Alleged historic child sex abuse victim fails in appeal over ‘time-barred’ claim

The Inner House of the Court of Session upheld the Lord Ordinary’s decision on the application of the long negative prescription, and on the issue of time-bar.

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Drummond Young and Lord Glennie, heard that the claim by “K” against The Marist Brothers arose out of physical and sexual abuse which the reclaimer alleged was perpetrated against him by one Brother Germanus, while he was a pupil at St Columba’s School, Largs, for a period starting in 1962 or 1963 and ending in 1964 or 1965.

It was said that Brother Germanus had instilled fear in the reclaimer, who was “physically and psychologically terrified” of him; when K’s brother died, Brother Germanus on one occasion told him that if he told their “little secret” he would never see his brother again, meaning, “in heaven”.

The reclaimer averred, without further specification, that as a result of the abuse he had suffered “considerable anxiety and depression, low mood and emotional anguish”, had difficulty concentrating, and his personality had been adversely affected.

Although the pleadings made no reference to section 17(3) of the Prescription and Limitation Act 1973 it was also averred that: “Due to the psychological trauma of the actions of Brother Germanus ….. was unable to bring forward any claim until the raising of the Summons.”

Following a preliminary proof on prescription and limitation, the Lord Ordinary held that the reclaimer had not established that he attended the school past summer 1964, and that thus the claim was “extinguished” by the long negative prescription.

She also concluded that the case was time-barred, there being no basis for asserting that the reclaimer had been of unsound mind during a relevant period, and refused to exercise her discretion under section 19A.

On appeal the argument in relation to the first of the limitation points was that, to the extent that the reclaimer uncritically accepted the threat as constituting a “dogma”, his mind was “unsound” within the meaning of section 17(3) of the Act.

The second argument in relation to time-bar was that the Lord Ordinary erred in the exercise of her discretion in relation to section 19A.

In particular she had erred in her assessment of the sufficiency of investigations carried out by the respondents and had paid “insufficient weight” to the suggestion that a different complaint against Brother Germanus had been the subject of a police investigation.

However, the appeal judges ruled that the Lord Ordinary was correct in her description of the first of these arguments as “untenable”.

Delivering the opinion of the court, the Lord Justice Clerk said: “The basis upon which she so concluded was that unsoundness of mind required to be established objectively, and to be such as to place the person under a legal disability.

“That is a reference to the precise wording of section 17(3), which provides for the disregarding, in computation of the triennium, of any time during which an injured party was ‘under legal disability by reason of … unsoundness of mind’.

“The key to understanding this, as the Lord Ordinary recognised, is that the unsoundness of mind must be such as to create a legal disability. A legal disability is one which deprives an individual of the capacity to manage his own affairs.

“Before the court could accept that a pursuer had suffered from an unsoundness of mind causing such an incapacity, it would expect to hear expert evidence as to the nature of the unsoundness, and crucially, that it’s effect had been such as to deprive an individual of capacity.

“The personal belief of a pursuer, (particularly of such a limited nature as that described here), however genuinely held, is insufficient. It is impossible to characterise the reclaimer’s deluded belief in this case as coming within the statutory description.”

She added: “As to section 19A, the Lord Ordinary concluded that the respondents could not but be materially prejudiced were the reclaimer’s case permitted to proceed out of time. More than five decades have passed since the alleged abuse. No complaint was made until 2014.

“The Lord Ordinary was correct to note that any assessment under section 19A required to consider the issue of possible prejudice to the respondents.

“No compelling reason was advanced to counter-balance the severe risk of prejudice, and there is no basis upon which it might be said that the Lord Ordinary erred in the exercise of her discretion. In fact, on the material before her, in our view the Lord Ordinary reached the only conclusion which was reasonably open to her.”

As to the question of the long negative prescription, even if the judges felt there was merit in the arguments, the issue was “academic” given their views on the limitation issue.