BOWDEN V POOR SISTERS OF NAZARETH AND OTHERS [2008] UKHL 32
FACTS:-
The Claimants were former residents of a children’s home called Nazareth House, which was run by the Poor Sisters of Nazareth. In May 2000 they brought separate action against the Defendants for damages in relation to physical abuse which they claimed to have suffered during their time there.
Mrs Bowden had been born in January 1963 and had been a resident in Nazareth House from around 1966 to 1979. She attained the age of majority in January 1981. In June 1997, very shortly after the appearance of newspaper articles around the homes, she instructed a solicitor. A psychologist’s report was obtained in August 1998 and proceedings were issued in May 2000.
Mrs Whitton was born in November 1953 and was resident at Nazareth House between 1961 and 1969. She reached 18 in November 1971. In December 1997, she instructed a solicitor and obtained a psychologist’s report in August 1998. In May 2000 she issued proceedings.
The Defendants defended the claim on the issue of limitation.
HELD:-
Lord Hope said that the First Minister of Scotland had made a public apology for what had happened in these institutions, but this had no legal significance whatsoever. The law of limitation was set out in the Prescription and Limitation (Scotland) Act 1973. The relevant section was Section 17 (as substituted by Section 2 of the Prescription and Limitation (Scotland) Act 1984. There was also Section 19A, which was inserted by Section 23(a) of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1980.
Section 17(2) of the 1973 Act provided as follows:-
“Subject to subsection (3) below and section 19A of this Act, no action to which this section applies shall be brought unless it is commenced within a period of three years after –
(a) the date on which the injuries were sustained or, where the act or omission to which the injuries were attributable was a continuing one, that date or the date on which the act or omission ceased, whichever is the later; or
(b) the date (if later than any date mentioned in paragraph (a) above) on which the pursuer in the action became, or on which in the opinion of the court, it would have been reasonably practicable for him in all the circumstances to become, aware of all the following facts –
(i) that the injuries in question were sufficiently serious to justify his bringing an action of damages on the assumption that the person against whom the action was brought did not dispute liability and was able to satisfy a decree;
(ii) that the injuries were attributable in whole or in part to an act or omission; and
(iii) that the defender was a person to who act or omission the injuries were attributable in whole or in part or the employer or principal of such a person.”
Subsection (3) of that section provided that in the computation of the period specified in Subsection (2) there was to be disregarded any time during which the person who sustained the injuries was under legal disability by reason of nonage (i.e. below the age of 18) or unsoundness of mind. Section 19A(1) of the 1973 Act provided:-
“Where a person would be entitled, but for any of the provisions of section 17,18, 18A or 18B of the 1973 Act, to bring an action, the court could, it seemed to it equitable to do so, allow him to bring the action notwithstanding the provision.”
Lord Hope considered the decision of the court below, which had been against the Claimants. In that court, Lord Drummond Young had said the he found the most helpful discussion of the policy of the limitation statutes to be in Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541. The fundamental legislative policy was to avoid the real possibility of significant prejudice, and that if the prejudice could be shown to be real, that policy applied with its full force and must be given its effect.
Lord Hope said that in the case of Carson v Howard Doris Ltd 1981 SC 278 the court had said that the power conferred to misapply the limitation period under Section 19A should be exercised sparingly and with restraint. Proof that the Defendant would be exposed to the real possibility of significant prejudice would usually determine the issue in his favour. The court below was not in error in their assessment of the test.
In the case of Horton v Sadler [2007] 1 AC 307 the House of Lords said that the discretion to override the time limit was unfettered. Lord Brown in A v Hoare [2008] 2 WLR 311 had said that by no means everyone who brought a late claim could reasonably expect the Section 33 discretion to be exercised in their favour.
The central conclusion exercised by the lower court was that having taken into account all the various factors, the prejudice caused to the Defendants by the lapse of time including the loss of evidence was a sufficient reason for not allowing the actions to be brought under Section 19A.
Lords Walker, Carswell and Hoffman agreed.
FACTS:-
The Claimants were former residents of a children’s home called Nazareth House, which was run by the Poor Sisters of Nazareth. In May 2000 they brought separate action against the Defendants for damages in relation to physical abuse which they claimed to have suffered during their time there.
Mrs Bowden had been born in January 1963 and had been a resident in Nazareth House from around 1966 to 1979. She attained the age of majority in January 1981. In June 1997, very shortly after the appearance of newspaper articles around the homes, she instructed a solicitor. A psychologist’s report was obtained in August 1998 and proceedings were issued in May 2000.
Mrs Whitton was born in November 1953 and was resident at Nazareth House between 1961 and 1969. She reached 18 in November 1971. In December 1997, she instructed a solicitor and obtained a psychologist’s report in August 1998. In May 2000 she issued proceedings.
The Defendants defended the claim on the issue of limitation.
HELD:-
Lord Hope said that the First Minister of Scotland had made a public apology for what had happened in these institutions, but this had no legal significance whatsoever. The law of limitation was set out in the Prescription and Limitation (Scotland) Act 1973. The relevant section was Section 17 (as substituted by Section 2 of the Prescription and Limitation (Scotland) Act 1984. There was also Section 19A, which was inserted by Section 23(a) of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1980.
Section 17(2) of the 1973 Act provided as follows:-
“Subject to subsection (3) below and section 19A of this Act, no action to which this section applies shall be brought unless it is commenced within a period of three years after –
(a) the date on which the injuries were sustained or, where the act or omission to which the injuries were attributable was a continuing one, that date or the date on which the act or omission ceased, whichever is the later; or
(b) the date (if later than any date mentioned in paragraph (a) above) on which the pursuer in the action became, or on which in the opinion of the court, it would have been reasonably practicable for him in all the circumstances to become, aware of all the following facts –
(i) that the injuries in question were sufficiently serious to justify his bringing an action of damages on the assumption that the person against whom the action was brought did not dispute liability and was able to satisfy a decree;
(ii) that the injuries were attributable in whole or in part to an act or omission; and
(iii) that the defender was a person to who act or omission the injuries were attributable in whole or in part or the employer or principal of such a person.”
Subsection (3) of that section provided that in the computation of the period specified in Subsection (2) there was to be disregarded any time during which the person who sustained the injuries was under legal disability by reason of nonage (i.e. below the age of 18) or unsoundness of mind. Section 19A(1) of the 1973 Act provided:-
“Where a person would be entitled, but for any of the provisions of section 17,18, 18A or 18B of the 1973 Act, to bring an action, the court could, it seemed to it equitable to do so, allow him to bring the action notwithstanding the provision.”
Lord Hope considered the decision of the court below, which had been against the Claimants. In that court, Lord Drummond Young had said the he found the most helpful discussion of the policy of the limitation statutes to be in Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541. The fundamental legislative policy was to avoid the real possibility of significant prejudice, and that if the prejudice could be shown to be real, that policy applied with its full force and must be given its effect.
Lord Hope said that in the case of Carson v Howard Doris Ltd 1981 SC 278 the court had said that the power conferred to misapply the limitation period under Section 19A should be exercised sparingly and with restraint. Proof that the Defendant would be exposed to the real possibility of significant prejudice would usually determine the issue in his favour. The court below was not in error in their assessment of the test.
In the case of Horton v Sadler [2007] 1 AC 307 the House of Lords said that the discretion to override the time limit was unfettered. Lord Brown in A v Hoare [2008] 2 WLR 311 had said that by no means everyone who brought a late claim could reasonably expect the Section 33 discretion to be exercised in their favour.
The central conclusion exercised by the lower court was that having taken into account all the various factors, the prejudice caused to the Defendants by the lapse of time including the loss of evidence was a sufficient reason for not allowing the actions to be brought under Section 19A.
Lords Walker, Carswell and Hoffman agreed.