K v The Marist Brothers & Anor [2017] ScotCS CSIH_2 (12 January 2017)

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BAILII >> Databases >> Scottish Court of Session Decisions >> K v The Marist Brothers & Anor [2017] ScotCS CSIH_2 (12 January 2017) URL: https://www.bailii.org/scot/cases/ScotCS/2017/[2017]CSIH2.html Cite as: [2017] ScotCS CSIH_2 [ New search ] [ Help ] SECOND DIVISION, INNER HOUSE, COURT OF SESSION [2017] CSIH 2 PD 1745/15 Lord Justice Clerk Lord Drummond Young Lord Glennie

OPINION OF THE COURT delivered by LADY DORRIAN the LORD JUSTICE CLERK in the Appeal by K Pursuer and Reclaimer against (1) THE MARIST BROTHERS and (2) BROTHER RONALD McEWAN Defenders and Respondents Pursuer and Reclaimer: M Hughes; Thompsons Defenders and Respondents: Brown; DAC Beachcroft of Scotland LLP 10 January 2017 [1] There are 3 issues arising in this case: the first addresses the Lord Ordinary’s decision on the application of the long negative prescription; and the remaining two address the issue of time-bar. We start with the latter. [2] This claim arises out of physical and sexual abuse which the reclaimer avers was perpetrated against him by one Brother Germanus, whilst he was a pupil at St Columba’s School, Largs, for a period starting in 1962 or 1963 and ending in 1964 or 1965. It is said that Brother Germanus had instilled fear in the reclaimer, who was “physically and psychologically terrified” of him; when the reclaimer’s brother died, Brother Germanus on one occasion told the reclaimer that if he told their “little secret” he would never see his brother again, meaning, “in heaven”. The reclaimer averred (without further specification) that as a result of the abuse he had suffered “considerable anxiety and depression, low mood and emotional anguish”, had difficulty concentrating, and his personality had been adversely affected. Although the pleadings made no

reference to section 17(3) of the Prescription and Limitation Act 1973 it was also averred that: “ Due to the psychological trauma of the actions of Brother Germanus …..[the reclaimer] was unable to bring forward any claim until the raising of the Summons.” [3] The reclaimer gave evidence of the threat relating to his deceased brother, stating that as a child in a Catholic school he understood that if he did not speak out about what had happened to him he would be re-united with his brother in heaven, which he dearly wished. This threat had affected him deeply and prevented him from coming forward. He was beset with feelings of guilt, shame and cowardice. The trigger for disclosure was hearing someone praise Brother Germanus at a family wedding in 2013. The reclaimer’s state of mind regarding the threat was described as one of firm conviction. [4] The matter came before the court for a preliminary proof on prescription and limitation. The Lord Ordinary held that the reclaimer had not established that he attended the school past summer 1964, and that thus the claim was extinguished by the long negative prescription. She also concluded that the case was time-barred, there being no basis for asserting that the reclaimer had been of unsound mind during a relevant period. Finally, she refused to exercise her discretion under section 19A. [5] The argument before us on the first of

the limitation points was that to the extent that the reclaimer uncritically accepted the threat as constituting a dogma his mind was unsound within the meaning of section 17(3) of the Act. [6] The second argument in relation to time-bar was that the Lord Ordinary erred in the exercise of her discretion in relation to section 19A. In particular she had erred in her assessment of the sufficiency of investigations carried out by the respondents and had paid insufficient weight to the suggestion that a different complaint against Brother Germanus had been the subject of a police investigation. [7] In our view the Lord Ordinary was correct in her description of the first of these arguments as “untenable”. The basis upon which she so concluded was that unsoundness of mind required to be established objectively, and to be such as to place the person under a legal disability. That is a reference to the precise wording of section 17(3), which provides for the disregarding, in computation of the triennium, of any time during which an injured party was “under legal disability by reason of … unsoundness of mind”. The key to understanding this, as the Lord Ordinary recognised, is that the unsoundness of mind must be such as to create a legal disability. A legal disability is one which deprives an individual of the capacity to manage his own affairs. Before the court could accept that a

pursuer had suffered from an unsoundness of mind causing such an incapacity, it would expect to hear expert evidence as to the nature of the unsoundness, and crucially, that it’s effect had been such as to deprive an individual of capacity. The personal belief of a pursuer, (particularly of such a limited nature as that described here), however genuinely held, is insufficient. It is impossible to characterise the reclaimer’s deluded belief in this case as coming within the statutory description. [8] As to section 19A, the Lord Ordinary concluded that the respondents could not but be materially prejudiced were the reclaimer’s case permitted to proceed out of time. More than five decades have passed since the alleged abuse. No complaint was made until 2014. The school closed over 34 years ago, in June 1982; there was unchallenged evidence that attempts to trace records had been unsuccessful; Brother Germanus died in 1999. The Lord Ordinary was correct to note that any assessment under section 19A required to consider the issue of possible prejudice to the respondents. No compelling reason was advanced to counter-balance the severe risk of prejudice, and there is no basis upon which it might be said that the Lord Ordinary erred in the exercise of her discretion. In fact, on the material before her, in our view the Lord Ordinary reached the only conclusion which was reasonably open

to her. [9] As to the question of the long negative prescription, there may be an argument that the Lord Ordinary gave insufficient attention to the effect of an admission on record relating to the dates when the reclaimer attended the school; and that she erred in concluding that the abuse did not constitute a continuing act. A judicial admission is conclusive in the litigation in which it is made. The Lord Ordinary has not addressed the extent or effect of the admission. In fairness to the Lord Ordinary, it appears that no submission was made to her about this. Equally, despite an averment identifying 29 September 1964 as a critical date for prescription, and a submission that the abuse did not constitute a continuing act, there was no submission for the reclaimer on either of these issues. However, given our views relating to limitation, even if we felt there was merit in the prescription arguments, the issue is academic, and we need not deal with it. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/scot/cases/ScotCS/2017/[2017]CSIH2.html APPEAL BY K AGAINST (1) THE MARIST BROTHERS AND (2) BROTHER RONALD McEWAN [2017] ScotCS CSIH_2 (12 January 2017) SECOND DIVISION, INNER HOUSE, COURT OF SESSION [2017] CSIH 2 PD 1745/15 Lord Justice Clerk Lord Drummond Young Lord Glennie

OPINION OF THE COURT delivered by LADY DORRIAN the LORD JUSTICE CLERK in the Appeal by K Pursuer and Reclaimer against (1) THE MARIST BROTHERS and (2) BROTHER RONALD McEWAN Defenders and Respondents Pursuer and Reclaimer: M Hughes; Thompsons Defenders and Respondents: Brown; DAC Beachcroft of Scotland LLP 10 January 2017 [1] There are 3 issues arising in this case: the first addresses the Lord Ordinary’s decision on the application of the long negative prescription; and the remaining two address the issue of time-bar. We start with the latter. [2] This claim arises out of physical and sexual abuse which the reclaimer avers was perpetrated against him by one Brother Germanus, whilst he was a pupil at St Columba’s School, Largs, for a period starting in 1962 or 1963 and ending in 1964 or 1965. It is said that Brother Germanus had instilled fear in the reclaimer, who was “physically and psychologically terrified” of him; when the reclaimer’s brother died, Brother Germanus on one occasion told the reclaimer that if he told their “little secret” he would never see his brother again, meaning, “in heaven”. The reclaimer averred (without further specification) that as a result of the abuse he had suffered “considerable anxiety and depression, low mood and emotional anguish”, had difficulty concentrating, and his personality had been adversely affected. Although the pleadings made no

reference to section 17(3) of the Prescription and Limitation Act 1973 it was also averred that: “ Due to the psychological trauma of the actions of Brother Germanus …..[the reclaimer] was unable to bring forward any claim until the raising of the Summons.” [3] The reclaimer gave evidence of the threat relating to his deceased brother, stating that as a child in a Catholic school he understood that if he did not speak out about what had happened to him he would be re-united with his brother in heaven, which he dearly wished. This threat had affected him deeply and prevented him from coming forward. He was beset with feelings of guilt, shame and cowardice. The trigger for disclosure was hearing someone praise Brother Germanus at a family wedding in 2013. The reclaimer’s state of mind regarding the threat was described as one of firm conviction. [4] The matter came before the court for a preliminary proof on prescription and limitation. The Lord Ordinary held that the reclaimer had not established that he attended the school past summer 1964, and that thus the claim was extinguished by the long negative prescription. She also concluded that the case was time-barred, there being no basis for asserting that the reclaimer had been of unsound mind during a relevant period. Finally, she refused to exercise her discretion under section 19A. [5] The argument before us on the first of

the limitation points was that to the extent that the reclaimer uncritically accepted the threat as constituting a dogma his mind was unsound within the meaning of section 17(3) of the Act. [6] The second argument in relation to time-bar was that the Lord Ordinary erred in the exercise of her discretion in relation to section 19A. In particular she had erred in her assessment of the sufficiency of investigations carried out by the respondents and had paid insufficient weight to the suggestion that a different complaint against Brother Germanus had been the subject of a police investigation. [7] In our view the Lord Ordinary was correct in her description of the first of these arguments as “untenable”. The basis upon which she so concluded was that unsoundness of mind required to be established objectively, and to be such as to place the person under a legal disability. That is a reference to the precise wording of section 17(3), which provides for the disregarding, in computation of the triennium, of any time during which an injured party was “under legal disability by reason of … unsoundness of mind”. The key to understanding this, as the Lord Ordinary recognised, is that the unsoundness of mind must be such as to create a legal disability. A legal disability is one which deprives an individual of the capacity to manage his own affairs. Before the court could accept that a

pursuer had suffered from an unsoundness of mind causing such an incapacity, it would expect to hear expert evidence as to the nature of the unsoundness, and crucially, that it’s effect had been such as to deprive an individual of capacity. The personal belief of a pursuer, (particularly of such a limited nature as that described here), however genuinely held, is insufficient. It is impossible to characterise the reclaimer’s deluded belief in this case as coming within the statutory description. [8] As to section 19A, the Lord Ordinary concluded that the respondents could not but be materially prejudiced were the reclaimer’s case permitted to proceed out of time. More than five decades have passed since the alleged abuse. No complaint was made until 2014. The school closed over 34 years ago, in June 1982; there was unchallenged evidence that attempts to trace records had been unsuccessful; Brother Germanus died in 1999. The Lord Ordinary was correct to note that any assessment under section 19A required to consider the issue of possible prejudice to the respondents. No compelling reason was advanced to counter-balance the severe risk of prejudice, and there is no basis upon which it might be said that the Lord Ordinary erred in the exercise of her discretion. In fact, on the material before her, in our view the Lord Ordinary reached the only conclusion which was reasonably open

to her. [9] As to the question of the long negative prescription, there may be an argument that the Lord Ordinary gave insufficient attention to the effect of an admission on record relating to the dates when the reclaimer attended the school; and that she erred in concluding that the abuse did not constitute a continuing act. A judicial admission is conclusive in the litigation in which it is made. The Lord Ordinary has not addressed the extent or effect of the admission. In fairness to the Lord Ordinary, it appears that no submission was made to her about this. Equally, despite an averment identifying 29 September 1964 as a critical date for prescription, and a submission that the abuse did not constitute a continuing act, there was no submission for the reclaimer on either of these issues. However, given our views relating to limitation, even if we felt there was merit in the prescription arguments, the issue is academic, and we need not deal with it.