Judgments - Bowden (Ap) V Poor Sisters of Nazareth and Others (Scotland) Whitton (Ap) V Poor Sisters of Naza

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23.  Lord Drummond Young spent some time at the outset of his opinion examining the approach of the law to questions of limitation in general and to the exercise of the discretion under section 19A in particular. He said that he found the most helpful discussion of the policy of the limitation statutes to be that of McHugh J in the High Court of Australia in Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541 which, as he pointed out, was closely paralleled in Scotland by an opinion which had been delivered two years earlier by the First Division in McCabe v McLellan 1994 SC 87. In Brisbane South Regional Health Authority v Taylor, p 555, McHugh J said that it seemed more in accord with the legislative policy underlying limitation periods that the right that the plaintiff lost at the end of the limitation period should not be revived than that the defender should have a spent liability reimposed upon it. At the end of the passage from McCabe v McLellan at pp 98-99 which Lord Drummond Young quoted in para 28, I said that the effect of the expiry of the triennium was that the defender was protected against the disadvantages which were caused by the delay whereas, if section 19A was operated against him, that protection would be withdrawn and in that respect he would undoubtedly be prejudiced. Adopting McHugh J’s analysis, Lord Drummond Young said in para 27 that the fundamental legislative policy was to avoid the real possibility of significant prejudice and that if the prejudice could be shown to be real, rather than merely a possibility, that policy applied with its full force and must be given effect.

24.  Miss O'Brien did not question the soundness of what was said in Brisbane South Regional Health Authority v Taylor and McCabe v McLellan. But she said that Lord Drummond Young overstated the onus that rested on the appellants and that he read into section 19A tests that were not there. In para 138, for example, Lord Drummond Young said:

“If the discretion under section 19A is not exercised in [the pursuers’] favour, they will lose any right to compensation. If the discretion is exercised, the defenders will lose their right to rely on the defence of limitation. In my opinion these elements should be balanced in the manner suggested by McHugh J in Brisbane South Regional Health Authority v Taylor, supra, quoted in para 21. The limitation period is the norm enacted by the legislature; the discretion under a provision such as section 19A is an exception to that norm. Consequently the onus is on the pursuers, who seek to invoke the exception, to satisfy the court that special circumstances exist. If they fail to do so, they must lose their legal rights; that merely gives effect to the legislative policy.”

She criticised the use of the expression “special circumstances". Section 19A said that the discretion was to be exercised if it seemed equitable to the court to do so. She accepted that the burden rested on the appellants as they were seeking the exercise of that discretion in their favour, but she said that Lord Drummond Young had set the standard too high. This was demonstrated by a passage in para 111 of his opinion where he said that the delay beyond the statutory limitation period in each case was at least 10 years which was very substantial by any standards, and that the periods were so long that a serious decline in the quality of justice was inevitable. This made no allowance for the silencing effects of the abuse and the unfairness of a situation where the abuser was allowed to evade liability.

25.  I would reject that criticism. In Carson v Howard Doris Ltd 1981 SC 278, 282 Lord Ross said, shortly after the provision was enacted, that the power conferred by the section should be exercised sparingly and with restraint. There is a risk that if that approach were to be adopted the court will fail to do what the section requires, which is to determine what would be equitable in all the circumstances. But the context in which that discretion is to be exercised is plain enough. Its effect will be to reimpose a liability on the defender which has been removed by the expiry of the limitation period. The issue on which the court must concentrate is whether the defender can show that, in defending the action, there will be the real possibility of significant prejudice. As McHugh J pointed out in Brisbane South Regional Health Authority v Taylor, p 255, it seems more in accord with the legislative policy that the pursuer’s lost right should not be revived than that the defender should have a spent liability reimposed on him. The burden rests on the party who seeks to obtain the benefit of the remedy. The court must, of course, give full weight to his explanation for the delay and the equitable considerations that it gives rise to. But proof that the defender will be exposed to the real possibility of significant prejudice will usually determine the issue in his favour. This is a question of degree for the judge by whom the discretion under section 19A is to be exercised. I do not think that Lord Drummond Young, who examined all the issues on either side of the argument, was in error in his assessment of the test or of the underlying policy of the statute.

26.  In the course of his discussion of the authorities on the exercise of the discretion Lord Drummond Young referred to various passages in the judgment of the Court of Appeal by Auld LJ in KR v Bryn Alyn Community (Holdings) Ltd [2003] QB 1441. Miss O'Brien said that he misdirected himself in law by doing so. In Bryn Alyn the Court of Appeal discussed the exercise of the discretion under section 33 of the Limitation Act 1980. But, as Lord Hoffmann pointed out in A v Hoare [2008] 2 WLR 311, para 25, this issue had become confused by the decision in Stubbings v Webb [1993] AC 498. This had led to the need for claimants who had suffered sexual abuse and had to seek the exercise of the discretion of the court under section 33 to allege that the abuse was the result of, or accompanied by, some other breach of duty which could be brought within the language of section 11 of the 1980 Act. In para 42 of the judgment in Bryn Alyn Auld LJ said that, however artificial it might seem, the court had to consider whether such an already damaged child would have turned his mind to litigation in the sense required by section 14(1)(a) and (2) of the Act to start the period of limitation running under section 11. This dictum was disapproved in Hoare, in which the decision in Stubbings v Webb was departed from. Hence lay Miss O'Brien’s criticism.

27.  It should be noted however that it was the appellants who, basing themselves on this passage, submitted to Lord Johnston that time ought not to run against them until the symptoms of their psychological injury had been identified: 2004 SLT 967, para 6. They renewed this submission to Lord Drummond Young and in the Inner House: 2005 SLT 982, para 32; 2007 SC 688, para 27. But Lord Johnston expressed misgivings about Bryn Alyn in para 8, as did the Inner House in para 27. In para 15 of his opinion Lord Johnston made it clear that, despite what Auld LJ had said about the English legislation, the subjective factors relied on by the appellants were, as he put it, entirely relevant to the court’s exercise of its discretion under section 19A. Lord Drummond Young too rejected the appellants’ argument on this point. In para 32 he said that the test imposed by section 17(2) was quite independent of the exercise that the court had to perform under section 19A. His references to Bryn Alyn were directed instead to the passages about the exercise of the discretionary power which are not controversial. I have been unable to detect any error of law in these references. In Horton v Sadler [2007] 1 WLR 307 the House confirmed that the discretion under section 33 was unfettered. Lord Brown of Eaton-under-Heywood drew attention to this in A v Hoare, paras 84-86. As he explained, by no means everyone who brings a late claim for damages for abuse, however genuine his claim may be, can reasonably expect the section 33 discretion to be exercised in his favour. The approach that Lord Drummond Young took to the discretion under section 19A was entirely consistent with what Lord Brown said in that case.

28.  Some of Miss O'Brien’s criticisms of Lord Drummond Young’s reasoning on points of detail might have carried weight if those aspects of his reasoning were to be viewed in isolation. But, as the Inner House said in para 95, they were directed to matters which were not central to his decision. His central conclusion, having taken into account all the various factors, was that the prejudice caused to the respondents by the lapse of time in raising these proceedings including the loss of evidence that resulted from it was by itself a sufficient reason for not allowing the actions to be brought under section 19A. The Inner House said that he was entitled to come to this conclusion on the basis of the evidence before him and the authorities which he cited, and that he was correct to do so. I am not persuaded that there are any grounds which would justify your Lordships in differing from that assessment.

Conclusion

29.  As I said in para 18, I do not think that Miss O'Brien came close to overcoming the difficulties which she faced in this case. The issue of time bar has been thoroughly and carefully litigated in the Court of Session, and it cannot now be re-opened. I would dismiss the appeals.

LORD RODGER OF EARLSFERRY

My Lords

30.  I have had the advantage of reading the speech of my noble and learned friend, Lord Hope of Craighead, in draft. I agree with it and, for the reasons which he gives, I, too, would dismiss the appeals.

LORD WALKER OF GESTINGTHORPE

My Lords,

31.  I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hope of Craighead. I agree with it and for the reasons which Lord Hope gives I too would dismiss these appeals.

LORD CARSWELL

My Lords,

32.  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.

 
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