PW (AP) against KM (Court of Session) [2024] CSOH 85 (06 September 2024)

PW (AP) against KM (Court of Session) [2024] CSOH 85 (06 September 2024)

The action is time barred under section 17 of the Prescription and Limitation (Scotland) Act 1973, and it is not equitable to allow it to proceed under section 19A, given the pursuer's repeated ability to instruct solicitors, insufficient explanation for delay, and significant prejudice to the defender due to the passage of time and loss of evidence. Even if not time barred, the pursuer failed to prove on the balance of probabilities that the defender raped her, due to unreliability and inconsistencies in her evidence.

Citation
[2024] CSOH 85
Parties
Pursuer: PW (AP); Defender: KM; Curator Ad Litem: Kerrigan KC
Jurisdiction
Scotland
Judgment Date
06 September 2024
Procedural Posture
Personal Injuries Action (damages for Alleged Rape) / Final Judgment After Proof Before Answer
Outcome
Action dismissed as time barred; no damages awarded.
Legal Topics
Time Bar (limitation), Section 17 and 19 a Prescription and Limitation (scotland) Act 1973, Rape (civil Liability), Standard of Proof in Civil Vs Criminal, Admissibility of Evidence, Appointment of Curator Ad Litem, Vulnerable Witnesses, Assessment of Damages (solatium)
Civil Procedure Personal Injury Limitation of Actions Human Rights Time Bar (limitation) Section 17 and 19 a Prescription and Limitation (scotland) Act 1973 Rape (civil Liability) Standard of Proof in Civil Vs Criminal +4 more

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Parties

PW (AP)

Pursuer

KM

Defender

Kerrigan KC

Curator Ad Litem

Procedural Posture

Personal Injuries Action (damages for Alleged Rape) / Final Judgment After Proof Before Answer

Legal Issues

  1. 1 Is the action time barred under section 17 of the Prescription and Limitation (Scotland) Act 1973?
  2. 2 Should the court exercise its discretion under section 19A to allow the action to proceed?
  3. 3 If not time barred, would the defender be liable for rape on the balance of probabilities?

Ratio Decidendi

The action is time barred under section 17 of the Prescription and Limitation (Scotland) Act 1973, and it is not equitable to allow it to proceed under section 19A, given the pursuer's repeated ability to instruct solicitors, insufficient explanation for delay, and significant prejudice to the defender due to the passage of time and loss of evidence. Even if not time barred, the pursuer failed to prove on the balance of probabilities that the defender raped her, due to unreliability and inconsistencies in her evidence.

Court Disposition

Action dismissed as time barred; no damages awarded.

Orders

  • The action is dismissed as time barred under section 17 of the Prescription and Limitation (Scotland) Act 1973.
  • No order for damages or further relief.