OUTER HOUSE, COURT OF SESSION, SCOTLAND. 2005
SISTER BERNARD MARY MURRAY
OUTER HOUSE, COURT OF SESSION
OPINION OF T G COUTTS, Q.C. (Sitting as a Temporary Judge)
in the cause
ELIZABETH MARY McCOLLUM or ABERNETHY
SISTER BERNARD MARY MURRAY and OTHERS
Pursuer: McEachran, Q.C., Stirling; Drummond Miller, W.S.
Defenders: Cullen, Q.C., Duncan; Simpson & Marwick
(for 1st, 2nd & 3rd Defenders)
20 August 2004
 This action, I was informed, is one example of several hundred claims which seek damages from a religious order and its nuns and staff. The claims are for injuries alleged to have been sustained when children in the course of their education while in the defenders' care at a residential home providing such education. This particular action, however, concerns events which, for this pursuer, ceased in 1959. The action was not raised until the year 2000. It has come before the Court at procedure roll, the defenders seeking dismissal on the ground that the events have prescribed and that there are no relevant averments to prevent prescription operating.
 The pursuer in Condescendence 4 avers a series of assaults at a Home in Cardonald mainly by a particular Sister, who the defenders aver, died on 21 April 1991. The pursuer avers a series of assaults either as punishment for various alleged misdemeanours or as a means of deterrence. She also avers assaults by the third present defender, although of a more minor nature, at unspecified times between the time the pursuer was aged eight and eleven. At age eleven, ie some time in 1959, she was sent to Rosemount Convent in Liverpool. Accordingly the entire complaint in this action relates to events when the pursuer was under the age of 12. If established, the pursuer's averments paint a horrifying picture of inappropriate and uncaring discipline and neglect all of which caused actual physical injury.
 The pursuer also avers that by the age of 21 she had been diagnosed with depression, and has received treatment for depression and anxiety since them. She abused alcohol between 1983 and 1986, and has attended psychiatry sessions for many years. She avers she now has "extremely severe symptoms of clinical depression as well as anxiety". She, it is averred, suffered and suffers symptoms "similar to those experienced by PTSD sufferers". She married and had a child. She saw a psychiatrist in the 1980's and told him that her problem was caused by her husband. After a newspaper article was published about abuse in Nazareth House the pursuer says she was contacted by a former resident who encouraged her to speak out.
 The defenders aver that solicitors investigated the question of abuse in Nazareth House Children's Homes by sending out to former residents questionnaires with tick boxes which they were to return.
Issues Raised in the Pleadings
 The pursuer, between pages 18 and 22 of the Closed Record, proffers various reasons why her action should be allowed to proceed. In the first place, claiming that her right of action has not been extinguished by the operation of the long negative prescription she avers that:
"when she left the House in 1959 she was traumatised. She could not make her claim effectual. Non valens agere cum effectu. It would not be equitable to include in the prescriptive period the years when the pursuer was a child, when she was in the home in Liverpool, and when she was avoiding memories. Negligence cannot be imputed to the pursuer in these circumstances."
 The next proposition on the pleadings concerns the suggestion that her action should be allowed to proceed because of human rights legislation and the Convention. Since this is a separate issue, it is discussed below under reference to the appropriate pleadings.
 The pleadings then continue to claim that because of a diagnosis of symptoms similar to PTSD in December 1988, her action falls within the triennium set out in section 17 of the Prescription and Limitation (Scotland) Act 1973. Further, there is an attempt to invoke section 19A of the said Act to argue that it is equitable to allow the action to be brought.
The Conduct of the Procedure Roll
 For the first two days of the procedure roll the Court heard a wide-ranging argument on each and all of the Prescription and Limitation points from junior counsel. That argument was diligently researched on all points by both sides. However, in view of the agreement undernoted, I do not need to record the totality of the many cases cited which concerned matters of limitation and section 19A.
 The case required to be continued. Other similar actions but raising discrete matters had been brought in Court and debated. When counsel appeared at the continued diet, both senior counsel proposed and I agreed, that in this action, a preliminary determination should be made on the question of the long negative prescription and the plea of non valens agere cum effectu. Whether Human Rights law is involved in that question had also to be determined. Thereafter if the prescription plea did not succeed the case would be put out By Order for consideration of further procedure.
 Because of certain averments and contentions made on behalf of the pursuer, it is important to consider what general considerations, if any, apply when dealing with prescription. Very nearly all that can be said on the subject is contained in Mr David Johnston's excellent work "Prescription and Limitation". He concludes at page 15 that it is difficult to assert that any uniform notion of the basis of prescription underlies the chapters on the subject by the institutional writers. They have considered prescription to be founded more on utility than upon equity and conclude that the law accounts it a dereliction of the owner's right if he did not pursue his claim within the specified time.
 Bankton, dealing with negative prescription, notes that the new proprietor may take the benefit of prescription
"without impeaching his conscience because the right is discharged and extinguished by the public law. And therefore it is absurd to term prescription an impious defence since it is as equally just and reasonable as the other laws instituted for the good of the commonwealth". (II, xii, 77)
 Erskine however, focuses on negligence by the contributor, asserting that prescription is the penalty of negligence, (III, vii 1).
 Hume does not found on presumed abandonment so much as a notion of equity and the recognition of the hardship of disturbing a man's peace and injuring his fortune with a claim which has been long forgotten, (Lectures 3.64).
 Bell's Principles, s.606 puts forward the view that 40 years of inaction is a fair ground to presume that a claim has been abandoned or satisfied. He notes as reasons the equity of discouraging forgotten debts and disfavour to a person guilty of negligence in pressing a claim.
 Kaimes, Elucidations, p. 255 emphasises that the role of negligence is not the whole point. The negative prescription "is to quiet the minds of people who have acquired a conviction of freedom from being left undisturbed forty years."
 That overview, a further paraphrase of Mr Johnston's paraphrase of the institutional writers, is perhaps sufficient to demonstrate for present purposes that the attempt to find underlying reasons for prescription which reinforce or explain the rule itself has not met with success. It is not necessary. There is a rule to be applied. Why the rule exists is of no present importance.
 Mr Johnston goes on at page 17 to add the observation that the doctrine of acquiescence has a very limited role and that policy and public interest in legal certainty demands that entitlement to the benefit of rights and obligations be clear, after a period of years has run. He adds,
"To allow this clear rule to become blurred by considerations of acquiescence might well be to do justice in an individual case. But it would be against the public interest as a whole".
Pursuer's Final Position
 The distillation of the pursuer's case came from senior counsel. He made various concessions for the purposes of the debate; these concessions in this "test" case were properly and responsibly made. These concessions were as follows. Firstly, that 1959 was the start date for the running of prescription. Secondly, that the 20 year prescriptive period applied to the present case prima facie. Thirdly, that by section 14(1)(b) of the 1973 Act, periods of legal disability do not apply. Those are defined in s.15(1) as being by reason of non age or unsoundness of mind. Fourthly, that it was not until 1984 that personal injuries was made part of a separate regime of limitation. Finally, that this case required to be dismissed unless the pursuer could successfully invoke the plea of non valens agere cum effectu.
 Such a plea was not tabled on Record as a plea-in-law but was part of the pursuer's narrative pleadings as above quoted.
Argued for Pursuer
 Junior counsel for the pursuer summarised the position in the following propositions, which were adopted by her senior.
(1) Prescription is a penalty of negligence. Any party cannot be negligent for something not in his power. That is consistent with the idea of an abandonment of right.
(2) Non valens agere cum effectu is an equitable plea.
(3) There are different types of non valens agere cases. In some there is a pure title question and in others, such as life rent, there is not a complete absence of title or of ability to pursue the right.
(4) Prescription will not run in some cases of personal disability including imprisonment abroad and personal factors such as impairment or justifiable ignorance are relevant. Mental disability as avoiding the plea of prescription has not been decided.
(5) A plea of non valens agere may be taken in actions for solatium and damages for destruction of property.
(6) Defenders cannot plead prescription when they are "at fault". In the present case the pursuer's experience created the disability.
(7) The plea is not removed by the terms of the 1973 Act. It will apply in cases where the pursuer is unable to pursue or to acquiesce in the loss of any right and did not abandon anything.
 Senior counsel argued that the plea non valens agere cum effectu is still valid and may be invoked but the older cases relating to it cause difficulty. The plea is an equitable one and senior counsel stressed that equity has no closed doors. There was considerable authority for the proposition that the plea is equitable. There was no justification to restrict it to cases in which there had been a legal impediment. The plea can apply in any case where a person was prevented from effectively litigating his claim. If one is incapable of indicating what rights were infringed one cannot effectively act.
 Counsel stated, somewhat extravagantly, that for the defenders to plead prescription was a double injury because "the abuse was so serious that more than 20 years elapsed before the action was brought and the defenders now say that that is too late."
Argued for Defenders
 The pursuer merely avers that she has had personal difficulties whereby she was unable to sue but does not claim that at any time was she legally barred. She always had her legal rights and full capacity. It is impossible to identify in the pleadings any legal rule or disability which prevented the pursuer from suing. She had no more than a temporary impediment which was entirely of her own personal circumstances and not extrinsic. No authority and certainly none in Morison's Dictionary, assists the pursuer in the present case. What counsel described as the modern cases which began with Graham v Ward (1846), 5 Bell's Appeals 172, indicate the need for particular pleading and state that the doctrine should not be extended. The need for sufficient pleading has been again set out in Hastie's Judicial Factor v Moran's Executors 1951 SC 668 by the Lord Ordinary (Strachan).
 Counsel on each side of the case referred to numerous authorities on this complicated matter. It is necessary to review them in some detail.
 The institutional writers, above referred to, wrote against the background of various Acts all of which were finally repealed three years after the passing of the 1973 Prescription and Limitation Act. Those Acts were passed between 1469 and 1696. It is in that context also that the cases reported in Morison's Dictionary were decided. The cases in Morison are grouped under three headings when discussing non valens agere (as it then was pled). The first heading is ubi dies non venit. The second is non valens, vi majori by unjust banishment etc. The third deals with a woman under couverture. The first and third group of cases are of no relevance to this debate. The second has been the subject of much discussion and commentary, but the cases must be read, now, in the light of the exclusion of legal disability by s.14 of the 1973 Act.
 A discussion of the authorities can conveniently begin with Graham v Watt 5D 1368 and, in the House of Lords, (1846) 5 Bell's Appeals 172. That case indicates how the plea of non valentia, which may have had wider scope in the civil law, was narrowed to exclude absence by reason of military service. Both the Court of Session and the House of Lords repelled the plea at the instance of a pressed seaman who was held never to have been under such an impediment when absent serving in the Navy as to found the plea of non valens agere. Since in that case and indeed in other cases there was a discussion of the situation of Colonel Whitefoord, M 1196 it is appropriate to have regard to it and the other cases cited in Morison at this stage.
 Napier in his compendious work on prescription discusses this case in Chapter VI. He deplores the lack of factual information and the lack of historical accuracy in the statement of the case as reported. However that may be, it would seem that on three occasions the Colonel was involved in litigation. The first decision in 1678, where he was defending a suspension of a charge, would appear to have been taken against an argument that the Colonel at the time of the "troubles and Usurpation" was in His Majesty's Service out of the country and "durst not appear, under the hazard of his life, so was non valens agere, which plea was sustained in the cause of the Duke of Lauderdale." The court repelled the answer that the charger non valebat agere "seeing he was not forfeited."
 In 1672 in a different form of action, but again discussing the Colonel's situation, the court had new averments of his banishment which, it was said, had saved him from execution. He claimed to be non valens agere in terms of that banishment. The defenders cited the 1678 interlocutor but the court found "that the Colonel was not valens agere, in respect of his banishment", and therefore repelled the defence of prescription."
 It may be noted that the idea of binding precedent did not figure largely in Scots law at that time, c.g. T.B. Smith Judicial Precedent in Scots Law, passim. In any event there was new material before the court in the Colonel's second case.
 Emboldened, the Colonel went on to claim, according to a short report in Harcarse's Decisions that interruption to prescription should also be sustained in his favour from the time when he was in the King's Army in England and so absens rei publiciae causa. He failed in that attempt because, as the court said, he could have assigned or pursued notwithstanding his being in the King's Army.
 The House of Lords found no difficulty in Graham, when deciding that the pressed seaman was valens agere, in obtaining support from Colonel Whitefoord's case for their rejection of the plea as applying to a pursuer absens rei publiciae causa.
 The Inner House below had noted the difference between Colonel Whitefoord's case being a banishment by a usurping government and the subsequent case of Campbell of Otter (Brown's Supplement V 915-926) where the Justice Clerk noted the forfeiture suffered by Campbell was imposed by a government reigning by clear and established right. To that extent it is consistent with the decision in O'Neal, not specifically referred to but plainly available to the court since reference was made to Morison's Dictionary and both cases are reported there in the same section. The Lord Justice Clerk noted that in Graham the plea was merely of public service and the ignorance of the existence of right; this was not held to be a valid exception. Lord Medwyn said "There must be a legal incapacity to sue not merely a difficulty to do so, nor even a real ignorance of his rights if that ignorance might easily have been overcome." He further notes that the plea's tendency being to restrain and limit the application of the "salutary rule of prescription" it must not be improperly extended.
 In the said Lauderdale case, M11193, also decided in 1678, forfeiture was found to be sufficient to allow the plea non valens agere whereas absens rei publiciae causa was not recognised.
 The other case in Morison's Dictionary cited to me was Poor John O'Neal. There non valens agere was not sustained probably on the grounds that the statute which limited the time to bring the relevant action was clear and specific. That was contrasted with prescription in the defences lodged for the magistrates. The defences had stated (as summarised in Morison):
"With respect to the plea of non valens agere it is enough that the statute of George I is of strict interpretation, and in all its provisions penal. The limitation in the Act does not therefore stand on the same footing as the ordinary prescription. And, at all events, supposing the pursuer were entitled to deduct the period of his imprisonment a year elapsed between the date of his pardon and the commencement of his action of damages."
All that was said in the report was that the court sustained the defences. Since no Opinion was reported and it was not clear which of those two defences weighed with the Court, counsel provided me with the session papers relating to Mr O'Neal. These make informative reading. Counsel involved were for the pursuer Henry Erskine, and for the defenders Lord Advocate Hope. Mr O'Neal's story was a fascinating one as disclosed in the papers.
 The matter arose from the magistrates at Dumfries purportedly acting under the Act of 1795 entitling them to levy all
"able-bodied, idle, and disorderly persons, who cannot upon examination prove themselves to exercise and industriously follow some lawful trade or employment, or to earn some substance sufficient for their support or maintenance".
Such persons could be levied to serve in the Navy. Mr O'Neal was an Irish immigrant who came with his family to Dumfries. He acquired, by feu contract, a hut and four or five acres of ground at Stoup, now Stoop, then outside Dumfries but in the marshy land between Locharmoss and Craigsmoss. Mr Erskine, describing O'Neal said,
"His family, which consisted of himself, his wife, two sons and a daughter maintain themselves by the same means by which a great part of the peasantry must always maintain themselves - by working as day labourers at such employment as were offered to them from time to time. They, in particular, engage themselves in digging peats, making and selling besoms, and other similar occupations. Their connection with the people in their neighbourhood was not very intimate or extensive partly because their natural relations lay in another country, and partly from the illiberal nationality of those among whom they lived."
The counter pleading anent Mr O'Neal described his hut as being placed upon the extremity of an extensive moss. It was said that O'Neal and his family, although pretty numerous, had no visible means of subsistence and were understood to live by depredations made in the neighbourhood, by whom they were regarded with no inconsiderable degree of dread. The whole family were "persons of very ferocious dispositions and they had firearms in their hut, of which it was not easy to discover any lawful use they could make". The two sons of O'Neal were able-bodied young men, certainly idle and reputed to be disorderly persons.
 Mr O'Neal shot at persons who came to take him to serve in the Navy and killed one. He was sentenced to death but reprieved. It appeared that the warrant issued by the magistrates had been improper and ultimately O'Neal obtained a free pardon. He then sued among others the magistrates because, after his arrest, persons incensed at the killing razed his hut to the ground. The action failed because it was held that the limit imposed by the statute was not to be extended by implication nor was there any action in equity available after his release and the lapse of a year from that date. Those were the defences which were sustained.
 I understood that this case was brought to my attention in order to show the plea of non valens agere always applied to ordinary prescription though it may not apply to statutory limitation properly so called. Although indebted to counsel for this excursion into socio-economic history, I do not think that Mr O'Neal's case added anything to the argument. It serves as an illustration of the amount of caution that is required before accepting the side notes in Morison's Dictionary as a sufficient "resumÃƒÂ©".
 Apart from Graham and the above noted discussion in Mr Napier's book, little advance appears to have been made in the law until the next case cited, Earl of Fife v Duff, 15R 238. In that case a claim for repayment by an overpaying heritor against an underpaying heritor was under consideration. The plea of non valens agere during the time of prescription was taken. It was held that as the claimant had abstained from producing an essential decree of valuation, the overpayments were caused by his own fault and accordingly prescription applied to them. It is plain that the decision in that case focused upon the questions of when the claim could have been sued upon and through whose fault and negligence it was that it had not been capable of being sued upon at an earlier date. It was held that the overpayments in question were due entirely to the conduct of the pursuer who was said not only to have been negligent but to have been active against himself and thus not equitable in the proceeding on his own side. It might be thought that that case was truly a question of personal bar. If by his own conduct the creditor has prevented a claim being adjudicated he cannot be held to plead the absence of a necessary step he could himself have taken. No assistance can be derived from that case in the present action other than its providing an opportunity for counsel to comment on equitable pleas.
 In Harvey v Robertson, 5F 338, the court made observations on the plea of non valens agere. The pursuer raised an action concluding for declarator that an operation of lime burning intended to be carried on by the defender on a plot of ground at the junction of Chalmers Street and Anderson Street in the Gallowgate of Glasgow would be a nuisance and for interdict. The court assumed that lime burning was a nuisance. It affected inhabitants of dwellinghouses erected on a place where oil work had previously been carried out at the same time as lime burning. The pursuer contended that his right to object to the lime burning had not been cut off by prescription because prior to the erection of the dwellinghouses the land had been used as an oil work which would have been as great a nuisance as the lime kilns. So long as the oil work was carried on, he pled, his author was non valens agere. The Lord Ordinary took the view that that argument was untenable and held that to found the plea of non valens agere there must be a legal impediment which prevents action being taken and inability arising from the course which the party chooses to adopt is not sufficient. The Inner House concurred with that view (Lord President, page 342-3). The Lord President said: "Non valens agere means not a physical but a legal incapacity to sue and it is not, in my judgment, proved that any such legal incapacity existed."
 In Macdonald v North of Scotland Bank, 1942 SC 369, the question was the application of the long negative prescription to current accounts with a bank. Lord Justice Clerk Cooper at 373 in relation to the plea of non valens agere observed that the previous cases proceeded on the single principle that if and so long as the creditor could not effectively act prescription would not run. A customer with a sum at credit can properly be described as a person capable of vindicating his rights and is not prevented from so doing by any legal impediment or legal incapacity to sue. Lord Jamieson at 380 said the plea that a creditor was non valens agere was an equitable plea proceeding on the principle, not on the words of the law.
 In Campbell's Trustees 1950 SC 48, at page 56 Lord President Cooper embarks upon what he described as a "long digression" on the plea of non valens agere. He said this:
"The plea which initially and properly was concerned with the personal capacity of the person against whom prescription was pleaded, assumed the new form of non valens agere cum effectu, and the emphasis was shifted to the last two words. Valentia agere came to depend upon extrinsic considerations as much as upon the intrinsic capacity of a person against whom prescription was pleaded."
At the foot of page 57, the Lord President notes that s. 16 of the Conveyancing (Scotland) Act 1924 had excluded as an answer to prescription "minority and less age" and also persons "under legal disability". He goes on to say,
"I cannot hold that the whole of our common law and decisions designed to give effect to the expanded equitable plea of non valens agere cum effectu was swept away in 1924 by this reference to 'any person under legal disability'. It is not easy to see whom the draftsman had in mind when this expression was used in 1924 - possibly (I say no more) the lunatic, alien enemy, or the foreigner reduced by the law of his domicile to imperfect legal capacity. But I cannot hold that 'person under legal disability' is a feasible method of describing a person who is subject to no legal incapacity but who cannot 'follow his right', who cannot make his claim 'effectual', who has 'a just cause of forebearance' or who for one or other of the accepted instrinsic reasons, is in equity excused from not bringing forward is claim because it would be of no avail to do so."
 In Hastie's Judicial Factor v Morham's Executors 1951 SC 668, a case involving the liability of trustees to account, a question arose as to whether the trustees' liability had been extinguished by the long negative prescription. Lord Strachan, Ordinary, was reversed by the Inner House but did say at 671:
"The pursuer's second answer to prescription raises difficult questions in regard to the plea of non valens agere. It is again to be noted, however, that no such plea appears in the pursuer's pleadings. In a branch of law such as this where doubtful questions are involved, I think that there was a special duty upon the pursuer to state an appropriate plea to make averments showing clearly the persons who are said to have been non valentes, the disability on which the non valentia is said to have been based, and the period during which it is persisted."
He noted further that he did not think that since the publication of Miller on "Prescription" the question whether mental disability as an answer to the plea of prescription had been decided. The Inner House did not dissent from those observations.
 In Pettigrew v Harton 1956 SC 67, Lord Justice Clerk Thomson said at page 72, after quoting Lord President Cooper at p.56 of in Campbell's Trustees (supra) the following:
"In my view, there is no justification for extending the doctrine one inch beyond the decided cases. The general statements like Bell's or Baron Hume's that 'a creditor has deduction of those periods of time when he could not to advantage follow out his claim owing to the situation of the claim itself' must be limited to situations in pari casu to those already decided. Otherwise the contention that non valens agere cum effectu is an equitable plea would open the door to all sorts extensions and refinements which are out of place in any modern system of jurisprudence."
 In Mills Trustees v Mills Trustees 1965 SC 384, the equitable plea was argued for but that case concerned the terminus a quo for the running of prescription and the Lord President said that if that terminus cannot be ascertained precisely, the material date is not the date when the right in question vests or accrues but is the date when the claim is first enforceable by an action (p. 389). The court reiterated that the plea was an equitable one.
 The final Scots authority cited to me was the Outer House decision Kelly v Gilmartin's Executrix 2002 SC 602. That was a case of a school teacher sexually abusing his pupil. The claim was for damage arising from revived memory of that event. It was decided on the basis that the long negative prescription began to run when there was a concurrence of injuria and damnum. An inability to sue for a condition which did not yet exist was not an obstacle in law and therefore the plea non valens agere cum effectu had no application. Her Ladyship discussed the matter at paragraph 39 of her opinion. There she said that there was nothing about an emerging psychiatric condition about which the pursuer had cause for complaint and for which he could claim damages when prescription took effect. Rather than have a right of action which in some way was not enforceable, or the fulfilment of which was being obstructed by some legal impediment, the pursuer simply had no loss or injury at that stage for which he could seek damages and no right of action. The plea therefore had had no application. I agree and note that Kelly clearly distinguishes between the legal situation pre and after the 1984 Act.
 The other matters which required to be noted at this stage are that when the Scottish Law Commission reported on prescription in personal injury actions in 1983 they advised against a general dispensing power in relation to prescription and said nothing about the plea of non valens agere cum effectu.
 I note also that in an English case cited an application for permission to appeal was refused, Ablett v Devon County Council 4 December 2000 At para.4 the judge discussed what he described as the inevitable results of the nature of abuse of children by adults to produce silence. The Court said "Silence is known to be one of the most pernicious fruits of abuse. It means that allegations may surface, if they do, many years after the abuse has ceased." That observation might prove to be factually correct but was uttered in the context of a discussion of "knowledge" in terms of section 14 of the English Limitation Act 1980; whether discretion should be exercised under the provisions of section 33 of that Act and whether matters should be determined by a preliminary issue.
 That case adds nothing to the Scots cases cited and does nothing to assist the pursuer in a plea which may involve equitable considerations in Scots law.
 It will be noted that in none of the cases cited has non valens agere been employed let alone employed successfully in an action for solatium or personal injury.
Human Rights Issues
 An argument was presented based upon the pursuer's pleadings at page 18 of the Record. These read:
"Esto that pursuer's claim has prescribed by reason of the operation of the long negative prescription, which is denied, this Court would deny the pursuer access to a Court to assert the infringement of her rights under Articles 3 and 8 of the European Convention on Human Rights if it were to dismiss the action. The United Kingdom Government was a high contracting party to the European Convention on Human Rights in 1950, at the time when the abuse occurred. Any application of strict domestic rules of prescription would constitute a disproportionate interference with the pursuer's right to have a determination on the merits of her claim. The pursuer states a deserving case. She suffered physical and psychological damage. Her delays in raising the action are attributable to the abuse she suffered. Article 13 of the European Convention provides that 'Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity'. This Court has a duty to interpret domestic law in such a way as to permit the pursuer to state her case and have access to an effective remedy. The pursuer claims the infringement of rights guaranteed to her by the Convention. Her rights were infringed when she was a small child and unable to invoke the protection of the Court. In the circumstances any competent plea of prescription should not be sustained."
That indication was attacked by the defenders on the footing that the pursuer's position in summary was that (a) the extinction of rights in 1979 was a breach of Convention rights and (b) that the Court can now in terms of the Human Rights Act breath new life into these extinct rights. To do so the pursuer would have to establish that the Human Rights Act was retroactive and that prescription provisions are a breach of Article 6. There is clear authority against both. Article 13 of the Convention is not incorporated into Scots law by the Human Rights Act. The House of Lords decided in Wilson v First County Trust Limited 2003 3 WLR 568, particularly in the speech of Lord Rodger of Earlsferry, that the Act was not retroactive.
 The pursuer's argument consisted mainly of a repetition of her averments with reference to, in particular, the cases of Stubbings, 22 October 1996 and "Z" & Others, 10 May 2001 in the European Court of Human Rights in the context of the need for provision of an effective remedy in domestic law.
 I did not consider that the reference to the Convention assisted the pursuer in this case at all. In the first place the Human Rights Act is not retroactive. Article 13 of the Convention is not a Convention right in terms of the Human Rights Act. It is plain that the pursuer has had access to the court. If her claim fails because of the application of the rule of prescription that matter can be, and has been, discussed in an action and the pursuer is not precluded from applying to the Court in order to see whether she has a remedy. To give effect to the pursuer's pleadings would, in my view, mean that pleas of prescription could never succeed in personal injuries cases, and in all cases these would have to be an explanation of the alleged facts. That is not the law, as is plain from Stubbings. The discussion by Lady Paton in Kelly of a similar argument and its rejection at paras 19-22 at paras 41-43 of her Opinion is gratefully adopted and is in my view correct.
 Further, and in any event, the defenders in this action are not emanations of the State. The entire invocation of the Convention as pled is in my view misconceived.
Decision on Non Valens Agere
 It is demonstratably arguable that the plea has now no application in actions for personal injury or solatium. Certainly no decided cases to that effect were cited to me and I found no others. What is being sought is therefore a novelty or an extension of the application of the plea, if it exists. This is a proposition which has been judicially disapproved.
 It is noteworthy that as an example of why the plea might have some effect at the present time, Mr Johnston in his book can cite and figure only somewhat unusual circumstances in relation to company law. It is difficult to see any greater incapacity than the legal disabilities of non-age or unsoundness of mind. These however have been specifically excluded by Statute as protection from the rules of prescription. It would not be logical if a lesser state of mental incapacity, such as the pursuer claims in the present case, could be a reason for the application of the plea whereas total unsoundness could not.
 It might be possible to conceive of a case today where there are circumstances in which non valens agere could apply. Someone kept hostage by a tribe in South America for a number of years might be such a person. That would be akin to banishment, or capture by a usurping authority.
 Application here would extend far beyond the decided cases and would result in the use of the plea being akin to the provision of section 19A of the Limitation (Scotland) Act in an invocation of equitable principles. But this case is not about limitation. This is a case of a right which has prescribed and, because it has not been not invoked, has expired. In limitation there is a statutory obstacle to pursuing the right which can be overcome. Section 19A does not provide nor restore a right.
 It did not, in my view, assist the pursuer's argument to stress that non valens agere was an equitable plea. No doubt that is so but that is a descriptive term and not a definition. To extend the plea to the present circumstances would be to assert that if there can be an equitable reason for asserting the plea it must succeed, whereas the true analysis is that if the plea can succeed, that would be an exercise of equity. Lord Justice Clerk Thomson's observations in Pettigrew sufficiently discourages any view that Lord President Cooper in Campbell's Trustees was extending the scope of the plea in his support of the continued existence. His stated excusal is for someone not bringing a claim because it would be of no avail to do so for one or other of the accepted intrinsic reasons. It is not for an Outer House Judge in the face of such dicta to steer the plea unto new unchartered waters.
 If the plea were to be considered to be appropriate in circumstances like the present, there requires to be more specific and clearer pleading to establish why the pursuer has been prevented for a sufficient reason from pursuing her now expired right. She would require to explain why an attempt to block out memories, by, for example, abuse of alcohol, is consistent with a disability to pursue an action. The averment that she was deliberately concealing memories would also require explanation if it is to be asserted that she could not rather than did not communicate. Further, the effect of the plea of non valens is to excise the period in which there was non valentes from the prescriptive period. In the present case therefore, the time when the pursuer was of non-age would still count as part of the prescriptive period as would any period of mental incapacity. The pursuer's pleadings were criticised in these regards by the defenders, under reference to the dicta of Lord Strachan above quoted. I would have considered that there was merit in that criticism and that the case as pled did not relevantly invoke the plea from want of proper specifications in any event.
 In the whole circumstances therefore, I shall sustain the defenders' pleas to prescription, repel the pursuer's sixth plea-in-law and ninth plea-in-law and grant decree of absolvitor.
I wonder whether Scotland will decide to go down the well worn path and create its own abuse scandal ?
Gail - FACT u.k
Message date : Aug 30 2004, 09:26 AM
From : "SOFAP"
To : Undisclosed-Recipient:;@me.freeserve.com
Copy to :
Subject : Care Home case fails
Woman loses child abuse test case
The test case was heard at the Court of Session
A woman who claims that she was abused in a Catholic children's home when she was a young girl has lost a bid to sue the religious order which ran it.
About 150 other claims against the Poor Sisters of Nazareth will fall after the decision in Mrs Abernethy's test case.
Elizabeth Abernethy, 55, was seeking compensation over alleged abuse at the Nazareth House, Glasgow, in the 1950s.
But a judge at the Court of Session in Edinburgh ruled that Mrs Abernethy should have made her claim sooner.
Temporary judge Gordon Coutts ruled the action was time-barred and should be dismissed.
More than 500 damages cases against the religious order, which ran homes throughout Scotland, have been raised at the Court of Session.
This decision was expected, but it is not the end of the road.
Solicitor Cameron Fyfe
Although about 150 will fall after this test case decision, a further 350 cases involving others who were in the home more recently, are being pursued.
Solicitor Cameron Fyfe said: "This decision was expected, but it is not the end of the road. MSPs are looking at the possibility of changing the law and if that were to happen, these people might still have an action.
"By Mr Coutts' judgement, around 150 action like Mrs Abernethy's will have gone unless the Scottish Parliament can rescue them," he said.
Mrs Abernethy, of Belvedere Road, Liverpool, was taken to Nazareth House as a three-month-old baby and left at 11 when she was sent to a convent on Merseyside.
Although she left Nazareth House in 1959 she did not raise proceedings against the religious order until 2000.
She claimed that she was regularly assaulted from the age of five either as punishment or as deterrence.
Mr Coutts said that if her claims were established they would portray "a horrifying picture of inappropriate and uncaring discipline and neglect all of which caused actual physical injury".
Mrs Abernethy said one nun, who is now dead, regularly told her she was mentally retarded. She was told the Devil was in her and she would not get to Heaven.
The religious order denied the claims and its lawyers argued that the case should be held to be time-barred.