Precedents Cited

The judgment extensively referenced established case law to guide the court's decision-making process:

• B v Murray (No 2) 2005 SLT 982 and AS v Poor Sisters of Nazareth 2008 SC (HL) 146: These cases provided foundational principles for the equitable extension of limitation periods under section 19A, emphasizing that each case hinges on its unique facts and that the burden of proof lies with the pursuer.
• Kirk v Scottish Gas Board 1968 SC 328 and Drummond's Trustees v Peel's Trustees 1929 SC 484: These cases underscored the principles guiding the appointment of a curator ad litem, particularly in ensuring fairness for vulnerable parties.
• Gestmin SGPS SA v Credit Suisse (UK) Ltd and Anor [2020] 1 CLC 428: This case highlighted the unreliability of human memory, especially over extended periods, reinforcing the need to corroborate witness testimonies with documentary evidence.
• A v B (1895) 22 R 402: A pivotal case on the inadmissibility of similar fact evidence in civil claims for rape, reinforcing that such evidence often disproportionately complicates proceedings without sufficiently supporting the main allegations.
• Moorov v HMA 1930 JC 68: Demonstrated the circumstances under which similar fact evidence might be admissible in criminal trials, contrasting with its inadmissibility in civil contexts as established in A v B.

Legal Reasoning

The court's legal reasoning was meticulous, addressing each issue comprehensively:

1. Time Bar under Section 17 and Equitable Extension under Section 19A

The reported incident occurred on January 29, 1995, and the claim was filed in March 2019, exceeding the three-year limitation period stipulated by section 17 of the 1973 Act. The court evaluated whether section 19A could be invoked to equitably extend the limitation period. It considered factors such as the pursuer’s conduct over the years, the reason for the delay, and potential prejudice to both parties.

• Pursuer's Conduct: The court scrutinized the pursuer’s repeated interactions with solicitors regarding various matters, including past advice received not to pursue the rape claim, which weakened her argument for delay caused by fear of not being believed.
• Prejudice to the Defender: The significant delay posed substantial prejudice to KM, who had already faced a criminal trial and acquittal. The court noted the financial and reputational risks KM would endure if the civil claim proceeded after such an extended period.

Ultimately, the court determined that the equities did not favor extending the limitation period, leading to the dismissal of the claim on this ground alone.

2. Liability and Proof on the Balance of Probabilities

Although the time bar was dispositive, the court still addressed the merits of liability:

• Credibility of the Pursuer: PW’s evidence was undermined by significant inconsistencies, the passage of time affecting memory reliability, and the influence of alcohol and prescribed medications during the alleged incident.
• Contradictory Accounts: Inconsistencies between PW’s accounts and other evidence from her sister SR, colleague TD, and the defender himself eroded trust in her testimony.

The court concluded that it was not more likely than not that the defender had committed rape, thereby failing to establish liability on the balance of probabilities.

3. Admissibility and Reliability of MS’s Evidence

MS’s testimony, which alleged a separate incident of indecent assault by KM, was scrutinized for admissibility as similar fact evidence. Referencing A v B and other pertinent cases, the court found that MS’s evidence was neither admissible nor reliable due to marked inconsistencies and lack of corroborative evidence. This decision emphasized the court’s reluctance to entertain collateral allegations that do not directly influence the core issue.

4. Measurement of Damages

Had the claim not been time-barred and liability established, the court outlined an appropriate measure for damages. It referenced the Judicial College Guidelines, determining that the case would fall within the "moderate" category for solatium, justifying an award of £50,000, with 75% attributed to past harm and accruing interest.

Impact

This judgment has significant implications for future civil claims involving sexual offences in Scotland:

• Strict Adherence to Limitation Periods: Reinforces the importance of initiating legal action within statutory time frames, even in serious allegations such as rape, unless exceptionally equitable reasons justify an extension.
• Scrutiny of Witness Credibility: Highlights the necessity for consistent and reliable witness testimonies, especially when dealing with traumatic events and long-delayed claims.
• Admissibility of Similar Fact Evidence: Establishes a clearer precedent for the inadmissibility of collateral similar fact evidence in civil claims, maintaining focus on the primary allegations without being sidetracked by separate, uncorroborated claims.
• Damages Assessment: Provides guidance on the appropriate measure of solatium in cases where liability is established, referencing established guidelines to ensure consistency and fairness in compensation awards.

Legal practitioners must meticulously assess the timeliness of claims and the reliability of evidence, ensuring that clients understand the critical nature of adhering to limitation periods and the challenges posed by delayed claims.