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"Dogma" belief not unsoundness of mind for prescription, court rules

16 January 2017

A man claiming to have been abused as a child in the 1960s at a school run by a religious order has failed on appeal in his attempt to be allowed to bring an action against the order.

Three judges chaired by the Lord Justice Clerk, Lady Dorrian, refused a reclaiming motion by a man referred to only as K, who claimed to have been physically and sexually abused by a Brother Germanus of the Marist Brothers at St Columba's School, Largs, which was then run by the order.

The action had been raised in 2014; K averred that the trigger for his disclosure had been hearing someone praise Brother Germanus at a family wedding in 2013. K sought to establish that he had been of "unsoundness of mind" in terms of the legislation on time bar, so as to prevent time running against him, in that he had been terrified of Brother Germanus, and when K's brother had died, Brother Germanus told K that if he told their “little secret” he would never see his brother again, meaning “in heaven”, which was something K dearly wished. He had accepted this uncritically as a "dogma" and the threat had affected him deply and prevented him coming forward.

Lady Wolffe, the Lord Ordinary, had rejected this argument as untenable, and Lady Dorrian, who sat with Lord Drummond Young and Lord Glennie, said she had been correct to do so. 

"The basis upon which she so concluded was that unsoundness of mind required to be established objectively, and to be such as to place the person under a legal disability", Lady Dorrian explained. "A legal disability is one which deprives an individual of the capacity to manage his own affairs... The personal belief of a pursuer, (particularly of such a limited nature as that described here), however genuinely held, is insufficient. It is impossible to characterise the reclaimer’s deluded belief in this case as coming within the statutory description."

She also agreed that the respondents were bound to be materially prejudiced if the action were allowed to proceed out of time, given the time that had passed, the lack of complaint before 2014,and the facts that the school had closed in 1982 and no records could be traced, and Brother Germanus had died in 1999.

Even assuming K could establish that his case was not one of those completely extinguished by the rule affecting claims dating from before September 1964, this was not a case in which th court should exercise its discretion so as to allow the action to proceed.

Click here to view the opinion of the court.

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