OUTER HOUSE, COURT OF SESSION, SCOTLAND. 2005

SISTER BERNARD MARY MURRAY

When The Storms Of Life Rage ~*~ Christ Is Still Our Refuge!

OUTER HOUSE, COURT OF SESSION
A1191/00	OPINION OF T G COUTTS, Q.C. (Sitting as a Temporary Judge) in the cause ELIZABETH MARY McCOLLUM or ABERNETHY Pursuer;  against SISTER BERNARD MARY MURRAY and OTHERS Defenders:   ________________

[1] This action, I was informed, is one example of several hundred claims which seek damages from a religious order and its nuns and staff. The claims are for injuries alleged to have been sustained when children in the course of their education while in the defenders' care at a residential home providing such education. This particular action, however, concerns events which, for this pursuer, ceased in 1959. The action was not raised until the year 2000. It has come before the Court at procedure roll, the defenders seeking dismissal on the ground that the events have prescribed and that there are no relevant averments to prevent prescription operating.

[2] The pursuer in Condescendence 4 avers a series of assaults at a Home in Cardonald mainly by a particular Sister, who the defenders aver, died on 21 April 1991. The pursuer avers a series of assaults either as punishment for various alleged misdemeanours or as a means of deterrence. She also avers assaults by the third present defender, although of a more minor nature, at unspecified times between the time the pursuer was aged eight and eleven. At age eleven, ie some time in 1959, she was sent to Rosemount Convent in Liverpool. Accordingly the entire complaint in this action relates to events when the pursuer was under the age of 12. If established, the pursuer's averments paint a horrifying picture of inappropriate and uncaring discipline and neglect all of which caused actual physical injury.

[3] The pursuer also avers that by the age of 21 she had been diagnosed with depression, and has received treatment for depression and anxiety since them. She abused alcohol between 1983 and 1986, and has attended psychiatry sessions for many years. She avers she now has "extremely severe symptoms of clinical depression as well as anxiety". She, it is averred, suffered and suffers symptoms "similar to those experienced by PTSD sufferers". She married and had a child. She saw a psychiatrist in the 1980's and told him that her problem was caused by her husband. After a newspaper article was published about abuse in Nazareth House the pursuer says she was contacted by a former resident who encouraged her to speak out.

[4] The defenders aver that solicitors investigated the question of abuse in Nazareth House Children's Homes by sending out to former residents questionnaires with tick boxes which they were to return.

[5] The pursuer, between pages 18 and 22 of the Closed Record, proffers various reasons why her action should be allowed to proceed. In the first place, claiming that her right of action has not been extinguished by the operation of the long negative prescription she avers that:

[6] The next proposition on the pleadings concerns the suggestion that her action should be allowed to proceed because of human rights legislation and the Convention. Since this is a separate issue, it is discussed below under reference to the appropriate pleadings.

[7] The pleadings then continue to claim that because of a diagnosis of symptoms similar to PTSD in December 1988, her action falls within the triennium set out in section 17 of the Prescription and Limitation (Scotland) Act 1973. Further, there is an attempt to invoke section 19A of the said Act to argue that it is equitable to allow the action to be brought.

[8] For the first two days of the procedure roll the Court heard a wide-ranging argument on each and all of the Prescription and Limitation points from junior counsel. That argument was diligently researched on all points by both sides. However, in view of the agreement undernoted, I do not need to record the totality of the many cases cited which concerned matters of limitation and section 19A.

[9] The case required to be continued. Other similar actions but raising discrete matters had been brought in Court and debated. When counsel appeared at the continued diet, both senior counsel proposed and I agreed, that in this action, a preliminary determination should be made on the question of the long negative prescription and the plea of non valens agere cum effectu. Whether Human Rights law is involved in that question had also to be determined. Thereafter if the prescription plea did not succeed the case would be put out By Order for consideration of further procedure.

[10] Because of certain averments and contentions made on behalf of the pursuer, it is important to consider what general considerations, if any, apply when dealing with prescription. Very nearly all that can be said on the subject is contained in Mr David Johnston's excellent work "Prescription and Limitation". He concludes at page 15 that it is difficult to assert that any uniform notion of the basis of prescription underlies the chapters on the subject by the institutional writers. They have considered prescription to be founded more on utility than upon equity and conclude that the law accounts it a dereliction of the owner's right if he did not pursue his claim within the specified time.

[11] Bankton, dealing with negative prescription, notes that the new proprietor may take the benefit of prescription

[12] Erskine however, focuses on negligence by the contributor, asserting that prescription is the penalty of negligence, (III, vii 1).

[13] Hume does not found on presumed abandonment so much as a notion of equity and the recognition of the hardship of disturbing a man's peace and injuring his fortune with a claim which has been long forgotten, (Lectures 3.64).

[14] Bell's Principles, s.606 puts forward the view that 40 years of inaction is a fair ground to presume that a claim has been abandoned or satisfied. He notes as reasons the equity of discouraging forgotten debts and disfavour to a person guilty of negligence in pressing a claim.

[15] Kaimes, Elucidations, p. 255 emphasises that the role of negligence is not the whole point. The negative prescription "is to quiet the minds of people who have acquired a conviction of freedom from being left undisturbed forty years."

[16] That overview, a further paraphrase of Mr Johnston's paraphrase of the institutional writers, is perhaps sufficient to demonstrate for present purposes that the attempt to find underlying reasons for prescription which reinforce or explain the rule itself has not met with success. It is not necessary. There is a rule to be applied. Why the rule exists is of no present importance.

[17] Mr Johnston goes on at page 17 to add the observation that the doctrine of acquiescence has a very limited role and that policy and public interest in legal certainty demands that entitlement to the benefit of rights and obligations be clear, after a period of years has run. He adds,

[18] The distillation of the pursuer's case came from senior counsel. He made various concessions for the purposes of the debate; these concessions in this "test" case were properly and responsibly made. These concessions were as follows. Firstly, that 1959 was the start date for the running of prescription. Secondly, that the 20 year prescriptive period applied to the present case prima facie. Thirdly, that by section 14(1)(b) of the 1973 Act, periods of legal disability do not apply. Those are defined in s.15(1) as being by reason of non age or unsoundness of mind. Fourthly, that it was not until 1984 that personal injuries was made part of a separate regime of limitation. Finally, that this case required to be dismissed unless the pursuer could successfully invoke the plea of non valens agere cum effectu.

[19] Such a plea was not tabled on Record as a plea-in-law but was part of the pursuer's narrative pleadings as above quoted.

[20] Junior counsel for the pursuer summarised the position in the following propositions, which were adopted by her senior.

(1) Prescription is a penalty of negligence. Any party cannot be negligent for something not in his power. That is consistent with the idea of an abandonment of right.

(3) There are different types of non valens agere cases. In some there is a pure title question and in others, such as life rent, there is not a complete absence of title or of ability to pursue the right.

(4) Prescription will not run in some cases of personal disability including imprisonment abroad and personal factors such as impairment or justifiable ignorance are relevant. Mental disability as avoiding the plea of prescription has not been decided.

(5) A plea of non valens agere may be taken in actions for solatium and damages for destruction of property.

(6) Defenders cannot plead prescription when they are "at fault". In the present case the pursuer's experience created the disability.

(7) The plea is not removed by the terms of the 1973 Act. It will apply in cases where the pursuer is unable to pursue or to acquiesce in the loss of any right and did not abandon anything.

[21] Senior counsel argued that the plea non valens agere cum effectu is still valid and may be invoked but the older cases relating to it cause difficulty. The plea is an equitable one and senior counsel stressed that equity has no closed doors. There was considerable authority for the proposition that the plea is equitable. There was no justification to restrict it to cases in which there had been a legal impediment. The plea can apply in any case where a person was prevented from effectively litigating his claim. If one is incapable of indicating what rights were infringed one cannot effectively act.

[22] Counsel stated, somewhat extravagantly, that for the defenders to plead prescription was a double injury because "the abuse was so serious that more than 20 years elapsed before the action was brought and the defenders now say that that is too late."

Argued for Defenders

[23] The pursuer merely avers that she has had personal difficulties whereby she was unable to sue but does not claim that at any time was she legally barred. She always had her legal rights and full capacity. It is impossible to identify in the pleadings any legal rule or disability which prevented the pursuer from suing. She had no more than a temporary impediment which was entirely of her own personal circumstances and not extrinsic. No authority and certainly none in Morison's Dictionary, assists the pursuer in the present case. What counsel described as the modern cases which began with Graham v Ward (1846), 5 Bell's Appeals 172, indicate the need for particular pleading and state that the doctrine should not be extended. The need for sufficient pleading has been again set out in Hastie's Judicial Factor v Moran's Executors 1951 SC 668 by the Lord Ordinary (Strachan).

[24] Counsel on each side of the case referred to numerous authorities on this complicated matter. It is necessary to review them in some detail.

< align=centerP>

[25] The institutional writers, above referred to, wrote against the background of various Acts all of which were finally repealed three years after the passing of the 1973 Prescription and Limitation Act. Those Acts were passed between 1469 and 1696. It is in that context also that the cases reported in Morison's Dictionary were decided. The cases in Morison are grouped under three headings when discussing non valens agere (as it then was pled). The first heading is ubi dies non venit. The second is non valens, vi majori by unjust banishment etc. The third deals with a woman under couverture. The first and third group of cases are of no relevance to this debate. The second has been the subject of much discussion and commentary, but the cases must be read, now, in the light of the exclusion of legal disability by s.14 of the 1973 Act.

[26] A discussion of the authorities can conveniently begin with Graham v Watt 5D 1368 and, in the House of Lords, (1846) 5 Bell's Appeals 172. That case indicates how the plea of non valentia, which may have had wider scope in the civil law, was narrowed to exclude absence by reason of military service. Both the Court of Session and the House of Lords repelled the plea at the instance of a pressed seaman who was held never to have been under such an impediment when absent serving in the Navy as to found the plea of non valens agere. Since in that case and indeed in other cases there was a discussion of the situation of Colonel Whitefoord, M 1196 it is appropriate to have regard to it and the other cases cited in Morison at this stage.

[27] Napier in his compendious work on prescription discusses this case in Chapter VI. He deplores the lack of factual information and the lack of historical accuracy in the statement of the case as reported. However that may be, it would seem that on three occasions the Colonel was involved in litigation. The first decision in 1678, where he was defending a suspension of a charge, would appear to have been taken against an argument that the Colonel at the time of the "troubles and Usurpation" was in His Majesty's Service out of the country and "durst not appear, under the hazard of his life, so was non valens agere, which plea was sustained in the cause of the Duke of Lauderdale." The court repelled the answer that the charger non valebat agere "seeing he was not forfeited."

[28] In 1672 in a different form of action, but again discussing the Colonel's situation, the court had new averments of his banishment which, it was said, had saved him from execution. He claimed to be non valens agere in terms of that banishment. The defenders cited the 1678 interlocutor but the court found "that the Colonel was not valens agere, in respect of his banishment", and therefore repelled the defence of prescription."

[29] It may be noted that the idea of binding precedent did not figure largely in Scots law at that time, c.g. T.B. Smith Judicial Precedent in Scots Law, passim. In any event there was new material before the court in the Colonel's second case.

[30] Emboldened, the Colonel went on to claim, according to a short report in Harcarse's Decisions that interruption to prescription should also be sustained in his favour from the time when he was in the King's Army in England and so absens rei publiciae causa. He failed in that attempt because, as the court said, he could have assigned or pursued notwithstanding his being in the King's Army.

[31] The House of Lords found no difficulty in Graham, when deciding that the pressed seaman was valens agere, in obtaining support from Colonel Whitefoord's case for their rejection of the plea as applying to a pursuer absens rei publiciae causa.

< align=center>

[32] The Inner House below had noted the difference between Colonel Whitefoord's case being a banishment by a usurping government and the subsequent case of Campbell of Otter (Brown's Supplement V 915-926) where the Justice Clerk noted the forfeiture suffered by Campbell was imposed by a government reigning by clear and established right. To that extent it is consistent with the decision in O'Neal, not specifically referred to but plainly available to the court since reference was made to Morison's Dictionary and both cases are reported there in the same section. The Lord Justice Clerk noted that in Graham the plea was merely of public service and the ignorance of the existence of right; this was not held to be a valid exception. Lord Medwyn said "There must be a legal incapacity to sue not merely a difficulty to do so, nor even a real ignorance of his rights if that ignorance might easily have been overcome." He further notes that the plea's tendency being to restrain and limit the application of the "salutary rule of prescription" it must not be improperly extended.

[33] In the said Lauderdale case, M11193, also decided in 1678, forfeiture was found to be sufficient to allow the plea non valens agere whereas absens rei publiciae causa was not recognised.

[34] The other case in Morison's Dictionary cited to me was Poor John O'Neal. There non valens agere was not sustained probably on the grounds that the statute which limited the time to bring the relevant action was clear and specific. That was contrasted with prescription in the defences lodged for the magistrates. The defences had stated (as summarised in Morison):

All that was said in the report was that the court sustained the defences. Since no Opinion was reported and it was not clear which of those two defences weighed with the Court, counsel provided me with the session papers relating to Mr O'Neal. These make informative reading. Counsel involved were for the pursuer Henry Erskine, and for the defenders Lord Advocate Hope. Mr O'Neal's story was a fascinating one as disclosed in the papers.

[35] The matter arose from the magistrates at Dumfries purportedly acting under the Act of 1795 entitling them to levy all

Such persons could be levied to serve in the Navy. Mr O'Neal was an Irish immigrant who came with his family to Dumfries. He acquired, by feu contract, a hut and four or five acres of ground at Stoup, now Stoop, then outside Dumfries but in the marshy land between Locharmoss and Craigsmoss. Mr Erskine, describing O'Neal said,

The counter pleading anent Mr O'Neal described his hut as being placed upon the extremity of an extensive moss. It was said that O'Neal and his family, although pretty numerous, had no visible means of subsistence and were understood to live by depredations made in the neighbourhood, by whom they were regarded with no inconsiderable degree of dread. The whole family were "persons of very ferocious dispositions and they had firearms in their hut, of which it was not easy to discover any lawful use they could make". The two sons of O'Neal were able-bodied young men, certainly idle and reputed to be disorderly persons.

[36] Mr O'Neal shot at persons who came to take him to serve in the Navy and killed one. He was sentenced to death but reprieved. It appeared that the warrant issued by the magistrates had been improper and ultimately O'Neal obtained a free pardon. He then sued among others the magistrates because, after his arrest, persons incensed at the killing razed his hut to the ground. The action failed because it was held that the limit imposed by the statute was not to be extended by implication nor was there any action in equity available after his release and the lapse of a year from that date. Those were the defences which were sustained.

[37] I understood that this case was brought to my attention in order to show the plea of non valens agere always applied to ordinary prescription though it may not apply to statutory limitation properly so called. Although indebted to counsel for this excursion into socio-economic history, I do not think that Mr O'Neal's case added anything to the argument. It serves as an illustration of the amount of caution that is required before accepting the side notes in Morison's Dictionary as a sufficient "resumé".

[38] Apart from Graham and the above noted discussion in Mr Napier's book, little advance appears to have been made in the law until the next case cited, Earl of Fife v Duff, 15R 238. In that case a claim for repayment by an overpaying heritor against an underpaying heritor was under consideration. The plea of non valens agere during the time of prescription was taken. It was held that as the claimant had abstained from producing an essential decree of valuation, the overpayments were caused by his own fault and accordingly prescription applied to them. It is plain that the decision in that case focused upon the questions of when the claim could have been sued upon and through whose fault and negligence it was that it had not been capable of being sued upon at an earlier date. It was held that the overpayments in question were due entirely to the conduct of the pursuer who was said not only to have been negligent but to have been active against himself and thus not equitable in the proceeding on his own side. It might be thought that that case was truly a question of personal bar. If by his own conduct the creditor has prevented a claim being adjudicated he cannot be held to plead the absence of a necessary step he could himself have taken. No assistance can be derived from that case in the present action other than its providing an opportunity for counsel to comment on equitable pleas.

[39] In Harvey v Robertson, 5F 338, the court made observations on the plea of non valens agere. The pursuer raised an action concluding for declarator that an operation of lime burning intended to be carried on by the defender on a plot of ground at the junction of Chalmers Street and Anderson Street in the Gallowgate of Glasgow would be a nuisance and for interdict. The court assumed that lime burning was a nuisance. It affected inhabitants of dwellinghouses erected on a place where oil work had previously been carried out at the same time as lime burning. The pursuer contended that his right to object to the lime burning had not been cut off by prescription because prior to the erection of the dwellinghouses the land had been used as an oil work which would have been as great a nuisance as the lime kilns. So long as the oil work was carried on, he pled, his author was non valens agere. The Lord Ordinary took the view that that argument was untenable and held that to found the plea of non valens agere there must be a legal impediment which prevents action being taken and inability arising from the course which the party chooses to adopt is not sufficient. The Inner House concurred with that view (Lord President, page 342-3). The Lord President said: "Non valens agere means not a physical but a legal incapacity to sue and it is not, in my judgment, proved that any such legal incapacity existed."

[40] In Macdonald v North of Scotland Bank, 1942 SC 369, the question was the application of the long negative prescription to current accounts with a bank. Lord Justice Clerk Cooper at 373 in relation to the plea of non valens agere observed that the previous cases proceeded on the single principle that if and so long as the creditor could not effectively act prescription would not run. A customer with a sum at credit can properly be described as a person capable of vindicating his rights and is not prevented from so doing by any legal impediment or legal incapacity to sue. Lord Jamieson at 380 said the plea that a creditor was non valens agere was an equitable plea proceeding on the principle, not on the words of the law.

[41] In Campbell's Trustees 1950 SC 48, at page 56 Lord President Cooper embarks upon what he described as a "long digression" on the plea of non valens agere. He said this:

At the foot of page 57, the Lord President notes that s. 16 of the Conveyancing (Scotland) Act 1924 had excluded as an answer to prescription "minority and less age" and also persons "under legal disability". He goes on to say,

[42] In Hastie's Judicial Factor v Morham's Executors 1951 SC 668, a case involving the liability of trustees to account, a question arose as to whether the trustees' liability had been extinguished by the long negative prescription. Lord Strachan, Ordinary, was reversed by the Inner House but did say at 671:

He noted further that he did not think that since the publication of Miller on "Prescription" the question whether mental disability as an answer to the plea of prescription had been decided. The Inner House did not dissent from those observations.

[43] In Pettigrew v Harton 1956 SC 67, Lord Justice Clerk Thomson said at page 72, after quoting Lord President Co