M.P. v Sister Zoe O'Neill
Lord Glennie issued his opinion in the case of MP v Sister Zoe O'Neill and Others on 16 June 2006. This dealt with the issue of historic child abuse, and whether this claim was time-barred. The pursuer argued that it was not, and even if it was, asked the court to exercise its discretion to override the time limits. This latter argument was considered by Lord Drummond Young in his opinion in the case of AB and Others v Sister Bernard Mary Murray and Others (unreported, 2 June 2005), when it was held it would be prejudicial to the Defenders for the court to exercise its discretion to override the time limits given the time which had passed since the alleged abuse, and Lord Glennie also found this to be the case here. Lord Glennie's opinion is however the first opinion regarding the question of whether an action in a historic child abuse case is actually time-barred, although the matter had previously been canvassed in England, in particular by the Court of Appeal in KR v Bryn Alyn Community (Holdings) Ltd (in Liquidation) [2003] QB 1441.
Time-Bar
An action for personal injuries in Scotland will be time-barred if it is not brought within 3 years of the pursuer having an awareness of the injuries, their attribution and their seriousness. Certain statutory assumptions mean that the pursuer is assumed to know that liability will not be in dispute, and therefore she does not need to worry about whether her action will succeed, nor whether she will be believed. Fear of not being believed is often cited as the greatest deterrent to the bringing of such an action. It is also assumed that the defenders are able to meet any award of damages. As well as actual awareness, the question of constructive awareness also arises?- when would it have been "reasonably practicable for the pursuer in all the circumstances" to have awareness of these matters? It is this question of constructive awareness which has prompted much discussion in the caselaw, and in particular on whether the test applied is to be subjective or objective. Before considering this, however, Lord Glennie considered the question of what injuries will actually cause the time limit to start running.
"The Injuries in Question"
Pursuer's Counsel submitted that the injuries in question were the psychological injuries; Defender's Counsel submitted that the injuries were the actual assaults that were allegedly sustained and which underpinned the whole of the pursuer's case.
Lord Glennie stated that key to this is the interpretation of the phrase "injuries in question", which he took to mean the injuries in issue in the proceedings?- and which is the approach taken by the Inner House in Carnegie v Lord Advocate 2001 SC 802. Lord Johnston in that case put forward the opinion that one action may contain claims, arising from the same tort or delict, in respect of different injuries. The claims in respect of some of those injuries may be time-barred while the claims for others are not.