In Hugh Kennedy against (First) The Right Reverend Paul Bonnici, (Second) The Right Reverend James Warren Cuthbert Madden and (Third) Denis Alexander [2021] ScotCS CSOH 106, the pursuer brought an action for personal injury as a consequence of alleged sexual and physical abuse which, he averred, he had suffered while he was a boarder in the mid-1970s at Fort Augustus Boarding School. The school, which was run by a Benedictine community, had closed nearly 30 years ago, the trust associated with the community’s Abbey had been wound up some ten years ago and the then trustees may have been discharged. The trustees at the material time were all dead. The pursuer averred that, nevertheless, the then trustees had held indemnity insurance in respect of his claim and he sued the two surviving trustees for the purposes of meeting his claim from the trust estate comprised of the (presumed) right of indemnity under that insurance [1]. He claimed that the third defender, Denis Alexander, a monk and teacher at the school, had been his principal abuser and that he had also been abused by two lay teachers, both now dead [2]. In July 2021, Alexander had been convicted inter alia of lewd and libidinous conduct against the pursuer [4] and sentenced to four years and five months imprisonment.

The trustee defenders argued that the pursuer’s case was lacking in specification and irrelevant on a variety of grounds and sought dismissal of the action. Further, even if his averments were proved they could not be held vicariously liable for the abuse, and any insurance policy was neither a trust asset nor for the pursuer’s benefit. They also sought dismissal on the basis that a fair hearing was not possible for the purposes of section 17D(2) of the Prescription and Limitation (Scotland) Act 1973 (as amended) and/or that the substantial prejudice to them outweighed the pursuer’s interests for the purposes of section 17D(3) of the 1973 Act [6].

Lady Wolffe noted that in an action for personal injury arising from alleged historical abuse while the pursuer was a child, inserted section 17A(1) had amended the 1973 Act so as to disapply the usual limitation period [14]. She held that the trustee defenders’ relevancy challenges were ill-founded and that there were critical matters affecting some of the legal foundations of the pursuer’s case that required proof: eg, the questions of whether the trustee defenders had been discharged and whether the Trust had been wound up [67]. She concluded that a preliminary proof was the likely appropriate next step and that it might be appropriate

“to include in a preliminary proof critical issues of fact, including the issue of whether trustees were acting in a personal capacity, whether the Trust was wound up and, possibly, the mechanics of how an action such as this might proceed against trustees (a matter on which the court was not addressed). However, as parties made no submissions on these matters, it is right that I allow parties an opportunity to address the court on the scope of the preliminary proof to follow” [68].

She made no order as to expenses [69].