Outer House refuses to allow time-barred civil damages action by woman who claimed a policeman raped her

About this case:

• Citation:
  [2024] CSOH 85
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lady Poole

Pursuer PW claimed to have been raped by the defender, KM, in January 1995, but did not commence her action until March 2019. She sought an equitable extension from the court, which the defender opposed by reference to Article 6 ECHR and the right to have obligations determined within a reasonable time frame.

The case was heard by Lady Poole in the Outer House of the Court of Session. Galbraith KC appeared for the pursuer, while the defender appeared as a party litigant with lay assistance from his daughter. Kerrigan KC was appointed by the court as curator ad litem for the limited purposes of cross-examining the pursuer and MS, who appeared as a witness.

Serious prejudice

The pursuer first reported to the police that the defender had raped her in September 2018 when she was arrested after a family event and while in custody shouted that a police officer had previously raped her. Her allegation was taken seriously and led to the prosecution of the defender. The defender was tried in the High Court in January 2021 on charges of rape of the pursuer, and indecent assault of another woman, MS. He was acquitted of both charges.

It was noted that the pursuer had, between 1995 and 2019, instructed solicitors to act for her in a variety of matters, including divorce, custody of a child, and domestic abuse. She consulted one of them, GR, about the defender, but he advised her not to proceed. She also told a number of other people over the years that the defender had raped her, including two of her sisters, but did not report it when encouraged to do so by them.

Counsel for the pursuer submitted that she had delayed so long in commencing her action because of a fear of not being believed that arose in the context of her troubled upbringing and being part of a family known for having members in trouble with the police. She only overcame that fear after giving evidence at the Scottish Child Abuse inquiry in 2018.

The defender pointed to the pursuer’s ability to instruct solicitors over the period of delay and the absence of a proper basis for her thinking she would not be believed when the police took those types of allegation seriously. He also gave examples of the serious prejudice he faced if the action proceeded after so long.

Listened to in court

In her decision, Lady Poole began by observing: “As early as 1997, within the three year period under section 17 of the 1973 Act, the pursuer had found herself able to instruct solicitors. She was able to do so in matters difficult for her personally, such as custody of her child and divorce. Despite her personal and mental health issues, she has consulted solicitors repeatedly over the years, in relation to a variety of matters, including personal injury claims. She even consulted a solicitor GR in 2002 or 2003 in relation to her allegation of rape, and took his advice not to proceed.”

She continued: “While there is undoubtedly prejudice to the pursuer if she is not able to claim damages, that factor must be weighed taking into account a submission made on the pursuer’s express instructions. The pursuer wished it to be known that her primary motivation in bringing the action was not recovery of damages, but to be listened to in court. That has now happened, the court having taken additional steps such vulnerable witness measures and appointment of a curator ad litem to facilitate the giving of evidence by the pursuer - although it is acknowledged that the outcome of the case is not as the pursuer hoped.”

Lady Poole concluded on the equitable balance: “The answer to the question ‘where do the equities lie?’ is firmly on the side of the court declining to allow the action to proceed. The pursuer’s explanation for delay in bringing the action is insufficient, given her repeated instruction of solicitors in a variety of matters, including seeking advice in relation to the present action in 2002 or 2003. There is significant prejudice to the defender if the action is allowed to proceed, in circumstances where the conduct of the pursuer and the loss of her ability to sue the defender do not tip the equities in her favour.”

However, she went on to say on liability: “At best, the evidence of the pursuer raised a possibility that the defender had taken advantage of her on 29 January 1995. But it was not established on the balance of probabilities that the pursuer was asleep in the living room of SR’s house at any time when the defender was there, or that the defender’s penis was in the pursuer’s vagina either while she was asleep or when she was awake. Having evaluated all of the evidence and considered it as a whole, the court was not satisfied that it was more likely than not that the pursuer had been raped by the defender on 29 February 1995.”

The court therefore found in favour of the defender on the issue of time bar. Had it been necessary, solatium would have been assessed at £50,000.