Bowden v Poor Sisters of Nazareth & Ors (Scotland)

The appellants, former residents of Nazareth House, sued for damages for physical and psychiatric injury allegedly suffered in childhood. The central legal issues were whether the actions were time barred under section 17 of the Prescription and Limitation (Scotland) Act 1973 and, if so, whether the court should nevertheless permit the actions to proceed under the discretionary power in section 19A. The House of Lords upheld the Court of Session's procedure of determining the section 19A issue by preliminary proof and endorsed the approach taken by the Lord Ordinary and the Inner House to the exercise of the section 19A discretion.

The court emphasised that the limitation period set by the legislature is the norm and that section 19A is an exceptional remedy; the burden lies on a pursuer seeking that exception to satisfy the court that it is equitable to allow the late action. Where delay gives rise to the real possibility of significant prejudice to the defender, the discretion will normally not be exercised. The appellants had not shown any procedural unfairness or legal error warranting reopening the interlocutors or reversal of the exercise of discretion.

Background and parties:

• The appellants were former child residents of Nazareth House, operated by the Poor Sisters of Nazareth, who alleged regular physical abuse and resultant long‑term psychiatric injury and financial loss.
• The respondents denied liability and pleaded limitation.

Procedural posture:

• Actions were raised in the Court of Session in May 2000. The Lord Ordinary (Lord Johnston) excluded reliance on section 17 and ordered a preliminary proof restricted to the section 19A issue (2004 SLT 967).
• A preliminary proof was heard by Lord Drummond Young (2005 SLT 982); his decision was affirmed by the Inner House (AS v Poor Sisters of Nazareth [2007] CSIH 39, 2007 SC 688).
• The appeals to the House of Lords challenged both the procedure and the exercise of the section 19A discretion. The appeals were consolidated with Whitton.

Nature of claim / relief sought: The pursuers sought damages for personal injuries (physical and psychiatric) said to have been sustained in the respondents' care; the respondents sought to have the actions dismissed as time barred.

Issues framed by the court:

• Whether section 17(2) of the Prescription and Limitation (Scotland) Act 1973 permitted postponement of the triennium until the pursuers became aware of their rights (relevant to the start of the limitation period).
• Whether the court should exercise its equitable discretion under section 19A to allow otherwise time‑barred actions to proceed.
• Whether the procedure adopted (a restricted preliminary proof based on Lord Johnston's interlocutors) was unfair and required reopening for a proof at large.

Court's reasoning and conclusions:

• The House of Lords declined to overturn the procedural decisions of the Court of Session. The preliminary proof procedure was appropriate where the facts relevant to the exercise of the section 19A discretion were in dispute and where it was unnecessary to proceed to a full proof on the merits in advance of deciding the limitation question.
• On the merits of the discretionary exercise under section 19A the court endorsed the approach that limitation is the statutory norm and the discretion is an exception that should be exercised sparingly. The onus is on the pursuer; where the delay creates a real possibility of significant prejudice to the defender (loss of evidence, faded memories, witnesses unavailable) the discretion should not be exercised.
• The Lord Ordinary had been entitled to take the appellants' averments pro veritate for the limited purpose of the section 19A inquiry and to assess the balance of prejudice without deciding credibility at large. The appellants failed to demonstrate error of law or such a miscarriage of justice as would justify reopening the interlocutors or reversing the discretionary decision.

Context: The court noted the wider context of many similar historical abuse claims prompted by media publicity from 1997, and that a political apology had no legal effect on limitation issues.

Appeals dismissed. The House of Lords held that (1) the preliminary proof procedure ordered in the Court of Session was not procedurally unfair and need not be reopened; (2) the discretionary power in section 19A of the Prescription and Limitation (Scotland) Act 1973 should be exercised sparingly and the burden lies on a pursuer to show it is equitable to disapply the limitation rule; and (3) the Lord Ordinary and the Inner House acted within lawful bounds in concluding that the prejudice caused by long delay justified refusing to exercise section 19A in these cases.

Actions raised in the Court of Session (Outer House). Lord Johnston issued interlocutors on 30 July 2004 excluding section 17 from further consideration and ordering a preliminary proof (2004 SLT 967). A preliminary proof before Lord Drummond Young followed (2005 SLT 982). The Inner House affirmed the Lord Ordinary (AS v Poor Sisters of Nazareth [2007] CSIH 39, 2007 SC 688). Appeals to the House of Lords were dismissed ([2008] UKHL 32).