Bowden (AP) v Poor Sisters of Nazareth and Others (Scotland) Whitton (AP) v Poor Sisters of Nazareth and Others (Scotland)
| Jurisdiction | UK Non-devolved |
| Judge | LORD HOFFMANN,LORD HOPE OF CRAIGHEAD,LORD WALKER OF GESTINGTHORPE,LORD CARSWELL,LORD RODGER OF EARLSFERRY |
| Judgment Date | 21 May 2008 |
| Neutral Citation | [2008] UKHL 32 |
| Court | House of Lords |
| Docket Number | No 7 |
| Date | 21 May 2008 |
[2008] UKHL 32
HOUSE OF LORDS
Appellate Committee
Lord Hoffmann
Lord Hope of Craighead
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Lord Carswell
and others (Scotland)
and others (Scotland)
(Consolidated Appeals)
Appellants:
Susan O'Brien QC
Alison Stirling
(Instructed by Drummond Miller LLP)
Respondents:
Gerry Moynihan QC
Alastair Duncan
(Instructed by Simpson & Marwick)
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hope of Craighead. For the reasons he gives, with which I agree, I too would dismiss these appeals.
My Lords,
The appellants are former residents of a children's home called Nazareth House at Cardonald in Glasgow which was run by the religious order known as the Poor Sisters of Nazareth. In May 2000 they raised separate actions of damages against the respondents in the Court of Session for loss, injury and damage in respect of physical abuse which they claim to have suffered during their time there. They maintain that they were regularly assaulted and subjected to cruel punishments, as a result of which they suffered pain and distress and long-standing psychological or psychiatric problems and that these led to their being disadvantaged in the workplace and to financial loss. The respondents deny these allegations. They also say that the actions are time barred, as the appellants' allegations relate to events that are said to have happened many years ago.
These appeals are concerned only with the issue of time bar. Before I explain why this is so, I ought to mention that the issue should be seen in a wider context. The allegations of child abuse which the appellants make are grave enough in themselves. But your Lordships were told that several hundred other actions have been raised against the same religious order by other persons who lived as children in homes which were run by it. Several hundred more have been raised against other institutions which ran children's homes during the same period. They all share this feature in common, that their actions were generated by publicity that was given to the allegations, many years after the event, in the media. The abuse that is alleged to have taken place was the subject of a series of newspaper articles that were published in 1997, two or three decades after the appellants left Nazareth House. It was only then that solicitors were consulted and steps were taken to claim damages against those who were said to have been responsible. Miss O'Brien QC for the appellants was at pains to stress that these appeals are not to be taken as test cases. Nevertheless it is plain that the issues which they raise are of critical importance not only to the appellants themselves but also to all those who claim to have been abused. The way the issue of time bar is disposed of in their cases is likely to affect the many others that remain in the pipeline.
The appellants have drawn attention to the fact that on 1 December 2004 the then First Minister, Jack McConnell, made a public apology for what had happened in these institutions to the Scottish Parliament. It must be stressed, however, that this was a purely political initiative. It has no legal significance whatsoever. The homes were not institutions for the running of which either he or anyone else in the Scottish Executive was responsible. Indeed the First Minister was careful to say that it was not his purpose to cut across the work of the courts. He acknowledged that it was for the courts to establish, in accordance with the law, where responsibility lay and what was to happen as a result. Moreover he did not mention the fundamental problem which was already facing the claimants in all these cases. This is the defenders' contention that due to the delay in raising proceedings they are all time barred.
The law of limitation of actions in Scotland is set out in Part II of the Prescription and Limitation (Scotland) Act 1973. The limitation periods that it sets out are the product of the judgment of the legislature as to where the interests of justice lie in the case of delayed claims in the civil courts. Breaches of the criminal law are, except in the case of those that are to be prosecuted summarily, not normally subject to any time limits. But in the case of civil justice the position is different. It has been observed repeatedly that where there is delay the quality of justice diminishes. Witnesses may have died, memories may have become dimmed and relevant documents may have been destroyed or lost. As time goes on these effects may become less easy to detect, and this in itself is apt to produce injustice. Times change too, and conduct which may seem reprehensible today may have been regarded as acceptable or even as normal many years ago. So, as McHugh J said in Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541, 553, the public interest requires disputes to be settled as quickly as possible. A judgment has been made by the legislature where the balance lies between the demands of justice and the general welfare of society. The responsibility of the courts is to give effect to that judgment.
The section in the 1973 Act that applies to an action of damages for personal injury brought by the person who sustained the injury is section 17, as substituted by section 2 of the Prescription and Limitation (Scotland) Act 1984. The general rules as to the time within which actions must be brought are set out in that section. Then there is section 19A, which was inserted by section 23(a) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980, with retrospective effect, in response to the decision of this House in McIntyre v Armitage Shanks Ltd 1980 SC (HL) 46 in which an action by a workman who had contracted pneomoconiosis and knew all the relevant facts but was advised by the local secretary of his trade union that he could not sue was held to be time barred. This section gives a discretion to the court to allow the action to be brought despite the operation of section 17.
Section 17(2) of the 1973 Act provides as follows:
"Subject to subsection (3) below and section 19A of this Act, no action to which this section applies shall be brought unless it is commenced within a period of three years after -
(a) the date on which the injuries were sustained or, where the act or omission to which the injuries were attributable was a continuing one, that date or the date on which the act or omission ceased, whichever is the later; or
(b) the date (if later than any date mentioned in paragraph (a) above) 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."
Subsection (3) of that section provides that in the computation of the period specified in subsection (2) there is to be disregarded any time during which the person who sustained the injuries was under legal disability by reason of nonage or unsoundness of mind. The appellants' disability by reason of nonage ceased, for the purposes of these actions, when they attained the age of 18: Age of Majority (Scotland) Act 1969.
Section 19A(1) of the 1973 Act provides:
"Where a person would be entitled, but for any of the provisions of section 17, 18, 18A or 18B 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."
Subsection (2) of that section provides that its provisions are to have effect not only as regards rights of action accruing after the section's commencement but also as regards those accruing before that date in respect of which a final judgment has not been pronounced. The appellants' actions both fall into the latter category.
The facts in outline
Mrs Bowden was born on 6 January 1963. She was a resident in Nazareth House from about 1966, when she was three years old, to about 1979, shortly after she was 16. She attained the age of majority on 6 January 1981. Assuming that she was aware of all the facts referred to in section 17(2)(a) of the 1973 Act on or shortly after her departure from Nazareth House, the period of three years referred to in that subsection ended on 6 January 1984. On Sunday 18 May 1997 an article appeared in the News of the World describing events that were said to have taken place in Nazareth House many years previously. It was followed by several other articles to the same effect later that year and in 1998 in that and other newspapers. On 5 June 1997, thirteen years after the expiry of the three year period, Mrs Bowden consulted a solicitor. He instructed a psychologist's report, which was provided on 21 August 1998. On the basis of that report it is averred that she has been diagnosed as suffering from post traumatic stress disorder as a result of her experiences. In May 2000 she raised her action in the Court of Session.
Mrs Whitton was born on 25 November 1953. She was a resident in Nazareth House from 1961, when she was about eight years old, to...
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