Did a man who was allegedly abused before September 1964 have a right to bring an action against the order that ran the school?

The case

DK v The Marist Brothers and another [2016] CSOH 54

The issue

A recent case from the Court of Session provides some interesting comments on the interplay of prescription (which extinguishes a claim) and limitation (which operates a procedural bar on a claim proceeding). There are also some interesting views on what constitutes a continuing act of abuse.

The allegations

In the early 1960s, DK attended St Columba’s, a school run by the Marist Brothers in Largs, Scotland. Born in October 1955, he said that he had attended the school between the ages of 7 and 9. During that time, he alleged that he was both physically and sexually abused by a Brother Germanus on a number of occasions.

While at the school, Brother Germanus advised DK and his older brother that their younger brother, A, had died in his sleep at home. Brother Germanus then took DK aside and said that if he ever spoke of the abuse he would never see A again.

DK’s position was that he understood this to mean that he would never see A in heaven. He had been taught about heaven and hell, and said that he had taken the threat as “the Gospel truth”.

DK had not mentioned the abuse to anyone until September 2013, when he finally confided in his wife. He then contacted the Marist Brothers and met with a Brother there. The Brother reassured him that Brother Germanus’ threat had been wrong, and he had nothing to worry about in respect of not seeing his deceased brother again. The Brother arranged counselling, and suggested he make a claim.

Court proceedings were not raised until July 2015.

The court had to consider (1) whether the claim had been extinguished by long negative prescription (a period of 20 years); (2) if not, whether the commencement of the triennium (the three year period in which he could normally bring a claim) was postponed as a result of the threat allegedly made by Brother Germanus; and (3) if the case was time-barred whether the court should exercise its discretion under section 19A of the 1973 Act to allow it to proceed anyway.

Prescription

DK had been born in October 1955. Although he was not sure of precise dates, he had attended St Columba’s between the ages of 7 and 9, so either 1962 to summer 1964, or possibly 1963 to summer 1965. These dates were important in terms of section 7(2) of the 1973 Act (as amended by the Prescription and Limitation (Scotland) Act 1984).

DK argued that the effect of the 1984 amendment to section 7(2) of the 1973 Act was to lift claims for personal injury out of the ambit of long negative prescription. The timing of that amendment was irrelevant; it applied retrospectively.

In response, the Marist Brothers argued that the claim had, in fact, been extinguished by long negative prescription. The amendment to section 7(2) came into force on 26 September 1984. It was not retrospective. If all of the conduct complained of occurred before 26 September 1964, DK’s claim was extinguished.

DK’s submission that the timing of the amendment to section 7(2) was immaterial was plainly wrong, and it was clear that the amendment was not retrospective.

The onus was on the pursuer to establish that he had attended St Columba’s after 26 September 1964. That was not established on the evidence. Lady Wolffe also expressed the view each assault was a discrete event, so the abuse did not amount to a “continuing act”.

Limitation

Having found for the defender on prescription the arguments on limitation became academic. However they were dealt with fully.

In relation to limitation, DK had turned 18 in October 1973. Normally that would have meant the triennium ran until October 1976. However, DK relied on the provisions of section 17(3) of the 1973 Act:

“there shall be disregarded any time during which the person who sustained the injuries was under legal disability by reason of nonage or unsoundness of mind.”

DK argued that he was suffering from “unsoundness of mind” as a result of believing the threat from Brother Germanus and that the test was a subjective one. This argument was dismissed as untenable in the extreme. The provision refers to “legal disability” by reason of unsoundness of mind. Those are matters that are objectively proved or verified.

Section 19A

Finally, had she required to determine the issue, Lady Wolffe indicated that she would have refused to have allowed the action to proceed although late. The only prejudice that DK could point to was that he would lose his claim. Generally something else was required. On the other hand there was material prejudice to the defenders. Brother Germanus had died.

Lady Wolffe agreed with Lord Bannatyne’s comments in SF v Quarriers [2015] CSOH 82 that “it was difficult to envisage a more highly material loss of evidence to the defenders than the denial to them of the evidence of [the alleged abuser].”

Our view

The case serves as an important reminder that the long negative prescription applies to events prior to 26 September 1964 and that, if a case has prescribed, there is no equitable power in the court to revive it. Where prescription is put in issue, the onus is on the claimant to establish that his claim has not prescribed. Lady Wolffe’s view that the conduct complained of did not constitute a continuing course of conduct may provide a partial prescription defence in future cases.

Given the provisions of the recent Limitation (Childhood Abuse) (Scotland) Bill, this decision may ultimately prove to be of limited value to defenders – albeit the provisions of that Bill do not alter the argument made by the Marist Brothers here, and therefore the outcome of this particular case would ultimately have been the same.