's enterprise. He is ...part and parcel of the organisation, not only accessory to it." Ward LJ at para.81 concludes under the application of each of these tests that the priest in E "is more like an employee than an independent contractor. He is in a relationship with his bishop which is close enough and so akin to employer/employee as to make it just and fair to impose vicarious liability. Justice and fairness is used here as a salutary check on the conclusion."

[12] Senior counsel proceeded to analyse the final case in this line, namely Various Claimants v Catholic Child Welfare Society and Others [2013] 2 AC 1 in which these issues were considered by the Supreme Court. Lord Phillips of Worth Matravers gave the judgment of the Court, describing the leading judgment of Ward LJ in E as impressive (at para.19) and noting at the outset of that paragraph that "The law of vicarious liability is on the move." Lord Phillips, at para.21, states:

"At para.37 of his judgment in this case, Hughes LJ rightly observed that the test requires a synthesis of two stages: (i) The first stage is to consider the relationship of D1 [the putative wrongdoer] and D2 [the putative responsible person] to see whether it is one that is capable of giving rise to vicarious liability. (ii) Hughes LJ identified the second stage as requiring examination of the connection between D2 and the act or omission of D1. This is not entirely correct. What is critical at the second stage is the connection that links the relationship between D1 and D2 and the act or omission of D1, hence the synthesis of the two stages."

[13] The true focus therefore in an issue where vicarious liability is said to arise is on the relationship between the wrongdoer and the person or persons said to be responsible for that wrongdoer. Senior counsel argued that in the light of this significant development in the law the court required to revisit section 17(2)(b)(iii) in the context of the present case. The statutory test in (iii) required the court to consider hard and sharp facts. A bright line test was required by what was essentially a check list approach set out in the scheme of section 17(2)(b). In the context of the English cases, the pursuer could never have attained knowledge that would tick box (iii), the vicariously liable defenders not being the employer or principal (in terms of the law of agency) of FJR. The legislation itself contemplated categories of cases in respect of which time would never run, for example, an incapacity under reference to section 17(3). The check list question arising on vicarious liability in terms of section 17(2)(b)(iii) was truly stated as follows: did you know that the trustees of the Archdiocese were the employer or principal of this priest (FJR)? The question was not: did you know that this was an actionable matter? The pursuer in this case could not be aware that the Archdiocese was his employer, unless they were. In general, one cannot know something which is not the case. Senior counsel observed that he could not be aware that the world was flat when it was not so. He drew the court's attention to Lambie v Toffolo Jackson Ltd 2003 SLT 1415, in which reference was made at para.9 to Comer v James Scott & Co (Electrical Engineers) Ltd 1978 SLT 235 per Lord Maxwell at 240:

"....whether a person 'knows' a fact seems to me to involve a question of degree. I do not consider it advisable to attempt to define it, but at least I think it involves something approximating more to certainty than mere suspicion or guess. Moreover, in my opinion, and I think this important for the present case, some information, suspicion or belief falling short of knowledge is not transformed into knowledge if it happens to be correct. I accept that a person cannot be said to 'know' a fact if the thing which he believes with whatever conviction is not in accordance with the truth. But I do not think that the converse is correct."

Put short, therefore, section 17(2)(b)(iii) awareness on the part of the pursuer did and could not arise before 7 December 2009. Where liability is vicarious (not direct), and arises other than by the law of employment or of agent and principal, the check box exercise in terms of section 17(2)(b) could not be obtempered. While the test set by those drafting the legislation could have been one of actionability, those drafting had chosen not to do so, and, standing the check list approach, it was inevitable that there would be anomalous cases where the statutory facts were insufficiently clear for time to start running at all. This was such a case, senior counsel contended. If the pursuer had gone to a solicitor in, say, 2000, and asked if he could sue the Archdiocese, he would of course have been told that he could not do so. Here the defenders are not directly liable, nor were they the employer or principal of FJR. While it was unusual under section 17 for a pursuer to be a person against whom time could not run, such cases were well established, senior counsel submitted, for example cases involving unsoundness of mind or cases where injuries were not serious but were nevertheless litigated, although I observe at this stage that a person in the former category could of course utilise guardianship provisions, and that time must run against a guardian pursuer. For persons under legal disability without a guardian, the statutory scheme of course contemplates their position as a specific exception: section 17(3). The time bar argument advanced by the defenders accordingly flew off as a matter of law, it was submitted by the pursuer's senior counsel.

Discussion and decision: section 17
[14] I have determined that the defenders' limitation challenge must succeed. The pursuer avers in terms at 17A-C that he "was aware from at least August 1999 that he had suffered an injury which was sufficiently serious objectively to justify the bringing of an action of damages (albeit he himself did not consider his injury in the context of suing for that injury until 2010)" and further that "the injury was attributable to the acts of FJR". He is thereby on his own averments unable to engage either section 17(2)(b)(i) or (ii) of the 1973 Act as envisaged in the statutory scheme. The upshot of an able and learned submission by senior counsel for the pursuer in argument before the court, departing expressly from his pleadings at 17B-C, was that the pursuer could never have knowledge of the statutory fact set out in section 17(2)(b)(iii), applying a strict construction of "employer or principal" in that subsection, standing the dicta of Lord Phillips of Worth Matravers in Various Claimants and of Ward LJ in E, supra.

[15] While I agree with senior counsel for the pursuer that the cases of Various Claimants and E on any view state a significant development of the law of vicarious liability, in particular as it pertains to the relationship of priest and Archdiocese, and see indeed no reason why these principles should not be applicable fully in this jurisdiction in that context, I have concluded that the approach to the statutory scheme in section 17(2) urged upon the court for the pursuer was misconceived.

[16] At the heart of the submission for the pursuer on limitation was in my view a wrong approach to questions of onus in respect of which party, in a time bar challenge such as this, requires to establish the statutory facts referred to in section 17(2)(b). The pursuer avers positively that he was aware from at least August 1999 (within the triennium) of the statutory facts in (b)(i) and (ii). Standing the pursuer's date of birth (5 October 1980) and date of 16th birthday (5 October 1996), and the limitation challenge on record for the defenders, section 17(2)(a) is necessarily engaged. The only way in which the pursuer can trump the limitation argument, standing his frank concession in respect of section 17(2)(b)(i) and (ii), is by himself engaging (2)(b)(iii). While there is no doubt that he seeks to do so (article 11 at 17B-D) in his pleadings, before the court his senior counsel advanced a rather different contention, which he himself described as "novel", namely that the pursuer could never have knowledge or awareness (or deemed knowledge or awareness) of the statutory fact that the Archdiocese was the employer or principal of FJR (section 17(2)(b)(iii)).

[17] On his pleadings, therefore, the pursuer has accepted positive awareness on his part of statutory facts (b)(i) and (ii) within the triennium, but in argument before the court senior counsel submitted that he could never have known, nor would it have been reasonably practicable for him in all the circumstances to have become aware of, the fact arising in terms of section 17(2)(b)(iii). The misconception in approach came at the outset of senior counsel's submission, when he emphasised that he did not dispute the defenders' contentions with regard to case law such as McIntyre in respect that the court must deal with facts, rather than matters of law or actionability. He submitted, with regard to the hard fact contained in section 17(2)(b)(iii), that "the defenders never get into this", by reference to the defenders disputing in their own pleadings the relationship of the Archdiocese to FJR and indeed disputing the attachment of vicarious liability at all in this case under principles of close connection. In my view it is not, on a sound construction of the structure of section 17(2), for the defenders to "get into" (b)(iii), whatever their position on record in respect of vicarious liability and the relationship between the Archdiocese and FJR. Rather, section 17(2)(a) having been engaged by the defenders' limitation challenge, it is the pursuer who requires to engage section 17(2)(b)(i) or (ii) or (iii) within the three year period ending with service of the summons, ie on or after 7 September 2009. Standing the pursuer's position on record in respect of (i) and (ii) , and in submission before the court on (iii), I conclude that the pursuer does not offer to discharge the statutory onus upon him in the face of the defenders' legitimate limitation challenge. He must engage (i), or (ii), or (iii) on or after 7 September 2009, and he has not done so. Indeed, his senior counsel said that he could never do so. In any event, I do not accept the narrow construction advanced by the pursuer in respect of "employer or principal" in section 17(2)(b)(iii). Such a limited construction seems odd, standing the omission of, for instance, partnership, from (b)(iii), in the light of schedule 1, para.2(d) of the 1973 Act, which disapplies expressly obligations arising under contracts of partnership or agency from the ambit of section 6 of the Act. It cannot be right in my view that (iii) refers to "principal" in the pure "agent and principal" sense, given the silence in (iii) on matters of partnership. If the pursuer's construction is to be preferred, a person injured by the delictual act of a partner would not fall within (2)(b)(iii). It is long settled that vicarious liability applies where a person seeks to litigate against an unincorporated association for the act of a member thereof, or where one instructs a contractor. The anomalies implicit in the pursuer's narrow construction of (iii) do not in my view fit well with the statutory scheme. I conclude that the pursuer construes "principal" too narrowly, and that it truly refers to the issue of vicarious liability. That being so, the English authorities founded on by the pursuer, namely E and Various Claimants, supra, having settled the vicarious liability position in this context, I construe this development as a declaratory step. The pursuer's contention in respect of his lack of awareness regarding (2)(b)(iii) must thereby fail. Further and in any event, the pursuer declined, despite his disclosure to a psychiatrist in 1999 and to his mother in 2001, to prosecute this claim at these points in time and for years beyond. He simply had not thought about taking legal advice (22A-B). This is no relevant basis for engagement by him with section 17(2)(b). The pursuer's failure to identify a factual matter within the awareness provisions of section 17(2)(b) must mean, in my view, that time has run against him (not that time has stood still). This conclusion is sufficient for disposal of the issue of time bar as a matter of principle in this action. It is not sufficient, however, for a determination of parties' pleas, as tabled, standing the remaining chapter of argument between them in respect of the application of the court's discretion in terms of section 19A of the 1973 Act, to which chapter I now turn.

Submissions for the defenders: section 19A

[18] Section 19A of the 1973 Act provides as follows:

"19A.- Power of court to override time-limits etc

(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."

[19] Senior counsel for the defenders maintained that the pursuer's averments in support of the relief sought by him in terms of section 19A were irrelevant and could thereby be determined at procedure roll. In considering the pleadings, he noted that the pursuer averred that he told a psychiatrist about the alleged abuse in 1999, and that in 2011 he told his mother about the abuse. He drew the court's attention to passages in the pleadings relating to the pursuer's reluctance to involve the police. He accepted, however, that the lengthy passage in the pleadings from 22C to 25B could not be struck out as it related to relevant averments about the involvement of solicitors in the matter from May 2010 onwards. This did not aid the pursuer's position, however. Senior counsel submitted that on the pleadings, in the absence of a proper explanation for delay prior to May 2010, standing the substantive prejudice to the defenders in allowing the matter to proceed, the court could determine the section 19A argument on the pleadings and indeed could only do so in favour of the defenders (see: Johnston, supra para.13.30). It was of note that the death of FJR occurred in 2006, some years after the pursuer elected, in 1999 and again in 2001, not to escalate his allegation.

[20] Senior counsel under this chapter helpfully advanced certain principles in the following terms:

1. The limitation period is the general rule, the onus being on a pursuer to show that justice requires an exception to the statute (Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541, dicta of McHugh J, cited extensively in B v Murray (No.2) 2005 SLT 982, per Lord Drummond Young at para.21ff).

2. It is of critical importance that the pursuer provides a reasonable explanation (B v Murray, supra at para.30; Kane v Argyll & Clyde Health Board 1999 SLT 823 per Lord Prosser at 828; and Scottish Law Commission Report No.207, December 2007, supra, para.3.14).

3. Where there is an absence of a reasonable explanation, the court can deal with the matter on pleadings at procedure roll (BD v Murray [2012] CSOH 109 per Lord Drummond Young at para.22).

4. It is not a reasonable explanation for a pursuer simply to state that he did not think about going to see a solicitor (BD, supra, Lord Drummond Young at 19).

5. Standing the rationale underlying rules of limitation, consideration of prejudice to the defender is of the utmost importance (B, supra, per Lord Drummond Young at para.27).

6. If a defender can show actual prejudice, or the real possibility of such, in defending an action, that will usually determine the issue in favour of the defender, and it will not normally be appropriate to grant a section 19A application (AS v Poor Sisters of Nazareth 2008 SC(HL) 146 per Lord Hope of Craighead at para. 25).

[21] The defenders contended that the pursuer's averments failed to contain relevant explanation; indeed, his clear and candid position on record was that he simply did not think about matters (17B-C and 22A-B). Standing the approach of Lord Drummond Young in the authorities, endorsed in AS by the House of Lords, this was fatal for the pursuer's claim for relief in terms of section 19A. As Lord Drummond Young stated in BD, supra, at para.19: "...the fact that a pursuer did not turn his mind to the possibility of litigation is not a reason for exercising the discretion in his favour". The pursuer on his own pleadings had elected at several points (1999 and 2001) to shy away from an escalation of matters, and specifically at 17B averred that "he himself did not consider his injury in the context of suing for that injury until 2010".

[22] On the question of prejudice it was submitted for the defenders that no amount of proof would demonstrate how the prejudice to the defenders could be lessened in respect of the death in 2006 of FJR, that prejudice being reinforced by the context in his own pleadings of the pursuer having had an opportunity on several occasions to advance matters but electing not to do so.

[23] In inviting the court to refuse the pursuer's section 19A application, senior counsel for the defenders founded upon lack of a relevant explanation in the pursuer's pleadings together with the hard fact of prejudice which his clients faced in respect of their ability to defend any proof in this case standing the death of FJR in 2006 and the significant two decade gap between the date when the alleged abuse ended on record in 1992 and the service of the summons in September 2012. Senior counsel invited the court to take a broader approach to matters (beyond the pleadings) by considering certain productions which he submitted contained difficulties and discrepancies in respect of the pursuer's position on record, namely a report by Dr Tilak, dated 11 September 2013 (6/3 of process) and an entry dated 29 April 2008 in the GP records (6/4 of process), at sheet 142. I have discounted these matters from consideration, however, standing senior counsel's primary and original position to the effect that the court could resolve the section 19A chapter of dispute on the pleadings alone and without inquiry.

Submissions for the pursuer: section 19A
[24] In addressing the court on the approach to be taken under section 19A of the 1973 Act, senior counsel for the pursuer observed at the outset of his submission that an exercise of general discretion was required to be undertaken on proper principles which were in their nature case-specific. He accepted that consideration of the equities was unfettered and lay within the jurisdiction of the determining court. In the light of that approach, and on the pleadings and authorities, it could not be said, submitted senior counsel, that no Lord Ordinary, having heard evidence, would find it equitable to allow the pursuer to proceed with his action. A question of this kind was necessarily fact-specific, and on the pursuer's averments from 18B, taking these pro veritate and at their highest, the pursuer's position on averment on section 19A was such that it could not be said on the equities without enquiry that the pursuer's case could not proceed. Insofar as questions of a future fair trial arose, it was impossible, submitted senior counsel, for the defenders to satisfy the court of prejudice in that matter in advance of the leading of evidence. In A v N 2009 SC 449 the Inner House allowed a reclaiming motion and permitted parties a proof before answer with all pleas outstanding where the alleged abuse occurred between 1975 and 1997. Senior counsel advised that the proof in A had recently proceeded before a Lord Ordinary who had held that it was indeed equitable for the action to proceed, and who had made an award of damages in favour of the pursuer. Senior counsel referred to the Opinion of the First Division at para.11: the reclaimer (defender) "could succeed in his contention that the respondent's pleadings were on the matter of sec 19A irrelevant only if he was able to demonstrate that even if all her averments on that matter were proved the court was bound to refuse to exercise the discretion in her favour." It was of note of course that in that case the defender was alleged to have perpetrated the abuse personally and had been the subject of criminal trials. Nevertheless senior counsel observed that the dictum of the Division at para.14 set the appropriate test in the following terms:

"Section 19A is expressed in wide terms ...... Unless all the relevant factors are undisputed on the pleadings or the pursuer's averments are manifestly irrelevant, it will ordinarily be necessary to hear evidence before the discretion can be exercised on a duly informed basis."

[25] Senior counsel also drew the court's attention to the Opinion of Lord Boyd of Duncansby in JM v Advocate General for Scotland [2013] CSOH 169 where the gap in reporting abuse was in excess of 20 years. Reference was made to Lord Boyd's observations in respect of the dicta of Sedley J in R v Criminal Injuries Compensation Board ex parte S [1995] ALR 693 for the point that one of the fruits of crimes of sexual violence, such as the abuse alleged in the instant case, was the silence of the victim (Lord Boyd at paras.20 and 21). While this case itself was fact-specific, senior counsel drew from it the proposition that it would be to award a "get out of jail free" card to defenders if the court were to take an approach in terms of which a simple rule of the passage of time was applied to the effect that if a victim was traumatised into silence for 20 years, that claim must fail as stale. Senior counsel further founded upon B v Nugent Care Society [2010] 1 WLR 516, Lord Clarke of Stone-cum-Ebony MR at paras.18 to 22 in respect of the high value to be attached to consideration by a court of oral evidence in determining the cogency of a claimant's case "because it may throw light both on the prejudice suffered by the defendant and on the extent to which the claimant was reasonably inhibited in commencing proceedings" (at para.22). On this approach, which senior counsel commended to the court, the court would require to appoint an evidential hearing in order to weigh up all of the relevant factors involved in balancing the equities, the defenders in this case being unable to pass the "manifestly irrelevant" test to be applied to the pursuer's averments: A , supra, at para.14.

Discussion and decision: section 19A

[26] I have determined, having heard full submissions on the matter, that the pursuer's averments anent section 19A are indeed manifestly irrelevant: A, supra, at para.14. In my view it is not therefore necessary for a court to hear evidence prior to exercising its discretion under section 19A in favour of the defenders. In concluding thus, I take the view that the pursuer has not discharged the onus upon him to satisfy this court that it would be equitable to allow this claim to proceed. Taking as read that in this area of the exercise of discretion, each case must ultimately turn on its own facts, the starting point in considering the balancing of the equities must relate to the conduct of the pursuer since the date of cessation of the alleged abuse or the attainment of 16 years of age, if later, and certainly in this case from the expiry of the triennium, up to the time of his seeking the authority of the court to bring the action out of time, and in particular any explanation offered by him, having particular regard to his averments dealing with explanation for delay.

[27] On his own averments he spoke to a psychiatrist about the alleged abuse in 1999 and to his mother on the subject in 2001. In 1999 he did not want the police to be involved, and the same position applies on his own pleadings following upon his disclosure to his mother in 2001. Taking the pursuer's averments at their highest, it was not until May 2010, following the giving of a statement to the police about the alleged abuse and the suggestion by another priest that the pursuer consult a solicitor, that the pursuer even considered consulting a solicitor. He avers in terms at 22A-B: "Until that time the pursuer had not thought about consulting a solicitor." The pursuer then makes averments about shame and lack of awareness that he could sue for damages. This passage however must be read in the light of the critical averment advanced at the outset of the pursuer's pleadings on time bar in article 11 at 17B-C, namely: "he himself did not consider his injury in the context of suing for that injury until 2010". I do not consider that, read fairly and as a whole, these averments amount to a relevant reason for exercising discretion in the pursuer's favour: BD, supra, per Lord Drummond Young at para.19. Insofar as the pursuer pleads that he was not aware that he could sue in respect of the abuse Lord Drummond Young in B, supra, at para.30, accepts that it is clear that ignorance of a legal right is a material circumstance which must form part of the section 19A exercise by the court. His Lordship notes, however, that the only case cited before him where ignorance of a legal right was treated as decisive in allowing an action to proceed was Comber v Greater Glasgow Health Board 1989 SLT 639, which Lord Drummond Young in B characterises on its circumstances as "a fairly extreme one". I have therefore, focusing on the substantial gap between October 1999 and May 2010, determined that the pursuer's proffered explanation on record can rightly be categorised as "manifestly irrelevant".

[28] Turning to prejudice, let me at the outset state that I very much appreciate the very real prejudice to the pursuer in respect of this action about a significant chapter, albeit alleged, in his life, in the event that authority to bring the action out of time is not granted. Nevertheless, I require to weigh that in the balance with the equally real and highly significant prejudice to the defenders in the event of a grant of authority. While I accept the helpfulness of all dicta referred to me by parties' senior counsel, these authorities necessarily turn on their particular facts. My starting point is accordingly found in the speech of Lord Hope of Craighead in AS, supra, at para.25, which I quote in full at this stage:

"I would reject that criticism. In Carson v Howard Doris Limited [1981] SC 278 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. 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."

[29] Putting the matter bluntly, the issue of prejudice to the defender rests on the death in 2006 of the alleged abuser and a 20 year gap between the cessation of the alleged abuse and the service of the summons. It is of moment that the death of FJR occurred after the pursuer's disclosures in 1999 and 2001 and his decision (reasonably inferred from a reading of his pleadings as a whole) not to escalate matters by reporting the alleged abuse to the police or indeed seeking legal advice. It is also worth noting the pursuer's position on record in respect of the circumstances of the alleged abuse. On each occasion that the pursuer avers upon abusive conduct by FJR, the alleged abuse appears to have taken place in private at FJR's home beside the church. This is not a case in which there has been a criminal trial, nor is it one in which the pursuer seeks to establish direct liability on the part of the alleged abuser. The defenders will accordingly not only be exposed to the real possibility of significant prejudice in defending the action but on any view that significant prejudice must be characterised as inevitable. There must be real concerns about the quality of any evidence which could be led in any evidential hearing in this case and for my part I would have substantial concern about the breach of fair trial protections which the court must accord to both parties in making a section 19A decision such as the present. This is not in any sense a "get out jail free" card for the defenders. It is an approach instead taken in accordance with the underlying policy in the provision. Senior counsel for the pursuer observed that the defenders would have notes of a presbytery meeting which was held following upon the pursuer's disclosure to his mother in 2001 (20A-C). In my view, that simply will not do. What must matter in weighing the equities on prejudice is whether the loss of evidence and impact on the quality of justice is material, not whether there may or may not be some notes taken at a meeting over a decade ago that the pursuer himself, on his own averment, did not appear to attend. I refer to B, supra, per Lord Drummond Young at para.30: "What matters, accordingly, is whether the loss of evidence is material, not whether it is total."

[30] For these reasons I have determined that an exercise by the court of general discretion having regard to the equities and principles in the authorities reviewed weighs against a grant of permission in favour of the pursuer in terms of section 19A of the 1973 Act in this case. I am satisfied that I can determine the matter on the pursuer's own averments as developed by his senior counsel in submissions before me.


[31] For the foregoing reasons, I will sustain the defenders' first and second pleas in law, repel the pursuer's third and fourth pleas in law, and dismiss the action. I reserve meantime all questions of expenses.