EA v GN

[3] In this reclaiming motion the reclaimer renews his contention that the respondent's averments directed to the exercise of the section 19A power are irrelevant and lacking in specification; he renews his submission that the action be dismissed, arguing in the alternative that there should be a preliminary proof on the matter of section 19A. The respondent does not seek to support the Lord Ordinary's decision to exercise the section 19A power on the basis of the pleadings but seeks a proof before answer on the whole case, including the merits of the action.

"She was not advised at any time that potentially she had a civil claim in damages against the defender. In any event, while the trials and appeal were outstanding, the pursuer was not in a position to contemplate pursuing an action for damages. She was in a state of extreme distress and was struggling to manage her life and that of her family."

She then sets out some of the difficulties which she had experienced as a witness in the two criminal trials in which the reclaimer was the accused, adding:

"Before the first trial began in July 1999, she was reassured by Karen McGlone of the Procurator Fiscal's office dealing with the case that the pursuer did not need a lawyer since the Crown would look after her interests. The pursuer understood this to mean that there was no need for the pursuer to take further steps in relation to consulting a lawyer with regard to the sexual abuse as the Crown would advise and assist her. The pursuer was unaware that any claim she might have might become time barred."

"The pursuer has previously made false allegations of rape, having asserted to police on a previous occasion that she had been raped by two Asian men. The two men were arrested and held at Mill Street Police Station, and subsequently released when the pursuer withdrew her allegations. As a result of the lapse of time, there is now no prospect of the defender tracing the men against whom these false allegations were made."