Pursuer: McEachran, QC, Stirling; Drummond Miller, WS

First Defenders: Moynihan, QC, Dunlop; Simpson & Marwick

10 October 2006

Preliminaries

[1] This is one of a number of claims at the instance of an adult who, for a period during his childhood, was resident in a home run by the defenders. He seeks damages in respect of physical injuries sustained as a result of alleged assaults in the home and what is referred to as a "delayed" post traumatic stress disorder allegedly caused by the treatment he received there. The case came before me on the procedure roll along with six other similar actions.

Introduction

[2] Limitation is raised as an issue by the defenders. They plead that the action is time barred under section 17 of the Prescription and Limitation (Scotland) Act 1973 ("the 1973 Act"). The pursuer pleads that the action is not time barred but that if it is, the action should be allowed to proceed nonetheless, under the equitable discretion available in terms of section 19A of the 1973 Act.

[3] The defenders' motion was for a preliminary proof on the issues that arose under both section 17 and section 19A. The pursuer sought a proof before answer, leaving all pleas standing.

[4] Separately, the defenders challenged the relevancy of one passage of the pursuer's averments.

Relevancy of "Apology" Averments

[5] In Article 2 of Condescendence, at p.8A, the pursuer avers:

" In August 2002 a Petition was lodged with the Scottish Parliament calling on the Parliament inter alia to urge the Scottish Executive to conduct an inquiry into past institutional child abuse. In response to an invitation from the Public Petitions Committee to comment on the Petition, the defenders stated that if any individual suffered abuse in their Home then they apologized."

Counsel for the defenders submitted that these averments were irrelevant. They did not amount to averments of an admission of liability. They did not amount to an admission that any abuse took place. They referred to a statement made that amounted to no more than the common courtesy of an apology tendered on the basis of a hypothesis.

[6] Counsel for the pursuer began, on this matter, by stating that it was appropriate for the court to know that notwithstanding the conviction of the second defender in a different litigation at the instance of a different pursuer regarding his experiences at the home, these defenders did not accept that that abuse had occurred. The averments regarding the apology were, against that background, relevant. Nothing further was said in answer to the challenge to their relevancy.

[7] I am readily satisfied that the averments challenged are quite irrelevant. The pursuer's attempt to justify these averments was not readily comprehensible. They do not amount to an admission of liability. They do not amount to an admission that anything happened to this pursuer whilst he was a resident in the home. They do not, in short, advance the pursuer's case at all and I have no difficulty in upholding the defenders' submission and excluding them from probation. I will pronounce an interlocutor to that effect, accordingly.

Further Procedure: Preliminary Proof or Not?

Submissions for the Pursuer

[8] Issues of time bar and section 19A normally arose where a solicitor had missed a deadline, it was said. Such cases could properly be dealt with by way of preliminary proof. There was unlikely to be an overlap of evidence and the proofs were not likely to be lengthy. Further, preliminary proofs appeared to have occurred because that was the procedure that parties had agreed. The present case was different.

[9] Reliance was placed on the case management decision of Toulson J to allow the cases of William Ablett & Ors v Devon County Council & The Home Office unrepd Ct Appeal 4.12.00 to go to trial without hiving off the limitation issues that arose because he was not satisfied that to do so would produce "better or cheaper justice" (para 8) since it would have been necessary, at a preliminary trial, to go deep into the very issues which would also form the subject matter of any trial on liability. Ablett, like the present case, concerned claims at the instance of adults in respect of abuse alleged to have been suffered in a children's home many years earlier.

[10] Reference was also made to: Thomson v Newey & Eyre & Ors 2005 SC 373, a case involving a claim for economic loss and personal injuries arising out of a sequestration where the Inner House decided to allow a proof before answer at large because of the extent to which the facts bearing on time bar and the facts bearing on the merits of the claim were intermingled. Noble v de Boer 2004 SC 548, a case where the sheriff had allowed a preliminary proof on issues as to the identity of the employer of the pursuer and the identity of the employer of the defender. The Inner House observed that the decision to allow that procedure was competent but, in the circumstances of that case, unfortunate since it rendered a protracted and expensive litigation more protracted and more expensive. As a generality, preliminary proof should, it was said, only be allowed on matters wholly distinct from the merits of the action. It was questionable whether a preliminary proof should have been ordered. Particular reliance was placed on this case, it being submitted that it contained a very strong statement against allowing preliminary proof if there was going to be any intermingling of the facts. McCafferty v McCabe 1898 4F 872, was a case where a workman claimed damages for injuries sustained at work. He sought a jury trial. The defender denied having employed the pursuer. The pursuer moved that the issue of his employment be separated out and determined at a preliminary proof. That motion was refused. The Lord President indicated that there was no sufficient ground for separating out what was part of the train of facts for the jury's consideration and Lord McLaren observed that the question of employment was so involved in the merits of the case that it could not easily be separated.

[11] It was submitted that in the present case and indeed, in all seven cases before me, the merits and time bar issues were inextricably linked. There would be duplication if the pursuer was successful at preliminary proof. At that proof, there would need to be expert evidence about his psychiatric injury to explain the delay. There would need to be evidence about his whole life since leaving the home. The pursuer ought not to be required to give evidence twice. The pursuers in these actions were very damaged, vulnerable people and it would be grossly unfair to force them to do so. As a practicality, there were hundreds of similar cases pending in the Court of Session. If they were not moved forward quickly, the court would be dealing with them for many years. It was necessary to look at the "big picture". Whilst inevitably there were limitation problems in these cases, it was within judicial knowledge that that was because of the shame, fear, confusion and silence that was engendered by such abuse. The only answer for these cases having arisen so late could be that their treatment silenced the claimants. The English courts had developed a way of dealing with them, as exemplified by Ablett and this court should follow that example and allow a proof at large.

Submissions for Defenders

[12] For the defenders, reference was made to the allowance of preliminary proof being the normal practice. The defenders here were being asked to meet claims, including the present one, arising some 30 or 40 years after the events complained of. Preliminary proof was the appropriate way to ensure that the pursuers were properly entitled to go forward. There would not be wholesale duplication of evidence. The pursuers would not, at preliminary proof, be cross examined as to their experiences in the home nor would corroborating witnesses need to be led; the matter could be approached, for time bar purposes, by assuming that whatever they said about what happened to them was correct, leaving over to the later proof (if the pursuers were successful on time bar) the question of whether or not they had proved those averments. A preliminary proof would be significantly shorter. Conversely, a proof at large on time bar, merits and quantum, would be of indeterminate length and scope.

Decision on Further Procedure

[13] It is competent for preliminary proof to be granted in respect of a specified plea. Whether or not to do so is a matter of the exercise of a discretion. It is generally considered appropriate to do so where evidence requires to be led in support of a preliminary plea in bar of the action; for example a plea of time bar. It is often done where a pursuer seeks to have the court exercise the equitable discretion allowed for by section 19A of the 1973 Act; indeed, it would be very unusual to leave a section 19A plea standing and allow a proof before answer. That is so despite the fact that a section 19A proof will often involve exploring matters which will also require to be explored at a subsequent proof on the merits; the nature of a pursuer's injuries may, for example, be responsible for a pursuer having delayed in seeking legal advice as in the case of Comber v Greater Glasgow Health Board 1989 SLT 639. It is not correct to suggest, as did counsel for the pursuers, that preliminary proofs on time bar are generally confined to cases where solicitors have missed deadlines. Whilst there have been a number of cases where applications under section 19A of the 1973 Act in such circumstances, have proceeded by way of preliminary proof, those are not the only circumstances where such proofs have been allowed.

[14] If a preliminary proof is allowed in this case, the issue of whether what the pursuer alleges to have happened to him in the home actually happened will not require to be determined. Nor will the issue of whether any psychological or post traumatic stress disorder from which the pursuer suffers was caused by anything that happened to him at that time. Nor will quantum. I am satisfied that any preliminary proof is likely to be significantly shorter than a proof at large. If the defenders are successful, the action will go no further, unlike the situation in, for instance, the case of Noble, where the preliminary proof allowed never had the potential to bring an end to the whole litigation.

[15] I bear in mind also the guidance given by the Inner House in the case of Clark v McLean 1994 SC 410, which was referred to by counsel for the defenders in the course of general submissions that they made regarding section 19A of the 1973 Act with regard to three of the seven cases before me. At p.413, delivering the opinion of the court, Lord Maclean said:

"The onus being on the pursuer to satisfy the court that the terms of section 19A(1) should be applied, the court must first determine whether the pursuer's case in relation to the application of that section is relevant. If the case is relevant, the court must consider whether or not there is sufficient agreement between the parties on the material facts for it to decide upon the applicability of the section. If there is not, then as was envisaged in Donald v Rutherford 1984 SLT 70 and given effect to in Comber v Greater Glasgow Health Board 1989 SLT 639, the court should allow a preliminary proof on these facts. If, on the other hand, there is sufficient agreement on the material facts, then the court must proceed to adjudicate upon the application of section 19A(1). In our view, it should seldom be necessary for the court, in an action for damages for personal injuries involving only two parties, to allow a proof with all pleas standing, including those relating to time-bar and those relating to the merits of the action."

[16] It would thus seem that the norm is not that a personal injury claim involving only two parties will proceed to proof at large without any time bar pleas first being considered at either a debate, in the event that all material facts can be agreed, or at a preliminary proof. For such a case to do so would be the exception and there would, accordingly, have to be something unusual or special about its circumstances to justify such a procedure.

[17] In essence, the pursuer's case seems to be that this case is unusual and should be seen as justifying an unusual approach because the pursuer seeks to claim in respect of having been abused as a child and because there are so many similar litigations waiting in the wings. It does not seem to me that these cases should be regarded as being in a separate category which, for what essentially were put forward as reasons of sympathy, should be allowed to go straight through to a proof at large. It is not, I consider, within judicial knowledge that the limitation problems that arise are for the reasons given by counsel for the pursuers. Each case requires to be considered on its own facts and circumstances and a view reached as to the reason for the delay that has occurred. I do not see that it would be fair or just to assume that the delay has occurred because of shame, fear and confusion that has arisen because of the nature of the claim. But even if that was so, I do not see that that should result in the normal preliminary proof procedure being departed from.

[18] I will, accordingly refuse the pursuer's motion for a proof before answer leaving all pleas standing and allow a preliminary proof in respect of the defenders' first and the pursuer's fourth and fifth pleas in law, the pleas directed to sections 17 and 19A of the 1973 Act.