Alleged historic child sex abuse victim’s claim ‘extinguished by long negative prescription’

A judge in the Court of Session ruled that the pursuer’s case failed on the basis that any obligation of the defenders to make reparation for any wrong committed had been extinguished by “long negative prescription”.

Lady Wolffe heard that the pursuer “DK”, 60, was seeking reparation for certain sexual and physical abuse said to have been committed against him in the early 1960s, when he attended St Columba’s, Largs, which was run by the defenders, The Marist Brothers.

At the preliminary proof on the issue of time-bar, the pursuer relied on a threat said to have been made to him as a child, which he said precluded him coming forward until 2013.

The court was told that he attended the school between the ages of seven and nine and that he was abused by a Brother Germanus, one of the Marist Brothers responsible for the boys’ dormitory arrangements and welfare.

The pursuer spoke of a specific occasion when he and his older brother were told by Brother Germanus that their younger brother, “A”, had died in his sleep at home.

He then said that Brother Germanus took him aside and said to him that if he ever spoke of “our little secret” then he would never see his brother A in heaven.

He explained that he accepted “as the Gospel truth” what Brother Germanus told him and the threat affected him so deeply that it precluded him coming forward with the allegations before he did.

What changed things, in the pursuer’s mind, were certain exchanges with a fellow guest at a family wedding in September 2013, who mentioned that her husband had attended the school and extolled the virtues of the Marist Brothers, at which point the pursuer became “very troubled”.

The next day, the pursuer’s wife pressed him to speak about whatever it was that was bothering him and it was only then that he finally told her of the alleged abuse.

Under reference to section 7(2) of the Prescription and Limitation (Scotland) Act 1973, counsel for the pursuer contended that an obligation to make reparation for personal injuries was excluded from the ambit of the long negative prescription.

Counsel then turned to the issue of limitation and section 17(3), which provides that in the computation of the triennium “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”.

Put shortly, the pursuer’s position was that the threat operated on the pursuer as a “complete bar” on the pursuer saying anything – an absolute bar in the mind of the pursuer which constituted the kind of “unsoundness of mind” within the meaning of section 17(3).

In the hypothesis that the pursuer’s claim was time‑barred, it was argued that the court should exercise the discretion available under section 19A of the Act nonetheless to permit his case to proceed, on the ground that it would be “equitable in all the circumstances for the action to be allowed to continue”.

However, the defenders contended the long negative prescription extinguished any claim of the pursuer arising from any wrongful act committed prior to 26 September 1984.

In the alternative, they submitted that the pursuer’s claim was time‑barred as the triennium had long passed.

In respect of any reliance on section 19A of the Act, they argued that the substantial prejudice they would face in defending the pursuer’s action should lead the court to refuse to allow the pursuer’s action to proceed on that basis.

In a written opinion, Lady Wolffe said: “The pursuer’s case fails on the basis that any obligation of the defenders to make reparation for any wrong committed by Brother Germanus has been extinguished by the long negative prescription. The defenders are accordingly entitled to decree of absolvitor.

“Even if I am wrong on that matter, and any or all of the pursuer’s case subsisted after 26 September 1984, I have held that the triennium was long expired with the consequence that any proceedings are barred.

“In any event, even if some or all of the pursuer’s claim had not been extinguished by the long negative prescription, for the reasons I have just explained, I would have refused to exercise the discretion under section 19A in favour of allowing the pursuer’s case to proceed.”