The decision of Sheriff Primrose KC in the case of GD v Sisters of Nazareth  SC EDIN 27, marks the latest interpretation of the defence of no fair trial and substantial prejudice in cases of historic abuse.
In this case, the pursuer, ‘GD’, sought damages in respect of alleged abuse she claimed to have suffered while a resident in Nazareth House for a period of around three weeks between approximately 13 July 1973 and 4 August 1973. The defender was the Sisters of Nazareth, who were responsible for the overall management and control of Nazareth House.
GD alleged that she was sexually abused by a priest or other adult male at the home and physically abused by the Sisters who staffed Nazareth House.
The case called for preliminary proof on the issue of limitation.
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 by the action proceeding, and this prejudice outweighs the interest of the pursuer in proceeding with the action. The defender bears the burden of proving that the action cannot proceed.
At preliminary proof, the defender argued that a fair hearing was not possible and failing which there existed substantial prejudice to the defender, which outweighed the pursuer’s interests, such that the action should not be allowed to proceed.
The following issues were of relevance:
Whether or not a fair hearing is possible, or whether there may be substantial prejudice, is a fact-sensitive issue.
Sheriff Primrose KC was of the view that there was considerable force in the pursuer’s submission that this case can be distinguished from B and C v Sailors Society, where the absence of the specification of a wrongdoer meant that the defender could not properly prepare their defence and was, therefore, substantially prejudiced.
In the present case, Sister Y is alive. She is able to give evidence. The evidence that she would be able to provide would be able to test the evidence of the pursuer, namely that Sister Y and others, facilitated or encouraged the abuse of GD. Furthermore, the pursuer avers that on at least one occasion, Sister Y positively directed the priest or adult male abuser to wash the pursuer and that this led to serious sexual assault.
The defender argued that they were disadvantaged to a considerable degree by the passage of time and that they cannot now put the allegations to several witnesses and alleged abusers.
However, the Sheriff considered there were other sources of evidence available. The defender is able to obtain the evidence of lay staff who worked alongside the three Sisters from the time of the pursuer’s residence at Nazareth House. These witnesses may well be able to shed further light on the running of the home and the arrangements for bathing. Their evidence may cast doubt on the credibility and reliability of the pursuer’s account of her abuse, or at least part of it.
Most importantly, of course, Sister Y herself is still available to provide evidence. Although she is now 80 and suffers from a heart condition, there would still be evidence about her position available.
The defender produced an affidavit that records that the pursuer’s allegations have been put to Sister Y and that she had no recollection of the pursuer, denied the allegations against her, and had not witnessed the abuse of children at Nazareth House.
The sheriff considered that it is not unreasonable to observe that the defender is likely to have a considerable amount of information available from Sister Y. There would be information about the general running of the home and regarding the specific allegations against her. Although this evidence was not before the court at the preliminary proof, it is a factor which the court must weigh in the balance when considering whether any trial is bound to be unfair.
Sheriff Primrose KC considered that in the absence of a detailed statement or affidavit from Sister Y about the very particular allegations made against her, it is difficult to reach the view that it would not be possible for the defender to receive a fair trial. The court does not know the full extent of the available evidential material or its relevance or weight in advance of the proof itself. Given that Sister Y denies the allegations, she may well be able to provide the defender with useful testimony which will enable positive lines of defence to be advanced and which will allow cross-examination of the pursuer and others. Their evidence can be tested on this basis.
While it is true to say that the pursuer has been unable to identify the individual who allegedly perpetrated the acts against her in the showers, in the very particular circumstances of this case, the sheriff did not consider that this necessarily renders any trial unfair.
It was held that the defender had not demonstrated that a fair hearing is impossible. On the matter of substantial prejudice, largely for the same reasons, that while there is inevitably prejudice to the defender as a result of the long delay in bringing this case, that prejudice is not of such a degree that it would justify bringing the action to an end.
Sheriff Primrose KC held that even though there was substantial prejudice to the defender, due to the gravity of the allegations made in this case, the pursuer’s interest in prosecuting this action outweighed any such prejudice.
The defences of no fair trial and substantial prejudice are fact-sensitive. The death of a witness, or a witness who cannot be traced, along with lack of records does not necessarily mean that a fair trial is not possible or that the defenders will be substantially prejudiced. Not only does the court look at what evidence is lost, but it also gives weight to what further avenues are available. Whether or not those avenues will be fruitful cannot be known until they are explored.
This decision follows that of the Inner House in B & W v The Sisters of Nazareth. Even if the pursuer cannot provide detailed allegations, 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.
The case will now proceed to a full hearing and so the burden of proof is back on the pursuer to establish the facts upon which they rely: that abuse was sustained as alleged, and that the defender is vicariously liable for the wrongdoers or that there was negligence on behalf of the defender proved on balance by reference to the standards of the day.
For more information, please contact:
Khadija Sarwar - Solicitor
Chris Rae – Solicitor
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