JXJ v The Province of Great Britain of the Institute of Brothers of the Christian Schools ("The De La Salle Brothers")

Under the Scottish childhood-abuse limitation regime, the abolition of the primary limitation period removes any presumption against stale claims and places no burden on the claimant to explain delay. A defender relying on Prescription and Limitation (Scotland) Act 1973, s 17D(2), must show that a fair hearing is not possible. For retrospective claims under s 17D(3), the defender must show substantial prejudice and that it outweighs the claimant’s interest in proceeding. The court must not reintroduce delay as an independent requirement.

Vicarious liability depends on the detail of the relationship between the defendant and the tortfeasor. De facto influence and the importance of the tortfeasor’s work are insufficient without a relationship akin to employment. An organisation is not vicariously liable merely because another organisation’s staff are necessary to its activities.

The claimant alleged that, while aged 10 to 12 at a Scottish approved boarding school, he suffered sexual assaults by a lay employee and physical assaults by members of a religious order. He claimed that the defendant, the order’s British province, was vicariously liable for the assaults and for a headmaster’s alleged negligence after a complaint.

The claim was brought in England but proceeded on the pleaded and agreed basis that Scots law governed limitation. The court had to determine whether the claims could proceed under the childhood-abuse provisions inserted into the Prescription and Limitation (Scotland) Act 1973, and whether the defendant was vicariously liable for the lay employee’s assaults.

1. Limitation framework. Where s 17A of the Prescription and Limitation (Scotland) Act 1973 applies, the triennium is disapplied. There is no time bar requiring disapplication, no presumption that a stale action should not be brought, and no onus on the claimant to justify delay. Under s 17D(2), the defender bears the burden of showing that a fair hearing is not possible.
2. The authorities under s 19A remain relevant only insofar as they address the possibility of a fair hearing. The former “real possibility of significant prejudice” test must be approached with caution because Parliament adopted a stricter and different test in s 17D(2). For retrospective claims, s 17D(3) requires substantial prejudice caused by the retrospective operation of s 17A and a further assessment of whether that prejudice outweighs the claimant’s interest in proceeding. The claimant’s reasons for delay are not to be reintroduced as a separate requirement.
3. The statutory tests may produce different results for separate causes of action. The claim concerning the admitted sexual assaults by McKinstry could fairly proceed because the assaults were established by conviction and admission and relevant evidence remained available. The claims concerning the headmaster’s response and the alleged physical assaults could not fairly be tried because the principal witnesses were dead and the defendant could not properly answer the allegations. Those claims were also barred under s 17D(3) as an alternative ground.
4. Vicarious liability. The first stage is whether the relationship between defendant and tortfeasor is akin to employment. The court must examine the detail of the relationship. Control, integration into another organisation’s work, or the defendant’s ability to perform its own mission only with assistance from the tortfeasor is insufficient without a direct relationship of the required character.
5. The relationship between the Institute and its brothers was materially different from its relationship with McKinstry. The brothers were bound by vows and rules, directed by the Institute, and supported by it throughout their lives. McKinstry was employed by the school managers, owed no obligations to the Institute, and was not integrated into its business. The defendant was therefore not vicariously liable for his assaults.
6. The claim relating to McKinstry’s assaults was dismissed on liability. The remaining claims could not proceed under s 17D(2), alternatively s 17D(3).