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E.A. v. G.N. [2009] CSIH 29


Reclaiming Motion:- In this action the respondent sought damages damages from the reclaimer on the ground that she suffered psychological damage as a result of sexual abuse alleged to have been perpetrated upon her by him between 1975 and 1997. The reclaimer was prosecuted on various charges of indecency and was duly convicted, however, his appeal against conviction was successful (N v HM Advocate 2003 J.C. 140). The present action was raised in January 2004. The respondent invited the court to exercise its discretion under section 19A of the Prescription and Limitation (Scotland) Act 1973 to allow the action to proceed notwithstanding that for more than three years prior to the commencement of the action she was aware of the facts specified in section 17(2)(b) of the 1973 Act. The Lord Ordinary, having heard a debate directed at the reclaimer's contention that the respondent's averments in support of the exercise of that discretion were irrelevant and lacking in specification, rejected that contention and proceeded, without hearing any evidence, to exercise the discretion in favour of allowing the action to proceed. Here the reclaimer appealed against that decision of the Lord Ordinary on the grounds that the respondent's averments directed to the exercise of the section 19A power were irrelevant and lacking in specification and that the action be dismissed,or, alternatively, that there should be a preliminary proof on the application of section 19A.