Limitation in childhood abuse cases – a key appeal decision

B & W v The Congregation of the Sisters of Nazareth [24.11.22]

Date published

29/11/2022

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A judgment of the Court of Session has considered changes to limitation introduced by the Limitation (Childhood Abuse) (Scotland) Act 2017 (the 2017 Act). In this case, the defender failed on appeal to sustain defences in terms of section 17D of the Prescription and Limitation (Scotland) Act 1973 (the 1973 Act).

Limitation in sexual abuse cases – Scotland

The 2017 Act removed the three year limitation period for any damages claim for personal injuries related to acts that took place, or began to take place, while the pursuer was aged under 18, if those acts constituted abuse, to include physical, emotional or sexual abuse, or abuse arising from neglect. However, under section 17D of the 1973 Act, there are two situations where the court must stop an action from proceeding:

  1. If a defender satisfies the court that a fair hearing is not possible, then the case will not proceed.
  2. Separately, if a defender satisfies the court that the pursuer’s delay in raising the action has caused the defender substantial prejudice, then the court will consider the pursuer’s interest in proceeding. If the court is satisfied, on that balance, that an action should not proceed, then it will go no further.

Background

The case of B & W v The Congregation of the Sisters of Nazareth [2022] had originally been dismissed in the Outer House in January 2022, after preliminary proof, on the basis that the defender could not secure a fair hearing.

Siblings B and W claimed that they had suffered abuse at a residential home operated by the defender between 8 July 1974 and 12 August 1974. Most allegations of abuse were directed at unnamed 'Sisters'. Both pursuers named Sister X, who has been convicted of offences against other children, as a perpetrator. B also named a Sister M, but on learning that there had been no Sister M at the home, identified Sister MMM, as the person she had believed was named Sister M. Sister MMM gave an affidavit expressing shock at the allegations now made against her, which were denied; she had no memory of the pursuers. Sister X was in deteriorating health, and did not provide a statement.

Of twelve Sisters identified as at the residential home at the right time, eight were either deceased or not found, and two more were not connected to the pursuers’ group. Despite thorough researches, only limited contemporaneous documentation was available.

These defenders were the subject of a Scottish Child Abuse Inquiry (SCAI) case study report, which found that the kind of abuse described by the pursuers did take place. However, that report did not, and could not, find the defenders liable to any person, and while accepting that he could competently have regard to the findings made, Lord Weir concluded that “… it did not seem …that the findings could be said to have a reasonably direct bearing on the conduct of Sisters of the defender whose identities were unspecified and unknown… ”.

Consideration of the limitation defences

Lord Weir carefully considered previous decisions on section 17D of the 1973 Act but decided that each was “intensely fact specific”. Further, no decisions involving unnamed perpetrators were put before the Court. The defenders argued that lack of identification of perpetrators had a significant impact on their ability to fully investigate claims. The Court agreed that the defenders could not put allegations to perpetrators, assess credibility or reliability of the pursuers, or fully develop a defence. The Court concluded that this precluded a fair hearing, and dismissed both cases. The pursuers appealed against these dismissals.

Appeal to the Inner House

The Inner House on appeal also doubted “…the value of reliance on decisions in other cases in such fact-sensitive matters…”. However, the Court noted that the pursuers alleged a generalised regime of abuse reflected in the residential home’s overall ethos, which the defenders could address with evidence still available:

We consider that the Lord Ordinary erred by not taking into account the nature of the attack on the overall standard of care, or lack of it, in the Home as a whole, as opposed to allegations of specific incidents...

The Inner House decision made no reference to the SCAI findings in reaching this conclusion. However, the Court found that a fair hearing was not shown to be impossible, nor had substantial prejudice been established to outweigh the pursuers’ interests in proceeding:

In our view if appropriate regard is given to the systematic nature of the allegations and to the numerous sources of relevant evidence still available to the defender, it cannot be said that any hearing would be bound to be unfair.

The dismissals were quashed, and the cases were remitted back for further procedure.

Comment

The Courts have expressed that these type of cases are very fact specific, but this decision emphasises the significance of criticisms of culture, ethos and general practice in an establishment, as well as specific incidents. The decision also demonstrates that the tests under the 2017 Act provisions set a high bar for defenders.