In B & W v The Sisters of Nazareth  CSIH 52, the Inner House of the Court of Session recently considered whether an action could proceed to a full hearing in the context of non-recent abuse cases.
This was an appeal from a first instance decision which found in the defender’s favour that a fair trial could not take place because the lack of identification of alleged perpetrators significantly impacted their ability to investigate. However, the court has now found that a fair trial remains possible and remitted the cases back for further procedure.
Siblings B and W claimed that they had suffered physical and emotional abuse at a residential home operated by the defender between 8 July 1974 and 12 August 1974.
Most allegations were of generalised cruelty and were directed at unnamed and unidentified nuns or “Sisters”.
Both pursuers named Sister X as a perpetrator. Sister X had been previously convicted of offences against other children. B named a Sister M. However, on learning that there had been no Sister M at the home they identified Sister MMM as the perpetrator.
Sister MMM provided an affidavit expressing shock at the allegations now made against her, which were denied; she had no memory of the pursuers.
Sister X was in deteriorating health, and did not provide a statement.
The defenders were able to identify a total of twelve Sisters who were at the residential home during the period of abuse. Of those twelve, eight were either deceased or could not be traced, a further two were not connected to the pursuers. Despite extensive searches, only limited contemporaneous documentation was available.
Section 17D of the Limitation (Childhood Abuse) (Scotland) Act 2017 limits a pursuer’s action from proceeding by allowing a defender to argue that it is not possible for a fair hearing to take place or that the defender would be substantially prejudiced in the action proceeding. The defender bears the burden of proving that the action cannot proceed. Accordingly, the defenders argued at first instance that there could be no fair trial and alternatively that they were substantially prejudiced.
At first instance the court considered witness evidence from three Sisters and two members of lay staff who had been at the home at the material time. The witness evidence was consistent in that they had never seen the practices that the pursuers alleged.
The judge held that each was “intensely fact specific” and so previous decisions were of limited assistance. In particular, no decisions involving unnamed perpetrators were put before the court.
The defenders argued that lack of identification of perpetrators had a significant impact on their ability to fully investigate claims. The court agreed that the defenders could not put allegations to perpetrators, assess credibility or reliability of the pursuers, or fully develop a defence. Accordingly, a fair trial could not take place, and dismissed both cases.
The pursuers appealed.
The Inner House on appeal doubted “the value of reliance on [previous] decisions in other cases in such fact-sensitive matters…”.
However, the court noted that the pursuers alleged a generalised regime of abuse reflected in the residential home’s overall ethos, which the defenders could address with evidence still available:
“We consider that the Lord Ordinary erred by not taking into account the nature of the attack on the overall standard of care, or lack of it, in the Home as a whole, as opposed to allegations of specific incidents ... if appropriate regard is given to the systematic nature of the allegations and to the numerous sources of relevant evidence still available to the defender, it cannot be said that any hearing would be bound to be unfair.”
The dismissals were, therefore, quashed and the cases were remitted back for further procedure.
One of the defining features of this case is that it did not concern sexual abuse. It concerned a cruel system of operation which would have been carried on in plain sight. By contrast, it is submitted that sexual abuse, invariably, does not occur in front of witnesses.
In the matter at hand, it stands to reason that if the residential home was operated in the manner claimed and the events occurred as alleged, then it would have been seen by someone. Staff at the school were unlikely “to be ignorant as to what was happening”. There was witness evidence available to the court from people who were there at the time and they stated that they did not see the abusive practices alleged. On one view this affords a basis to positively refute the allegations.
It is inevitable that a defender may not have all avenues of defence open to it as a result of the passage of time. But that is not the test. As Lord Malcolm puts it “a fair hearing is not dependent on each party being able to investigate all that it would wish to…”.
The court appears willing to look past whether the pursuer can provide detailed allegations, and whether the defender can investigate the matter fully. Provided that there is a body of information for the defenders to form a general view in all the circumstances, the court will allow the action to proceed.
For now, B & W’s case can proceed, so the burden of proof is back on the pursuer to establish the facts upon which they rely: that abuse was sustained as alleged, that there was systemic negligence on behalf of the defender proved on balance by reference to the standards of the day, or that the defenders are vicariously liable, causation and quantum.
The approach of allowing cases to proceed where a pursuer claims systemic negligence is also in direct contrast to the approach in England and Wales where there is already established case law from the Court of Appeal in KR v Bryn Alyn Community (Holdings) Ltd and acknowledged by the House of Lords in A v Hoare.
In particular, the English courts have accepted that in cases of this nature the passage of time means that it would be quite impossible to attempt to recreate the standards of the day (against which the actions of the defender would have to be judged) with the necessary degree of certainty after the passage of so many years (indeed, nearly 50 years in these cases). Where an exercise involves assessing what (if anything) was known, when and by whom and what the defender could reasonably have been expected to have done to guard against any abuse, the authorities in England and Wales have made it clear that it is simply impossible for there to be a fair trial. However, at present it seems the Scottish courts are yet to address such issues and remain committed to allowing cases to proceed notwithstanding such fair trial issues.
Associate & Solicitor Advocate
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