Sheriff allows out-of-time damages action arising from alleged rape of woman by husband to proceed

About this case:

• Citation:
  [2022] SC HAM 37
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff J Speir

Pursuer AM sought permission for the action under section 19A of the Prescription and Limitation (Scotland) Act 1973 as it would otherwise be time barred. She argued that in the circumstances of the case it was equitable to allow her to bring the proposed action against PG, from whom she separated in September 2015 and divorced in 2018.

The case was heard by Sheriff John Speir. The pursuer was represented by Thompson, solicitor and the defender by Agyako, solicitor.

Adequate justification

The pursuer and defender were married in 2010 but separated after the defender was arrested and charged with possessing child pornography. The parties continued to reside in the matrimonial home until the defender left on 21 November 2016. Following his departure, the pursuer began to experience flashbacks of being raped on several occasions by the defender when she was asleep, with the last such incident having occurred between January and August 2015.

Between 2015 and 2018 the pursuer presented to her doctor on several occasions with symptoms of anxiety and difficulty coping with daily living and developed symptoms of PTSD, which she averred was the result of an abusive marriage. In September 2017 the defender admitted by WhatsApp messages to having sexual intercourse with the pursuer on the occasion that she alleged was raped but maintained that the intercourse was consensual.

The police interviewed the defender in relation to the allegations of rape, but no charges were brought against him. As a result of this, the pursuer’s mental health deteriorated, and she required to go on long term sick leave. She also paid for and received private medical treatment between November 2018 and March 2019.

It was submitted that the pursuer had been unfit to pursuer a civil claim within the usual time limit due to the effects of her mental disorders, including the PTSD caused by the incident, and this was adequate justification for depriving the defender of a complete defence in terms of section 17 of the Prescription Act. Further, there would be no prejudice to the defender by the late raising of the action, as the messages he had sent demonstrated he had a comprehensive memory of the incident.

No potential difficulties

In his decision, Sheriff Speir said of the discretion allowed by the Act generally: “In my view the starting point any consideration of section 19 is to recognise that it confers a general and unfettered discretion on the court to do what is equitable in all the circumstances with the crucial question being ‘where do the equities lie’?”

On any prejudices that may be suffered in the present case, he said: “The only concrete prejudice identified on behalf by the defender is the loss of the time barred defence. While there was some attempt to criticise the pursuer’s reliance on the WhatsApp message ultimately it was not the defender’s position that the pursuer had somehow invented or misrepresented the content of that message. Neither was it suggested to the pursuer that the defender had not sent such message.”

He continued: “In terms of that message it would appear that the defender had a fairly cogent recollection of the incident which the pursuer founds upon. In the circumstances, have regard to the nature of the alleged assault, there did not appear to be any potential difficulties which the defender will be presented with if the pursuer were permitted to bring her claim. Put another way it cannot reasonably be said that the pursuer’s claim has become stale and incapable of being investigated properly.”

Addressing whether the pursuer would be materially prejudiced if relief was not granted, the sheriff said: “I consider it of some significance that the parties remained under the same roof for a significant part of the three year period commencing at the end of August 2015. Thereafter although the pursuer had consulted solicitors in connection with her divorce from the defender this was not a case where there was some type of misconduct or failure on the part of those solicitors for which the pursuer would require to bear responsibility.”

He concluded: “The fact that the pursuer’s formal complaint to the police did not result in the defender being charged or prosecuted may well have served to weaken her resolve to take matters further at that time such as by investigating whether a civil claim was possible. Further, there is some basis for considering that the mental impairment that acted as a hurdle to the pursuer bringing a claim was causally connected to the defender’s conduct. In all the circumstances, I consider that the pursuer would be very materially prejudiced by a refusal to exercise the discretion conferred on the court by section 19A of the 1973 Act.”

The sheriff therefore granted the pursuer’s application and allowed the action to proceed.