A.S. or B.+D.M.+J.P.W. v. SISTER BERNARD MARY MURRAY AND OTHERS
| OUTER HOUSE, COURT OF SESSION [2005]CSOH 70 |
| A1135/00 A1399/00 A1200/00 | OPINION OF LORD DRUMMOND YOUNG in the cause A S or B (AP) Pursuer; and D M Pursuer; and J P or W Pursuer; against SISTER BERNARD MARY MURRAY AND OTHERS Defenders: ________________ |
Pursuers: McEachran, Q.C., Stirling; Drummond Miller, W.S.
Defenders: Moynihan, Q.C., Duncan; Simpson & Marwick, W.S.
2 June 2005
[1]The pursuers in each of these three actions were at one time residents of a children's home run by the Congregation of the Poor Sisters of Nazareth, an order of nuns who are the second defenders in each case; the first defender is the Religious Superior of the order. In each case damages are claimed on the basis that the pursuer suffered physical abuse during the time when he or she was under the charge of the second defenders; in each case individual nuns are said to have been directly responsible for the abuse. The three actions were raised in May 2000. Approximately 290 other actions were raised at the same time on similar grounds against the same defenders. I was informed that a large number of other broadly similar actions have been raised against other bodies that ran children's homes between the 1950s and the 1980s; these include Quarrier's Homes, Barnardo's and the De La Salle Brothers.
[2]The initial difficultly that confronts each of the pursuers is that the limitation period specified in section 17 of the Prescription and Limitation (Scotland) Act 1973 has expired. Mrs B was resident in the second defenders' home at Nazareth House, Cardonald, between 1966, when she was three years old, and 1979, when she was 16 years old. Her date of birth is 6 January 1963; consequently she attained majority on 6 January 1981, and the basic three-year limitation period laid down in section 17 accordingly expired on 6 January 1984, some 16 years before her action was raised. Mr M was resident in the same home between 1975, when he was six years old, and 1978, when he was nine years old. He was born on 9 January 1969 and attained majority on 9 January 1987; the basic three-year limitation period therefore expired on 9 January 1990, 10 years before his action was raised. Mrs W was resident in Nazareth House, Cardonald, between 1961, when she was seven or eight years old, and 1969, when she was 16 years old. Her date of birth is 25 November 1953. Consequently she attained majority on 25 November 1971, and the three-year limitation period expired on 25 November 1974, 25 years before her action began.
[3]In each of the three present actions the defenders have tabled a plea of time bar. Each action was appointed to the procedure roll on the time bar plea and the defenders' pleas to relevancy; I am not concerned with the relevancy issues that were thereafter discussed. A procedure roll discussion was subsequently held before Lord Johnston. The pursuers sought to argue that the limitation period in section 17 of the Prescription and Limitation (Scotland) Act 1973 did not apply to them because of the terms of section 17(2)(b) of the Act. This provides as follows:
"(2)... no action to which this section applies shall be brought unless it is commenced within a period of three years after --
...
(b)the date ... 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".
It was argued for the pursuers that they did not have knowledge of the matters set out in section 17(2)(b) until newspaper articles about homes run by the second defenders appeared in 1997; consequently the limitation period only began to run at that time. Lord Johnston rejected this argument, holding that the limitation periods ran from the dates when each of the pursuers attained majority, in accordance with section 17(3) of the Act. He accordingly sustained the defenders' pleas to relevancy to the extent of excluding all reference to section 17(2)(b) from further consideration.
[4]That is not the end of the matter, however. Section 19A of the 1973 Act is in the following terms:
"(1)Where a person would be entitled, but for any of the provisions of section 17 ... 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".
At the procedure roll discussion before Lord Johnston the pursuers sought to rely upon this provision to permit the actions to proceed. Lord Johnston held, however, that he was unable to deal with this issue without evidence. The pursuers had argued that any proof should deal with the merits of the three cases as well as the section 19A issue, but Lord Johnston decided that a proof at large was inappropriate. He expressed his conclusion as follows:
"[18] In this respect therefore I propose to order a preliminary proof restricted to the pleas relating to time bar and the discretion under section 19A and the averments thereanent. It seems to me that the proof should proceed on the basis that the pursuer's averments as to what happened to her in the home should be taken pro veritate and the issue to be judged on a preliminary basis being entirely directed to whether or not it is appropriate in the circumstances to exercise the discretion under section 19A".
In his interlocutors Lord Johnston allowed a preliminary proof on the issues focused in condescendence 6 and answer 6 in each record in relation to section 19A of the 1973 Act. As indicated in his opinion, the proof is to proceed on the assumption that the factual averments made by the pursuers are correct. I will begin by summarizing those averments. Evidence was led from each of the pursuers in support of those substantive averments. No contrary evidence was led, however, and indeed it is clear that the cases had not been investigated on the merits by the defenders; consequently there was little cross-examination directed to the substantive allegations made by the three pursuers. In the circumstances it was obviously impossible for me to reach any concluded view on the credibility or reliability of the pursuers' evidence on the substance of their claims. All that I intend to do at this stage, accordingly, is to summarize the general nature of the substantive allegations that are made by each pursuer.
Pursuers' substantive cases
1.Mrs J W
[5]Mrs W was resident in Nazareth House, Cardonald, from 1961 to 1969. She was aged seven or eight when she first went to live there. Her younger sister went with her, but Mrs W avers that contact between the sisters was not encouraged by the nuns in charge of them. She avers that she was part of what was known as the red group; the nun in charge of that group was Sister E. When Mrs W was aged about ten or eleven, Sister E was replaced by Sister J M who was assisted by a girl called I M. Mrs W avers that she was taken to Nazareth House by a social worker and immediately afterwards met Sister E. Sister E grabbed the pursuer's hair by her fringe and roughly fixed a grip into her hair, in such a way that her head bled. She told Mrs W that she was filthy, that she was covered in nits and lice, and that she stank. She sent Mrs W to be bathed and deloused by an older girl.
[6]Thereafter, Mrs W avers, she was regularly assaulted by a number of nuns. Sister E assaulted her daily, hitting her with whatever implements were available. On one occasion a hairbrush was used, which broke in consequence of the blow. Mrs W was also hit on the back with wire coat hangers and canes. Canes were used on Mrs W's hands, shoulders and back. On one occasion Sister E nipped and twisted Mrs W's flesh. She hit Mrs W with a wet cloth on one occasion because Mrs W had allowed the cloth to fall on her bed. Sister E also slapped Mrs W's face, pulled her hair and pulled her ears, on occasion causing bruising. Some of the assaults were in front of other children. She had knocked together the heads of the pursuer and another girl called B N. Mrs W was also caned by a nun called Sister N. Sometimes she was punished by being made to wait for two or three hours outside Sister N's cell, waiting for punishment. Mrs W was also occasionally assaulted by Sister M, who on one occasion pulled the pursuer by her hair and swung her round off the floor. Sister M on one occasion encouraged a group of children to jump on Mrs W, kicking her and pulling her hair. Other assaults are averred.
[7]Apart from regular assaults, Mrs W makes complaints about a number of other aspects of life in Nazareth House. These included punishment for bedwetting and for visiting the lavatory during the night. Mrs W was forced to eat food that she disliked, including cabbage, and if she were sick she was made to eat that too. On occasion she was told that she was going to a party but was then prevented from doing so. She was compelled to attend school even when she felt unwell, and on one occasion received very unpleasant medical treatment for a problem with her ear. The nuns also made derogatory remarks about Mrs W's mother and grandmother.
[8]It is fair to say that Mrs W's complaints about life in Nazareth House are wide-ranging, and apply to many aspects of her life in the institution. She avers that she was unable to complain about her treatment. On two occasions she complained to Sister N about Sister E's actions, but Sister N told her that she was a liar and a troublemaker, and caned her. Mrs W avers that the nuns did not allow her mother to visit her, and that her father visited her on about four occasions. Social workers visited her on two occasions, but nuns were present throughout the visits.
[9]On the basis of the allegations of fact summarized above, Mrs W avers that throughout her time at Nazareth House she was subjected to a brutal, violent and cruel régime by the nuns working there. She was subjected to degrading and inhumane methods of punishment; she was ill-treated by the nuns; and the standard and quality of care provided for her welfare were poor. Such treatment was systematic and regular, continuing throughout the entire period of Mrs W's residence at Nazareth House. As a result it is said that she suffered loss, injury and damage. The individual nuns were acting in pursuance of the operation of Nazareth House as a residential children's home, and were doing so under the control of the defenders. Consequently it is said that the defenders were responsible for the nuns' acts. It is further averred that the defenders failed in their duty to take reasonable care for the health, safety and welfare of the children residing at Nazareth House, including Mrs W. The particular duties of care cover both inadequate supervision of individual nuns and the general running of the premises. In addition, a statutory case is pled based on the Administration of Children's Homes (Scotland) Regulations 1959. In this connection, it is averred that the defenders did not make adequate arrangements for the well-being of the children resident in Nazareth House, administered punishment in a manner inconsistent with the Regulations, and failed to keep adequate records as required by the Regulations.
2.Mrs A B
[10]Mrs B was a resident at Nazareth House, Cardonald, from about 1966, when she was three years old, to about 1979, when she was sixteen. Initially she was in the nursery section , but subsequently she was placed in the green group, along with her two older sisters; the girls were separated from their brother. During her time in Nazareth House Mrs B was under the charge of a series of nuns, namely Sister Do, Sister Ca, Sister Cu, Sister J, Sister J S and Sister B. A carer named M K was also responsible for her for much of her childhood.
[11]Mrs B avers that children in Nazareth House, including her, were regularly subjected to assaults and cruel punishments. The assaults regularly had no reason. Details are given of a number of assaults on Mrs B. These relate particularly to Sister Ca, who had a club foot and placed that on children to prevent them from escaping while she assaulted them. Sister Ca also punished Mrs B by making her kneel on tiles with her arms above her head or with her arms stretched out in front of her, and force fed her. Force feeding continued after a child had vomited, and was sometimes followed by assaults in full view of everyone in the dining hall. Mrs B avers that she was subjected to that treatment on several occasions. Sister Ca also punished her by putting carbolic soap in her mouth. Particulars are given of a number of specific assaults on the pursuer by Sister Cu, Sister J S and Sister B. The assaults are averred to have included kicking and punching. On one occasion Mrs B avers that she was knocked unconscious when Sister B pushed her against a wall; when she recovered consciousness Sister B was on top of her, battering her head against the floor.
[12]In addition to the averments relating to repeated assaults, Mrs B avers that she and other children in Nazareth House were regularly punished for bedwetting. She also makes allegations about poor food and poor personal care. On the basis of those averments of fact, she states that the defenders failed in their duty to take adequate care for the safety and welfare of the children resident in Nazareth House, including her. She alleges breach of the defenders' duties not to assault children and not to sanction or use excessive, cruel and unusual punishments. She also alleges a series of failures in the defenders' supervision of Nazareth House. In this connection various particular duties are averred; these include caring for and nurturing the children in the home, serving adequate food, providing adequate personal care, taking reasonable care to see that children were not humiliated and ridiculed, and encouraging family relationships where possible. As a result of those breaches of duty it is said that Mrs B suffered loss, injury and damage. An alternative statutory case is made under the Children's Homes (Scotland) Regulations 1959. This is broadly similar to be case made by Mrs W.
3.D M
[13]Mr M was resident at Nazareth House, Cardonald, from about 1975, when he was six years old, until about 1978, when he was nine years old. Thereafter he was sent to another home at Smyllum Park, Lanark, run by another order of nuns. Two of his brothers were resident in Nazareth House at the same time. The nuns responsible for his care were Sister D and Sister J S. Mr M avers that he and the other children were assaulted regularly for no reason. Sister D assaulted him approximately twice a day every day, using implements that included a hockey stick and a garden cane. She assaulted him on all areas of his body, but particularly his head. On one occasion Mr M ran away, but was found by the police in Greenock. He told the police that he had been assaulted by the nuns but they did not believe him and they returned him to Nazareth House. As a punishment he was made to stand naked all night in a corridor. Children including Mr M were regularly assaulted at mealtimes by Sister D. It is averred that Mr M was punished for bedwetting. Sister J S also punished him. On one occasion he saw her hit his brother R on the head with a hockey stick, rendering him unconscious. Mr M and his other brother were made to clean up the blood, and were terrified.
[14]In addition to the allegations of assault by the nuns, Mr M avers that he was punished by a violin teacher, who rapped his knuckles on Mr M's head if he made mistakes. He claims that he was punished by the nuns when an attempt to have him fostered did not work and he was sent back to the home. He was made to eat carbolic soap as a punishment for lying, and became terrified of dying because of remarks that the nuns made to him. Mr M's father died when he was in Nazareth House, but he was not allowed to attend the funeral. The nuns told him that his father was a "drunk", and said that he should not want to go to the funeral. Mr M became very upset as a result. He avers that he frequently tried to run away and was assaulted for doing so. When he was taken on bus trips his socks and shoes were removed and he was made to sit on the floor in an attempt to prevent him from trying to run away. Mr M also makes complaints about the very structured régime in Nazareth House and the poor quality of the food there.
[15]On the basis of the foregoing averments of fact, Mr M alleges that the defenders failed in their duty to take care for the safety and welfare of the children resident in Nazareth House, including him. He also alleges breach of duties not to assault children and not to sanction or use excessive, cruel and unusual punishments. Further breaches of duty are averred in relation to the inadequate supervision of the home. Generally speaking, these averments are very similar to those made on behalf of Mrs B. As a result of the breaches of duty, it is said that Mr M suffered loss, injury and damage. An alternative statutory case is pled, based on the Children's Homes (Scotland) Regulations 1959; this is similar to the statutory case made by Mrs W.
Averments of loss
[16]All three pursuers aver that they were injured in the assaults that they suffered. In addition all three make averments about the long-term consequences of the treatment that they received in Nazareth House. These involved various forms of psychological injury and problems with personal relationships and obtaining employment.
[17]Mrs W avers that she suffered trauma and psychological damage as a result of her treatment. In 1998 she was diagnosed as suffering from severe depression and anxiety. It is averred that her symptoms are comparable to those experienced by persons suffering from post-traumatic stress disorder. I comment on this matter in detail in the part of this opinion dealing with psychological and psychiatric evidence, but only for the purpose of assessing the explanations advanced for the pursuers' failure to make claims at an earlier date; what I say there should not be taken as affecting the substance of the pursuers' claims, which I am obliged to assume are well-founded. Mrs W further avers that she has suffered from insomnia, has low self-esteem, has been involved in abusive relationships and has had difficulty forming relationships. She is socially isolated and has a poor quality of life. It is further averred that she did not have the self-confidence to proceed to further education, although she was intellectually capable of doing so. Consequently she has been employed in less rewarding jobs and has been unemployed.
[18]Mrs B avers that she felt humiliated and degraded as a result of her treatment in Nazareth House, and experienced fear and distress when she witnessed assaults on other children. She avers that she has no confidence in herself, and suffered psychologically for many years. It is averred that she has suffered intrusive thoughts about her experiences and has made conscious attempts to avoid such thoughts. As in the case of Mrs W, it is averred that Mrs B's symptoms are similar to PTSD symptoms, and fulfil the criteria for PTSD. She avers that she has suffered from bulimia and had a breakdown in 1996. She has been prescribed Prozac and Valium. She does not feel safe outside her home, and has difficulty functioning in any area of life outwith her home. Her estranged husband and children have to go to the shops for her, and she has a very poor quality of life. She has had difficulties in forming relationships, and has separated from her husband. She has difficulty in relating to her children. She suffers from anxiety, in particular that she may wet the bed, and that causes her practical difficulties. She avers that she has difficulty sleeping and concentrating. She was intellectually able to undertake further education, but instead had only been employed as a machinist, cleaner and meat packer.
[19]Mr M avers that he was humiliated by things that the nuns at Nazareth House said to him, and was distressed at not knowing where his father was buried. He has been prescribed anti-depressant medication since 1997. He was referred for psychological intervention in 1997 but did not continue with the treatment. He avers that he currently suffers from moderate to severe anxiety and severe depression. It is also averred that he experiences intrusive thoughts and avoidance behaviour associated with PTSD. In addition, he is said to exhibit obsessive compulsive symptoms to a high level. It is averred that he has attempted suicide and has suffered from nightmares, during which he attempted to jump out of the window. It is said that he was unable to form relationships with women, and found it difficult to trust the partner with whom he lived for a number of years. His quality of life is extremely poor. It is further said that his relationship with his own children has been severely affected by his treatment in Nazareth House. A reference is made at this point to sexual abuse, but the averments of fact do not contain any such allegation. It is further averred that Mr M had a number of criminal convictions and had been sentenced to periods of imprisonment. He had also abused alcohol.
General approach to section 19A
[20]I intend next to consider the general approach of the law to questions of limitation. This falls into two parts. First, I consider the policy underlying limitation statutes in general. Secondly, I give more detailed consideration to the factors that may be relevant in an application under section 19A of the Prescription and Limitation (Scotland) Act 1973, by reference to cases decided both in Scotland and under the equivalent English legislation
Limitation statutes
[21]I have found the most helpful discussion of the policy underlying limitation statutes to be that by McHugh J. in Brisbane Regional Health Authority v Taylor, [1996] 186 CLR 541, a decision of the High Court of Australia. That case involved the interpretation of section 31(2) of the Queensland Limitation of Actions Act 1974. That section provided that the court might order the extension of a limitation period by one year if two conditions were satisfied. The conditions were, first, that a material fact of a decisive character relating to a right of action was not within the means of knowledge of a prospective plaintiff until a date after the commencement of the year last preceding the expiration of the limitation period and, secondly, that there was evidence to establish the right of action apart from the effect of limitation. The section is clearly different from section 19A, but McHugh J.'s discussion of limitation statutes generally is nevertheless illuminating. He stated (at 186 CLR 551-554):
"[S] 31 should not be read as giving an applicant a presumptive right to an order once he or she satisfies the two conditions laid down in s 31(2) of the Act. An applicant for any extension of time who satisfies those conditions is entitled to ask the court to exercise its discretion in his or her favour. But the applicant still bears the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour.
The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that '[w]here there is delay the whole quality of justice deteriorates': R v Lawrence, [1982] AC 510, at 517, per Lord Hailsham of St Marylebone LC. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realize, the deterioration in quality is not recognizable even by the parties. Prejudice may exist without the parties or anybody else realizing that it exists. As the United States Supreme Court pointed out in Barker v Wingo, 407 US 514 at 532 (1972), 'what has been forgotten can rarely be shown'. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody 'knowing' that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence that was available to the parties at the time that the cause of action arose.
...
The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even 'cruel', to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilize their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. As the New South Wales Law Reform Commission has pointed out (Limitation of Actions for Personal Injury Claims (1986) LRC 50, page 3):
'The potential defendant is thus able to make the most productive use of his or her resources and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided. To that extent the public interest is also served.'
Even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for wrongs of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.
In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of case may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is 'to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action has to be commenced.' (Sola Optical Australia Pty Ltd v Mills, (1987) 163 CLR 628 at 635). But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has a positive burden of demonstrating that the justice of the case requires that extension".
[22]The rationales identified by McHugh J. for the setting of limitation periods by the legislature are in my opinion manifestly relevant to the interpretation of the limitation provisions of the Prescription and Limitation Act 1973. All of them apply to the present case. The first, the loss of evidence, is of particular importance; this comprehends both the actual loss of items of evidence and a decline in the quality of the evidence that is available. This is closely related to the initial consideration discussed by McHugh J., the general deterioration of the whole quality of justice with the lapse of time. The loss of evidence and the decline in its quality are especially important when the delay following the events complained of is measured in decades rather than years. Cases involving such a delay present one particularly difficult feature. This is the proper understanding and assessment of events that occurred at a time when social attitudes were markedly different from those that now prevail. It would be quite unfair to judge events by any standards other than those that prevailed at the time; the social attitudes of today cannot be the test of matters that occurred twenty or thirty years ago. Consequently a judge who is called upon to decide a question relating to events of the 1950s, 1960s and 1970s must assess the propriety of what happened against the standards that then prevailed in society. That is not easy. It involves historical reconstruction not of events themselves but of the underlying perceptions and attitudes that underlay those events, which is a much more subtle exercise. This point is especially well illustrated by the present cases. The pursuers' complaints relate in large measure to the administration of corporal punishment. In the 1960s, and probably also in the 1970s, corporal punishment was the norm in Scottish schools and homes. Now it has been abolished in schools, and is to be substantially restricted even in the home. It can scarcely be doubted that these changes in practice reflect changes in the general attitudes that prevail in society. Nevertheless, the allegations of excessive corporal punishment must be assessed not against the norms that would be considered reasonable today but against the norms that were considered reasonable between twenty-five and fifty years ago. No doubt it can be said that anyone who was at school in the 1950s and 1960s will be aware that attitudes to corporal punishment were different, and will indeed probably have had direct experience of those different attitudes. It may also be possible to point to contemporary documents that indicate the sort of standards that were considered acceptable at the time. What is required for a proper assessment of events, however, is an appreciation of the cultural climate that prevailed in schools and homes at that time. This is relevant not merely to determining whether there was an excess of corporal punishment in any particular case. It is also relevant, if there was such an excess, to determining how serious the resulting injury is likely to have been, and what is reasonable compensation for such an injury. Such compensation must be measured against the standards of the time when the individual pursuers were in the care of the defenders, not the standards of today. A beating that today seems clearly excessive might have seemed only slightly above the norm at that time, and the compensation for it would have to be reduced accordingly. Moreover, it must be borne in mind that the most serious injuries complained of by the pursuers are psychological in nature. What they seek compensation for is not so much the pain and suffering caused by any particular beating but the cumulative psychological effects of repeated physical punishment. Once again, the relevant standard is the social and educational norms of the 1960s and 1970s, not to those of today. When physical punishment was widespread, the effect of any individual instance was clearly less than would be the case today. All of these matters make the judge's task, at a range of between 25 and 45 years, peculiarly difficult.
[23]The problem of the decline in the quality of evidence is not restricted to the assessment of corporal punishment and its effects on the individual pursuers. It also extends to other factors that might have had a significant impact on the ultimate psychological state of a particular pursuer. One of these is the effect of institutional care. Once again this is an area where there has been a profound change in social attitudes since the 1970s; institutions for the care of children such as the homes run by the defenders have been closed, and the fostering of children in ordinary households is now the almost universal practice. What must be considered in the present cases, however, is the effect that institutionalization of the sort encountered twenty-five to fifty years ago is likely to have had on an individual pursuer; that includes a whole range of matters such as the lack of affection, the lack of continuous personal contact with any single adult, and the impersonal nature of the discipline that is almost inevitable in an institution. Once again this involves a substantial degree of historical reconstruction. Once again, too, the underlying attitudes and perceptions of society are relevant, and once again assessing these is a peculiarly difficult task. This is not to say that such assessment is impossible; clearly some sort of exercise can be performed to reach a judgment on past events, in the same way as a social historian might reach an opinion. Nevertheless, in any such exercise there is a plain decline in the quality of the evidence that is available by comparison with the evidence that would be found in a case involving events during the last five or ten years. The evidence available to a social historian is rarely, if ever, as good as the evidence that is normally available to a court.
[24]Two further aspects of McHugh J.'s opinion call for particular comment in the present case. The first of these is his comment that important, and perhaps decisive, evidence may have disappeared without anyone now "knowing" that it ever existed. That consideration is particularly important in a case where events occurred more than twenty years before any action was raised, and where the actual disputes are likely to relate not merely to one or two vivid incidents but to the everyday currency of the daily life of those involved. The present cases are of that nature; while a few specific incidents are highlighted in the pursuers' pleadings, the major part of their complaints relates to a culture where repeated physical punishment was the norm. It seems very obvious that many of the details of daily life so long ago will have been forgotten, and will be incapable of retrieval. That inevitably results in a marked deterioration in the quality of justice.
[25]Secondly, McHugh J. points out that a limitation period should not be seen as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents rather the considered judgment of the legislature that the welfare of society is best served if causes of action are litigated within the specified period, even if in consequence good causes of action may be defeated. The limitation period must accordingly be regarded as the general rule and the extension provision as an exception designed to deal with the justice of individual cases. Two important conclusions follow from this analysis. First, the onus is on the prospective pursuer to establish that in his or her case justice requires an extension. Secondly, in determining whether an extension should be granted, the court must evaluate the injustice or prejudice that either side may suffer by a reference to the rationales that underlie the limitation statute.
[26]McHugh J. subsequently considered the issue of such prejudice. On this matter he stated (at 186 CLR 554-555):
"In the present case, the learned District Court Judge held that the present respondent was 'placed in a position of serious prejudice having regard to the lapse of time which has occurred'. That being so, his Honour, quite naturally, took the view that an extension of time should not be granted. The learned Judges of the Court of Appeal met the prejudice point by holding that the test for prejudice was whether an order extending time would make the defendant any worse off than it would have been if the action had been commenced within, but towards the end of, the limitation period. But this analysis, with respect, treats the limitation period as little more than a point of reference. It suggests that all that is ordinarily relevant is the marginal prejudice created by the delay. It downplays, if it does not overlook, the second, third and fourth rationales of limitation periods to which I have referred. It treats the parties, subject to the question of prejudice, as if they were on an equal footing. The analysis gives no weight to the fact that the defendant's potential liability expired at the end of that period and that to extend the period may result in the imposition of a new legal liability on the defendant. Indeed, it seems to indicate that a limitation period is a provisional rather than a rigid limit.
If the action had been brought within time, it would have been irrelevant that, by reason of the delay in commencing the action, Dr Chung might have had little independent recollection of his conversation with the applicant and that the defendant might have had difficulty in fairly defending itself. But once the potential liability of the defendant had ended, its capacity to obtain a fair trial, if an extension of time were granted, was relevant and important. To subject a defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the plaintiff of the right to reinstate the lost action. This will often be the case where the plaintiff is without fault and no actual prejudice to the defendant is readily apparent. But the justice of a plaintiff's claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action.
Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination 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".
[27]In my opinion the foregoing approach follows inevitably from the earlier analysis of the rationales and structure of limitation provisions, and I consider it highly pertinent to the present case. Three points are significant. First, in considering prejudice to a defender, it is important to keep in mind that an extension period reimposes a liability that the defender would otherwise have escaped. Secondly, because of that, it is not material that the prejudice suffered by the defender is no worse than would have been the case had the action been raised towards the end of the limitation period. Thirdly, if a defender can show actual prejudice in defending the action, or the real possibility of significant prejudice, it will normally not be appropriate to grant an extension. This is because the fundamental legislative policy underlying limitation statutes is to avoid the possibility of such prejudice, and if the prejudice can be shown to be real, rather than merely a possibility, that legislative policy applies with its full force and must be given effect. Consequently the existence of actual prejudice to a defender must always be of the greatest importance in considering whether an extension should be granted.
[28]The approach taken by McHugh J. to questions of prejudice is closely paralleled in Scotland by the opinion of Lord President Hope in McCabe v McLellan, 1994 SLT 346, a case where the pursuer raised a claim against the general practitioners who had treated him as a child for failure to treat congenital glaucoma. In respect of one of the doctors, the action was raised one month after the pursuer's 21st birthday, when the limitation period expired. That doctor had no memory of the pursuer's family and would accordingly have been prejudiced even if the action had started timeously, within the limitation period. The court refuse to allow the action to proceed against that doctor. Lord President Hope stated (at 354):
"The fact remains, however, irrespective of the question of blame, that no steps were taken at the pursuer's instance during the triennium to initiate a claim against Dr Donnelly. As a result he remained in ignorance of the fact that a claim might be made against him until the summons was served on him one month after the triennium had expired. It has not been contended that it would not have been reasonably practicable for the pursuer to have become aware of all the facts relevant to his cause of action against Dr Donnelly as soon as he attained his majority. Had it been otherwise the commencement of the three year period would have had to be postponed until such date as it would have been reasonably practicable for him to have been aware of all these facts. Yet throughout the time when the three year period was running against him the pursuer did nothing to alert Dr Donnelly to his claim. The prejudice caused to Dr Donnelly by this omission may not be very great because, as the Lord Ordinary noted, most of the problems which he would have in defending the action would have arisen anyway even if it had been raised timeously. But ... the effect of the expiry of the triennium is that he is now protected against these disadvantages whereas, if s 19A(1) is operated against him, that protection will be withdrawn, and in this respect he will undoubtedly be prejudiced".
Section 19A: factors that may be relevant
[29]Section 19A has been the subject of considerable judicial discussion. The same is true of its English equivalent, section 33 of the Limitation Act 1980; section 33 is framed differently from section 19A, but it fulfils the same essential function and the authorities on its interpretation are accordingly of assistance in Scotland: Donald v Rutherford, 1984 SLT 70. A number of matters have been clearly established. First, the court has a general discretion under section 19A; the crucial question that must be considered has been stated to be "where do the equities lie?": Forsyth v AF Stoddard & Co. Ltd., 1985 SLT 51 at 55, per LJC Wheatley; Elliott v J & C Finney, 1989 SLT 605 at 608F per LJC Ross. Secondly, the onus is on the pursuer to satisfy the court that it would be equitable to allow his claim to proceed: Thompson v Brown, [1981] 1 WLR . 744, at 753 per Lord Diplock. Thirdly, the conduct of a pursuer's solicitor may be relevant to the exercise of the court's discretion, and the pursuer must take the consequences of his solicitor's actings: Forsyth, supra, at 1985 SLT 54. Fourthly, relevant factors that the court may take into account include, but are not restricted to, three matters identified by Lord Ross in Carson v Howard Doris Ltd., 1981 SC 278, at 282; these are "(1) the conduct of the pursuer since the accident and up to the time of his seeking the Court's authority to bring the action out of time, including any explanation for his not having brought the action timeously; (2) any likely prejudice to the pursuer if authority to bring the action of time were not granted; and (3) any likely prejudice to the other party from granting authority to bring the action out of time". Fifthly, each case ultimately turns on its own facts, a principle which applies even if a number of claimants present similar claims against the same person: ibid.; KR v Bryn Alyn Community (Holdings) Ltd., [2003] QB 1441, at paragraph 45 per Auld LJ.
[30]One issue relevant to the present case that has been discussed in earlier decisions is the significance of a pursuer's ignorance of the legal right to claim damages. This must obviously be distinguished from the pursuer's ignorance of facts that are material to his or her claim; ignorance of facts is dealt with by section 17 of the 1973 Act. It is clear that ignorance of a legal right is a material circumstance in the exercise that a court must perform under section 19A. Indeed, McIntyre v Armitage Shanks Ltd., 1980 SC (HL) 46, the decision of the House of Lords that prompted the enactment of section 19A, was a case where the pursuer was ignorant of the existence of a right of action, albeit one induced by statements made by a trade union official. Nevertheless, there appears to be only one case where ignorance of the existence of a legal right was treated as decisive in allowing an action to proceed. That case is Comber v Greater Glasgow Health Board, 1989 SLT 639. The pursuer in that case had been disfigured in an operation, and partly as a result of her disfigurement she tended to withdraw from the world. Lord Morton of Shuna appeared to accept that she was ill-informed about modern society to a degree described as "strange"; he also accepted that neither the pursuer nor her parents had any appreciation of what lawyers do and what remedies the law provides. He held, accordingly, that until a relatively late stage the pursuer did not know that there was any possible right to claim compensation for her condition. The case is accordingly a fairly extreme one. It is also significant that in that case there was no suggestion that the defenders had suffered any prejudice other than losing the right to claim limitation; there was no suggestion that any witness had been lost or that any witness could not remember any crucial matter or that the relevant medical records were in any sense incomplete. The case must therefore be seen as somewhat exceptional. It was distinguished in Kane v Argyll & Clyde Health Board, 1999 SLT 823, a case where the pursuer claimed that she had had no knowledge of lawyers, legal remedies or the availability of legal aid, but her evidence on the matter was not accepted. The Lord Ordinary, Lady Cosgrove, described the pursuer as having a degree of worldliness and self-confidence, and she held that no reasonable explanation had been provided for the failure to seek legal advice. Her decision was upheld in the Inner House. Kane is also significant because of certain of the observations made by Lord Prosser in delivering the opinion in the Inner House. He stated (at 1999 SLT 828):
"In the absence of any reasonable explanation for the delay, a court might well decide not to allow the action to proceed, even if it appeared that there would be no internal unfairness in obliging the defenders to go to proof. On the other hand, if there is material prejudice to a defender in having to go to proof, it is difficult to see how, even if there was a reasonable explanation for the delay, the action could reasonably be allowed to proceed".
The emphasis in this passage on the importance of prejudice to the defender echoes the analysis of McHugh J. in Brisbane Regional Health Authority v Taylor, supra. In Kane it was held that the defenders had suffered prejudice as a result of the delay, in that one of the surgeons who had dealt with the pursuer could not recall her case and the relevant records had been destroyed. That provided an additional reason for refusing to allow the action to proceed. It should be noted that in Kane the defenders were not deprived of any evidence; the surgeon who performed the operation was available to give evidence, and expert evidence would be available as to proper medical and surgical practice at the relevant time. What matters, accordingly, is whether the loss of evidence is material, not whether it is total.
[31]Certain cases decided in England and Wales also contain pertinent observations on the application of section 33 of the Limitation Act 1980, the equivalent of section 19A of the Prescription and Limitation (Scotland) Act.
[32]The most significant of these cases is KR v Bryn Alyn Community (Holdings) Ltd., supra. That case has a close parallel with the present case because it involved a number of claims for abuse suffered by children in care homes. The abuse varied in nature, and included sexual abuse as well as physical and emotional abuse. The abuse was said to have given rise to long-term psychiatric injury. The Court of Appeal allowed all of the claims to proceed on the basis that, until the plaintiffs received counselling several years after the abuse complained of, they could not be said to have had knowledge of the fact that the psychiatric injury that they had suffered was significant. Section 11 of the Limitation Act 1980 provided that the three-year limitation period should run from the later of the date on which the cause of action accrued and the date of knowledge of the person injured. Section 14 of the Act defined the date of knowledge as the date when the plaintiff first had knowledge that he or she had suffered a "significant" injury. In holding that the plaintiffs had no knowledge that they had suffered significant injuries, therefore, the Court of Appeal delayed the date from which the triennium was held to run. Sections 11 and 14 of the Limitation Act 1980 are the equivalents of section 17 of the Prescription and Limitation (Scotland) Act 1973; in particular, they can be said to parallel section 17(2). Thus this part of the Court of Appeal's decision is relevant to the application of section 17, the matter that was considered by Lord Johnston in the procedure roll discussion conducted last summer. Counsel for the pursuers submitted that it was also relevant to the construction of section 19A, in that it reduced the extent to which a Scottish court could place reliance on English decisions under section 33. His submission, if I understood it correctly, was that the English courts had adopted a particularly wide construction of the equivalent of section 17(2), and that this might lead them to take a narrower construction of section 33, the equivalent of section 19A. In Scotland, by contrast, a wide construction of section 17(2) had not, or not yet, been adopted, with the result that the courts should take a more expansive view when considering whether an action should be allowed to proceed under section 19A. In my opinion such an argument must be rejected. The test imposed by section 17(2) is quite independent of the exercise that a court may perform under section 19A; that is obvious both from the differences in the wording of the two sections and from the fact that, if the test in section 17(2) is satisfied, the court is obliged to allow the action to proceed, whereas under section 19A it has a discretion. Exactly the same can be said of sections 11 and 14 and section 33 of the Limitation Act 1980. I am accordingly of opinion that the cases in England and Wales on the interpretation of section 33 remain highly relevant to the exercise of the court's discretion under section 19A. I should add that that reflects well-established practice, dating back to at least the decision in Donald v Rutherford, supra. In the present case, any issues that arise under section 17 have already been decided by Lord Johnston, and they do not form any part of the subject matter of the present proof.
[33]In KR v Bryn Alyn Community (Holdings) Ltd., supra, the judge at first instance, Connell J., decided that the court's discretion under section 33 should be exercised in the plaintiffs' favour. The Court of Appeal reversed his decision on this point in respect of the majority of claims. In doing so they made a number of important observations on the discretionary power. Their treatment of the individual claims is also of interest, as illustrating how the power may be exercised in cases with close similarity is to the present. The Court of Appeal stated the starting points for the exercise of the court's discretion as follows (at paragraph 74):
"(i)In multiple claims of this sort, a judge should consider the exercise of his discretion separately in relation to each claim: Nash v Eli Lilly & Company [1993] 1 WLR 782, 808-810, per Purchas LJ.
(ii)The burden of showing that it would be equitable to disapply the limitation period lies on the claimant and it is a heavy burden. Another way of putting it is that it is an exceptional indulgence to a claimant, to be granted only where equity between the parties demands it; as the following reminders of Lord Diplock, in relation to the statutory predecessor of section 33, in Thompson v Brown [1981] 1 WLR 744, 750, 752, underline:
'Section 2D empowers the court to direct that the primary limitation period shall not apply to a particular action or cause of action. This is by way of exception, for unless the court does make a direction the primary limitation period will continue to apply. The effect of such a direction, and its only effect, is to deprive the defendant of what would otherwise be a complete defence to the action ... for even if he also has a good defence on the merits he is put to the expenditure of time and energy and money in establishing it, while if ... he has no defence as to liability he has everything to lose if a direction is given under the section . (Emphasis added.)
When the court makes a direction under section 2D that the provisions of section 2A should not apply to a cause of action, it is making an exception to a general rule that has already catered for delay in starting proceedings that is due to excusable ignorance of material facts by the plaintiff as distinct from his lack of knowledge that the facts which he does know may give him a good cause of action in law. The onus of showing that in the particular circumstances of the case it would be equitable to make an exception lies upon the plaintiff; but, subject to that, the court's discretion to make or refuse an order if it considers it equitable to do so is, in my view, unfettered.' (Emphasis added.)
(iii)Depending on the issues and the nature of the evidence going to them, the longer the delay the more likely, and the greater, the prejudice to the defendant".
[34]The Court of Appeal criticized the balancing exercise carried out by Connell J. (paragraphs 75-78). He had given undue weight, almost to the exclusion of any other circumstance, to his conclusion that the claimants' reasons for delay were a product of the alleged abuse that he had found and that therefore it would be unjust to deprive them of a remedy. In the opinion of the Court of Appeal, to the extent that those reasons resulted from the abuse, they might more appropriately call for consideration under section 14 rather than section 33. The judge was also criticized for failing to discriminate sufficiently between instances of sexual and physical abuse when considering the reasonableness of the time taken by the claimants to seek advice. The Court of Appeal thought that, in the case of physical abuse, the claimants' arguments had far less force. Finally, the judge was criticized for failing to discriminate between claims where the delay was very long, in some cases 20 years or more from the end of the abuse, and claims where the delay was much less. This was important because the longer the delay in any particular case the less justifiable it is likely to be and the greater is the risk of prejudice to a defendant.
[35]The Court of Appeal expressed their conclusions on this area as follows (at paragraph 80):
"Nevertheless, for the reasons we give in the following paragraphs, we consider:
(i)that, as a general rule of thumb, the longer the delay after the occurrence of the matters giving rise to the cause of action the more likely it is that the balance of prejudice will swing against disapplication;
(ii)that in cases of this nature, where issues of liability, causation and quantum can be so difficult with or without delay, the permissible delay in each case is likely to be highly sensitive to the prejudice it causes to the defence notwithstanding good reasons of the claimant for its length; and
(iii)that, if the date of knowledge test in section 14 is properly applied so as to provide a claimant with an extension of the period by reference to it, the weight to be given to his reasons for delay thereafter should, in normal circumstances, be limited ... [T]he law has already catered for his delay in starting proceedings that is due to excusable ignorance of material facts as distinct from his knowledge that they may give him a good cause of action in law".
The third of these points emphasizes that delay caused by excusable ignorance of the facts should be taken into account under section s 11 and 14, or in Scotland section 17, with the result that it is other sources of delay that are material for the purposes of section 33 in England and Wales or section 19A in Scotland.
[36]The Court of Appeal then made the following general observations (at paragraph 82):
"It should be remembered that the reason for limitation provisions is to protect defendants from the injustice of having to meet stale claims. And a judge, when considering whether to disapply under section 33, particularly where, as here, there is difficulty in testing old and unsupported complaints, should not form a concluded view on their validity for the purpose of determining the existence and extent of potential prejudice to claimants of being deprived of a remedy. Such allegations are so easy to make and so difficult to refute that the danger of injustice is acute. Here, the judge had to bear in mind the possibility of them being fabricated or exaggerated for financial gain in the weight of publicity about Bryn Alyn and about other care homes where similar conduct had been alleged. Yet his findings, both on the substantive issues and the effect of delay on cogency, were based mostly on the strength of the claimants' evidence alone and without rigorous testing by way of cross-examination derived from instructions or contemporaneous records, or of possible contradictory evidence that might have been available if the claims and the trial had been earlier. It was, as he acknowledged in his opening remarks on the section 33 issue, an inherently difficult task, involving inevitable prejudice to the defendants in attempting to meet uncorroborated claims of this sort so long after the event. It was doubly difficult because, for one reason or another, most of the claimants were not obviously reliable witnesses".
This emphasizes that, when the evidence of claimants is considered, the court must bear in mind the difficulty, or in some cases impossibility, of any effective cross-examination to test the credibility and reliability of such evidence. This point was developed (at paragraphs 91 and 92) as follows:
"[C]ounsel rightly drew attention to the considerable difficulties for bodies such as local authorities and children's homes in defending stale claims by persons many of whom, for whatever reason, may be highly unreliable. In such cases, as he noted, there is much danger of fabrication and/or exaggeration of evidence which long delay makes it very difficult to identify and refute.
Perhaps [counsel's] criticism would be better expressed as a reminder of the burden on the claimant, particularly in such difficult cases, to persuade a judge of the equity of this application, and of its increasing weight the longer the delay".
All of these points are in my opinion clearly pertinent to the present cases.
[37]The Court of Appeal went on to consider the application of its discretion under section 33 to each of 14 individual cases. It decided that only five should be allowed to proceed under that section. The approach taken by the Court can be illustrated by reference to five particular cases. The first of these is KR (paragraphs 137-152 of the transcript of the Court of Appeal's judgment; the individual cases are not dealt with in the reported version). This claimant had been resident in one of the first defendant's homes between 1973, when he was just under 15, and 1975. Previously he had enjoyed a reasonably stable and happy home background, and had shown some ability at school, at least until he fell into bad company. After he was admitted to the home, he was sexually assaulted by one member of staff and physically abused by others. The judge at first instance had found that the abuse resulted in very significant damage, in the form of post-traumatic stress disorder. In this case, however, the Court of Appeal would not have allowed the claim to proceed under section 33. They stated (at paragraph 146):
"Even allowing for some 'blocking' effect of the abuse so as to prevent his appreciation of 'another' significant injury in the form of long-term psychiatric injury, the sheer length of delay in such a case would, in our view, make it inequitable to allow the matter to proceed. First, the period of delay, whether based on the total period of delay from the end of the abuse -- 24 years -- or on the Judge's implicit assessment of the date of knowledge -- 20 years, was very long. Second, the effect of that delay was bound, given the source and nature of the allegations, to have had a serious effect on his ability properly to assess the cogency of the claimant's evidence, given the absence of other evidentiary support for it and the lack of contemporaneous documents or witnesses by which to test and/or contradict it".
The second example is DK (paragraphs 153-165). He was resident in one of the first defendant's homes between 1979, when he was 14, and 1982. He had previously been a difficult child, described by the judge as overanxious, wilful, assertive and egotistical. In the home he was subjected to systematic violence. The Court of Appeal would not have exercised their discretion under section 33. They stated (at paragraph 159) that the Judge's approach led to a plainly inequitable result in section 33 terms.
"First, the period of delay, whether based on the total period of delay from the end of the abuse -- 17 years -- or on the Judge's implicit assessment of the date of knowledge -- over 13 years -- meant that the claim was very stale. Second, the effect of that delay was bound, given the source and nature of the allegations, to have had a serious effect on his ability properly to assess the cogency of the claimant's evidence of the 'top dog' régime as it affected him, although there was some general support for his claims in the evidence of another claimant ... and one of the care workers ...".
The third example is CGE (paragraphs 166-177); this claim is perhaps closest to the present three cases. This claimant was resident in two of the first defendant's homes between 1980 and 1983, when he was aged between 13 and 17. He had been systematically assaulted by members of staff. The assaults included hair pulling, punching and kicking, and some were clearly serious. The claimant was described as displaying features of an emotionally unstable personality disorder. There was some evidence of disturbed behaviour prior to his admission to the first defendant's homes, but the psychiatric evidence was that his experiences in the homes would undoubtedly have contributed greatly to the further development of his personality problems. Once again, the Court of Appeal declined to exercise their discretion under section 33 in the claimant's favour. They did so notwithstanding a finding (at paragraph 169) that part of the long-term disabling effect of the abuse on his personality and appreciation of what had happened to him was an inability to face up to it and to discuss it with others. The court indicated (at paragraph 170) that allowing an action to proceed would have led to a plainly inequitable result.
"First, the period of delay was very long -- nearly 16 years from the last of the abuse and 12 years from the expiry of the primary limitation period -- nearly as long as that in the case of DK. Second, such delay was again likely to have had a serious effect on the cogency of the evidence, particularly that of the claimant himself".
The fourth example is RM (paragraphs 178-186). She had been resident in one of the first defendant's homes from 1988 to 1990, when she was aged between 15 and 17. She had had a very troubled childhood, and was very badly disturbed when she was first admitted to the home. In the home she was assaulted in various ways by members of staff; this included punching, kicking, pulling her hair and on one occasion lifting her using a broom handle placed under her chin. She raised proceedings nine years after the last abuse complained of and five years after the expiry of the limitation period. In this case the Court of Appeal would have allowed the action to proceed under section 33. They stated their reasons as follows (at paragraph 183):
"First, although the period of delay was long -- some nine years after the last abuse and five years after the expiry of the limitation period -- it was significantly shorter than that of some of the other claims. Second, although her account was unsupported, there was some documentation in evidence covering the early part of her period at Bryn Alyn by which it could be, and was, tested. Third, her difficulty in bringing herself to relive the unhappy experience of her abuse at Bryn Alyn would ... be a relevant circumstance in considering the exercise of the discretion under section 33".
The fifth example is DJ (paragraphs 213-225). He had been resident in one of the first defendant's homes from 1975 until 1981, between the ages of 10 and 15. He had been in care previously, and had been assaulted and sexually abused. At the first defendant's home, he was subjected to repeated sexual abuse from two members of staff, much of it of a very serious nature indeed. He also suffered serious assaults from members of staff. After leaving the home he acquired what was described as an "unenviable" criminal record. In this case the judge at first instance disapplied the limitation period, notwithstanding the long delay of nearly 12 years from its expiry, because he considered that the claimant had successfully blocked his memories of the abuse during the intervening period. The Court of Appeal considered that this approach was defective. They stated (at paragraph 221):
"For the reasons we have given earlier in this judgment, his approach was defective. And, in its application to this claim, we are of the view that it would have led to a plainly inequitable result in section 33 terms. First, the period of delay was very long. This is an important circumstance given the purpose of section 33 to protect defendants from stale claims, however strong or weak they may seem when limitation is being considered. As we have said, a judge may walk on uncertain ground when he determines the critical facts in an action and then relies on that determination to vouch for the safety and fairness of embarking on the trial at all. In this case the effect of the delay was bound to have had a serious effect on the Judge's ability properly to assess the cogency of DJ's evidence as a whole. The lack of other evidentiary support and of contemporaneous documents or witnesses by which to test and/or contradict his evidence was aggravated because of his potential unreliability, having had a number of convictions for dishonesty and a history of prolonged use of illicit drugs and alcohol abuse. In our view, it would have been unfair on the defendants to require them, by disapplication under section 33, to meet such a claim arising out of events so long before".
The foregoing cases give a flavour of the approach of the Court of Appeal in Bryn Alyn to individual claimants. As I have mentioned, only five of the 14 cases considered by the Court of Appeal would have been allowed to proceed under the discretionary power conferred by section 33. In all of those five cases (JM, CD, RM, GS and JS) the period that had elapsed since the end of the abuse was 10 years or less. The Court of Appeal refused to set any particular time limit beyond which the discretion could not be exercised. Nevertheless, it is clear from the details of the opinion that long periods of delay, in excess of 10 years, are a factor that counts very strongly against the disapplication of the normal limitation provisions.
[38]The next decision of the courts in an England and Wales dealing with the application of section 33 in circumstances broadly similar to the present was Adams v Bracknell Forest Borough Council, [2005] 1 AC 76. That case involved a claimant who suffered from dyslexia, which caused him serious difficulties as an adult. He had attended the defendant council's schools between 1977 and 1988, and his claim was that his dyslexia was not diagnosed and treated adequately. In 1999, when he was 27, he met by chance an educational psychologist who suggested the possibility of dyslexia. The diagnosis was subsequently confirmed, and in 2002 the claimant began proceedings against the council. The House of Lords refused to exercise the discretion under section 33 in the claimant's favour. In doing so, they adopted the reasoning of Sir Murray Stuart-Smith in Robinson v St Helens Metropolitan Borough Council, [2003] PIQR P128 at 139-140:
"32.The Limitation Acts are designed to protect defendants from the injustice of having to fight stale claims especially when any witnesses the defendants might have been able to rely on are not available or have no recollection and there are no documents to assist the court in deciding what was done or not done and why. These cases are very time-consuming to prepare and try and they inevitably divert resources from the education authority to defending the claim rather than teach. Under section 33 the onus is on the claimant to establish that it would be equitable to allow the claim to proceed having regard to the balance of prejudice.
33.The question of proportionality is now important in the exercise of any discretion, none more so than under section 33. Courts should be slow to exercise their discretion in favour of a claimant in the absence of cogent medical evidence showing a serious effect on the claimant's health or enjoyment of life and employability. The likely amount of an award is an important factor to consider, especially if, as is usual in these cases, they are likely to take a considerable time to try. A claim that the claimant's dyslexia was not diagnosed or treated many years before at school, brought long after the expiry of the limitation period, extended as it is until after the claimant's majority, will inevitably place the defendants in great difficulty in contesting it, especially in the absence of relevant witnesses and documents. The contesting of such a claim would be both expensive and likely to divert precious resources. Courts should be slow in such cases to find that the balance of prejudice is in favour of the claimant" ([2005] 1 AC at paragraph 54).
The House of Lords concluded (at paragraph 55) that in Adams the uncertainties of causation and quantification meant that in the event of success an award was likely to be relatively modest. The council was in a very difficult position, and there were no special features about the reasons that the plaintiff left his claim so late to tilt the balance in his favour.
[39]In Scotland, a claim for dyslexia was considered by Mr R.F. Macdonald QC sitting as a temporary judge in Lannigan v Glasgow City Council, 12 August 2004. In that case the action was raised less than one year are after the expiry of the triennium, and less than five years after the initial diagnosis of dyslexia. The Judge nevertheless declined to exercise his discretion to allow the action to proceed. A major factor in the decision was that the pursuer had a right of action against his solicitors, who had been responsible for delay in raising the action following the receipt of instructions from the pursuer. Thus the pursuer was unlikely to suffer prejudice beyond the need to raise proceedings for professional negligence. The judge also held that the defenders would be prejudiced if the action were allowed to proceed; on this matter his stated (at paragraph [31]):
"This is considered by the pursuer to be a pioneering piece of litigation, and it is obvious that any proof would be lengthy. All the teachers who could be traced would be likely to give evidence and there would also have to be expert evidence about dyslexia. The expenses of such a proof are likely to be high, and the defenders are unlikely, even if it were to be successful, to recover their expenses against the pursuer, who is legally aided".
Because of the passage of time there were potential difficulties about the availability and recollection of the teachers and learning support staff who had been involved, but the judge considered that those difficulties affected both parties equally. The passage that I have quoted appears to me to be very pertinent to the present case.
[40]The most recent decision on section 33 by the Court of Appeal in circumstances that their some resemblance to the present is T v Boys & Girls Welfare Service, [2004] EW CEA Civ 1747 (21 December 2004). In that case the claimant, who was 41 at the date of the hearing, claimed that he had been sexually abused as a child between 1975 and 1976 when he was resident in a children's home managed by the defendant. The abuse was clearly very serious. In 1986 the abuser was convicted of offences of indecency relating to other complainers. In 1993 the claimant in T provided a statement to the police in which he described some of the abuse, and he was subsequently called as a witness at an inquiry into abuse in children's homes in North Wales. In 1997 the claimant instructed a claim for compensation to the Criminal Injuries Compensation Authority. No claim was intimated against the defendant until 2002. The court held that the effective date of the plaintiff's knowledge of the facts relevant to his claim was 1997; thus the action was two years late. The judge at first instance declined to allow the action to proceed, and his decision was upheld by the Court of Appeal. The Court of Appeal made it clear (at paragraph 4) that the discretion under section 33 was essentially a matter for the judge. Nevertheless, Latham LJ made the following significant observations in relation to the exercise of the discretion (at paragraphs 12-14):
"I accept entirely that a fundamental question to be asked in these cases is whether or not at the end of the day a fair trial is possible, as this court said in the passage which I have already cited from Bryn Alyn. That question has to be answered in its context. The context in the present case is that by the time the claim was brought 28 years had passed since the events which gave rise to the claim; and service of the claim was the first notice that these respondents had of those allegations. The very fact of the claim, which may involve substantial compensation and would undoubtedly in any event involve substantial expenditure of time and money in investigating and seeking to meet it, will cause real prejudice to the respondents.
It is no answer, in my view, to say that the prejudice has only been marginally increased by the fact that the claim was made two years after the limitation period has expired. The Act, with its generous provisions for claimants in personal injury actions for an extension of the primary limitation period so that it starts from the date of knowledge, has, as this court has said in Bryn Alyn, provided the limit of permissible prejudice save in special cases. In other words Parliament has determined in Sections 11 and 14 where the balance of prejudice should normally be struck. It follows that Section 33 should only be available for special cases. And it is for the claimant in any particular case to establish that his claim is one of those special cases.
As the prejudice to a claimant if the claim cannot proceed is, in effect, a given, he is only likely to succeed if he can establish that there is no additional prejudice to a defendant of any sort by reason of the delay. That is likely to be difficult where a claim is brought against a defendant of which the defendant is entirely unaware until after expiry of the limitation period, extended if appropriate under Section 11(4)(b). The mere fact of being asked to deal with a stale claim is itself prejudice; and the staler the claim the greater the prejudice. The policy of law must be to permit people and organizations to arrange their affairs on the basis that there comes a time when they should not be asked to meet such claims. There is therefore by the very nature of a stale claim a hurdle which has to be overcome by a claimant. The judge was fully entitled to conclude that this case did not come within the category of those where an exception can be made under Section 33".
In my opinion these observations, which repeat many of the important points made by McHugh J. in Brisbane South Area Health Authority v Taylor, supra, are of the greatest importance in the present case.
[41]To conclude this review of the authorities, I should refer to the Canadian case of M.(K.) v M.(H.), (1992) 96 DLR (4th) 289, to which reference was made by the pursuers' counsel. That case involved a claim made by a daughter against her father for incest. The acts began when the plaintiff was eight years old and continued until she left home at the age of 17. Proceedings were raised 11 years after the abuse ceased and six years after the relevant time bar would normally have come into operation. The Supreme Court of Canada allowed the action to proceed, the main ground being that the plaintiff could not be said to have discovered the wrongful nature of the defendant's acts until she entered therapy. The case was thus, in Scottish terms, one where section 17(2) was relevant rather than section 19A. Counsel for the pursuers nevertheless referred me to the following passage in the opinion of La Forest J. (at 301-302):
"Statutes of limitations have long been said to be statutes of repose ... The reasoning is straightforward enough. There comes a time, it is said, when a potential defendant should be secure in his reasonable expectation that he will not be held to account for ancient obligations. In my view this is a singularly unpersuasive ground for a strict application of the statute of limitations in this context. While there are instances where the public interest is served by granting repose to certain classes of defendants, for example, the cost of professional services if practitioners are exposed to unlimited liability, there is absolutely no corresponding public benefit in protecting individuals who perpetrate incest from the consequences of their wrongful actions. The patent inequity of allowing these individuals to go on with their life without liability, while the victim continues to suffer the consequences, clearly militates against any guarantee of repose.
The second rationale is evidentiary and concerns the desire to foreclose claims based on stale evidence. Once the limitation period has lapsed, the potential defendant should no longer be concerned about the preservation of evidence relevant to the claim ... However, it should be borne in mind that in childhood incest cases the relevant evidence will often be 'stale' under the most expedient trial process ... In any event, I am not convinced that in this type of case evidence is automatically made stale merely by the passage of time. Moreover, the loss of corroborative evidence over time will not normally be a concern in incest cases, since the typical case will involve direct evidence solely from the parties themselves".
Counsel submitted that that reasoning applied equally to cases such as the present, involving the physical abuse of children. In my opinion it does not, for a number of reasons. First, M.(K.) v M.(H.) was a claim brought against the actual perpetrator of the incest. It was not a claim brought against an institution based either on vicarious liability for the acts of employees or on a failure to control adequately the practices followed in the institution. The equities in favour of a claim against the actual perpetrator are clearly much stronger than those in favour of a claim against an institution whose liability is essentially derivative in nature. This is plainly recognized in the passage that I have cited from the opinion of La Forest J.. Secondly, where a claim for sexual abuse is brought against the actual perpetrator, the critical evidence is likely to be that of the two parties involved. Serious sexual abuse is not something that is likely to be forgotten by the perpetrator, and thus the risk that evidence will be lost through the passage of time is less serious than in other types of case. Thirdly, cases involving incest and other forms of sexual abuse of children are in a significantly different position from cases involving physical abuse, even physical abuse of a relatively serious nature. Especially in cases involving allegations of excessive physical punishment, a major difficulty is the application of the social standards that prevailed 20, 30 or even 40 years ago. That problem does not, however, apply to cases of sexual abuse. Sexual contact with children is always wrong, and always has been. No qualification of that statement is necessary, or indeed possible. Consequently the only question is whether such contact occurred; if it did, there is a civil wrong, and the only questions are the extent of the consequences of the wrong and the assessment of appropriate compensation. For all these reasons, I am of opinion that M.(K.) v M.(H.) is not of assistance in the present cases.
[42]Against the foregoing summary of the authorities, it is now necessary to consider the evidence led at the proof in relation to the various matters that might be relevant to the exercise of the court's discretion under section 19A. I intend first to explain the events that brought about the raising of the present actions. Thereafter I will consider the explanations put forward on behalf of the three pursuers for their failure to raise proceedings within the normal limitation period. These fell into two categories, explanations of a general nature and explanations based on expert psychological evidence. Finally I will consider a range of other matters that are relevant to the exercise of the court's discretion. The most important of these are prejudice caused by the lapse of time since the events on which the claims are based and prejudice caused by the loss of evidence during the intervening period.
Events that prompted claims against the defenders; media publicity
[43]On Sunday 18 May 1997 an article (generic production no 13) appeared in the News of the World newspaper, under the headline "Nazareth", dealing with events that were said to have taken place many years previously in Nazareth House, Cardonald. The article began:
"A home for orphans was turned into a house of horrors by depraved nuns who delighted in making the kids' lives hell.
Youngsters were dragged from their beds and BEATEN, made to clean their teeth with CARBOLIC SOAP and forced to drink MOULDERING milk".
The article went on to allege that some of the victims had been tracked down, and that many were still suffering mental torment. A number of individuals were named, and the events that were said to have happened to them were set out in some detail; these included beatings and punishment for bedwetting. A further article appeared in the News of the World the following Sunday, 25 May 1997, under the headline "Wicked nuns left us scarred for life" (generic production no 14). This contains a number of other detailed allegations made by named individuals who had been resident in Nazareth House.
[44]The author of both of these articles, Michael Jarvis, described in evidence how the articles came to be written and the reaction to them. He stated that unprecedented numbers of people came forward spontaneously in reaction to the initial article. Somewhere between 12 and 20 individuals came forward in the first week, and over the first two weeks after 18 May he spoke to between 30 and 35 individuals. Mr Jarvis stated that those concerned were in their fifties or older. Almost all were very distressed when they spoke, and said that they were delighted that the articles had been written. Mr Jarvis was asked specifically to comment on the defenders' contention that the alleged victims should have come forward sooner. He stated that his opinion was that that was not realistic, in view of the distress that had been suffered. Mr Jarvis was then asked whether any of those who had spoken to him had said anything about this matter. At that point counsel for the defenders objected, on the ground that the evidence was hearsay. I allowed Mr Jarvis to answer the question, reserving all questions of admissibility. Mr Jarvis stated that the alleged victims often felt that they would not be believed, and felt safe in coming forward with others. I now repel the objection, on the ground that hearsay evidence is now permissible in civil cases. Nevertheless, I did not find this evidence of any assistance. The present case is concerned with three particular pursuers, and it is their reasons for coming forward that are relevant. All three pursuers have spoken about their own reasons, and there has been considerable psychological and psychiatric evidence on the matter. Mr Jarvis' evidence on this matter was of a largely anecdotal nature, and the individuals concerned were not of course subject to cross-examination. In my opinion it added nothing of value to the pursuers' case.
[45]A third article appeared on Sunday 1 June 1997 (generic production no 15), under the headline "Cardinal to probe house of horrors". This contains further specific allegations from named individuals. Prior to 1 June Mr Jarvis had been in touch with Mr Cameron Fyfe, the Glasgow solicitor who has subsequently acted for most of the claimants against the defenders, including the three present pursuers. The article of 1 June contained the following passage:
"Lawyer Cameron Fyfe believes it could lead to claims for compensation of up to £100,000.
He said: 'They might well have a case. They would have to prove there was negligence on the part of the organization responsible for employees working in the house.
'But they could claim for the anxiety, stress and anguish they suffered. If they could show a long-term effect that would boost the compensation into very high figures.
For example, 10 or 20 years of psychological damage and you are into the £50,000 plus mark.
If you could show any wage loss because of the effect, it could take the figure to £100,000.
'I have dealt with many similar cases and I would be delighted to help'".
Mr Jarvis stated that the figures mentioned in the article were obtained from Mr Fyfe on the basis of a "theoretical" quotation. Mr Fyfe also gave evidence; he stated that the quotation attributed to him was exaggerated. He had been asked by Mr Jarvis if the claims could be worth as much as £100,000, and he said that that was possible. He had also been asked if he was willing to act for claimants, and he replied that he was. I accept Mr Fyfe's evidence on this matter. Nevertheless, in assessing the risk of prejudice in consequence of media publicity, it is what was published that matters, not what Mr Fyfe actually said. A further, much shorter, article appeared on Sunday 8 June 1997, under the headline "Cops step up probe on abuse" (generic production no 16). This stated that police investigations had begun. It also stated that "Glasgow lawyer Cameron Fyfe is handling claims for compensation"; he was quoted as saying that he had been told "absolutely horrendous stories" and that the treatment "amounted to just sadism". A further article appeared on 29 June 1997, under the headline "Church's secret fund for abuse" (generic production no 18). A subheading stated "Nazareth House victims hope for £100,000 payout". The article began
"A secret Catholic Church slush fund may be used to compensate victims of Scotland's Nazareth House orphanage scandal.
Lawyer Cameron Fyfe, representing 30 inmates abused by nuns as children, believes they could get up to £100,000 each".
[46]More articles appeared later in the year and into 1998, both in the News of the World and in other newspapers. One article, in the Daily Mail of 26 January 1998 (no 7/49 of process), contained the following quotation attributed to Mr Fyfe, who is described as the lawyer for the alleged victims:
"I could not be more convinced that what these nuns did was ritual abuse, sadism and not far away from satanic".
A paraphrase of that quotation appeared in large print underneath the headline, next to a photograph of Mr Fyfe. The quotation was repeated in a further article in Scotland on Sunday of 25 January 1998 (no 7/50 of process). Mr Fyfe in his evidence denied that he ever provided such a quotation. I did not hear evidence from the authors of the two articles in question, and consequently I find it difficult to reach a definitive view on the origins of the quotation. On the basis of Mr Fyfe's evidence, however, I have no reason to doubt his denial that he said anything of the sort. If that is so, the quotation must be fictitious, made up by the author of the Daily Mail article and presumably repeated uncritically by the author of the article in Scotland on Sunday. Nevertheless, in assessing possible prejudice as a result of media publicity it is what was published that matters, not what Mr Fyfe actually said, because that is what potential claimants would have read.
[47]The story was subsequently taken up by BBC Scotland. In January 1998 they organised a meeting in Partick Burgh Halls to which they asked most, if not all, of those who had come forward. At the meeting the individuals who have come forward were encouraged to speak to one another about their experiences, and several were interviewed. BBC Scotland subsequently, in February 1998, broadcast a "Frontline Scotland" programme dealing with the issue. In the course of the programme a number of former residents of children's homes maintained by the second defenders described their experiences in the homes. I was shown a video of the programme, but I did not find it of assistance in dealing with the present cases. Most of the individuals interviewed had been resident in the second defenders' home in Aberdeen, and some others had been in the homes in Lasswade and Kilmarnock. Their recollections, which were not of course subject to cross-examination, had no direct bearing on the situation in Cardonald. In any event, for the purposes of the present proof I must assume that the pursuers' substantive allegations are true. In these circumstances the fact that other individuals have made similar claims seems quite irrelevant.
[48]I have summarized the evidence about the media stories regarding the second defenders' children's homes in some detail for two reasons. First, all three pursuers stated that it was reading the articles in the News of the World that first prompted them to contact Mr Fyfe to discover whether they could make claims against the defenders. Secondly, counsel for the defenders submitted that the media publicity was liable to taint the evidence given by the pursuers, and indeed other claimants, by suggesting events that might have happened to other residents. I will deal with the second of these matters below, in discussing the psychiatric evidence led on behalf of the defenders and in paragraphs [130]-[133] of my conclusions. First, however, I will turn to the explanations given by the three present pursuers for the fact that they did not make claims against the defenders before May 2000.
General explanations for delay in raising proceedings
[49]In their evidence the three pursuers explained their reasons for not making any claim at an earlier stage. That evidence was as follows.
1. Mrs J W
[50]I found Mrs W to be a pleasant and straightforward witness, and I found her account of the events leading to her making a claim to be credible; I deal with the reliability of her evidence in the paragraphs that follow. It is also clear that she is intelligent; her evidence was set out in a series of letters written to Ross Harper and to Cardinal Winning, all of which are remarkably clear and well written. Mrs W was not asked specifically why she delayed until October 1997 before contacting a solicitor. Nevertheless, her evidence indicated that she did not think that she would be believed; no one would believe that nuns could be so cruel. When she was in the home children had run away on occasion, but they had merely been brought back by the police and punished; no one had believed their stories of cruelty. Her attitude to being believed by others was perhaps summed up in one response: "Who would believe a nun would do these things?" Mrs W also indicated that she had been frightened of the nuns and that, when she left the home, one nun, Sister M, had told her that "her eyes and ears" would be everywhere. Consequently she stated that she was afraid to make any complaint about her treatment in the home. It was clear that she had not forgotten what had happened to her at Nazareth House.
[51]Mrs W's sister drew her attention to one of the articles that appeared in the News of the World in May 1997. She stated that the newspaper reports had "brought memories back". Thereafter, in late May or early June, she wrote a letter to Cardinal Winning, giving an account of her treatment in Nazareth House. She had received a sympathetic response from Cardinal Winning, and initially had not wanted to raise legal proceedings. Subsequently, however, she saw the BBC Frontline Scotland programme in February 1998, and was incensed by remarks made in the course of the programme by Bishop Conti to the effect that the claims made against the defenders were ill founded and that the persons making them merely hoped to recover compensation. Thereafter she had got in touch with Mr Fyfe. She stated that she had not realized that she could take legal action against the defenders until she spoke to him. She qualified this, however, by stating that before she spoke to him she thought that no one would listen to her, but he did. That remark is inconsistent with the fact that she had clearly received a sympathetic hearing from a number of individuals previously.
[52]Mrs W had spoken to a number of people about her treatment in Nazareth House prior to 1997. She had mentioned the matter to her general practitioner in February 1995, and specifically mentioned the convent (no 7/1/153 of the W process). She also mentioned her experiences in Nazareth House to a minister in the Church of Scotland and his wife, from whom she received counselling, to nuns in Paisley with whom she was friendly, and, in the company of some of those nuns, to the Mother Superior at Cardonald at some point during the 1990s. It is accordingly clear that Mrs W was able to mention her experiences at Nazareth House. It must be said, however, that discussing her treatment there caused her very considerable distress; that was obvious from her demeanour in the witness box. Nevertheless, the fact that she was able to confront the Mother Superior at Cardonald indicates that by then she did not have any great fear of the Church or of nuns; indeed, she had clearly developed friendships with the nuns in Paisley. Mrs W did not suggest in her evidence that the persons to whom she spoke did not believe her, with one exception. This was a Catholic priest to whom she had spoken, a Canon G, who had been unpleasant towards her. Nevertheless, her hearing from the others to whom she spoke was generally sympathetic. Mrs W had had previous contact with a solicitor, when she obtained a divorce from her husband.
2. Mrs A B
[53]Mrs B was on medication at the time when she gave her evidence, to deal with symptoms of depression and anxiety. She nevertheless came across as an intelligent witness who was able to give coherent evidence. She was also clearly very familiar with the documentation relevant to her case, including the social work records. I found her evidence to be generally credible; I deal with its reliability in the following paragraphs. Mrs B stated in her evidence that she had not made any complaints about her treatment by the defenders because she did not think that anyone would believe those complaints, especially as they related to treatment at the hands of nuns. She had told her own husband, but he had not believed her until the articles appeared in the News of the World and other newspapers from May 1997 onwards. At that time, although she and her husband were separated, he came back end apologized for not having believed her previously. She stated that she had not realized until she read the newspaper articles, which referred to the involvement of a lawyer, that she could bring court proceedings against the defenders; she had not been familiar with dealing with lawyers. It should be noted, however, that she had had dealings with the Govan Law Centre as a result of serious problems that she had experienced with her neighbours; consequently she cannot have been ignorant of the possibility of obtaining legal advice. This point only emerged in cross-examination. She stated that her desire was not to obtain money but to have it accepted by the defenders that abuse had happened, in order that she could obtain closure on the matter. She was upset at the length of the time that the case was taking, and felt that it had had detrimental effects on her health.
[54]Mrs B also spoke to the reaction of the authorities to complaints when she was a resident in Nazareth House. When children ran away, they were invariably brought back by the police, and the police did not investigate any complaints. Mrs B's own father had complained to a social worker about her treatment at the hands of the second defenders, and offered to show the bruises that his daughter had suffered. Nevertheless the social worker was not sympathetic. She had not realized that anything was wrong with her treatment until she reached the age of about 14, when she witnessed an assault on another child. Until then she had thought that her treatment was part of normal childhood.
[55]In her evidence Mrs B stated that the memory of events in Nazareth House was always there; "it was just suppressed". She accepted, however, that she had always remembered the incidents to which she spoke in her evidence. Consequently her reference to the memory's being "suppressed" indicates no more than a reluctance to speak. Prior to 1997 Mrs B had spoken to a number of individuals about her treatment in Nazareth House. As mentioned above, she had spoken about it to her husband. She mentioned it to her general practitioner as long ago as July 1991. She may also have mentioned it to a third person. At one point prior to 1997 she had approached a reporter who worked for the Daily Record with a view to the publication of an article on her experiences at Nazareth House; she stated that she wanted those experiences to be exposed. This had come to nothing because the reporter had insisted on a photograph of her, and she was concerned that that might have an impact on her children. After the articles in the News of the World, she gave an interview to the BBC, took an active part in the meeting at Partick Burgh Hall organized in connection with the Frontline Scotland programme, and provided documentary material to a journalist. It is clear, accordingly, that Mrs B was able to speak about her experiences. Her allegations involved serious assaults, and she was plainly well aware that what she claims happened to her was wrong.
3. D M
[56]Mr M gave evidence that he had not wanted to mention the treatment that he had suffered when he was in Nazareth House because it brought back very unhappy memories. He had mentioned his treatment in the home to the partner with whom he had lived for a number of years. Initially she had not believed it, and had laughed at Mr M and mocked him. Eventually, however, she had read one of the articles in the News of the World, and had believed it after that. She had suggested that Mr M should make contact with Mr Fyfe. Initially Mr M was reluctant to do that, because he wanted to block out his memories of the past and not to remember them. He stated that sitting in court he was made to feel as if it were his fault. More specifically, Mr M stated that people believe that a priest might sexually abuse a boy but not that a nun might mentally and physically abuse him. Consequently treatment at the hands of nuns was not something that one would want to share with other people. At one point, when he was about 17 or 18, Mr M had commented on his treatment in Nazareth House to the lawyer who acted for him in criminal matters. The lawyer had clearly not believed him. Mr M stated that he was upset at giving evidence about what had happened to him, and that the experience would stay with him for months.
[57]Mr M accepted that the memories of his treatment in Nazareth House were always there at the back of his mind. He did not mention what had happened to other people because he felt embarrassed and ashamed. He did mention it to his then partner, and when she did not believe him that reinforced his reluctance to speak. He was also familiar with dealing with lawyers, as he had been the subject of criminal proceedings on a number of occasions when he was in his teens.
[58]Mr M was adamant that he was not interested in compensation. The matter that upset him most was the fact that, when his father died, he had not been allowed to attend the funeral. That was apparent from a passage in his cross-examination when he was asked about his initial contacts with Ross Harper in October 1997. He had had a telephone conversation with a representative of the firm, Mrs Taylor, on 21 October 1997 (referred to in no 6/3 of the M process). He stated that Mrs Taylor had stated that he had a claim for damages, but he stated that he was telephoning say what had happened, not to make a claim for damages. He stated that all he wanted back was his father's funeral. It might look as if he were chasing a pot of gold, but that was wrong. At a later point Mr M stated that he had told Mr Fyfe that he was not bothered with compensation, but Mr Fyfe had said to get his story across anyway. I should state that Mr M did not appear to be motivated by a desire to hold those responsible for his treatment to account, or to back up other claimants.
Psychological explanations for delay in raising proceedings
[59]Evidence about possible psychological explanations for the pursuers' delay in raising proceedings was led from the Dr Ian Tierney, a chartered clinical psychologist, on behalf of the pursuers and from Dr Janet Boakes, a consultant psychiatrist and psychotherapist, on behalf of the defenders. For reasons that are set out subsequently, I prefer approach taken by Dr Boakes, although I consider that certain of the points made by Dr Tierney are still valid. I intend to summarize the evidence of Dr Tierney and Dr Boakes, and then to state my reasons for preferring the views of Dr Boakes. Thereafter I will state my conclusions on this part of the evidence, including the points made by Dr Tierney that appear to me to be relevant.
Dr Ian Tierney
[60]Dr Tierney is, as I have already mentioned, a chartered clinical psychologist. In 1983 he founded the Keil Centre, an independent applied psychology unit based in Edinburgh and Glasgow. From 1983 to 2003 he was Clinical Director of the Keil Centre. By 2003 the Keil Centre employed nine chartered psychologists, who worked in the areas of clinical and occupational psychology. Dr Tierney also dealt with a significant clinical and legal case load. He continued with that work after he retired from the Keil Centre in June 2003.
[61]Initially the pursuers had sought a generalized explanation for the delay in making claims, and Dr Tierney was instructed to look for such an explanation. Following those instructions, Dr Tierney produced a report (generic production 7) dated 12 February 1999 in relation to 11 cases, described as "test" cases; these included the three present pursuers. Dr Tierney produced a further report on those three pursuers dated 28 December 2004 (generic production 10). In addition, the three pursuers, together with other claimants, had been interviewed by a colleague of Dr Tierney, Valerie Gray Taylor, and she produced detailed psychological reports on each of the persons that she had interviewed. Miss Gray Taylor did not give evidence, although reference was made to her reports in the course of Dr Tierney's evidence; Dr Tierney did, however, state that he had discussed the cases with her on a regular basis, and I took the view that he was able to speak adequately to the terms of her reports.
[62]Miss Gray Taylor's reports on the three pursuers (number 6/1 of each of the relevant processes, dated 8 April 1998 for Mr M, August 1998 for Mrs W and April 1998 for s B) contained a section dealing with the relevant pursuer's psychological history since leaving Nazareth House. In relation to Mr M, he was described as currently depressed, and it was noted that he had been prescribed antidepressant medication since March 1997. He had been seen by a clinical psychologist in November 1997, when he was described as "a severely damaged and disturbed young man". He had not, however, continued with treatment at that time. His sleep was uneasy; he had nightmares once or twice a week, and some of those were of a repeating nature. He was also noted as having a fear of opening doors or finding himself alone. After he left institutional care he had tried to commit suicide by swallowing a variety of pills. It was further noted that, according to Mr M's partner, he kept trying to jump out of the window during nightmares. As a result the bedroom windows has to be kept nailed shut. Mr M also reported that he was "paranoid" about people looking at him. He did not like going out, and remained in the house in self-imposed isolation every day. His partner reported that he spent a lot of time sitting in the bedroom by himself, and would not let her in, putting a dressing table across the door. Mr M also had obsessional habits, including turning all of the items in the kitchen cupboard to face the same way. Miss Gray Taylor's conclusion was that Mr M presented with symptoms that led to a diagnosis of moderate to severe anxiety and severe depression. She considered that he was also experiencing the kind of intrusive thoughts and avoidance behaviour that is associated with post traumatic stress disorder, and that he exhibited obsessive compulsive symptoms to a high level.
[63]In relation to Mrs W, Miss Gray Taylor noted that she had been prescribed antidepressant medication since 1988 and was prescribed medication for anxiety and panic symptoms in 1989. She had been referred for counselling in 1995, and appeared to have stopped antidepressant medication for a time. In 1997 she had again suffered from depression, and at this stage had mentioned physical abuse in Nazareth House to her doctor; following that she was prescribed further antidepressant medication. Miss Gray Taylor also noted that Mrs W's IQ was in the high average range. Her conclusion on Mrs W was that she had been clinically depressed for many years and that she presented with symptoms that fulfilled the criteria for a diagnosis of post traumatic stress disorder.
[64]In relation to Mrs B, Miss Gray Taylor noted that she had described a very frightening time on leaving Nazareth House and she had not been prepared at all for life outside a children's home. She did not know how to carry out operations such as travelling on a bus, using a cooker, buying food or making meals. Miss Gray Taylor administered a number of psychological tests, which indicated a high score in relation to perceived everyday worries and problems. Miss Gray Taylor's conclusion was that Mrs B currently experienced intrusive thoughts about her experiences in Nazareth House, as well as avoidance behaviour, to a level consistent with those who have a diagnosis of post traumatic stress disorder. She was currently severely clinically depressed and had been for a number of years. She was also noted as being extremely anxious and very frightened all the time. She only left the house when that was absolutely necessary. Her quality of life was described as extremely poor; on four measures it was in the lowest percentile. Mrs B's intellectual functioning was thought by Miss Gray Taylor to be at a level that indicated ability to attend college or university, although her only employment had been as a machinist, cleaner and meat packer. Mrs B had no memory of living anywhere else prior to Nazareth House and had had no contact with her mother until she was 31 years old. Miss Gray Taylor accordingly thought that it could be said that a major cause of her present poor quality of life, lack of occupational attainment, episodes of clinical depression and inability to trust others and form friendships was that of being raised in the non-nurturing environment of Nazareth House.
[65]Dr Tierney's first report (generic production 7) was designed to deal with an inquiry as to whether there were common elements in the personal and psychological histories of eleven named individuals, including the present three pursuers, who were resident in institutions managed by the defenders in Aberdeen, Cardonald and Lasswade or in another institution at Smyllum Park, Lanark. Dr Tierney was asked in particular to indicate to what degree individuals with such histories avoid talking about their experience to others, and indicate fear that they would be disbelieved or attract some form of retribution if they had raised complaints in a formal way. Dr Tierney noted that all eleven individuals reported remarkably similar experiences of physical and psychological ill treatment. There was a consistent history while in the institution of being physically struck on the head, being subject to extremes of temperature, very poor quality food, repeated degrading verbal abuse, impersonal attention amounting to neglect and experiencing a pervasive fear of harm of various sorts from the nuns who had charge over them. Dr Tierney then considered, as a matter of psychological theory, the effects of severe ill treatment at an early age on subsequent development. In doing so, he relied in particular on a book, "Traumatic Stress", by van der Kolk, McFarlane and Weiseath (1996). This is described in the report as one of the most authoritative summaries of research on the topic, involving a discussion of what is described as the most recent consensus view of the general effects of severe ill-treatment at an early age in later life. It is clear from this part of the report that Dr Tierney relied in particular on a diagnosis of Disorder of Extreme Stress Not Otherwise Specified (DESNOS). I discuss this disorder at paragraphs [82] and [93.2] below; it is, in effect, a residual category designed to cover cases that do not fall within previously recognized disorders such as post traumatic stress disorder.
[66]Dr Tierney went on in his first report to identify similarities in the psychological and behavioural histories of the eleven individuals under consideration. These included significant difficulties in forming and maintaining relationships in eight out of the eleven cases, difficulties with alcohol in five cases, suicide attempts in five cases, imprisonment in five cases, somatization (an unusually high number of visits to the doctor) in all seven cases where medical records were available, and failure ever to be employed in four cases. The quality of life of eight was measured on a conventional scale, and it was found that seven of these were in the lowest 5% of the population, with four in the lowest 1%.
[67]The reasons for failing to make complaints earlier were then discussed. Dr Tierney stated that there was a very consistent pattern in the reasons given by the eleven individuals for their lack of complaint. Three of the eleven individuals had in fact made disclosures previously, one to the police, one (Mrs W) to the authorities in Nazareth House, Cardonald when she revisited it in 1993, and one to the Daily Record newspaper in the early 1990s. Five of the named individuals indicated that they were afraid that the Catholic Church would take action against them if they make complaints. Two individuals were recorded as holding a firm belief that they had been in the wrong and had deserved the punishment that they had received at Nazareth House. Six of the eleven did not speak out earlier because they were convinced that no one would believe them. Six of the eleven are recorded as reporting "a pervasive desire to avoid remembering their ill treatment in the institutions and their sense of hopelessness, lack of nurturing, fear, and degradation". The reasons for speaking out now were stated in the following terms:
"In common sense terms individuals with the DESNOS features tend to feel isolated, misunderstood and disbelieved in their account of early abuse. The avoidance/amnesia tendencies exacerbate this. However when 'authoritative' sources took an interest in their experience it was my definite impression that individuals who had been reticent before this media disclosure suddenly felt less timid and fearful about describing their experiences. Many of the individuals (of the 18 I have seen) expressed the view that they had felt better 'in themselves' since the media disclosures".
Dr Tierney's conclusion was that the eleven individuals whose behaviour had been assessed conformed very closely to the DESNOS criteria incorporated into two internationally recognized standards, DSM-IV and ICD-10. With one exception, difficulty in modulating anger, their psychological histories fulfilled these criteria to what the Dr Tierney described as a remarkable degree. Dr Tierney stated in addition that the various assessments of avoidance behaviour in the group indicated an unusually high prevalence of the defensive behaviour that is typical of DESNOS. His general conclusion, accordingly, was that the eleven individuals whose cases he had considered suffered from the residual category of disorder known as Disorder of Extreme Stress Not Otherwise Specified.
[68]Dr Tierney's second report (generic production 10) gave further consideration to a number of possible reasons for delayed disclosure of abuse to the police or legal advisers. The first of these was memory deficit arising from post traumatic stress disorder caused by childhood abuse. In support of this factor, Dr Tierney relied on two papers by J.G. Bremner and others, "Deficits in verbal declarative memory function in women with childhood sexual abuse-related posttraumatic stress disorder" (J Nerv Ment Dis 2004 Oct; 192 (10): 643-9) (generic production no 22) and "Neural correlates of declarative memory for emotionally valenced words in women with posttraumatic stress disorder related to early childhood sexual abuse" (Biol Psychiatry, 2003b May 15; 53(10): 879-89) (generic production no 23). These papers, in particular the first, indicated that women who had suffered abuse in childhood and consequent PTSD experienced deficits in verbal declarative memory by comparison with women who had been abused without suffering PTSD and women who had not been abused. By comparison, there were not significant differences in relation to visual memory. In that paper the authors considered possible explanations for the phenomenon. The preferred hypothesis was that stress might lead to alterations in the part of the brain known as the hippocampus, which plays a critical role in memory. Dr Tierney stated that that hypothesis was controversial, but that related only to the explanation for what was observed, not what was observed. The paper indicated that early abuse causes changes in the brain which affect the memory.
[69]Dr Tierney's view in relation to the present three cases was that the pursuers had experienced difficulties with verbal memory. If they suffered trauma as children, their problems with verbal memory were typical, according to Bremner's paper. He considered that Bremner had been responsible for the most authoritative studies of the effects on adults of abuse as children. The particular problem experienced in these cases related to the verbal, or declaratory, memory; the visual memory was not affected. In other words, the subject can remember what happened but cannot speak about it. Dr Tierney conceded, however, that the exact mechanism is the subject of dispute.
[70]The second possible reason for the delayed disclosure discussed in Dr Tierney's report was dissociative symptoms and amnesia arising from childhood abuse. In this connection, he relied on a paper by J.A. Chu and others, "Memories of childhood abuse: dissociation, amnesia, and corroboration" (Am J Psychiatry 1999 May; 156(5): 749-55) (no 7/97 of the W process). Dr Tierney stated that observations of dissociation are sometimes used to explain the theoretical concept of repression, a defence mechanism which consists of an enduring pattern of protective behaviour designed to provide a defence against an awareness of something that is anxiety-producing. He conceded, however, that repression was a concept rarely used today, at least in practice.
[71]The third possible reason for delayed disclosure related to the patterns of disclosure by the claimants who had been interviewed by Dr Tierney and his colleagues (34 in number). While a few of the individuals affected did disclose the history of childhood abuse to individuals who were either emotionally close to them or who had a duty of care and confidentiality (such as a general practitioner), the majority tried to forget about their experiences and did not talk about them, even to close family. That indicated that the failure to disclose was widespread.
[72]Dr Tierney's fourth and fifth reasons for non-disclosure related to the life histories of the claimants, first between the ages of 18 and 21 and secondly at the time of psychological assessment. He noted that the great majority of those interviewed (26 out of 34) reported or were reported as having clinically significant behavioural or psychological symptoms in middle or late adolescence. The most common of these were those associated with affective disorders or PTSD. At assessment, 20 out of 34 interviewed were diagnosed as suffering from recurrent depression. Dr Tierney noted that the lack of energy, anhedonia (inability to enjoy life), poor concentration and loss of interest, plus the self-deprecating fault and guilt, all of which are primary features of depression, meant that those affected would have had very little motivation or incentive to instigate a complaint about the abuse that they had experienced. Dr Tierney also noted that at assessment nearly half of the affected individuals (16 out of 34) were diagnosed with significant symptoms of PTSD, a condition that he thought would almost certainly have been present between the ages of 18 and 21 years, given that their experience of childhood abuse was the initial trauma.
[73]The sixth element in Dr Thierry's explanation for delay in making claims was that individuals who had been isolated in homes and had been subject to continuous and in some cases extreme abuse for many years were, on leaving the institution, vulnerable to exploitation by others because of their lack of educational, occupational, social and interpersonal skills. This frequently resulted in inappropriate relationships, abusive marriages and alcohol abuse. It was unlikely in his opinion that individuals in these circumstances could take on the additional burden of a formal complaint. That was exacerbated by the range of psychological disorders suffered by a majority of the persons interviewed. These are likely to have produced either very low self-confidence or fear of adversarial encounters. Dr Tierney also commented that frequent comments about wanting to forget about past experiences illustrated the roles that avoidance and the suppression and loss of memories played in the lives of the claimants, restricting their ability to complain. The tendency not to complain might also have been exacerbated by the fact that some of the claimants had spoken to police or social workers about their treatment but had not received a sympathetic hearing.
[74]Thereafter Dr Tierney gave some consideration to the reasons for disclosure of complaints in 1997 and 1998. Media exposure reassured claimants that they were not alone in their experience, and that the claims would be examined as a "group" complaint. Some claimants felt that it was their duty to come forward to support others who had done so; others were anxious to obtain justice either by punishment of the perpetrators of their abuse or by receiving official acknowledgment that such abuse should not have happened. To Dr Tierney's knowledge none of the claimants had mentioned material reward as a reason for coming forward.
[75]Dr Tierney then considered the position of the three pursuers in the present actions.
i.Mrs B, he thought, had dealt with the sequelae of her childhood abuse by keeping silent. While she had discussed the abuse with three individuals who were close to her it was not until the articles in the News of the World newspaper that she realized that she had a claim and that something was being done about the abuse. Dr Tierney stated that he believed that, for the reasons considered in the last seven paragraphs, Mrs B could not have behaved other than as she did. He thought it revealing that her major psychological morbidity had occurred since disclosure. Her silence and suppression of memories were one of the direct consequences of her childhood abuse.
ii.Mr M was, in Dr Tierney's opinion, unlikely to have made complaints between the ages of 18 and 21 because at that time he was in prison or living a highly dysfunctional life. The evidence suggested that his reticence about his experience of childhood physical and sexual abuse was adaptive (as discussed in paragraphs [68] and [70] above); in other words, he experienced memory deficit as a result of PTSD, and also experienced dissociative symptoms. I note that Dr Tierney did not appear ultimately to set great store by the concept of repression, which was the apparent source of the dissociative symptoms discussed in paragraph [70]; nevertheless, he founded on this factor as an extra reason for Mr M's failure to make earlier disclosures. Dr Tierney then commented that "When the situation changed" (in other words, when events in Nazareth House became public), his defence mechanisms no longer prevented the florid symptoms of anxiety and depression from appearing.
iii.In relation to Mrs W, Dr Tierney referred to a supplementary precognition in which she described her reasons for not speaking out earlier, including the reaction of nuns to whom she spoke about her experiences and her ambivalence about initiating a legal action. She was convinced that no one would believe her, and the reactions of some people to whom she did disclose her experience of childhood abuse had confirmed this view. She also described low self-esteem which, in combination with great respect for the Church as an institution, made the idea of a complaint about her childhood experience highly unlikely.
[76]Dr Tierney's overall conclusion was expressed as follows:
"Various reasons described above [paragraphs [68]-[73]) are likely to have either prevented or severely restricted these 3 individuals, from making a complaint about the gross childhood abuse they had suffered, both between the ages of 18-21 years, and subsequently. When viewed in the light of fear of, or compliance towards, members of the religious order involved, these constraints indicate that a complaint to the authorities was unlikely. That those involved did so finally when, as much older individuals, the media disclosed their history of gross childhood abuse for them, and they could therefore speak as a group, is understandable in the light of the many blighted, and lonely, lives produced by the abuse".
Dr Janet Boakes
[77]Dr Boakes is a clinical psychiatrist and psychotherapist, specializing in psychotherapy and particularly in group psychotherapy. She is a Fellow of the Royal College of Psychiatrists. She is a Consultant Psychiatrist and Psychotherapist and Clinical Director at South West London and St. George's NHS Trust and an Honorary Senior Lecturer at St. George's Hospital Medical School. She was a member of the Royal College of Psychiatrists working party on reported recovered memories of child sexual abuse, which led to the publication of a consensus document setting out guidelines for psychiatrists in this area. She is also one of the four co-authors of a review article, "Recovered memories of childhood sexual abuse: implications for clinical practice"(British Journal of Psychiatry (1998), 172, 296-307; no 7/96 of process). She has a particular interest in the topic of false memory, especially in the area of false memories that might have been induced by psychotherapy.
[78]Dr Boakes had examined Mr M with a view to considering what symptoms he has or had as a direct consequence of the abuse that he alleged was sustained while in the care of the second defenders (number 7/9 of process). Mr M told Dr Boakes that he had read about abuse at Nazareth House in a newspaper. He stated to her "People say you can block it out but you don't -- I hate talking about it". In relation to Mr M's mood, Dr Boakes stated that he was affectively flat and looked depressed, but that he did not describe symptoms of depression although his sleep was poor and he tended to catnap and to have nightmares. She described him as dysthymic rather than actively depressed; dysthymia is a state involving a generalized gloominess of attitude that falls short of actual depression. Dr Boakes also considered that Mr M was anxious and possibly a little paranoid; he had described an exaggerated startle reaction all his life. He did not describe panic attacks or flashbacks. He described minor checking rituals, such as turning the light on and off a number of times before going to bed, and obsessively lining things up. Dr Boakes' diagnosis was that he had a personality disorder with paranoid features and comorbid dysthymia with periodic exacerbation into frank depression. She found no evidence of PTSD and only minimal evidence of obsessive compulsive disorder.
[79]Dr Boakes was of opinion that some of Mr M's allegations strained credulity. Nevertheless, she thought that the reality of his allegations was evidenced by the fact that he said that he never forgot. He had told her "you can't block it out". She stated that that fitted with knowledge of memory; people do not forget significantly abusive and traumatic experiences. Dr Boakes' diagnosis of Mr M was that he had a personality disorder and had experienced periodic episodes of depressive illness.
[80]In her report on Mr M, Dr Boakes commented on Miss Gray Taylor's psychological report of 8 April 1998 (number 6/1 of the M process). She disagreed with Miss Gray Taylor's diagnosis of post traumatic stress disorder. PTSD follows exposure to an event that is exceptionally threatening or catastrophic, life threatening, and likely to cause distress in anyone. Mr M's experiences did not in Dr Boakes' opinion fall into this category; they were very upsetting, but that was all. In addition, according to one of the standard classifications, ICD-10, symptoms should occur within six months of the event. It was not clear that that happened in Mr M's case. Dr Boakes also commented on the differences between Miss Gray Taylor's approach to diagnosis and her own approach. Miss Gray Taylor had based her diagnosis on a variety of psychological tests. These were described as very different from the psychiatric approach, where the "gold standard" is the mental state examination at the time of presentation. That included a detailed account from the patient of his symptoms and a search for specific features of mental illness. Dr Boakes was not able, however, to give a detailed critique of the tests used by Miss Gray Taylor as such tests are not among the tools used by psychiatrists.
[81]Dr Boakes had not examined Mrs W, but had examined Mrs B. She accepted that Mrs B suffered from psychiatric disorders. She was depressed, and Dr Boakes thought that her depression had not been adequately treated. She also suffered from agoraphobia and had some symptoms of obsessive compulsive disorder. She did not have specific symptoms of PTSD, although Dr Boakes accepted that she might have displayed such symptoms when examined by Miss Gray Taylor. If that were so, however, it was not clear whether any symptoms were caused by the circumstances of raising the present action rather than events many years ago. Mrs B had tended to attribute her problems to current events, albeit with some contribution from childhood events. Mrs B had told her husband and general practitioner about her treatment in Nazareth House; consequently she clearly had a continuous memory of events.
[82]Dr Boakes was asked to comment on the views of Dr Tierney as expressed in the two reports prepared by him that were available to the court (generic productions 7 and 10). She stated that Professor van der Kolk, on whose works Dr Tierney placed great reliance, was at one end of a spectrum of views on the effects of childhood trauma on adult development. Van der Kolk thought that the effect of such trauma is to cause the sufferer to forget that the event ever happened. She thought that it was disingenuous to suggest that Van der Kolk discusses the most recent consensus view of DESNOS. Indeed, DESNOS did not appear as a separate syndrome in either of the standard diagnostic manuals, DSM-IV and ICD-10. When the DSM-IV manual was under discussion, van der Kolk and another academic, J. Herman, had argued that DESNOS should be recognized as a separate syndrome, and it was included as part of the field trials. When the committee responsible for the relevant part of the manual considered it, however, they disagreed with van der Kolk and Herman, and DESNOS was not included. The principal reason was that the data did not support van der Kolk and Herman's argument; people who were said to suffer from DESNOS met the criteria for standard PTSD, and in many cases also the criteria for borderline personality disorder.
[83]Van der Kolk and Herman's basic thesis was that the normal response to atrocities is to forget them, and that it was common for people to forget childhood abuse, especially sexual abuse, but for the abuse to manifest itself through symptoms, dreams and behavioural re-enactments. Van der Kolk suggested that the mind forgot but the body remembered. The difficulty with that, in Dr Boakes' opinion, was that memory was in the mind. A contrary view had been vigorously advanced by Professor McNally. His basic thesis was that people who are traumatized, far from developing amnesia, only wish that they could forget. Dr Boakes' opinion accorded almost fully with that of Professor McNally; she thought that the evidence pointed in that direction. A controversy existed, however, and Dr Boakes stated that she was very surprised to read in Dr Tierney's second report (generic production 10, at paragraph 1.2iii) "There is virtually total agreement in the literature on the link between childhood abuse [both sexual and physical] and the subsequent development, in a significant proportion of abused individuals, of post-traumatic stress disorder ... symptoms". While she was not familiar with the papers relied upon by Dr Tierney in expressing that conclusion, she was aware of studies that had followed people who had clearly been abused in childhood into adult life. In these it was found that a range of conditions could occur, but there was no clear syndrome, even in cases involving sexual abuse.
[84]Dr Boakes was asked for her comments on certain of the papers that had been relied on by Dr Tierney. She commented first on the paper by Chu and others, "Memories of childhood abuse: dissociation, amnesia, and corroboration" (see paragraph [70] above). Dr Chu and his collaborators followed the van der Kolk line on the effect of childhood trauma on memory. The paper claimed to show a high correlation between childhood abuse and amnesia in adult life. Dr Boakes doubted the paper's conclusions, however. First, she referred to one of the tables summarizing the results of the studies on which the paper was based (table 2 on page 752), and pointed out that the mean ages of the subjects at the onset of abuse were very low. In cases of complete amnesia, the mean age was 3.8 for physical abuse and 4.3 for sexual abuse. These figures were subject to standard deviations of 2.8 and 3.1 respectively. That meant that in some cases total amnesia resulted from experiences from the age of one upwards. That was most surprising, because that was well within the period covered by infantile amnesia, and it would not normally be possible for the subject to remember what happened. Thus anyone who claimed to have remembered abuse from ages of one to three was wrong. Secondly, Dr Boakes pointed out that many of the patients considered in the paper were having psychotherapy, which made the sample unrepresentative. Altogether, she thought that the study was badly constructed and subject to major methodological limitations.
[85]Dr Boakes considered the paper by Bremner and others, "Deficits in verbal declarative memory function in women with childhood sexual abuse-related posttraumatic stress disorder" (generic production no 22, referred to in paragraph [68] above; Dr Tierney attached particular importance to this paper, and described it as probably the most important article on the subject). This study concluded that women who had suffered childhood abuse and consequent PTSD suffered deficits in verbal declarative memory but not visual memory. The studies on which it was based were confined to women who had suffered penetrative sexual abuse before the age of puberty. Thus it was based on exceptionally severe abuse. Evidence available from other sources indicated that the effects of penetrative sexual abuse at an early age were markedly more severe than those related to other forms of abuse. The primary explanation put forward in Bremner's paper for its findings was that stress could lead to alterations in the hippocampus, a part of the brain which plays a critical role in memory, in particular in relation to the encoding of new memories. Imaging studies had found smaller hippocampal volume or other alterations in the hippocampus.
[86]Nevertheless, the hypothesis that deficits in verbal memory were caused by damage to the hippocampus as a result of trauma was controversial. It had been based on findings that those who had been sexually abused, or had suffered trauma in Vietnam, had shrunken hippocampi. Those findings had been examined by a researcher called Gilbertson, who had considered identical twins where one had been in Vietnam and suffered PTSD and the other had not. It was found that both twins had small hippocampi; no significant difference was observed between the two groups. It accordingly appeared that being born with a small hippocampus might be a risk factor; such a person was more likely to develop PTSD if exposed to trauma. In general terms, Dr Boakes described Bremner's paper as almost impossible to interpret. It was full of methodological flaws in both selection and controls. It had not looked at a group of subjects who suffered from PTSD without sexual abuse, and the control sample (those who had suffered no abuse and no PTSD) had not been properly matched.
[87]Dr Boakes expressed a number of general criticisms of studies such as that carried out by Bremner and his collaborators. She inclined to the view that the writers of the relevant papers did not keep an open mind on the fundamental question as to whether trauma produces amnesia. Demonstrating that would be difficult; the only way of doing so would be a long-term study of a number of subjects. In Bremner's study, Dr Boakes thought that the sample used by him was inadequate. Perhaps more importantly, she thought that it was not possible to draw generalized conclusions from a sample of women who had been traumatized by penetrative sex and then to apply the conclusions to persons such as the present pursuers. Bremner's sample had suffered severe sexual abuse, whereas the present pursuers had not suffered any penetrative sexual abuse as a result of their experiences in Nazareth House. Thus even if the conclusions in the paper were correct, which Dr Boakes doubted, it could not be assumed that they would apply to the lesser forms of trauma suffered by the pursuers. In my opinion this point is clearly correct, and is of great importance.
[88]Dr Boakes also criticised the relevance of the tests on which papers such as Bremner's were based to the question of whether childhood abuse produces deficits in memory. The relevant tests (which are described at page 645 of Bremner's paper, generic production no 22) involved the recall of two story narratives, which represented verbal memory, and the reproduction of designs after a six second presentation, which tested visual memory. Thus the paper was concerned with recall of things that had happened a few minutes previously, not in childhood. Dr Boakes was of opinion that it is quite impossible to draw conclusions about memories of childhood abuse from tests of that nature. Dr Boakes was asked specifically about the possibility, which played an important part in Dr Tierney's evidence, that childhood abuse could produce a deficit in verbal memory in such a way that the victim could picture the abuse but could not speak about it. She stated that Bremner's paper provided no basis for any such suggestion, because all that it tested was the ability to remember matters that had occurred a very short time previously. Bremner's paper was concerned with the encoding of new memories; it said nothing about old memories. Dr Boakes thought that gross brain pathology would be required before a person could not put into words what he or she had seen. I accept Dr Boakes' opinion on this matter; it seems to me that tests of the sort described in Bremner's paper could not possibly justify a conclusion that persons traumatized in childhood suffer deficits in verbal but not in visual memory in relation to the events that occurred in childhood. I accordingly reject the suggestion put forward by Dr Tierney that the pursuers could have remembered what happened to them when they were resident in Nazareth House but were unable to put that into words.
[89]In cross examination it was suggested to Dr Boakes that the pursuers might have had difficulty in speaking about abuse because the words that they were forced to use caused them anxiety. Dr Boakes agreed that that was a possibility, but stated that it did not involve a failure of memory; it was rather an inability to verbalize. It was known that people regularly failed to report things that had happened, and studies had suggested that this was because they did not want to think about those things, or to be reminded of them. Reporting would make them embarrassed and upset. Nevertheless, in such cases there was a choice as to whether or not to report; there was no biological inhibition on reporting. That did not amount to a deficit of verbal or declarative memory.
[90]Dr Boakes was asked about the impact that publicity given to claims against the defenders might have on the available evidence. As mentioned above, she is one of the co-authors of a paper, "Recovered memories of childhood sexual abuse: implications for clinical practice" (S. Brandon, J. Boakes, D. Glaser and R. Green, British Journal of Psychiatry (1998), 172, 296-307; no 7/96 of process). The background to the paper was the growth in the United States of recovered memory therapy for past sexual abuse. This had caused great public and professional concern, with a polarization of views and fierce controversy within the American psychiatric community. Consequently a working group was set up by the Royal College of Psychiatrists to examine objectively the scientific evidence before such polarization developed in the United Kingdom. The paper represents the group's findings, as contained in a report to the Royal College of Psychiatrists. The report is generally in accordance with the evidence given by Dr Boakes in court, and I think that it is of some importance in demonstrating that there is substantial support within the psychiatric community for her views. In the report it is stated that:
"The problem following most forms of trauma is an inability to forget, rather than a complete expulsion from awareness, and amnesia for violent events is rare".
At a later point, the report states that:
"A growing body of research indicates that partially or completely inaccurate memories are not uncommon. Memory is vulnerable to suggestion. Implanted false stories can be 'adopted' and subsequently 'remembered' as actually experienced events whose recollections are vivid and subjectively indistinguishable from recollections of actual events".
In relation to survivors' groups, it is stated that:
"Survivors' groups are often supportive, helpful in restoring self-esteem and in reducing shame and isolation ... However, the practice of mixing those who clearly remember abuse with those who are suspected by the therapist of having repressed their memories of abuse ... has been strongly criticised ... because of the risk of suggestion and contagion among group members".
In relation to that passage, Dr Boakes explained research carried out when those who had never forgotten abuse were put together with those who had no memory of being abused. Those with no memory appeared to recover their memories of abuse after about 12 weeks, and some of those who had not forgotten recalled additional memories of abuse, generally of a more violent and serious nature than those that they already remembered. Dr Boakes thought that it was worrying that people with no previous memory of any abuse began to report stories of very serious abuse, mostly in early childhood or infancy. There had in fact been no objective evidence that any such abuse had actually occurred, and the researchers had not made any effort to find such evidence. Dr Boakes described this as a very worrying aspect of the research. The report concludes with detailed recommendations, which form the basis for recommendations issued by the Royal College of Psychiatrists. These included the need to look for corroborative evidence.
[91]Dr Boakes also gave evidence about the Fourth Report of the Home Affairs Committee of the House of Commons, dealing with the conduct of investigations into past cases of abuse in children's homes (no 7/47 of the M process). This report arose out of concerns about the methods used by the police to investigate allegations of historical abuse in children's homes and other institutions. Those concerns centred in particular on the practice of "trawling" for information from a wide net of former residents. It was thought that this was liable to lead to false allegations, and a consequent risk of miscarriages of justice. The conclusions of the Committee (found at paragraphs 28-34 of the Report) were that standard letters of inquiry did not give rise to serious concerns, even though such letters might give some information about the nature of the investigation. The Committee thought, however, that a problem can be created when there is wider publicity about an investigation at the time when such letters are sent. The Committee also expressed concern at the use of "tick box" format questionnaires, in which possible victims are asked a series of specific questions about alleged abuse. The Committee considered that such documents present an open and specific invitation to the recipient to make an allegation, and could tempt persons who sought to "jump on the bandwagon". The Committee accordingly recommended that any initial approach by the police to former residents should so far as possible go no further than a general invitation to provide information.
[92]Against the background of that report, Dr Boakes was asked for her opinion on the publicity that claims against the defenders had received in the media. She commented first on certain of the articles that had appeared in the News of the World newspaper (generic productions 13, 14 and 15). She stated that that kind of reporting might encourage persons who had been abused to come forward, but it might also prompt them to elaborate their memories. It might encourage others to jump on the bandwagon. In addition, the promise of reward, such as was found in the News of the World article of 1 June 1998 (generic production 15, where Mr Fyfe was reported as talking about compensation of up to £100,000) might incite people to invent or exaggerate their stories. The BBC "Frontline Scotland" programme involved large numbers of alleged victims meeting in a hall. That might be helpful for some of them, but there was a risk that the memories of some might be elaborated, or that stories might be picked up without the fact being recognized. That possibility had been supported by experimental evidence carried out by Loftus and others, in which it was found that a suggestion by an authority figure can suggest to a number of people that something had happened in childhood that had not in fact happened. In that connection, Dr Boakes expressed particular concern at the article that had appeared in the Daily Mail on 26 January 1998 (no 7/51 of the W process), in which Mr Fyfe was quoted as stating that he was convinced of the allegations against the nuns. Mr Fyfe in his evidence denied that he had made any such allegations; nevertheless the allegations appeared in the press, and could easily have been read by potential claimants. Dr Boakes stated that such reporting might cause suggestible persons to exaggerate their stories or imagine things that did not happen; she thought that that was a matter of common sense.
Conclusions on psychological and psychiatric evidence
[93]As will perhaps be clear from the foregoing discussion, I unhesitatingly prefer the evidence of Dr Boakes. I do so for the following reasons.
1.I found the evidence of Dr Boakes to be very clear, and I found her general intellectual position coherent. In short, her opinion was that survivors of trauma are normally able to recall what happened to them, even if they wish that they could forget. The three pursuers had been able to recall what happened to them, and had mentioned it to various individuals; consequently any psychological explanation for an inability to remember was beside the point. Such individuals may be reluctant to speak, but that is simply because recalling events makes them embarrassed or upset; no complicated psychological explanation is required. That approach seems to me to accord with common sense. Moreover, it fits the facts of the present case, and in particular the ability of all three pursuers to remember what had happened and to speak about it to other persons.
2.By contrast, Dr Tierney's approach was largely based on the views advanced by Van der Kolk, Bremner and others. It involved acceptance that the pursuers displayed DESNOS criteria, and that, as a result of childhood abuse, they were unable to put into words what had happened to them, although they could remember it. In my opinion neither of these points was established.
i.In relation to the DESNOS criteria, I found the evidence of Dr Boakes summarized at paragraph [82] persuasive. I should add that that evidence was not significantly challenged in cross examination. I accordingly find that DESNOS has not been recognized as a distinct syndrome in the two leading diagnostic manuals, essentially because the evidence does not support its existence. Dr Tierney's evidence is accordingly seriously undermined by his heavy reliance on DESNOS criteria.
ii.In my opinion the suggestion that the pursuers were unable to express what they had experienced, although they could visualize it, was not established. It is quite inconsistent with the fact that all three pursuers were able to express to others what had happened to them; none of them claimed any memory deficit. The suggestion was in any event based on papers by Bremner and others. For the reasons explained by Dr Boakes at paragraphs [85] to [88], I consider that those papers cannot be relied on for present purposes. I discuss this point further below.
3.Dr Tierney placed particular reliance on the papers by Bremner and others mentioned at paragraphs [68] above, especially the paper entitled "Deficits in verbal declarative memory function in women with childhood sexual abuse-related posttraumatic stress disorder" (generic production 22). In my opinion that paper is subject to three major criticisms. First, it, was concerned with individuals who had suffered severe penetrative sexual abuse in childhood. That is quite different from the present case, and for that reason alone I do not think that the paper is of any relevance. Secondly, the hypothesis put forward in that paper is that deficits in verbal memory are caused by damage to the hippocampus. That suggestion, however, is negatived by the research by Gilbertson referred to in paragraph [86] above. While that criticism goes to the mechanism whereby Bremner explains his observations rather than the observations themselves, it does I think cast some doubt on his views, because he is left with no real explanation for his apparent findings. Thirdly, Bremner's paper is based on the tests described at paragraph [88] above. These all relate to the ability to recall what has happened a few minutes previously. Thus the research on which the paper is based relates to short-term rather than long-term memory. That in my opinion is a fatal flaw; one thing that is quite clear is that the recollection or otherwise of childhood abuse involves long-term memory.
4.Dr Tierney suggested a second possible reason for delayed disclosure, namely dissociative symptoms and amnesia arising from childhood abuse (paragraph [70] above). This was largely based on the paper by Chu and others, "Memories of childhood abuse: dissociation, amnesia and corroboration" (no 7/97 of process). He stated that observations of dissociation were sometimes used to explain repression, but accepted that repression was a concept that was rarely used in contemporary practice. That of itself seems to me to undermine it as a reason to a substantial degree. In addition, Chu's paper was trenchantly criticized by Dr Boakes (paragraph [84] above). In particular, the paper appeared to be based on an inability to remember events that had occurred between the ages of one and three, a period covered by infantile amnesia where recollection would be highly exceptional. I accept those criticisms, and I did not consider that there is any validity in the suggestion that childhood abuse produced dissociative symptoms and amnesia.
5.I found that Dr Boakes gave her evidence in a manner that was conspicuously fair. That related in particular to her assessment of the available literature. By contrast, Dr Tierney appeared to make use of the literature that supported his basic argument in an uncritical manner, and seriously downplayed the existence of major disagreements among psychiatrists and psychologists. This can be illustrated by a number of examples. First, Dr Tierney placed strong reliance on the work of Van der Kolk and his collaborators, in particular the book "Traumatic Stress", which he described as one of the most authoritative summaries of research on the effects of ill treatment in childhood on subsequent development. He described the views expressed in the book as "the most recent consensus view of the general effects of severe ill treatment at an early age in later life". The opinions of McNally and his supporters were dismissed as a minority view. It became clear, however, that the views of Van der Kolk and his collaborators are highly controversial. The contrary views advanced by McNally clearly command widespread support, not least from Dr Boakes, whose views accord with her collaborators on the paper prepared for the Royal College of Psychiatrists discussed at paragraph [90] above. In my opinion Dr Tierney's attempt to suggest that Van der Kolk's views represented a consensus were wholly misplaced. Secondly, Dr Tierney relied heavily upon the DESNOS criteria, as if they were a matter of established and barely disputed scientific fact. It became clear, however, that the bodies responsible for the two major diagnostic manuals had not accepted DESNOS as a distinct syndrome. Thirdly, Dr Tierney placed particular reliance on the paper by Bremner and others entitled "Deficits in verbal declarative memory function in women with childhood sexual-abuse related post-traumatic stress disorder". That paper, however, was subject to the very strong criticisms discussed above. It seemed to me that the three foregoing examples were fundamental to Dr Tierney's opinion on the three pursuers. Consequently they cannot be dismissed as peripheral or unimportant. I accordingly consider that these examples seriously undermine his evidence.
6.I found Dr Tierney's explanation of the distinction between verbal and visual memory to be unclear. Ultimately, his position as expressed in re-examination appeared to be that persons who had suffered abuse are reluctant to speak about it, rather than unable. He explained this, however, in terms of the distinction between visual and verbal memory, in a manner that I did not fully understand. Dr Boakes, by contrast, explained the distinction between visual and verbal memory as relating to the manner in which a thing is recalled (graphically or verbally); this was borne out by the description of the tests administered by Bremner (see paragraph [88] above). Thus the verbal memory is the norm, and visual memory relates to the ability to draw things. On that basis, I do not understand the relevance of the distinction between visual and verbal memory to the pursuers; no one has suggested that they were able to draw the abuse but not to put it into words. For this reason I think that Dr Tierney's views may have proceeded on a misunderstanding of the literature.
7.I am of opinion that Dr Boakes' reasons for rejecting a diagnosis of PTSD are to be preferred, essentially for the reasons set out at paragraphs [80] and [81] above. Dr Boakes explained that PTSD requires exposure to an event that is especially catastrophic or traumatic, normally of a life-threatening nature. In my opinion that is fully borne out by the definition of PTSD found in the World Health Organization Classification of Mental and Behavioural Disorders, ICD-10, one of the standard diagnostic manuals used in relation to disorders of the mind (reproduced at generic production 10B). The first criterion found in the ICD-10 definition is that "The patient must have been exposed to a stressful event or situation (either short- or long-lasting) of exceptionally threatening or catastrophic nature, which would be likely to cause pervasive distress in almost anyone". I do not understand how it could reasonably be said that the experiences of the present pursuers were of that nature. Their experiences in Nazareth House may have been unpleasant and distressing, but they could not be described as "of [an] exceptionally threatening or catastrophic nature". In addition, the definition in ICD-10 makes it clear that the general symptoms of PTSD must appear within six months of the stressful event or the end of a period of stress. These general symptoms include "reliving" of the stressor in intrusive flashbacks, vivid memories or recurring dreams; avoidance behaviour of a sort that was not present before exposure to the stressor; and either inability to recall events or persistent symptoms of increased psychological sensitivity and arousal. Dr Boakes pointed out that it is very difficult indeed to know years after the event whether the general symptoms were present within the required six-month time period. In addition, on the basis of her examination of Mr M, she was of opinion that he did not meet the criteria for PTSD. I found her assessment convincing. Dr Boakes did not examine Mrs W, and therefore could not express an opinion on her state. She did examine Mrs B and found no evidence of PTSD, but did not rule out that symptoms might have been present at an earlier stage. In these two cases, however, I am of opinion that PTSD is improbable on the basis that the experiences of Mrs W and Mrs B in Nazareth House were not exceptionally threatening or catastrophic.
[94]Counsel for the pursuers criticized the evidence of Dr Boakes for a number of essentially minor reasons. She referred to the drug coproximal as an antidepressant, which it is not; nevertheless, she stated that it was a drug that she never used in practice. She made a passing reference to compensation neurosis, but ultimately accepted that that was not backed up by research. She had interviewed Mr M in the defenders' agents' office, and accepted that that was perhaps not appropriate. In my opinion these criticisms are not significant when set against the totality of Dr Boakes' evidence, which I found impressive. Counsel for the pursuers also criticized Dr Boakes as a witness too close to the defenders' cause, too strident in her evidence and having a fixed mind set. I did not detect any of these features in her evidence.
[95]On the basis of Dr Boakes' evidence, I arrive at the following conclusions.
1.It is not been proved that any of the pursuers suffered from post-traumatic stress disorder.
2.The DESNOS criteria do not command general recognition, and are not relevant to the pursuers.
3.No general psychological or other medical explanation has been established for the pursuers' delay in reporting the abuse that they are alleged to have suffered when in Nazareth House.
4.In particular, it has not been established that the pursuers suffered any material deficits in or difficulties with verbal memory. Likewise, it has not been established that the pursuers suffered from dissociative symptoms and amnesia resulting from childhood abuse.
5.The pursuers were all reluctant to speak about their experiences in Nazareth House, but the main reasons for that were the distress and embarrassment that they suffered when recounting their experiences, together with lack of confidence. All three pursuers did of course disclose their experiences to a limited number of persons even before the disclosures in the News of the World newspaper.
6.All three pursuers nevertheless suffered from psychiatric or psychological disorders. This was particularly true of Mrs B, who suffered from depression, agoraphobia and a degree of obsessive compulsive disorder. Mr M suffered from a personality disorder with paranoid features and comorbid dysthymia with periods of straightforward depression. Mrs W suffered from periodic depression.
[96]It follows that, of Dr Tierney's suggested general reasons for non-disclosure (summarized at paragraphs [68]-[73] above), the first three must be rejected and only the last three are of any relevance. These related to the life histories of the pursuers, both between the ages of 18 and 21 and at the time of their assessment by Miss Gray Taylor, and the vulnerable state of the three pursuers when they left the care of the defenders. I accept that there is some degree of force in these reasons, although I reject the diagnosis of PTSD. In particular I accept that all three pursuers suffered from depression and lack of self-esteem or self-confidence. Mr M had been in prison on a number of occasions between the ages of 18 and 21 and drank to excess during that period. Mrs B was not prepared for life outside Nazareth House, and had serious family difficulties between the ages of 18 and 21. Mrs W had a number of low-paid jobs and abusive relationships. These factors are relevant to the failure of all three pursuers to make complaints.
[97]One other part of Dr Boakes' evidence is important. In her report on Mr M (no 7/9 of process, paragraph 5.15) she records Mr M's family background as noted by Mr Mahmood, a clinical psychologist and psychotherapist who treated him in 1997. Mr Mahmood describes Mr M as "a severely damaged and disturbed young man from a deprived and unfortunate background". It is unnecessary to go into the details of Mr M's background, which was dealt with to some extent in his evidence. What is important is that his home background was seriously disadvantaged; indeed that is why he was taken into care. Both Mrs W and Mrs B gave evidence about their home backgrounds and the events that led to their being taken into care. In both cases it is clear that they too came from most unfortunate home backgrounds, and that that is why they were taken into care. In each case the nature of the home background is borne out by the relevant report by Miss Gray Taylor (no 6/1 of each process). It also came to light during the evidence that at the age of 15 one of the pursuers suffered an incident of such a nature that it could easily have produced long-term psychological trauma. The incident was not related to Nazareth House. That too is a matter that could very easily have contributed to that pursuer's subsequent psychological state and unfortunate history as an adult.
[98]The injuries that the pursuers claimed to have suffered as a result of their treatment in Nazareth House are set out in paragraphs [16]-[19] above. It can be seen that the principal complaint is of psychological injury, with resulting difficulties in forming and maintaining personal relationships and in obtaining employment. The matters mentioned in the last paragraph are important because they mean that the pursuers' psychological problems in adult life cannot be unambiguously related to their treatment while they were in Nazareth House. Part of the explanation may lie in the pursuers' home backgrounds, either through genetic factors or because of their experiences at home before they were taken into care. It may also lie in other experiences that the pursuers had in childhood or adolescence, unrelated to Nazareth House. At any proof on the merits of the pursuers' claims, therefore, an important task facing the court will be to separate the effects of physical abuse by persons for whom the defenders are responsible from the effects of the pursuers' family backgrounds and other experiences. A further task may be to separate the effects of physical abuse in Nazareth House from the general effects of institutional care, in the manner discussed in paragraph [23] above.
Conclusions on explanations for delay in raising proceedings
[99]Relying on the evidence given by the pursuers and Dr Tierney, counsel for the pursuers submitted that a number of good reasons emerged for the pursuers' not coming forward earlier with claims against the defenders. Some of these were implicit in their evidence while others were explicit. First, counsel emphasized the poverty of the pursuers' backgrounds, and the fact that they had all experienced severe family breakdown. All had been unemployed for substantial periods. Mr M had engaged in significant criminal activity during his late teens. All three pursuers suffered from medical problems, including depression and somatization, or many more visits to the doctor than is normal. Both Mr M and Mrs B suffered from agoraphobia. The psychological reports prepared by Miss Valerie Gray Taylor on the three pursuers indicated that their quality of life was in the very lowest percentile of the population. For individuals with that background, it would not be easy to enter a solicitor's office and ask him to raise an action against an order of nuns. Between the ages of 18 and 21, such persons would be entirely lacking in self-confidence. Consequently it was not reasonable to think that they could had approached a solicitor and asked him to act during the last three years of the limitation period. In any event, even if they had contacted a solicitor, it is quite likely that he would not have believed the pursuers' stories, just as Mr M's criminal solicitor had not appeared to believe what he was told. Consequently, counsel submitted, it is probable that no solicitor would have been willing to act for the pursuers prior to the end of the limitation period.
[100]Secondly, counsel submitted that on their evidence none of the pursuers thought that they would be believed if they gave an account of what had happened to them in Nazareth House. When they were children they had complained to the police and social workers, but no one had paid any attention to their complaints. In particular, there appeared to be a general reluctance to believe that nuns could be guilty of cruelty to children.
[101]Thirdly, counsel submitted that the pursuers did not know that they could bring a civil action against the defenders. Mr M had explained that he did not know that a civil action would be possible until he had read an article to that effect in the News of the World. Both Mrs W and Mrs B likewise said in evidence that they did not know that they could bring a civil action against the defenders until the matter was raised in the press; indeed, Mrs W stated that she had not realized that she could take action against the defenders until she spoke to Mr Fyfe. Counsel submitted that this was an important consideration and that the court should be wary of submissions from the defenders, made from a middle-class point of view, that everyone should know the law and be well aware of their rights.
[102]Fourthly, counsel submitted that the pursuers had wanted to block out their experiences in Nazareth House; consequently they were very reluctant to speak to anyone about the matter. Mr M gave the clearest evidence of that, indicating that he was not at all happy talking about these matters. Mrs W stated that she had not been able to speak about her treatment in Nazareth House until she was in her forties. When other complaints about the defenders had been made, however, the pursuers had felt that there was safety in numbers. Dr Tierney in his evidence had pointed to the difference between the making of an individual complaint and going forward as part of a group. Finally, counsel suggested that the reasons given by the defenders for not making their complaints earlier had not been challenged in cross-examination, and accordingly those reasons should be accepted by the court. I do not accept this last point; there was extensive cross-examination directed to the reasons for not making complaints earlier.
[103]Counsel for the defenders submitted that none of the pursuers had given a satisfactory explanation for the delay in intimating a claim. All three had mentioned their experiences to others, and all three had had contact with lawyers at an earlier stage. Mrs W did not in terms state that she had been ignorant of any right to compensation. Mrs B had been prepared to speak to the press, and could not be portrayed as a naïve and vulnerable lady inhibited from taking appropriate action. Mr M, counsel submitted, was an astonishing case, because he stated in court more than once that he did not want compensation and did not want to proceed with the action.
[104]In my opinion there is some force in certain of the points made by counsel for the pursuers. To a substantial extent these echo the evidence of Dr Tierney that I have accepted in paragraph [96] above. I accept that all three pursuers experienced great personal difficulties between the ages of 18 and 21, and that indeed those difficulties have in large part continued until the present; this is one of the parts of Dr Tierney's evidence that I accept, for the reasons set out at paragraph [96] above. Mr M went through a period of excessive drinking together with criminal behaviour, which resulted in periods of imprisonment. Both Mrs W and Mrs B had great difficulties with personal relationships, and were in low-paid, unskilled jobs at this time. All three had clearly suffered a degree of psychological harm, resulting in depression and, in the case of Mrs B and Mr M, other psychological complaints. I accept that all of these factors might have inhibited the bringing of court proceedings. It is clear, however, that none of the present pursuers is anywhere near the situation of the pursuer in Comber v Greater Glasgow Health Board, supra. That case was distinguished in Kane v Argyll & Clyde Health Board, supra, a case which appears to me to bear a much greater similarity to the position of the present pursuers.
[105]I also accept that, at least between the ages of 18 and 21, all three pursuers did not think that they would be believed if they made complaints about that treatment in Nazareth House. In Mr M's case I think that this belief probably continued until the disclosures in the News of the World. Mrs W, on the other hand, received a sympathetic hearing from a number of people to whom she spoke during the 1990s, and I conclude that she must have realized well before 1997 that there was a reasonable possibility that her account of events would be believed. I think that the same is true of Mrs B; she had been prepared to go to the press, which tends to negative any view that she would not take action because she feared that she would not be believed.
[106]I think it probable that the three pursuers did not consciously realize until May 1997 that they could raise court proceedings in respect of their treatment in Nazareth House. I must qualify this, however, by stating that the probable reason for this state of affairs was simply that they did not think about the possibility of court proceedings, not that they thought about the possibility but decided that proceedings were impossible; there was no evidence that any pursuer had ever thought about the possibility. I am also conscious that Mrs W was not asked in terms about her ignorance of a right to compensation. In addition, both Mrs W and Mrs B were clearly intelligent women, and any serious reflection on the possibility of compensation would, I think, had a suggested to them that a claim might be possible. In my opinion the fact that the pursuers' ignorance of a right to compensation was caused by not thinking about the matter, rather than thinking about it and rejecting it, takes much of the force out of this point. The law must start from the proposition that everyone is aware of his or her rights, or at least has the means of ascertaining those rights. If people do not apply their minds to the question of whether such rights exist, it is difficult to see that there is any compelling reason for allowing them to bring claims well out of time. In addition, I note that the present case is not one where there was any suggestion that any of the pursuers was misled about his or her rights; this distinguishes is it from cases such as McIntyre v Armitage Shanks Ltd, supra.
[107]I accept that all of the pursuers were reluctant to speak about their experiences in Nazareth House, because they found it distressing and embarrassing to relive those experiences. I do not regard this as of more than minor significance, however. A great deal of litigation involves matters that are frankly unpleasant. This is true of virtually all personal injury litigation, and much else besides. The fact that giving an account of what happened is distressing or embarrassing cannot by itself be regarded as an excuse for failure to take action.
[108]Counsel for the defenders attached importance to Mr M's lack of a desire for compensation. Mr M has raised proceedings, however, and I think that I must take those proceedings at face value. In a sense a person in Mr M's position faces a dilemma; if he claims that he is anxious to receive compensation he will be stigmatized as only pursuing an action for the money, whereas if he states that he does not want compensation he is criticized as having no real interest in the outcome of proceedings. The only fair course of action seems to me to take the proceedings at face value.
[109]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 in Nazareth House, between the ages of 18 and 21 and for at least a substantial number of years thereafter; and (iii) the pursuers did not consciously realize 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 opinion that these factors are heavily outweighed by a number of other matters that are relevant to the exercise of the court's discretion under section 19A. I will now deal with those other matters.
Other matters relevant to the application of the section 19A discretion
[110]At the outset I should emphasize that the burden of establishing that the court should exercise its discretion under section 19A to allow the actions to proceed rests firmly on the pursuers. The reasons for this are set out by McHugh J. in Brisbane Regional Health Authority v Taylor, supra, at 186 CLR 552-553, quoted at paragraph [21] above. The limitation provision, that in section 17 in the present case, is the general rule, and the extension provision in section 19A forms an exception to it. Such an extension provision is, as McHugh J. points out, "a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case". McHugh J. states the result as follows:
"The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension".
The same point is made in KR v Bryn Alyn Community (Holdings) Ltd., supra, in the passage quoted above at paragraphs [33]-[36], and in T v Boys & Girls Welfare Service, supra, in the passage quoted above at paragraph [40]. In Bryn Alyn it is pointed out that the burden on a claimant of showing that it would be equitable to disapply the limitation period is a heavy burden.
1.Prejudice caused by lapse of time
[111]In Brisbane Regional Health Authority v Taylor, supra, quoted at paragraph [21] above, McHugh J. refers (at 186 CLR 551) to "the general perception that '[w]here there is delay the whole quality of justice deteriorates'". Sometimes, as McHugh J. points out, that deterioration is obvious, as where an important witness has died or a document has been destroyed. Sometimes, however, the deterioration is not obvious, because no one remembers that the evidence ever existed. The longer the delay the more acute the latter problem is likely to be, because as years pass people remember less and less. McHugh J. further refers (at 186 CLR 552-553) to the four standard rationales for the enactment of limitation periods. First, evidence is likely to be lost with the passage of time, and once it is lost no one knows that it ever existed. Secondly, it is oppressive to defenders to allow claims long after the events that brought about the claim. Thirdly, people should be able to arrange their affairs on the basis that claims arising beyond a definite period can no longer be made against them; that applies particularly to businesses, to public institutions and to their insurers. Fourthly, the public interest requires that disputes be settled as quickly as possible. All of these considerations can clearly be seen as underlying the enactment of Part II of the Prescription and Limitation (Scotland) Act 1973. Section 17 of that Act imposes a basic limitation period of three years for actions for damages in respect of personal injuries. That is subject to certain qualifications, notably those found in section 17(2), which effectively disregards any period when a pursuer was not aware of material facts, and section 17(3), which disregards any period when a pursuer was a minor or otherwise legally disabled. Nevertheless, the judgment of the legislature is that the right to bring an action for personal injuries should normally cease after three years have elapsed. In the present cases the events complained of by the pursuers occurred between 1961 and 1979; thus they began 39 years before the actions were raised and ended 21 years previously. Even when section 17(3) is taken into account, the relevant limitation periods expired in 1974 for Mrs W, 1981 for Mrs B and 1990 for Mr M. Thus the delay beyond the statutory limitation period is a minimum of 10 years. Those periods are very substantial by any standards. In my opinion they are so long that a serious decline in the quality of justice is inevitable. That decline relates not merely to the evidence that is directly available from the claimants and other witnesses to events. Because of the long periods that have elapsed, it is likely that substantial evidence will be lost, and no one will remember that such evidence ever existed: see paragraph [24] above. That inevitably has a serious effect on the cross-examination of witnesses. Thus it becomes impossible to test the evidence effectively, and the court cannot be confident that it is obtaining an accurate picture of events.
[112]In this connection the decision of the Court of Appeal in KR v Bryn Alyn Community (Holdings) Ltd., supra at paragraphs [32] et seq, is highly pertinent. The relevant legal principles applied by the court are set out above at paragraphs [33]-[36]. In relation to the length of time that has elapsed, Auld LJ states that the longer the delay the more likely, and the greater, the prejudice is to a defender, and that, as a general rule of thumb, the longer the delay after the occurrence of the matters giving rise to the cause of action the more likely it is that the balance of prejudice will swing against disapplication. In that case five cases out of 14 were allowed to proceed, and it is significant that in all five the period that had elapsed since the end of the abuse was 10 years or less. That should be contrasted with the present cases, where all of the abuse complained of ended more than 20 years ago. I have already drawn attention to the claimant CGE (at paragraph [37] above), who claimed to have suffered physical abuse of a nature broadly similar to that alleged by the present pursuers. An action was raised 16 years after the abuse had come to an end, and 12 years after the end of the primary limitation period. The Court of Appeal refused to exercise its discretion in favour of the claimant, for two reasons: first the simple length of the delay, and secondly the effect that such delay was likely to have on the cogency of the evidence for the claimant. In my opinion both of these factors are plainly relevant to the present case.
[113]I am further of opinion that the simple length of the delay is important in the present cases for the reasons discussed above at paragraphs [22], [23] and [98]. In the first place, attitudes to the physical punishment of children have changed dramatically in the past 30 years or so. It is very difficult today to reconstruct the social attitudes of 30, 40 or 50 years ago. In this respect, it seems to me that there is an inevitable and serious decline in the quality of justice. In the second place, it is clear that all three pursuers suffered to some degree from the effects of institutional care; matters such as the lack of affection from those in charge of the children and the harsh and inflexible nature of the régime plainly had an effect on them. Institutions like Nazareth House no longer exist in the United Kingdom, fostering having replaced them. When one looks at the life histories of the pursuers it is perhaps easy to see why this change has taken place. Nevertheless, reconstructing the impact of institutional care on the individual pursuers, 30 or 40 years after the event, is a task of extreme difficulty. It is a task that would have to be performed, however, because the pursuers' legal complaints must relate to physical abuse rather than the general effects of institutionalization; institutional care was normal at that time, and cannot of itself be a ground of fault. In the third place, for the reasons set out at paragraph [98], it would be necessary at any proof on the merits of the pursuers' claims to consider the effect that their home backgrounds and other traumatic incidents might have had on their unfortunate life histories. Once again, this is an exercise that would have to be carried out 25 years and more after the event. Once again, a serious decline in the quality of justice seems to be inevitable owing to the lapse of time.
[114]Counsel for the pursuers submitted that the matters discussed in the last paragraph went only to quantum, and should accordingly be disregarded in considering the exercise of the court's discretion under section 19A. It is true that those matters are ultimately relevant to quantum. It does not follow, however, that they are irrelevant to the section 19A discretion. The critical point is that 30 or 40 years after the relevant events it is very difficult, if not impossible, to assess the significance of causative factors and to work out their probable effects. That in my opinion is a matter that is highly relevant to the discretion that I have to exercise. Indeed, it is perhaps one of the clearest examples of the decline in the quality of justice that is inevitable after the lapse of many years.
[115]One further point arises from McHugh J's opinion. He indicates (at 186 CLR 552) that one of the standard rationales for the imposition of limitation periods is that it is oppressive to defenders to allow actions to be brought long after the circumstances that gave rise to them have occurred. The individual nuns who were responsible for the abuse claimed by the pursuers are now either dead or elderly. The defenders no longer run children's homes in the United Kingdom, and have not done so since the 1980s; evidence on this matter was given by Sister Christina Keane, a member of the second defenders' General Council. They now run homes for the elderly in the United Kingdom. They do maintain institutions for the care of children in Africa, but these are for children suffering from AIDS, who are often abandoned by their families, frequently because the parents are ill. They also maintain hospices in Africa for adults with AIDS. If the pursuers are successful in their claims, however, it seems likely that a substantial part at least of the damages would have to be paid from the defenders' own resources. It does not appear to me to be obviously fair that the defenders' current activities should be prejudiced because of acts carried out 20, 30 or 40 years ago by individuals who are now either dead or no longer active.
[116]In the present three cases, I am of opinion that the length of time that has elapsed is sufficient by itself, without regard to any specific prejudice to the defenders, to make it inequitable to allow the pursuers' actions to proceed. 21 years had elapsed between the date of the last of the pursuers' allegations and the raising of the present actions. After such a period I am of opinion that a major decline in the quality of justice is inevitable. That by itself greatly outweighs the reasons described in paragraph [109] above for the pursuers' failure to raise actions within the limitation period.
2.Prejudice caused by changes in the law
[117]Closely related to the social and other changes discussed in the previous section is the effect of changes in the law in the last 10 years. In many cases where an application is made under section 19A this will not be a relevant factor because the law has remained constant. In the present case, however, the law has changed as a result of the decision of the House of Lords in Lister v Hesley Hall Ltd., [2002] 1 AC 215. That case substantially extended the law of vicarious liability for the criminal acts of employees and other agents. In that case the owners of a boarding school were held vicariously liable for acts of sexual abuse committed by the warden of a boarding house. Previously it was generally understood that delicts of a criminal nature were unlikely to give rise to vicarious liability because they were not within the scope of the perpetrator's employment. In that case, however, it was held that vicarious liability could be established if there was a sufficient connection between the criminal acts and the work that the person responsible had been employed to do. Where the care of children was entrusted to an employee, and the employee abused his position of trust, such a connection existed, and the employers were vicariously liable.
[118]Lister can perhaps be regarded as an example of a more liberal approach to vicarious liability that has developed over the lost 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 pursuers, 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.
[119]I think it clear that, if the present cases had been brought within the statutory time limits, that is to say, by at latest 9 January 1990, it would have been difficult if not impossible for the pursuers 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 attached 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 limitation periods expired.
3.Prejudice caused to the defenders by loss of evidence
[120]The absence of witnesses and the lack of contemporaneous records and other documents is recognized as a factor relevant to the exercise of the court's discretion under section 19A: Kane v Argyll & Clyde Health Board, supra; KR v Bryn Alyn Community (Holdings) Ltd., supra, quoted above at paragraphs [30], [34] and [35]. It is clear in my view that the delay in raising the present actions has deprived the defenders of the opportunity to trace many relevant witnesses and to recover a number of relevant documents. In my opinion this has caused them serious prejudice.
[121]The evidence available to the defenders was discussed in evidence by Dr Pamela Abernethy, a partner in Simpson & Marwick, the Edinburgh solicitors who currently act for them. On the basis of her evidence I find the following facts proved.
1.Mrs W alleges that three nuns were responsible for her abuse, Sister E, Sister N and Sister J M. Sister E, whose birth name was A K, died on 23 February 2001 aged 95; her death certificate is no 7/86 of the W process. Sister N, whose birth name was T M M, died on 21 April 1991 aged 92; her death certificate is no 7/21 of the same process. Sister J M is a reference to the nun properly known as Sister M; her birth name was K M, and she died on 5 May 2002, aged 55; her death certificate is no 7/79 of the same process. Some of Mrs W's contemporaries are alive and can give general evidence about life in Nazareth House. No one has been found, however, who can give specific evidence about Mrs W's claims. The general practitioner who dealt with her when she was in the home, a Dr Docherty, died in 1998; his death certificate is no 7/21 of the M process. No medical records have been found earlier than 1983. The social work records are missing. No useful school records exist.
2.Mrs B alleges that seven nuns and a named carer, M K, were responsible for her. The nuns are Sister Do, Sister Ca, Sister Cu, Sister J, Sister J S (referred to in the pleadings as Sister S), Sister B and Sister C. Sister Do, whose birth name was M R, died in Fresno, California, on 25 January 2002, aged 80; her death certificate is no 7/81 of the W process. Sister B left the defenders' order and has disappeared; she has not been traced. No Sister Clare who was in Nazareth House at the time of the relevant allegations by Mrs B has been traced in the defenders' records. Sister J S, whose birth name is A M O'D, lives in San Diego, California. She is alive but in very poor health. A medical certificate from her doctor is produced as no 7/90 of the W process; this states that she is being treated for rheumatoid arthritis, seizures, renal insufficiency and weight loss. She is described in the certificate as frail and weak, and her general health is described as poor. The doctor who granted the certificate states that she was not felt to be physically or mentally able to consider a trip to the United Kingdom. Sisters Ca (properly Ca L), Cu and J are all alive and probably able to give evidence. Sister Ca L is aged 74 and uses a wheelchair. She remembered Mrs B and her brother and sister, but denied Mrs B's allegations when interviewed by Dr Abernethy. Sister Cu also remembered Mrs B and her brother and sister; she too denied Mrs B's allegations when interviewed. Sister J, when interviewed, had very little recollection of Cardonald; she had only been there for one year. The carer, M K, has been traced and is able to give evidence. No significant school records exist, but medical and social work records are available. The social workers responsible for Mrs B have not been traced.
3.Mr M alleges that two nuns were responsible for his abuse. One is referred to as Sister D; this appears to be a reference to a Sister M of the D, whose birth name was J A. She died on 20 February 1989, aged 79; her death certificate is no 7/22 of the M process. The other nun is referred to as "Sister S". This appears to be a reference to Sister J S, who is referred to above. At least one other nun who was present in Nazareth House at the material time, Sister A, has been traced and is available to give evidence, but when interviewed she was unable to give any useful detailed evidence. Mr F, the violin teacher who is referred to, has not been traced. Medical records and social work records are available for Mr M, but no social worker has been traced to speak to them.
[122]I do not find the lack of specific evidence from contemporaries surprising, in view of the time that has elapsed since the three pursuers were resident in Nazareth House. The absence of contemporaneous social work records for Mrs W is I think significant, as is the absence of social workers for all three pursuers. The three pursuers were placed in the care of the defenders by the relevant social work authority, and accordingly their progress was monitored to some degree by social workers and records were kept by those social workers. Consequently the evidence of the relevant social workers could be of the greatest importance. The social work records might be of particular importance in cross-examining the pursuers, in particular Mrs B. Although it might still be possible to trace social workers, I have no confidence that they would have any recollection beyond the records that are available; that follows quite simply from the time that has elapsed since the events in question.
[123]Dr Abernethy 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 in respect of 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.
[124]In summary, I find that the defenders are seriously prejudiced by the non-availability of witnesses, the absence of documents, and the inability of such witnesses as have been traced to remember specific details of what happened at Nazareth House during the 1960s and 1970s. The result of this finding is well stated by McHugh J. in Brisbane Regional Health Authority v Taylor, supra, at 186 CLR 555:
"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".
The same point is made in several other cases, notably by Lord President Hope in McCabe v McLellan, supra (see paragraph [28] above), by Lord Prosser in Kane v Argyll & Clyde Health Board, supra (see paragraph [30] above), by Auld L.J. in KR v Bryn Alyn Community (Holdings) Ltd., supra (see paragraphs [33], [35] and [36] above), and by Latham L.J. in T v Boys & Girls Welfare Service, supra, (see paragraph [40] above). In KR v Bryn Alyn Community (Holdings) Ltd., supra, Auld LJ referred in detail to the difficulties of testing allegations of abuse many years before. He stated (at paragraph 82).
"Such allegations are so easy to make and so difficult to refute that the danger of injustice is acute".
These authorities make it clear that actual prejudice, even of a fairly limited nature, will usually be sufficient to preclude any extension of the limitation period. In the present case I am of opinion that actual prejudice to the defenders has been shown. I consider such prejudice to be clear, and also to be serious. In these circumstances I am of opinion that the existence of such prejudice is by itself a sufficient reason for not allowing the actions to be brought under section 19A. That is so notwithstanding the reasons for the failure to raise actions timeously, as summarized in paragraph [109] above.
[125]In relation to prejudice, it should also be noted that it is irrelevant that many of the difficulties involved in defending the action would have existed immediately before the expiry of the limitation period. This point is made by McHugh J. in Brisbane Regional Health Authority v Taylor, supra, at 186 CLR 555, and by Lord President Hope in McCabe v McLellan, supra (see paragraph [28] above). Once the statutory limitation period has expired, the scheme of the legislation is that a defender is entitled to rely upon it unless the pursuer demonstrates that it is inequitable that he should do so. If the defender demonstrates that he has suffered significant prejudice in defending the claim, however, that will normally defeat any argument that it is inequitable to allow him to rely on the limitation period. That is so whenever the prejudice occurred; the mere fact of prejudice is enough.
4. Prejudice to defenders: scale of litigation and recoverability of expenses
[126]I am further satisfied that significant prejudice would be caused to the defenders by the scale of the litigation involved in the present three cases. That is perhaps especially so when it is borne in mind that approximately 290 other actions have been raised against the present defenders by other claimants. The expenses of defending such actions are very substantial. Dr Abernethy gave evidence that the total expenses incurred between November 1999, when Simpson & Marwick took over acting on the instructions of insurers, and the start of the present proof amounted to £300,000, of which £120,000 related to the present three cases. She also stated that the defenders' expenses in the proof were estimated to be of the order of £10,000 per day.
[127]Cases involving allegations of historical abuse are inevitably difficult to investigate, for a number of reasons. Because the crucial events inevitably took place many years ago, witnesses' recollections are likely to be poor, especially on matters of detail. The details are likely to be important, however, especially in view of the fact that the pursuers' unfortunate life histories may well be the result of their family backgrounds or the general effects of an institutionalized upbringing, rather than or in addition to any abuse that they may have suffered at the hands of nuns in Nazareth House. Tracing witnesses is also likely to be extremely difficult. In the present case large numbers of potential witnesses appear to exist, although how much of value any of them will be able to contribute may be highly questionable; after the lapse of 30 or 40 years it is unlikely that many such witnesses will have much recollection of detail. Documentary records may or may not exist, but efforts will have to be made to recover those that are available. That in itself is likely to be difficult because of the passage of time. Thus the expense of investigating the present and other similar claims and preparing actions for proof is likely to be very great. In my opinion that expense can be described as disproportionately large by comparison with the scale of the pursuers' claims. The existence of a significant disproportion between the likely expenses of litigation and the likely awards that claimants might be expected to receive has been recognized as a ground for refusing to exercise of the court's discretion in statutory provisions such as section 19A: Adams v Bracknell Forest Borough Council, supra; the relevant passage is quoted at paragraph [38] above. In the present cases, I am not persuaded that any awards made in favour all the pursuers are likely to be very large, even if they establish their averments on record. The major part of the pursuers' averments of loss relates to the long-term consequences of their time in Nazareth House, in the form of difficulties with personal relationships, difficulties with employment and long-term psychological injury. I think it likely, however, that these matters have a number of causes apart from physical abuse in Nazareth House. Those other causes include the pursuers' home backgrounds, which were generally unfavourable, genetic influences, the adverse effects of an institutional upbringing, and other specific adverse life experiences. In addition, such physical abuse as the pursuers suffered must be judged by the standards of the 1960s and 1970s, not those of the present day. Systematic physical punishment was recognized as normal in those days, as Mrs B seemed to recognize in her evidence when she said that it took some time before she realized that what she saw happening was wrong. That is not to say that a significant number of the events referred to in the pursuers' pleadings were not seriously excessive even by the standards of 30 and 40 years ago. Nevertheless, I think it unlikely that these can be regarded as responsible for more than part of the pursuers' long-term problems in adult life; consequently I think that the damages awarded are unlikely to be very great. The result is, in my view, that the probable expenses of defending the claims are likely to be disproportionately large by comparison with the value of the claims. That is a factor that I take into account in exercising my discretion, although I do not regard it as conclusive by itself.
[128]At this point I should mention one argument that was put forward on behalf of the pursuers. This was a suggestion, put to more than one witness, that the defenders should avoid the expenses of a full investigation by simply accepting the claims made against them and paying compensation now. Reference was made to similar claims made in Australia and Ireland where, it was suggested, persons such as the present defenders had accepted responsibility and paid compensation. In my opinion this argument is wholly misconceived. The second defenders are a charitable body. As such, they have clearly received funds for charitable purposes. They owe a duty to the donors of those funds to ensure that the funds are applied in accordance with the law. One consequence of that is that they should not make over those funds to any person unless they are satisfied that they are under a legal obligation to do so. Apart from that, the second defenders have insurance cover, although according to Dr Abernethy it is not clear to what extent such insurance might cover the present claims. If any insurance cover exists, however, the second defenders will be under a duty to their insurers not to admit any claim without the insurers' consent. In these circumstances the defenders could not possibly pay compensation to the pursuers without being satisfied that such compensation is legally due. Reference was made to the settlement of claims in Australia and Ireland. Evidence on this matter was given by Sister Christina Keane. She stated that in Queensland, but not other Australian states, and in Ireland the governments had set up commissions to look into complaints about ill-treatment in children's homes and to recommend compensation. Thus any action taken in those two jurisdictions was prompted by government intervention, and is not comparable to the present litigation, where there has been no government intervention..
[129]The three present pursuers are all legally aided, as are the pursuers in most of the other actions raised against the defenders; 81 of them, however, were thought by Dr Abernethy to be privately funded. The grant of legal aid means, of course, that the defenders are unlikely to be able to recover their expenses even if they succeed in their defence to the actions. That in itself clearly prejudices the defenders. It has been recognized that the existence of such prejudice is a factor that may be taken into account in considering whether the court should exercise its discretion under section 19A: Forsyth v A.F. Stoddard & Co Ltd, supra at paragraph [29]; Lannigan v Glasgow City Council, supra at paragraph [39]. In the present cases this factor is clearly relevant, and it provides a further reason for not allowing the present actions to proceed.
5.Prejudice caused by media publicity and methods used to investigate claims
[130]The publicity that cases similar to the present were given in the press and on television is summarized above at paragraphs [43]-[48]. It is clear that that publicity induced the present pursuers, as well as many others, to seek legal advice with a view to raising proceedings against the defenders. Counsel for the defenders referred to the risk of prejudice to the defenders as a result of the age of the claims, and submitted that the media publicity added materially to that risk. He referred in particular to the stories in the News of the World that gave prominent publicity to statements attributed to Mr Fyfe, in particular a suggestion that compensation could be of the order of £100,000, and submitted that these could encourage false or exaggerated claims.
[131]I agree that the articles that appeared in the press gave rise to a risk of prejudice to the defenders. That is particularly true of the statements attributed to Mr Fyfe, both in the News of the World and subsequently in the Daily Mail and Scotland on Sunday. In those passages of the reports, a well-known personal injury solicitor was apparently quoted as saying that he believed that claimants against the defenders had good cases. He was also reported as describing the conduct of the defenders in very strong terms, and suggesting that large sums of compensation might be obtained from the defenders. Mr Fyfe's evidence was that his conversation with the reporter from the News of the World about levels of compensation was in much more guarded terms, and I accept that version of events. Nevertheless, it is the version that appeared in the newspaper that potential claimants would read; consequently it is that version that matters in assessing whether the was a risk of prejudice to the defenders. Exactly the same is true of the quotations attributed to Mr Fyfe in the Daily Mail and Scotland on Sunday. In these cases Mr Fyfe denied ever making such a statement. Once again, however, it is the printed version that is important. Mr Fyfe in cross-examination accepted that statements of the sort attributed to him were potentially prejudicial. I agree. In my opinion there is an obvious risk, when a prominent legal figure is quoted as expressing views on the merits of claims and on the level of damages that might be recovered, that ill-founded or exaggerated claims will be presented. Stories of the sort that appeared in the News of the World and other newspapers also create a risk that those reading them will imagine that things happened to them which did not, or will tend to exaggerate incidents that did actually happen.
[132]In this connection I think that the evidence of Dr Boakes, as summarized above at paragraphs [90]-[92], is important. Dr Boakes referred to the risk that memory is vulnerable to suggestion, and that implanted false stories can be "adopted" and subsequently "remembered" as actually experienced events. She expressed specific concern about the articles that appeared in the News of the World, in particular the article of 1 June 1997 where Mr Fyfe was reported as suggesting that compensation might amount to £100,000. Dr Boakes stated that that article might induce individuals to exaggerate their stories, or to jump on the bandwagon started by other claimants. She also was also critical of the article that appeared in the Daily Mail on 26 January 1998, in which Mr Fyfe was reported as expressing the opinion that the claimants had a good case. Finally, she expressed concern at the "Frontline Scotland" programme broadcast in February 1998, and in particular at the meeting in Partick Burgh Halls that preceded it. She stated that there was a risk that the memories of some of the participants might be elaborated, or that participants might pick up stories from others without recognizing the fact. I accept Dr Boakes' evidence on these matters. She herself described her views as being "common sense", and that seems to me a very fair assessment.
[133]Although I accept that there is a risk of prejudice in the media publicity that occurred in 1997 and 1998, I am not satisfied that this by itself would necessarily lead to the refusal of an application under section 19A. A risk is involved, not a certainty, or even a probability. Whether there is actual prejudice is a matter that could obviously be explored in detail if the pursuers' substantive evidence were tested by full cross-examination. If at that point it appeared likely that the evidence of a particular pursuer had been tainted by media publicity, it would obviously be discounted accordingly. Nevertheless, although I do not think that the media publicity should by itself lead to the refusal of the present applications, I am of the opinion that it is a factor that can properly be taken into account along with the other factors that I consider relevant. One of these is the cost and scale of the litigation, and the fact that, with a legally aided pursuer, it is unlikely that the defenders will recover their expenses even if they succeed in the end of the day. The need to explore the effects of media publicity must clearly add to the scale and complexity of the litigation. The media publicity is also related to the simple age of the complaints in the present cases. When so long has elapsed since the events giving rise to the claims, the possibility that media publicity will affect the memories of claimants, however innocently, becomes more likely, and in such a case the existence of media publicity provides an additional reason for refusing permission to bring an action.
[134]Counsel for the defenders also submitted that the methods adopted by Messrs. Ross Harper, the pursuers' Glasgow solicitors, in preparing the cases brought on behalf of the present pursuers and other claimants gave rise to a risk of prejudice. In particular, he referred to the use of "tick list" questionnaires to discover the nature of the allegations made by claimants. Mrs W and Mr M had both received such questionnaires. Statements given by claimants had been submitted to the defenders' original agents, Messrs. Stronachs, but generally speaking these reflected the terms of the questionnaires. No precognitions had been taken even as late as May 2000, when the summonses were signeted and served. Counsel submitted that using questionnaires of this nature gave rise to a risk that the recollection of witnesses would be affected.
[135]I accept that there is a risk of prejudice in the use of "tick list" questionnaires, which inevitably suggest categories of abuse that may or may not apply to a particular claimant. To that extent there is a parallel with the practice of "trawling" referred to in the Fourth Report of the Home Affairs Select Committee (see paragraph [91] above). The risk is made worse if detailed precognitions are not taken from individual claimants. As with media publicity, however, I am of opinion that this risk is not of itself sufficient to bring about the refusal of an application under section 19A; it is a matter that can be explored in cross-examination. In addition, in view of the number of complaints in the present case, I have some sympathy with the view expressed by Mr Fyfe and Sheriff McCulloch that there was little else that the pursuers' solicitors could do if they were to discover the nature of claimants' cases within the time available. Nevertheless, there is I think an obvious risk, if such a method is adopted, that there may be a tainting of claimants' evidence. I consider that that risk is a factor that can be taken into account in considering the exercise of the court's discretion under section 19A, although I rate it a fairly minor one.
6.Prejudice to parties through loss of legal rights
[136]A further factor that has been regarded as relevant to the exercise of the court's discretion under provisions such as section 19A is the prejudice to the parties through loss of their legal rights. Counsel for the defenders submitted that there was relatively little prejudice to the pursuers because they all stated either that they did not want to present a claim, in the case of Mr M, or were not interested in compensation, in the case of Mrs W and Mrs B. Mrs W during her cross-examination was asked what she wanted to achieve by the action. She accepted that she was not interested in money, but wanted the nuns to realize that children grow into adults and to stop the abuse. She considered that people have to be accountable, and she regarded himself as representing both herself and all victims of abuse. Mrs B stated that she did not want money, but wanted to see the nuns in court; she saw herself as representing others, and wanted to ensure that the Catholic Church could not hide behind a time bar.
[137]Although the pursuers all disclaim any interest in financial compensation, I do not think that it can be said that they have not substantial interest in the outcome of the present actions. Money is certainly not everything, and establishing legal rights can be important, both for its own sake and for the comfort that it brings to the persons whose rights have been infringed. That is subject to the rule that there must be a patrimonial interest in the outcome of litigation, but it was obviously not suggested that the pursuers had no patrimonial interest in the present actions. I do not think that the pursuers' rights can be described as insignificant or negligible. In addition, almost any person presenting a claim of this nature must be sensitive to the charge that he or she is merely looking for an opportunity to make money. It is accordingly unsurprising that all three pursuers disclaimed an interest in financial compensation.
[138]The result is that the pursuers' financial claims must be taken at face value. If the discretion under section 19A is not exercised in their favour, they will lose any right to compensation. If the discretion is exercised, the defenders will lose their right to rely on the defence of limitation. In my opinion these elements should be balanced in the manner suggested by McHugh J. in Brisbane Regional Health Authority v Taylor, supra, in the last paragraph of the passage quoted in paragraph [21]. 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. In my opinion that is the result that must follow in the present case.
[139]Some mention was made of the question of insurance. The defenders have an insurance policy, and Dr Abernethy explained that the insurers had taken over the defence of the present actions. There is, however, some doubt as to how much of the claims the policy might cover. In my opinion the existence of an insurance policy is totally irrelevant to the court's discretion under section 19A. An insurer is entitled to assert all rights and defences open to the insured; that is one of the fundamental principles upon which the whole law and practice of insurance is based. That obviously includes the right to invoke any relevant period of limitation.
7.Conduct of parties' solicitors since 1997
[140]It is recognized that the conduct of the parties' solicitors may be material to the exercise of the court's discretion under section 19A. Counsel for the defenders criticized the conduct of the pursuers' solicitors in preparing the present cases. Although the pursuers and other claimants had come forward in 1997 or 1998, legal aid had not been secured until 2000, and the actions were raised in May 2000, almost exactly three years after the first article that appeared in the News of the World. In spite of the time available for preparation, the original summonses had contained sparse averments. Matters had also been delayed by an attempt to obtain legal aid for proceedings against the local authorities that had been responsible for the pursuers during their childhood. Legal aid was not granted for proceedings against the local authorities, and this part of the claims was dropped. Counsel also criticized the pursuers' solicitors for a failure to inform the defenders' solicitors of what was going on, which compounded the defenders' difficulties in investigating the claims.
[141]In my opinion these criticisms of the pursuers' solicitors are mostly attributable to the sheer volume of claims that had to be processed. In an ideal world, clearly, detailed summonses would be served at an early stage after the claimants came forward; in this way any prejudice to the defenders would be minimized. When nearly 300 claims are involved, however, some standardization is almost inevitable, with the result that the summonses are bound to be in relatively skeletal form. In addition, it is understandable, if regrettable, that the summonses were not served until nearly three years had elapsed. That gap of three years clearly does not assist the pursuers, because it adds to the difficulties presented by the time that had already elapsed. Nevertheless, I cannot regard the conduct of the pursuers' solicitors as a significant factor in reaching my decision in this case.
[142]During the evidence counsel for the pursuers was critical of the conduct of the defenders' solicitors. In particular, he suggested that the solicitors did not make it clear at an early stage that the pursuers' claims were being rejected. The criticism was not renewed during submissions, and in my opinion it is plainly ill founded. I consider that the defenders' solicitors did make their position clear from the outset. In any event, it is difficult to believe that experienced solicitors acting for the pursuers and other claimants could realistically have believed that their clients' claims were accepted in principle at a stage before any full investigation of those claims could have been carried out.
Conclusion
[143]For the reasons stated above I will exercise my discretion under section 19A in favour of the defenders and refuse to allow the pursuers to bring the present actions. I reach this conclusion without hesitation. It seems to me that the two principal reasons for my decision, the length of time that has elapsed since the events complained of and the actual prejudice that has been demonstrated by the defenders, are both extremely powerful. I would regard either of those reasons by itself as sufficient to refuse to allow the actions to proceed. In addition, it was clear during their evidence that the raising of these actions has caused considerable distress to all three pursuers. That is entirely understandable; it is clearly most upsetting for anyone to have to think in detail about unhappy memories of childhood. I cannot think that it is genuinely in the pursuers' interests to rake over those memories, especially where the individual nuns that are said to have been responsible are either dead or elderly. The care of children has moved on in the last 25 years, and institutions such as Nazareth House no longer exist. To that extent the pursuers' complaints have been vindicated. That may give them some comfort.