A v N [2008] - CSOH165
Over the past 5 years the courts have dealt with a number of
claims for damages following physical or sexual abuse said to have
taken place many years previously. We have had great success
arguing that these claims are time barred. This culminated in the
decision of the House of Lords in Bowden v Poor Sisters of
Nazareth last year. However the claims keep coming.
This was a claim from a pursuer who alleged she had sustained
prolonged sexual abuse as a young girl at the hands of the
defender. The abuse commenced in 1975, lasting until around 1997
when she was about 30 years of age. The pursuer then informed the
police. The defender was convicted, although he successfully
appealed against his conviction in 2003. Proceedings in the civil
claim for damages commenced in 2004.
It came before Lord McEwan for argument on whether it should be
dismissed as time barred under the Prescription and Limitation
(Scotland) Act 1973. The pursuer conceded the claim was time
barred, but argued the court should exercise its discretion under
Section 19A of the 1973 Act and allow the case to proceed. Lord
McEwan did exercise his discretion in favour of the pursuer and has
allowed the matter to proceed to a proof. In doing so he said:
"The conduct of the pursuer cannot really be criticised
since she offered to prove that the reason for any delay is the
very behaviour which the defender perpetrated on her. In any case
the delay here is minimal since the issues have already been before
a court and nobody can be heard to say that memories have been
affected."
The defenders argued that the blame lay with her solicitors and
she may have a remedy by suing them, but Lord McEwan disagreed:
"Although the pursuer has to answer for her agents that in
itself has not resulted in any delay since from 1998 to 2003
everyone involved was focusing on the criminal
proceedings."
Lord McEwan also made more general observations on the purpose
of the legislation, stating that:
"It seems to me that the mischief behind the legislation is
really the need to prevent stale claims where a defender or insurer
is taken by surprise and there is either no hope of evidence in
rebuttal being recovered or leaving the defender a task of proving
a negative…. I very much doubt if the discussions and work which
led to Sections 17 and 19A had in contemplation the kind of case
now posed involving blanking out of abuse, recovered memory and the
other symptoms described here and in some of the other
cases."
Lord McEwan did acknowldedge, however, that "limitation
under Section 17 is the norm and Section 19A is the
exception."
This case is not a watershed, and indeed it sits in stark
contrast to previous decisions, at first instance and appeal, which
set out detailed analysis to justify time bar legislation and its
application to historic abuse claims. We understand that Lord
McEwan's decision is to be appealed. However while it stands it
will give heart to pursuers who offer to prove that the delay in
raising a claim was caused by the actions of a defender.
Contributed by Bruce Goodbrand