Proof denied to Nazareth House claimants

Judge rejects plea that equitable to allow children's home abuse cases to be heard late

News, 3 June 2005

Three test cases in which individuals claimed damages for cruel treatment in the religious homes in which they were brought up, have been refused leave to proceed by a Court of Session judge.

The cases were brought by three former residents of Nazareth House, Glasgow, who brought the claims against the Congregation of the Poor Sisters of Nazareth, the order of nuns who ran the homes where the pursuers were brought up in the 1960s and 70s. Up to 600 other cases against charities and religious orders were said to depend on the ruling.

The pursuers had claimed that despite bringing the cases many years beyond the normal time limit, they had not been aware until other cases received press coverage from 1997 onwards that they had a civil right of action, and that had they complained earlier, no one would have believed them. But Lord Drummond Young ruled that both because of the length of time that had elapsed since the events complained of, and the actual prejudice demonstrated by the defenders, it was not equitable to exercise his discretion in the pursuers' favour.

The judge considered that both the loss of evidence available to the defenders and the decline in its quality, where the nuns concerned were now dead or no longer active, was "especially important where the delay following the events complained of is measured in decades rather than years". This was particularly so where social attitudes were markedly different in those days. "It would be quite unfair to judge events by any standards other than those that prevailed at the time", he said. This was relevant both to determining what should be regarded as excessive punishment and what was reasonable compensation.

Although Lord Drummond Young accepted that the pursuers had not realised they might be able to claim, he said this was because they had not thought about it rather than because they had thought about and rejected it. Because the law had to start from the position that everyone was aware of their rights, or could find out what these were, there was "no compelling reason" to allow them to bring claims out of time if they did not apply their minds to the question.

If the claims had been brought in time, he continued, it was likely as the law then stood that the defenders would not have been held liable for the actings of individual nuns. It was also relevant that the probable expense of defending the claims would be disproportionately large compared with the likely awards. The defenders could not simply pay over compensation because as a charity they owed a duty to their donors to ensure that they did not pay out money unless satisfied that they were under a legal obligation.

The judge also agreed that press articles purporting to quote the pursuers' solicitor, Cameron Fyfe, gave rise to a risk of prejudice through ill founded or exaggerated claims. Although he accepted that Mr Fyfe had not made all the comments attributed to him, "it is the printed version that is important".

For all these reasons, he said, but principally because of the lapse of time and the actual prejudice to the defenders (either of which would be sufficient on its own), he concluded "without hesitation" that leave to proceed with the actions should be refused. Concluding, he added: "it is clearly most upsetting for anyone to have to think in detail about unhappy memories of childhood. I cannot think that it is genuinely in the pursuers' interests to rake over those memories, especially where the individual nuns that are said to have been responsible are either dead or elderly. The care of children has moved on in the last 25 years, and institutions such as Nazareth House no longer exist. To that extent the pursuers' complaints have been vindicated. That may give them some comfort."

Claimants have criticised the decision and pledged to fight on, but Cameron Fyfe said that any appeal would depend on obtaining legal aid.

Lord Drummond Young's opinion can be read at http://www.scotcourts.gov.uk/opinions/CSOH70.html .