Spence v. Murray & Ors [2004] ScotCS 194 (30 July 2004)

Spence v. Murray & Ors [2004] ScotCS 194 (30 July 2004)

The pursuer's claim under section 17(2)(b) fails because her own averments show she was aware during her time in the home that the acts were wrong and attributable to the defenders, precluding the operation of the section. The claim under the Administration of Childrens Homes (Scotland) Regulations 1959 is irrelevant as the regulations are administrative and do not confer a private right of action. However, the exercise of discretion under section 19A raises factual issues regarding the pursuer's state of mind and delay, which cannot be resolved without evidence; thus, a preliminary proof is ordered on those issues.

Citation
[2004] ScotCS 194
Parties
Pursuer: Adeline Spence or Bowden (AP); Defenders: Sister Bernard Mary Murray and Others
Jurisdiction
Scotland
Judgment Date
30 July 2004
Procedural Posture
Delictual Claim for Damages (personal Injury/abuse) / Procedure Roll Debate (interlocutory)
Outcome
Section 17 plea sustained; claim under Regulations excluded; preliminary proof ordered on section 19A discretion.
Legal Topics
Time Bar/limitation Periods, Discretion to Allow Late Actions, Civil Liability for Abuse in Care Homes, Statutory Interpretation of Welfare Regulations
Personal Injury Limitation of Actions Child Protection Administrative Law Time Bar/limitation Periods Discretion to Allow Late Actions Civil Liability for Abuse in Care Homes Statutory Interpretation of Welfare Regulations

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Parties

Adeline Spence or Bowden (AP)

Pursuer

Sister Bernard Mary Murray and Others

Defenders

Procedural Posture

Delictual Claim for Damages (personal Injury/abuse) / Procedure Roll Debate (interlocutory)

Legal Issues

  1. 1 Whether the pursuer's claim is time-barred under section 17 of the Prescription and Limitation (Scotland) Act 1973
  2. 2 Whether the court should exercise discretion under section 19A of the 1973 Act to allow the action to proceed despite time bar
  3. 3 Whether the Administration of Childrens Homes (Scotland) Regulations 1959 confer a private right of action for damages

Ratio Decidendi

The pursuer's claim under section 17(2)(b) fails because her own averments show she was aware during her time in the home that the acts were wrong and attributable to the defenders, precluding the operation of the section. The claim under the Administration of Childrens Homes (Scotland) Regulations 1959 is irrelevant as the regulations are administrative and do not confer a private right of action. However, the exercise of discretion under section 19A raises factual issues regarding the pursuer's state of mind and delay, which cannot be resolved without evidence; thus, a preliminary proof is ordered on those issues.

Court Disposition

Section 17 plea sustained; claim under Regulations excluded; preliminary proof ordered on section 19A discretion.

Orders

  • Sustain defenders' plea to relevancy to the extent of excluding all reference to section 17 of the Act from further consideration.
  • Exclude from further consideration the averments in Condescendence 4 (Regulations).