B v Poor Sisters of Nazareth
W v Poor Sisters of Nazareth
The House of Lords has unanimously dismissed the appeals of two
claimants in finding that their claims for physical abuse whilst
children in a care home were timebarred. The ruling amounts in
effect to a defender's charter as it emphasises that all the
defender requires to do is show substantial prejudice to have the
case thrown out. In the leading judgment Lord Hope re-emphasised
that it was more in accord with legislative policy that the
pursuers' lost right should not be revived than that the defender
should have a spent liability re-imposed on him. He emphasises that
the burden rests with the party who seeks to obtain the benefit of
the remedy. These two cases and the recent case of Young v
Catholic Care go a long way to clarifying the law in this
area. No longer does it seem that the pursuer can argue that the
judge must, in exercising his discretion, weigh up a number of
factors in the balance. The most important element is whether there
is prejudice to the defender and if that is substantial the case
will fail.
Background to the cases
AB and EW were resident in the Nazareth House Children's Home,
Glasgow during the 1960s and 70s. They alleged that they had
suffered physical abuse at the hands of their carers and sought
damages. These two claims, together with one other in which no
appeal was taken, were given legal aid to proceed; approximately
300 further claims have been on hold pending the outcome.
The Poor Sisters of Nazareth, represented by Simpson &
Marwick, have consistently argued that these claims are
time-barred. In 2004 the cases came before Lord Johnston. The
defenders asked Lord Johnston to dismiss the claims under Section
17 of the Prescription and Limitation (Scotland) Act 1973, arguing
that they had been raised long after expiry of the three year
limitation period. Lord Johnston agreed that the claims were indeed
too late, but allowed a preliminary trial on one issue: should the
court exercise its discretion to override the limitation period?
Under Section 19A of the Act - the equivalent of Section 33 of the
Limitation Act 1980 in England - the court may allow an action to
continue "if it seems to it equitable to do so". Unlike the English
legislation, there are no prescribed factors to be taken into
account.
Lord Drummond Young then heard the trial in January 2005. In a
carefully worded judgment he dismissed the claims. He highlighted
the policy underlying rules on limitation and he drew on the
Australian case of Brisbane Regional Health Authority v
Taylor: First, as time goes by, relevant evidence is likely to
be lost; second, it is oppressive to allow an action to be brought
long after the circumstances which gave rise to it; third, people
should be able to arrange their affairs on the basis that claims
can no longer be made against them; and finally, public interest
requires that disputes be settled as quickly as possible. In
dismissing the claims Lord Drummond Young founded particularly on
the lapse of time from the events and the actual prejudice proved
by the defenders. Many of those who were alleged of mistreating the
claimants were either dead or unable to give evidence; many of the
records, whether of Nazareth House, the claimants' doctors or the
social work departments, were lost.
The claimants appealed unsuccessfully to the Inner House - the
court of appeal in Scotland - and then to the House of Lords. In
the leading Opinion of Lord Hope, the appellants did not come close
to establishing that the earlier decisions should be
overturned.
First, the appellants argued that these claims had gone awry
procedurally, in that they should simply have been sent to a full
trial straight away. Lord Hope noted that the appellants had
acquiesced in that and it was now too late to re-open that issue:
"[counsel for the appellants'] bold argument faced formidable
obstacles from the outset, and despite her best endeavours I do not
think she came close to overcoming them." Their Lordships held it
would not be fair and just to allow the issue to be
re-litigated.
The second basis of appeal was that Lord Drummond Young had
erred in law by overstating the onus that rested on the appellants.
Again, this argument was dismissed: "it seems more in accord with
legislative policy that the pursuer's lost right should not be
revived than that the defender should have a spent liability
re-imposed on him. The burden rests on the party who seeks to
obtain the benefit of the remedy."
As for the lost witnesses and documentation, Lord Hope held,
"proof that the defender will be exposed to the real possibility of
significant prejudice will usually determine the issue in his
favour."
It must now be very unlikely that the Scottish Legal Aid Board
will allow any of the other claims against Nazareth House to
proceed. There are, however, other claims in the wings - claims
against other institutions. We can anticipate that those claimants
will attempt to take a different tack. First, they may try to argue
that they are seeking damages only for recent psychiatric
injury and not for any physical injuries sustained at the time.
This argument was used recently in JA v Glasgow City
Council, although that decision is to be appealed. It founds
upon Carnegie v The Lord Advocate, where the court of
appeal in Scotland held that it was possible that an action for one
form of harm could proceed, even if another harm was time-barred.
One of the appeal court judges has subsequently expressed doubts
about the correctness of that opinion, but it remains good law at
present.
Secondly, there will be situations where claimants may argue
there is no prejudice to the defenders. The primary example is
where an alleged abuser has already been convicted in a criminal
court. Of course there is a crucial difference between an action
against an abuser and an action against his former employers and so
there is still a serious argument to be had.
Yet again the defenders have been successful in arguing
time-bar. However, we can fully expect more claims to come.
Dr Pamela Abernethy