Bowden (AP) (Appellant) v Poor Sisters of Nazareth (Respondents) and others (Scotland)Whitton (AP) (Appellant) v Poor Sisters of Nazareth (Respondents) and others (Scotland)(Consolidated Appeals)

When exercising the equitable discretion under section 19A of the Prescription and Limitation (Scotland) Act 1973, the court must consider all the circumstances and give full weight to the pursuer’s explanation for delay. The burden rests on the pursuer, because the remedy revives a right lost on expiry of the limitation period and reimposes a spent liability.

The central question is whether defending the action would expose the defender to a real possibility of significant prejudice. Proof of such prejudice will usually determine the issue in the defender’s favour. Its assessment is a question of degree for the judge exercising the discretion.

An appellate court will be especially slow to interfere with that assessment after it has already been reviewed on appeal, or to reopen an acquiesced procedural order without a grave miscarriage of justice.

The appellants were former residents of a children’s home operated by the respondents. They raised damages actions in 2000 alleging physical abuse, cruel punishment and resulting psychological or psychiatric injury many years after leaving the home. The allegations were denied, and the respondents pleaded that the actions were time barred.

The Lord Ordinary excluded reliance on section 17 of the Prescription and Limitation (Scotland) Act 1973 and ordered a preliminary proof on whether the actions should nevertheless be permitted under section 19A: 2004 SLT 967. The appellants did not reclaim against those interlocutors. Following proof, a different Lord Ordinary declined to exercise the discretion: 2005 SLT 982. The Inner House affirmed that decision in AS v Poor Sisters of Nazareth [2007] CSIH 39, 2007 SC 688.

The consolidated appeals concerned whether the adopted procedure was unfair and whether the Lord Ordinary had misdirected himself when assessing the equitable discretion under section 19A.

1. Appeals dismissed unanimously. Lord Hope of Craighead delivered the leading speech. Lord Hoffmann, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe and Lord Carswell agreed with his reasons.

2. Per Lord Hope, the House’s function was not to exercise afresh the discretion vested in the Lord Ordinary, especially after its review by the Inner House. A second appeal on such an issue would not normally be entertained, and the House would be slow to interfere with the Court of Session’s determination of procedural matters.

3. The preliminary proof was orthodox. Where facts relevant to section 19A of the Prescription and Limitation (Scotland) Act 1973 are disputed, a preliminary proof may resolve time bar without the expense of an unnecessary proof on the merits. The appellants had not reclaimed against the interlocutors defining that proof and had proceeded with it over many days. Reopening the litigation from the beginning could therefore be contemplated only to avert a grave miscarriage of justice. No such injustice was shown. The Inner House was entitled to hold that the merits and time-bar issues were not demonstrably so interrelated as to require a single proof.

4. Section 19A requires the court to decide what is equitable in all the circumstances. The burden rests on the pursuer seeking the remedy, because exercise of the discretion revives a right lost on expiry of the limitation period and reimposes a spent liability on the defender. The court must give full weight to the pursuer’s explanation for delay and the equitable considerations arising from it. Its principal inquiry is whether defending the action would create a real possibility of significant prejudice. Proof of such prejudice will usually determine the issue for the defender, although its degree remains for the judge.

5. Lord Drummond Young had not imposed an unlawful test or fettered his discretion. His use of generality reflected the preliminary-proof procedure, under which the allegations were assumed to be true but had not been tested for credibility and reliability. His relevant references to KR v Bryn Alyn Community (Holdings) Ltd [2003] QB 1441 concerned uncontroversial aspects of the discretionary power, rather than the dictum later disapproved in A v Hoare [2008] 2 WLR 311.

6. The decisive finding was that the lapse of time and resulting loss of evidence created prejudice which was by itself sufficient to refuse relief under section 19A. The Inner House was entitled to affirm that conclusion. The time-bar issue had been thoroughly litigated and could not be reopened.

1. House of Lords: Dismissed both appeals unanimously and affirmed the Inner House’s disposal: [2008] UKHL 32.
2. Inner House of the Court of Session: Refused the reclaiming motions and affirmed the Lord Ordinary’s refusal to exercise the section 19A discretion: AS v Poor Sisters of Nazareth [2007] CSIH 39, 2007 SC 688.
3. Outer House of the Court of Session: Following a preliminary proof, Lord Drummond Young declined to permit the actions under section 19A of the Prescription and Limitation (Scotland) Act 1973: 2005 SLT 982.
4. Outer House of the Court of Session: Lord Johnston excluded further reliance on section 17 and ordered a preliminary proof restricted to section 19A. The appellants did not reclaim against those interlocutors: 2004 SLT 967.