Inner House upholds decision to award woman sexually abused by uncle £70,000 damages following ‘time-barred’ action

Lord Menzies, Lord Brodie and Lady Dorrian upheld a ruling of the Lord Ordinary, who decided that it was “equitable” to allow the woman to bring and proceed with the “time-barred” action, and that she was entitled to reparation in respect of a period up to her 16th birthday.

The court heard that that pursuer and respondent - referred to as “EA” - sought reparation for loss, injury and damage as a result of sexual “abuse” by her uncle “GN” - the defender and reclaimer - who denied liability and averred that the action was time-barred.

The respondent relied upon section 19A of the Prescription and Limitation (Scotland) Act 1973, claiming that although the limitation period had passed it was nevertheless equitable to allow her claim to proceed.

The allegation was that the reclaimer had inflicted upon the respondent a serious course of sexual abuse from the age of seven, which became penetrative when she was 10, and which continued until she was 30, in 1997, at which point, according to her pleadings, she “was able finally to break away from the control of the defender and bring an end to sexual relations between them”.

Having heard the evidence the Lord Ordinary decided that it was equitable to allow the respondent to bring and proceed with the action, though time-barred; that the respondent was entitled to reparation in respect of a period up to her 16th birthday on 10 December 1983, but that he was not satisfied that a delict extending beyond that date had been established; and that damages in the sum of £70,000 should be awarded.

However, the defender reclaimed against that decision, and the pursuer lodged a cross-appeal.

The grounds of appeal for the defender and reclaimer are that in allowing the case to proceed under section 19A, the Lord Ordinary erred (i) in concluding that the nature of the delict itself was a factor to take into account in deciding whether to allow to proceed; (ii) in taking into account his view that the reclaimer had exploited the respondent, since, having found that the exploitation continued only until 1997, the Lord Ordinary could not rely on the exploitation in explanation of any delay after that date; and (iii) in concluding that the action was raised expeditiously once the respondent had consulted her present solicitors.

It was accepted that in considering his discretion under section 19A the Lord Ordinary would have been entitled to take into account the consequences of the reclaimer’s behaviour, and its effect upon the respondent.

But it was argued that what the Lord Ordinary did was take into account as a factor in itself the fact that the delict was one of a particularly morally repugnant kind.

The grounds of appeal also asserted that the Lord Ordinary erred in his failure to consider a number of factors which demonstrably operated against the exercise of a section 19 discretion in favour of the respondent.

These were, in short, that she had disclosed conduct to several people on several occasions; that in certain aspects her evidence was evasive and unsatisfactory; that she lied to an expert instructed on her behalf; that she sold her story to the press; the evidence regarding the respondent’s familiarity with legal proceedings in other contexts.

The respondent’s cross-reclaiming motion related to the Lord Ordinary’s finding in favour of the respondent only up to the age of 16.

It was submitted that (i) there had been one single course of delictual conduct throughout; (ii) any “consent” after the age of 16 was vitiated because of the extent to which the respondent had become habituated to the abuse from a young age, her emotional dependence on the reclaimer, and the control exercised by him; and (iii) the Lord Ordinary erred in finding that the respondent had not shown a causal connection between the conduct towards her prior to the age of 16 and conduct after she reached that age.

The appeal judges refused both the reclaiming motion and the cross‑reclaiming motion after concluding that that the Lord Ordinary “exercised the discretion which was open to him after determining the facts which bore upon the exercise of that discretion”.

Delivering the opinion of the court, Lady Dorrian said: “We are not persuaded by the reclaimer’s argument that the nature of a delict can never be a relevant factor in considering the exercise of discretion under section 19A. However, we need make no further comment on the matter because we are satisfied that the Lord Ordinary did not in fact take this into account as a factor per se, as opposed to taking account of the effect of the delict.

“Contrary to what is asserted in the grounds of appeal, the Lord Ordinary was careful to address all factors which might weigh in his consideration of the discretion available to him under section 19A, whether they were factors in favour of allowing the action to proceed, or against it.”