Further Scottish judicial consideration of vicarious liability and the fair hearing and substantial prejudice defences in non-recent childhood abuse claims

Denis Alexander was sentenced on 30 July 2021 to four years and five months imprisonment and placed on the Sex Offenders’ Register indefinitely after pleading guilty to two charges of lewd, indecent and libidinous practices against boys aged between 12 and 14 when he was a monk and teacher at Fort Augustus boarding school in the Scottish Highlands in the 1970s. The school was run by a Benedictine community operating as a Trust.

Hugh Kennedy presently seeks £5m in compensation for injuries and related losses said to have been caused by physical and sexual abuse at the school in the mid-1970s at the hands of Mr Alexander and two lay teachers who are understood to now be deceased. The main questions for the court after hearing legal argument but no evidence in this case, Hugh Kennedy v The Right Reverend Paul Bonnici, The Right Reverend James Warren Cuthbert Madden and Denis Alexander, Lady Wolfe, Court of Session, 20 October 2021 (link here), and the court’s answers are summarised here:

  • With the four trustees from the 1970s all having deceased, could the pursuer competently sue two subsequent and surviving trustees as representing the Trust and with a view to triggering an insurance policy that is said to have been in place at the relevant time? The court’s answer is yes, which answer remains the case even if the Trust has otherwise been wound up.
  • Are the circumstances of the pursuer’s written case sufficient for vicarious liability to apply such that the Trust would be liable on behalf of the teachers? The court’s answer is yes. The pursuer’s written case is based on the teachers having been employed by the Trust and there is, on the strength of that case, sufficient to meet the “close connection” part of the doctrine of vicarious liability particularly because of the “concept of conferral of authority” as explained by the UK Supreme Court as a key touchstone in this area.
  • Can the defenders avoid the impact of the retrospective abolition of limitation for childhood abuse claims in this case on the basis of the “fair hearing” or “substantial prejudice” defences? In keeping with recent case-law on these points, the court has determined that evidence is needed on these matters before answers may be given.   

In a previous case, B and C v Sailors’ Society, Outer House, Court of Session, 20 April 2021 (link here), Lady Carmichael dismissed the pursuers’ claims for personal injury compensation said to have been caused by alleged childhood abuse in, respectively, 1968-1970 and 1972-1982 because the facts that the alleged perpetrators of the abuse were dead and that there had been no prior criminal investigation constituted “a fundamental barrier to a fair hearing.” The facts of a prior criminal investigation in Kennedy and Mr Alexander’s admission of guilt may be crucial distinguishing factors on the fair hearing defence in this case. It is, nonetheless, important to emphasise that no evidence has yet been heard. If the case does not resolve beforehand, it is likely that evidence will be heard at a preliminary proof on the two time-related defences and potentially on certain other discrete aspects of the case.

Frank Hughes, Partner and Fiona McEwan, Associate, BLM

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