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The Court of Session considers the fair hearing and substantial prejudice test in a historical abuse action

This is one more case before the Court of Session in which defenders have attempted to invoke the safeguards in section 17D(2) & (3) of the 1973 Act.


The conjoined cases of B v The Congregation of the Sisters Nazareth and W v The Congregation of the Sisters of Nazareth [2022] CSOH 8 are the latest in a string of cases before the Court of Session arising from historical abuse in a residential care setting. The cases called before the court for a preliminary proof on the defenders contention that the actions ought not to be allowed to proceed in terms of section 17D(2) which, failing that, section 17D(3) of the Prescription and Limitation (Scotland) Act 1973 (“the 1973 Act”).


The Limitation (Childhood Abuse) (Scotland) Act 2017 (“the 2017 Act”) removed the three year statutory limitation period from all claims for childhood abuse (i.e. to children who were under the age of 18 at the time the abuse occurred) that took place after 26 September 1964. There were, however, two ‘safeguards’ for defenders. The first can be found in section 17D(2) of the 1973 Act which states that the court will not allow a case to proceed where a fair hearing is not possible. The second is in section 17D(3) of the 1973 Act which provides that a defender may argue that he would be substantially prejudiced were the action to proceed. It was these ‘safeguards’ that the defender was arguing ought to be invoked in the B and W cases. The Lord Ordinary (Lord Weir) found in the defenders’ favour and both actions have been dismissed.


The background to these cases is that the pursuers, a brother and sister, were arguing that they had both suffered physical and emotional abuse at a home operated by the defender whilst living there between 8 July and 12 August 1974. Both pursuers were each claiming the sum of £750,000 on the basis that the physical and emotional abuse they had been subjected to had caused them to suffer from PTSD and Depression. Damages were claimed for pain and suffering, past and future loss of earnings, loss of employability, loss of pension rights and the costs of psychological therapy and treatment.

The home was closed to children in 1984. The only records held by the defender relative to the pursuers confirmed their admission date to the home on 8 July 1974 with them being discharged from the home on 12 August 1974. Affidavit evidence was presented to the court from the solicitors who had been tasked over the course of time with investigating historical abuse allegations against the defender. This evidence showed the considerable efforts that the legal team had gone to in order to identify and trace relevant witnesses and locate relevant records. It is generally accepted in these cases that the simple fact of the passage of time, and even a considerable passage of time, is not sufficient grounds to argue that a fair hearing is impossible. The court is likely to expect that exhaustive attempts have been made to investigate such claims as far as possible before it will entertain any argument that a fair hearing is not possible.

Defender’s submissions

It was thus the defender’s submission that the evidence was very limited. Only four of the twelve sisters present in the home at the material time were alive. One of those still alive did not provide a statement and the others did not recall either pursuer, denied being responsible for any of the alleged abusive conduct and did not witness any of the alleged acts averred. This, coupled together with the lack of available documentary evidence, meant the defender could not investigate the allegations and there was no basis to cross-examine the pursuers’ allegations.

Lack of cogency of the pursuers’ accounts of abuse and material inconsistencies between the pursuers’ allegations on record and other available evidence were also factors which were submitted to be relevant in the assessment of the possibility of a fair hearing. In addition, the defender argued a lack of specification in the pursuers’ pleadings made it difficult for the defender to investigate these cases. In the defender’s submissions, all these issues, together with complex issues of causation, illustrated the deleterious effect the passage of time had on the quality of evidence and thus quality of justice.

Pursuers’ submissions

The pursuers’ stance was that as the defender had failed to establish that a fair hearing would be impossible, the matter should go to Proof to test the credibility of the witnesses and, when considering the second stage of the test, the pursuers’ interest in seeing their actions proceed clearly far outweighed any prejudice to the defender. They emphasised that these cases are distinct from previous cases in which the alleged perpetrators were dead or incapax. They pointed to the fact that two of the sisters from the home who were named by the pursuers were alive, with one of them being well known to the defender and convicted in 2000 of four charges relating to cruelty and unnatural treatment, of which one charge related to the same home.


In finding in the defender’s favour and agreeing that the pursuers’ case should not be allowed to proceed, the Lord Ordinary placed considerable reliance on the fact that there is no means of identifying the alleged abusers from the pleadings and was critical of the generality of the pursuers’ pleadings in that respect. Despite the fact that two individuals, across the two actions had been identified, the Lord Ordinary noted that the basis of the pursuers’ claimed loss and damage was the totality of the abuse to which they were allegedly subjected. As matters had been pled, his view was that it was not possible to anticipate how much responsibility is to be pinned on the sisters generally as opposed to the individuals named. As such, he said that “the absence of evidence from persons said to have committed abuse but who have not been identified on record is fundamental to both cases and, in my view, precludes the possibility of a fair hearing in either of them”.

The court thus found in the defender’s favour on the first strand of the test, i.e. section 17D(2) of the 1973 Act that a fair trial is not possible. The lack of specification and focus of the pursuers’ pleadings was fatal to the pursuers’ claims.

The balancing of the parties’ interests with regards to prejudice thus did not strictly arise but, the Lord Ordinary went on to state that if he had to consider the second strand of the test, he would have had little difficulty in concluding that the defender would be substantially prejudiced if the actions were permitted to proceed. In assessing this prejudice, he said that he would have had regard to the brief period of residency the pursuers had in the home, the nature of the allegations made and the concerns raised by the medical expert about the extent to which the pursuers’ claimed loss and damage could properly be attributable to the conduct alleged within the timeframe concerned.


This is the latest of a number of cases before the Court of Session in which defenders have attempted to invoke the safeguards in section 17D(2) and (3) of the 1973 Act. These cases have had mixed success and the B and W cases are undoubtedly a momentous victory for defenders. It is clear from all the cases that the outcome will turn on the specific facts of each case.

B and W further illustrates that the change in the legal time limit brought about by the 2017 Act does not constitute a green light for those seeking a legal remedy. The victim still requires to prove ‘on the balance of probabilities’ that the abuse occurred, that there was a breach of duty of care, that a personal injury has been sustained and the breach of duty was the causative reason for the loss.

The Redress Scheme

The Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 sets up a financial redress scheme for survivors of historical child abuse in Scotland and thus provides victims with an alternative remedy. The empowering provisions of this Act are not yet in force, but the Redress Scheme opened for applications on 8 December 2021. Compensation under this scheme is, however, capped at £100,000 which is substantially lower than recent court awards in Scotland in historical child abuse cases. In the case of A v Glasgow City Council [2021] CSOH 102 last year, the court awarded the pursuer just over £1.3 million in compensation.

The defenders in B and W included a statement in their submissions to the effect that the pursuers had an alternative remedy under the Redress Scheme. The Lord Ordinary was careful to stipulate that the existence of an alternative remedy is not a persuasive factor in deciding whether a historical abuse claim is allowed to proceed noting that “access to justice is a precious commodity and I would not readily have acknowledged the existence of such alternatives as a factor standing in the way of actions proceeding if the conditions for them doing so otherwise existed”.


Inevitably there will be evidential hurdles in a historical childhood abuse case, simply because of the passage of time. Important witnesses may be difficult to trace or may have died. Regularly, there will have been no Police Inquiry or conviction. Recovering historical records from an institution or a Local Authority can be a struggle and some important records may have been destroyed. In some instances, the abuser is an individual with no insurance and there is no association or employer against whom fault can be directed.

It is likely that we will see more and more such cases calling before the court for determination of the issues that were the subject matter of the B and W cases. The terms of the judgment provide helpful guidance in assessing the court’s likely approach to future cases. Access the full judgment.

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