He co-ordinates most of the child abuse children’s home group actions in the North of England. He is the Press Officer of ACAL, former publisher of this Newsletter, (this article appeared in the ACAL Newsletter of February 2002) created and maintains the ACAL website www.childabuselawyers.com.
1. Is there room for yet another Protocol for Child Abuse Compensation Claims?
2. What are the benefits and disadvantages of a Protocol?
3. What makes child abuse cases unique and suited to a Protocol?
If you dial into the Lord Chancellor’s website http://www.dca.gov.uk/ you will find that Protocols have now been developed for a number of different areas including defamation and professional negligence. As child abuse compensation claims are growing in popularity there seems no reason why a nationally established Protocol for our area of law should not be beneficial. In the preamble to all the Protocols is a “mission statement” which set out their purpose. The common themes appear to be “openness, timeliness and to provide an alternative to litigation.” Does child abuse law fit neatly into the above purposes?
Because most child abuse compensation claims are historical they are out of time in limitation terms and time is always of the essence. The worst anxiety the fee earners suffer from in my team derives from not knowing with any certainty the date of knowledge under Section 14 Limitation Act 1980. It is a moving wicket and can range from the date that the Claimant was at the home to the date he receives his Psychological Report maybe thirty years later, which tells him that he is actually suffering from a personal injury and that in the past when he has felt unwell the cause has been PTSD (Post Traumatic Stress Disorder). Under Section 33 Limitation Act 1980 the Defendants can argue that the Court should not give the Claimant the benefit of its discretion if the case has not been pursued expediently enough. If there is a way therefore of freezing limitation the Claimant’s Solicitor will be appreciative. Because insurance indemnity premiums are high, out of prudence we generally choose the earliest limitation trigger possible, which may be the date your client was interviewed by the Police. This may be over two years before he consulted you. There may be therefore a rush to issue proceedings before you are ready to do so. At this stage you have no medical report and costs can escalate when one has to make an application to extend the period of time to serve either the Claim Form, or the pleadings. If therefore a Protocol can be agreed whereby limitation is frozen in time, surely it should be encouraged. The CPR was introduced in an effort to discourage not encourage litigation.
It is very difficult to fill this paragraph with any meaningful argument. If the Defendant’s Solicitor is devious and untrustworthy he can use the Protocol to extract as much information out of you as possible, some of it in a bare and unsophisticated form, at a time when Court Rules would not oblige you to disclose anything, terminate the Protocol period and then try to use the information you have disclosed against you in subsequent litigation. There are safeguards to prevent this happening as appear below. The Protocol can also lull both sides into a state of stagnation because “the pressure is off.” There is a way of combining the Protocol with Court proceedings and regular Case Management Conferences where, for example, one issues proceedings, applies for a stay, institutes the Protocol away from the Court, but goes back to the Court on three monthly Case Management Conferences to report what is going on. This model has been used in group actions I have co-ordinated. It could also be tailored for use in individual cases.
Attached to this article is an example of a Protocol I have attempted to implement in connection with a children’s home called St Edmund’s, on the Wirral. The Protocol is intended to be linked to a Group Litigation Order but could be amended quite easily and used “stand alone.” The process becomes quite complicated when linking it to a Group Litigation Order and therefore I have ignored it. The main points however are as follows:-
Without Prejudice – Any information disclosed during the Protocol period is without prejudice and can subsequently be changed without criticism in any future litigation. This avoids the Defendant taking advantage of you.
The Protocol Period – The Protocol period starts on a specified date and can be terminated by either side by giving three months notice in writing.
Limitation – One assumes that the case is out of time and is historical. The limitation period becomes frozen upon service of a formal Notice of Claim. This means that the Defendant can argue limitation for the period before the Protocol period starts and after it finishes. The Defendant is not prejudiced other than during the Protocol period, which in any event is entirely under his control.
Disclosure – One can read the quite extensive disclosure obligations of the Claimant’s Solicitor. The more information is given to the Defendant the more able he is to make an offer in settlement. Since Lister v Hesley Hall Limited (2001) UKHL 22 the Defendants are more amenable to settling cases. The Defendants are also obliged to disclose to you any documents in their possession which are personal to the Claimant such as home records or social care records.
Medical Evidence – One can see that if you do not have a Medical Report at the time you are obliged to give the Defendants some idea of the Claimant’s state of health. I am strongly in favour of Joint Medical Reports having seen the partisan nature of reports in some of the cases I have been dealing with. How amenable the Defendants will be to such a suggestion I do not know at the moment. The Protocol makes no provision for joint medicals but will no doubt be rewritten shortly to take account of them.
Meetings – At the end of the Protocol there is written an obligation for parties to meet regularly to narrow the issues. Experience has taught me that Defendants find it quite easy to be aggressive on paper but not face to face. Because of the sensitive nature of these proceedings on the Claimants aggressive litigation is to be discouraged.
Does the Protocol in child abuse cases therefore achieve the purposes?
Openness – Neither side are able to hide their evidence. At the earliest possible stage the Defendants can analyse your case effectively and come to a conclusion as to whether or not they are going to settle it, or invite you to issue proceedings. The alternative to the Protocol is “drip feed disclosure.” The result of conventional litigation is that the Defendant will not really know what your case is all about until the doors of the Court, when much time has been wasted and costs escalated out of all proportion to the damages claimed. In the process your client will no doubt become frustrated. Child Abuse Claimants are of course more anxious than others. The sooner the litigation concludes therefore the better.
Timeliness - If the disclosure process is speeded up, the Defendant is able to examine the issues more quickly and a settlement is on the table within six months, then surely not only time but costs have been saved.
Provide an Alternative to Litigation – One cannot guarantee that when the Defendant has seen all your evidence he will not insist upon a full trial in any event. If this happens then arguably time has been wasted when perhaps it would have been more prudent to proceed through the Courts with allocation questionnaires, Directions and trial. Any disadvantage however is avoided by any negotiations being without prejudice to litigation. Accordingly you are able to marshal your evidence once again before disclosing witness statements in subsequent Court proceedings, should negotiations break down. If you can avoid a Train Driver’s timetable through the Courts where litigation proceeds at a pace which neither side are happy with, then possibly it is an advantage. The Protocol however must not be used as an encouragement to sloth.
Finally, in my personal experience the Protocol has made litigation more pleasant, improved relationships with the Defendant’s Solicitors, and encouraged settlements. I have not as yet experienced a situation where we have gone through the Protocol with Defendants who have then insisted upon litigation. If you decide to use the Protocol, ACAL I am sure would welcome feedback at:
P.O. Box 466,
Herts WD3 5LG
Tele: 01923 386921
Fax: 01923 264988
Hopefully a nationally agreed Protocol can be introduced into the Civil Procedure Rules.