Rebecca Graham-Taylor

We say goodbye to Rebecca, who first began work with us in May 2005 as a paralegal. She left us in August 2008, to take up a position with Olswangs solicitors, where she will specialise in intellectual property. We wish her all the best.

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This Act required every local authority to set up a social services committee and discharge a number of functions in relation to children and other vulnerable persons under pre-existing legislation. Those functions are described in Schedule 1 to the Act and include duties under the Children and Young Persons Act 1933, 1963 and 1969, together with the Children Acts 1948 and 1958. There are also amendments made to various prior Acts.

Related posts:

1. Local Authority Social Services Act 1970
2. The Local Authority Social Services (Complaints Procedure) Order 1990 (SI 1990 No. 2244)
3. Local Authorities (Goods And Services) Act 1970

Liability: sexual abuse committed by a disc jockey at a roller skating rink who was employed by a local authority

Quantum: sexual abuse during childhood

Settlement in July 2008 in the High Court

Malcolm Johnson of Malcolm Johnson & Co., Surbiton, Jonathan Wheeler of Bolt Burdon Kemp, Islington, Justin Levinson of One Crown Office Row

Sarah Erwin of Browne Jacobson, Nottingham, Stephen Ford of Seven Bedford Row

Case report submitted by Malcolm Johnson and Justin Levinson

This case began in January 2006 when Malcolm Johnson & Co. was approached by a 42 year old lady (A) following the aftermath of a criminal prosecution against Barry Spencer, a former roller skating disc jockey working at the Granby Halls in Leicester. Mr Spencer had pleaded guilty to 76 counts of abusing children between 1962 and 2002. The offences included indecent assault and rape. Later in 2006, he was sentenced in Leicester Crown Court to 15 years imprisonment.

Mr Spencer obtained employment at Leicester City Council as a floor manager and disc jockey at the roller skating rink at the Granby Halls. This provided him with good access to children, as the Halls were regularly used by families. Mr Spencer began by befriending children and their families who had come to roller skate. This then progressed to his offering to look after the children over the weekend. He would ensure free access for the children to the Halls and buy them drinks and sweets. He also worked part time as a lorry driver, and he was able to take children for trips outside Leicester. The abuse would then take place at these locations.

Three further Claimants, aged 25 (B), 20 (C) and 24 (D), approached Malcolm Johnson & Co. They had been abused over the following periods of time:-

A – 1979 to 1980
B – 1987 to 1998
C – 1991 to 1998
D – 1994 to 1998

All of these Claimants had concurrent claims to the Criminal Injuries Compensation Authority.

Malcolm Johnson & Co. sent out formal letters of claim in April 2006. There was then correspondence with the insurers for Leicester City Council and a initial limitation moratorium was arranged. Proceedings were issued on behalf of A, B and D on the 31st October 2006. C was still within primary limitation and issued proceedings in 2007 just before her 21st birthday. Psychiatric reports were obtained from Dr Trevor Friedman and proceedings served with full particulars of claim (drafted by Elizabeth Ann Gumbel QC) just before the 28th February 2007.

B and D were entitled to public funding, which was granted but A and C’s means exceeded the statutory limit. Malcolm Johnson & Co. initially acted for these Claimants on a conditional fee agreement, but was not able to arrange legal expenses insurance. Consequently A and C were referred to Bolt Burdon Kemp, who arranged the necessary insurance and took over the cases on a conditional fee agreement in February 2007. Bolt Burdon Kemp also acted for E, F and G who joined the action later in 2007. In relation to generic work, the two firms simply agreed what needed to be undertaken and then divided that work up.

The Claimants’ solicitors had also contacted Leicestershire police, seeking disclosure of the transcript of Mr Spencer’s interviews, the statements made by various witnesses and details of the criminal charges. At the end of December 2006, Malcolm Johnson & Co. made a non party disclosure application pursuant to CPR 31.17. The purpose of this application was to find out what documents the police had, locate other witnesses for the civil case and also to find out whether Mr Spencer had previous convictions. The police failed to appear at the subsequent hearing on the 6th February 2007 and this led to the court making an order for non party disclosure subject to the costs of that disclosure being paid by the Claimants. The order made it clear that the List of Documents to be served by the police was to disclose the names and the addresses of the witnesses in the police investigation.

Regrettably Leicestershire Police failed to comply with the non party disclosure order and so the Claimants’ solicitors made an application for permission to apply for a warrant of committal. That application was heard on the 30th April 2007 and resulted in a costs order in favour of the Claimants whilst the police were given extra time to comply with the original order. However their List of Documents failed to give the details of other witnesses, and in addition all the transcripts and statements had been redacted so as to blank out all names saving police officers, A, B, C and D and Barry Spencer. That led to a further hearing on the 28th February 2008 when the police were ordered to disclose the unredacted evidence. On this occasion however the court made no order in relation to costs.

A Case Management Conference was set for the 23rd July 2007.  At that time, a hearing was awaited in the case of A v Hoare and others [2006] EWCA Civ 395. The major issue to be decided in those cases was whether the current limitation of six years for assault under section 2 of the Limitation Act 1980 should be relaxed to the more generous three year period under sections 11 and 14 of that Act. Clearly the House of Lords decision would have an impact on the present cases and so the case management conference was adjourned to the 31st October 2007.

During 2007, the Claimants’ solicitors set about gathering evidence. The Defendant’s solicitors indicated that they had nothing in the way of documentary evidence from the Granby Halls that would be relevant to this action. There was no personnel file for Barry Spencer nor any records that related to his activities at the Granby Halls. The Granby Halls was a leisure facility, not a children’s home and therefore the Claimants’ solicitors had to ask themselves what kind of records might still exist on this kind of council facility.

Firstly the Claimants’ solicitors made a request under the Freedom of Information Act 2000 for all child care protection policies relating to leisure facilities going back over the years. This elicited a specific child protection policy, formulated by the City Council in around 1988, which discussed the risk of abusers gaining access to children in leisure facilities.

Secondly the Claimants’ solicitors set about locating every witness who might potentially assist the case. The Claimants and their families had given detailed statements, naming other persons who had attended the Granby Halls. These witnesses were located by means of the electoral system or simple directory enquiries. Over 150 letters were sent out. At the conclusion of the case, some 18 statements were obtained, in addition to the Claimants’ evidence.

Thirdly the Claimants’ solicitors engaged a researcher to look over Leicester City Council’s archives to see if there was any report about the Granby Halls, which related to the abuse of children. Enquiries were also undertaken on the two roller skating clubs that operated out of the Granby Halls and this produced further names.

Fourth Bolt Burdon Kemp engaged with the Leicester Mercury, who searched its own archives for stories about the Granby Halls, and ran an article on the ongoing civil action. The Leicester Mercury article led to further witnesses coming forward, and three further Claimants, E, F and G joined the action in late 2007. They had been abused during the following periods:-

E – 1987 to 1991
F – 1990 to 1996
G – 1994 to 1999

At the time they joined the action, E and F were in their twenties and past primary limitation on assault (24 years). G was within primary limitation on negligence (21) and assault (24).

The new witness evidence and the police disclosure were (in the absence of documentary evidence) the most important factor in ascertaining what had happened at the Granby Halls, and building up a case on negligence and vicarious liability.

The Defendant’s solicitors did not concede either issue, and indicated that the Claimant’s solicitors faced an uphill task, particularly with regards to vicarious liability. The distinction that is sometimes drawn is that of Lord Hobhouse in the case of Lister and Others v Hesley Hall Limited [2001] UKHL 22. (paragraph 59) where he said:-

“if the act of the servant which gives rise to the servant’s liability to the plaintiff amounted to a failure by the servant to perform that duty, the act comes within ‘the scope of his employment’ and the employer is vicariously liable. If, on the other hand, the servant’s employment merely gave the servant the opportunity to do what he did without more, there will be no vicarious liability.”

Mr Spencer’s abuse did seem to have arisen from opportunity and his duties appeared to be confined to playing music rather than looking after children. In relation to negligence, there was at the outset of the case no indication that anyone including Leicester City Council knew of Mr Spencer’s activities. However as the search for evidence progressed, a very different picture emerged.

In the first place, it was clear that a child protection policy had been in existence since 1988. There were reports of a roller skating club member being prosecuted for possession of indecent photographs, and men with no connection to the Halls turning up for sessions to stare at children. There was no evidence that the Defendant had ever complied with its own policy in relation to the Granby Halls, and indeed the witness statements described a culture where Mr Spencer was allowed to ferry his favourites in and out of the Halls without challenge. Certain children were allowed up on the stage and also to remain within the Halls after it had closed. There was evidence that Mr Spencer did have some managerial control over what happened on the skating rink, and he was allowed to put up boards across his console on the stage, so screening his abuse of children.  Fellow employees expressed discomfort at the way Spencer behaved around children, and had reported this discomfort to the management. Among some members of the staff, Spencer was referred to as “Barry the Perv” and “Dirty Barry.”

A case management conference was held on the 26th February 2008 and further directions were given up to September 2008, when it was anticipated that the seven cases would all be set down for trial.

Following the conference, the Claimants’ solicitors set about making a lengthy application for specific disclosure. However before the application could be heard, the Defendant’s solicitors suggested a round table meeting for the 21st May 2008.

At that meeting, the Defendants suggested a discount of one third for liability. Each case was settled as follows:-

Claimant A was abused between 1979 to 1980. She was raped by Spencer at the age of 15 on a number of occasions. She had been a victim of sexual abuse both before and after these incidents and had suffered a mild depressive disorder as a result of the criminal trial. Settlement - £25,000.

Claimant B was abused between 1987 and 1998, which involved kissing on the lips, being made to masturbate Spencer but there was no penetration. She had suffered from a depressive adjustment disorder which diminished following Spencer’s conviction. Settlement - £18,750.

Claimant C alleged oral sex, masturbation, an attempt at intercourse between 1991 and 1998. She had been the victim of bad parenting, and at one point in her childhood had been taken into care. She suffered depression in 2002 and had also self harmed. The psychiatrist, Dr Friedman said that the abuse had been a major factor in her education and career, as well as her abuse of drugs. Settlement - £42,500.

Claimant D alleged oral sex, masturbation, and vaginal pentration with fingers between 1994 and 1998. She did not have any psychiatric condition and did not require therapy. Her ability to form relationship was mildly affected. Settlement - £20,000.

Claimant E alleged abuse between 1987 to 1991. She had touched Spencer’s penis, got into his bed, been washed and dried in the bath and there was also digital penetration of her vagina. She had suffered nightmares and acute stress reaction. Settlement - £13,000.

Claimant F alleged abuse between 1990 and 1996, although Dr Friedman, the psychiatrist pointed to two years of actual abuse. The Claimant was forced to touch Spencer’s penis and her vagina was digitally penetrated. There was a small claim for loss of earnings in the sum of £400 and therapy of £650. Settlement - £10,000.

Claimant G alleged abuse between 1994 and 1999. She had suffered bad parenting and abuse by her stepfather. She had also had four children which had kept her out of the labour market. However she had suffered serious abuse, similar to that suffered by Claimant C (with whom Claimant G had been present for much of the time that the abuse occurred). Settlement - £27,500.

In addition, the Claimants’ costs were settled on the day.

The only remaining issue was that of the costs of the police disclosure. Each Claimant recovered an extra £607 on top of her damages, a total figure of £4750. In the event, the issue of the police costs was settled by a payment of £4750 to the police together with the Claimants’ agreeing to waive their costs in relation to the hearing on the 30th April 2007.

Claims were also issued against Mr Spencer directly and judgment entered in default against him. However following the settlement, it was not thought cost effective to establish that he had any means with which to satisfy any judgment and these actions have been stayed

Related posts:

1. A.B. And Others versus Liverpool City Council And Others 2001
2. Areas
3. Rose Wood & Others v Kirklees Metropolitan District Council versus Kirklees Metropolitan District Council 2004

(Published in APIL PI Focus May 2008 Volume 18 Issue 5)

Quantum: physical abuse during childhood, claim for pain, suffering and loss of amenity, past and future loss of earnings, excess consumption of alcohol

Judgment handed down by HHJ McKenna (sitting as a High Court Judge) on the 4th April 2008 in the Royal Courts of Justice

Justin Levinson of One Crown Office Row instructed by Malcolm Johnson & Co. for the Claimant

Case report submitted by Malcolm Johnson and Justin Levinson.

The Claimant was born in 1983 and is the daughter of the Second Defendant. The First Defendant was the local authority in whose area the Claimant grew up. On the 15th June 2007, the Claimant issued proceedings in the High Court against her father for physically and emotionally abusing her throughout her childhood. As the father resided in Eire (he is the owner of two properties there) proceedings were served outside the jurisdiction. She also issued proceedings against the First Defendant on the grounds that its social workers were negligent in failing to protect her from the Second Defendant.

Shortly after issue of proceedings, the Claimant obtained an order by consent for permission to extend service of the proceedings on the First Defendant up until 28 days after the determination of the case against the Second Defendant. Therefore the proceedings against the First Defendant were effectively stayed and no part was taken by them in relation to the final hearing to assess damages, although they were kept informed of the progress of the action.

On the 4th September 2007, judgment was entered against the Second Defendant for an amount to be assessed and various directions were given. The Second Defendant took no part in the proceedings, other than to telephone his daughter (the Claimant) in January of this year and threaten her.

The case proceeded to an assessment hearing before His Honour Judge McKenna, a circuit judge sitting as a High Court Judge on the 3rd April 2008. Judgment was given on the 4th April 2008.

The Second Defendant had subjected the Claimant to physical and emotional harm throughout her childhood. In particular he had threatened to kill her, had beaten her on a daily basis from the age of 3 to 17 and verbally humiliated her, saying that she would become a prostitute. Her account was supported statements from two of her elder brothers and some social services notes from the London Borough Ealing that alluded to concerns about the Second Defendant’s abusive behaviour towards his family. These notes had been produced before the Claimant was born. The Claimant’s medical evidence was by way of a report from Dr Trevor Friedman, a consultant psychiatrist, and an addendum.

The Claimant had developed significant psychological problems, anxiety, a specific phobia relating to speaking in public, agoraphobia and harmful use of alcohol.

Reliance was placed on the recent decision of Eady J in Pierce v Doncaster Metropolitan Borough Council [2007] EWHC 2968. In that case, the Claimant successfully claimed damages against a local authority on the basis that it negligently failed to protect him from physical and emotional abuse at home. He received £25,000 for pain, suffering and loss of amenity. The Claimant’s counsel put this to the court as a “good starting point” and it was submitted that that the Claimant’s case was more serious.

Reliance was placed upon the Judicial Studies Board Guidelines for the Assessment of General Damages which suggests that in cases of moderately severe psychiatric damage, awards will range between about £11,750 and £33,500. In addition counsel for the Claimant cited the case of Various Claimants v Flintshire County Council 26th July 2000 (unreported) where Scott Baker J had said that the first question for the court was whether the breach of duty in issue had made a material contribution to the particular Claimant’s condition. It was enough that the contribution was not so small that the law should not take account of it.  The court should make the best estimate that it could, in the light of the evidence.

The Claimant had attained 8 GCSEs. She then started an A level course at college, which she did not complete. Thereafter she worked sporadically, earning very little. Since 2003, she had been unemployed and in receipt of benefits. She had two children in 2002 and 2005 and received considerable support looking after them from her mother and brother. It was argued on her behalf that such support would ordinarily enable a mother to sustain at least some employment.

Dr Friedman considered that the Claimant’s education had been affected due to her anxiety symptoms and fearfulness of school. However there were a number of factors that had caused her to under perform, and Dr Friedman opined that the abuse by her father was responsible for approximately 10% to 20% of her educational difficulties.

Likewise Dr Friedman considered that the Claimant’s current symptoms were caused by a number of factors and it was difficult to be certain as to the causation of her current problems. However her upbringing was probably a major component in her lifelong symptoms of anxiety. Dr Friedman felt that it would be reasonable for the Claimant to return to full time education and to consider training in the future. In his opinion, there was a moderate relationship between her abuse in childhood and her subsequent adult difficulties. He would have expected her to have attained a university degree and subsequent employment. It would be reasonable to state that 10% to 20% of this loss of attainment was related to the abuse that she suffered at the hands of her father.

The Claimant’s Schedule set out net earnings for a computer technician and a psychologist over a number of years, which were taken from the Professional Negligence Bar Association – Average Earnings Statistics for Full Time Females on Adult rates. It was conceded by the Claimant’s counsel at trial that the birth of two children would constitute an interruption to the Claimant’s ability to earn. There would also be other factors operating, such as benefits and earnings actually received. However the idea was to give the court some figures, on which it could reach a conclusion.

Counsel submitted that the Claimant would always be at a disadvantage in the job market, since there would always be a gap on her curriculum vitae that she would have to explain to future employers.

Therefore it was submitted by the Claimant’s counsel that a lump sum approach should be taken to both past loss of earnings and future loss of earnings.

Dr Friedman recommended treatment at a cost of £2700. There was also a claim for the cost of travelling expenses whilst undergoing treatment.

A claim for gratuitous care given by the Claimant’s family was not supported by Dr Friedman.

Finally the Claimant made a claim for the cost of her excessive alcohol consumption. She had begun drinking at a relatively early age. Dr Friedman had diagnosed her as suffering from “mental and behavioural disorders due to use of alcohol.” However he considered that the cause of her alcoholism was complex and only to a small extent related to her childhood abusive experiences “perhaps in the range of 5% to 10%”. The Claimant’s counsel submitted that her alcohol consumption was at a cost to her, but that she had derived no real benefit. Accordingly such excess expenditure as was caused by the abuse was recoverable.

Counsel relied upon the case of Eagle v Chambers [2004 EWCA Civ 1033 where the injured Claimant began to smoke excessively and to waste some of the cigarette that she was contemplating smoking. The judge awarded a sum of the cost of cigarettes wasted in the past, but not for the cost of any increased number of cigarettes smoked, drawing the distinction (it would seem) between those from which she obtained a benefit and those she did not. He made no award for the future relying again, possibly, on the benefit obtained if she did smoke more than prior to the accident, but also on the fact that treatment might alleviate the problem.  Waller LJ in the Court of Appeal said that only if the medical evidence were to convince the court that the accident had caused such injury to the brain that the victim had no choice but to increase her consumption of cigarettes, could the extra consumption be a head of damage.

The Claimant’s Schedule had calculated the excess consumption on the difference between the amount actually consumed by the Claimant each day and the safe amount recommended by BUPA.  As at the date of the trial, this loss was quantified at £14,300 or £34.40 per week from the Claimant’s 16th birthday.

Judgment

Pain suffering and loss of amenity

Judge McKenna accepted the Claimant’s evidence and that of her brothers. He said that the court could take comfort from this corroboration as well as the evidence of the social services notes.  He also accepted the evidence of Dr Friedman and his apportionment of causation. The judge accepted that the abuse in this case was clearly more frequent that the abuse that occurred in the case of Pierce.  Taking into account the apportionment approach shown in Flintshire and allowing for other causative factors he awarded the sum of £33,500.

Past loss of earnings

The judge said that he would employ a broad brush approach. There was no doubt that the Claimant’s educational attainment had been adversely affected. That evidence had been corroborated by the educational and GP records produced to the court. She was to be congratulated on having attained 8 GSCEs. The Claimant’s counsel had invited the judge to take the period from the Claimant’s 18th birthday (2001) to date of trial (7 years) and set an average loss of earnings at £10,000. Using those figures, the judge applied a multiplier of 15% to that figure (the mid-point in Dr Friedman’s apportionment range), and awarded £11,000 for past loss of earnings.

Future loss of earnings/loss of advantage in the job market

The judge said that again he would apply a broad brush approach. There were a large number of imponderables. The Claimant would always be hampered by gaps in her curriculum vitae and she would have to take time out to make up for the lack of educational attainment. Assessing the claim was fraught with difficulty, but the judge awarded £22,000.

Therapy

£2,700 was awarded together with £100 for travel.

Excessive alcohol consumption

The judge said that when he first read the papers, there was a significant degree of scepticism on his part about this aspect of the claim. However he had considered the approach adopted in the case of Eagle v Chambers and he was persuaded by the medical evidence that the excessive alcohol consumption was caused in part by the abuse. He multiplied the figure of £14,300 by 7.5% (halfway between the 5% and 10% causative contribution suggested by Dr Friedman) and awarded £1,072.

Interest

Interest was awarded at 2% from the date of issue of proceedings to trial (9 ½ months) on the pain, suffering and loss of amenity figure (£33,500) - £530.

Summary

PSLA - £33,500
Past loss of earnings - £11,000
Future loss of earnings/loss of advantage in the job market - £22,000
Therapy and travel - £2,800
Excessive alcohol consumption - £1,072
Interest - £530

Total judgment - £70,902

The court also ordered a payment on account of costs in the sum of £40,000 against a pre trial costs estimate of £64,193.

The Claimant’s solicitors are now proceeding to enforce the judgment in Eire. At the time of writing the Second Defendant had not yet sold his properties, but was attempting to do so.

Malcolm Johnson of Malcolm Johnson & Co.

7th April 2008

Related posts:

1. MB v London Borough of Ealing and Another [2008]
2. S v Gloucestershire County Council; L v The London Borough of Tower Hamlets and London Borough of Havering [2000]
3. Phelps v London Borough of Hillingdon

An article by Malcolm Johnson of Malcolm Johnson & Co. (published in APIL PI Focus Volume 18 Issue 1 January 2008)

It has always been a sad feature of this area of the law that some paedophiles are able to abuse children over a period of many years, leaving a trail of physical and psychological injury behind them, before they are finally called to account in the criminal and civil courts.

When dealing with these claims, it is important to ask the practical question – how was the abuser able to target the child in the first place? The question is important because the answer may provide a clue to the very means by which the abuser will satisfy any judgment. It would be a mistake to assume that an abuser of children is likely to be impoverished. On the contrary, as numerous enquiries and investigations have shown, a great many abusers possess substantial capital. They occupy positions of responsibility that give them access to children; they own houses where they can perpetrate abuse and cars to transport children to and fro. They possess enough disposable income to pay for presents and holidays and above all they have the means to maintain the outward impression of trust and respectability.

In February 2007 of this year, I received instructions from a Claimant aged 22.  As a child, she and a friend had been lured into the home of a man who lived near to her parents. There she was sexually abused over a period of approximately one year. The Claimant did not tell her parents what was happening and as so often happens in these cases, she continued to return to her abuser’s house. She kept her silence until 2006, when her friend gave a statement to the police. The police then interviewed the Claimant and the Defendant was prosecuted. Initially he pleaded not guilty, but on the first day of trial he suddenly changed his plea. He was convicted in 2006 and sentenced in early 2007 to a lengthy prison sentence.

The Claimant had a substantial claim, not only against her abuser but also in relation to her claim to the Criminal Injuries Compensation Authority. As a result of the abuse, her relationship with her boyfriend had broken up and she had abandoned her college course, where she had been training to be a nurse. There was a sustained earnings history prior to her making disclosures to the police together with ample evidence of commitment to her nursing course. We obtained public funding for the purposes of suing her abuser and instructed Dr Trevor Friedman, a consultant psychiatrist to prepare a report. Dr Friedman confirmed that the abuse had had a serious effect on the Claimant’s life and that there had been a delay to her eventual entry into full time nursing. However the prognosis for the future was reasonably positive.

Consequently a schedule of loss of earnings was prepared both for the civil and the CICA claim.

In relation to the civil claim, this was likely to be worth a great deal more than the claim to the CICA. We had established that the Defendant was the owner of an unencumbered freehold property, which would cover not only the Claimant’s likely damages but also her costs. However our immediate concern was that the Defendant would, on receipt of any Letter of Claim or proceedings, seek to dissipate his assets. Consequently we had to consider the possibility of applying to the court for a freezing injunction.

Part 25.1 (1) of the Civil Procedure Rules states:

The Court may grant the following interim remedies:…..

(f)    an Order (referred to as a ‘freezing injunction’) –

(i)    restraining a party from removing from the jurisdiction assets located there; or

(ii)    restraining a party from dealing with any assets whether located within the jurisdiction or not;

The basic principles for making such an order are:-

1. The Claimant must establish that he has a good arguable claim to the right that he seeks to protect. See Derby v. Weldon [1990] Ch 48 CA).
2. The Defendant must have assets, whether in or outside the jurisdiction
3. There is a real risk that, if the court does not grant the order, the Defendant will dissipate his assets, or otherwise put them beyond the reach of the court.

The Practice Directions to Rule 25 set out the detail of the procedure to be followed.

Freezing orders are of course more commonly found in commercial cases, but one example of an order being made in a personal injury case is that of  Allen v Jambo Holdings Ltd [1980] 2 All ER 502. This was a fatal accident case where the Claimant’s husband was struck and killed by the propeller of an aeroplane owned by a Nigerian company. His widow successfully obtained a freezing injunction to stop the aeroplane from leaving the United Kingdom. The Nigerian company had no other assets within the jurisdiction. One of the issues that came up in the case was the fact that the widow was legally aided and therefore she could not give an undertaking as to damages.

The undertaking as to damages is described in more detail in Practice Direction 5.1A to Rule 25. It is effectively the promise the applicant gives, to be responsible for any damages sustained by a person other than the respondent, including another party to the proceedings, or any other person who may suffer loss as a consequence of the order.

In Jambo the court held that an injunction could be granted in a personal injury case, and the injunction was not to be granted solely by reference to the Claimant’s financial standing.

However in our case, the Defendant’s sole substantial asset appeared to be a house. Our information was that after his imprisonment, the house was tenanted and clearly it was not about to fly away. Nonetheless there remained the risk that the Defendant could, from prison, sell the house and transfer the sale monies away.

The Defendant was located through the Prisoner Location Service. Prisoners are often moved from prison to prison and so it is important to check the Service before serving any document, as by the time the proceedings were issued and served, the Defendant had moved to another prison. On the 30th March 2007, my firm sent a Letter of Claim to the Defendant. The letter used the Defendant’s prisoner number and it was marked “Solicitor’s Letter – Rule 39”. This refers to Rule 39 of the Prison Rule 1964 (as amended).

As a personal injury litigator, who has spent most of his 15 years in practice, writing to local authorities, employers, insurance companies and defendants in road traffic accidents, I do find that writing directly to an abuser is an odd experience. Obviously the letter has to be kept within the terms of the personal injury pre-action protocol and it must be moderate and appropriate in tone. This proved helpful later on.

At this stage, we had the benefit of the advice of Mr Justin Levinson of One Crown Office Row. Mr Levinson advised (in the light of an application for a freezing order) that the Letter of Claim should specifically ask the Defendant for an undertaking not to dissipate his assets.

No reply was received from the Defendant. Periodic searches of the Land Registry confirmed that there were no attempts to sell his house but in early August 2007, we issued proceedings on behalf of the Claimant in the High Court and proceeded to deliver those proceedings to the prison where the Defendant resided. Proceedings were deemed served on the 13th August 2007.

At the same time, we issued on notice an application for a freezing injunction, which was listed for the 29th August 2007. The application was supported by an affidavit, Exhibits containing the Claimant’s civil statement, her criminal statement, the Defendant’s certificate of conviction, evidence in support of her loss of earnings claim, medical evidence, correspondence sent to the Defendant, information from the Land Registry, local estate agents’ valuations for houses in the same road and finally the proceedings.

Freezing injunctions work against people rather than property. An injunction does not entitle the Claimant to any proprietary right, but it can be a contempt of court to deal with a property if you know or should have known that it is subject to a freezing order. Therefore if the order was granted, it would immediately be sent to the Land Registry. At that point, it would be very difficult indeed to effect any valid transfer.

The application was served on the Defendant at the same time as the proceedings. On the day of the actual hearing, we entered judgment in default.

Mr Levinson was called away to another hearing, and so our barrister was Judith Rogerson of One Crown Office Row. We were heard in Court 1, St Dunstan’s House by His Honour Judge Mackie QC. The client also attended the hearing.

Judge Mackie made two comments during the course of the hearing:-

• There should have an Affidavit of Service to prove that the application for the freezing order had been properly served. Other evidence (a copy of the hand delivered letter to the prison) was produced to show that the application had been served on the Defendant and this was accepted. He was also shown the Certificate of Service for the proceedings.
• There should have been a link shown between the Defendant’s certificate of conviction and the Claimant’s allegations as put in her criminal statement. We had not been able to obtain the actual indictments against the Defendant, which showed which offences related to the Claimant as opposed to any other victim. However Judge Mackie was prepared to accept that there was an arguable case on the evidence.

Judge Mackie asked Counsel to take him through the various steps in the evidence, so that he could be satisfied that it would be reasonable to grant an order. Counsel submitted that the first two principles underpinning an application for a freezing order should be satisfied. There was an arguable case and the Defendant obviously had assets in the jurisdiction. Judge Mackie said that he was satisfied in relation to the first two principles.

However the third principle (risk of dissipation) was at issue. Counsel submitted stated that there were two grounds for concern, the Respondent’s questionable character (he had only pleaded guilty to the criminal charges on the first day of his trial) and the fact that he had refused to get involved in the proceedings.

The essence of counsel’s submission on this point was “his silence is deafening and this gives us cause for concern”. There was also the point that if an Order was not made, there might be a need to come back to the Court and incur more costs.  We would also have to keep checking with the Land Registry for any movement or interest in the property. .

Judge Mackie granted the order. In relation to the first point, it was clear that the Claimant had a good arguable case.  The Defendant had had the opportunity to contest the Letter of Claim, and he had not denied anything said in that letter.  The second element, the existence of assets within the jurisdiction was also clear.

The third point related to the risk of dissipation.  Judge Mackie said that there had indeed been a deafening silence from the Defendant and there was some evidence of questionable character but not (in his view) any question of dishonesty.  The Letter of Claim had been “moderate and appropriate.” In light of that silence there was a real risk that the Respondent would dissipate his assets. It was still open to the Defendant to respond by giving his proposals.

Judge Mackie then came to the terms of the order. We had prepared a paper order on the basis of the Annex to Practice Direction 25. Practice Direction 2.4 states that whenever possible a draft of the order sought should be filed with the application notice and a disk containing the draft should also be made available.

Judge Mackie said that that he appreciated the difficulties with the enforcing of cross undertakings against a person with little means, but he was not sure that this was a valid reason for not including those undertakings within the freezing order. Indeed the case of Allen v Jambo Holdings Ltd (see above) said otherwise. Although the Applicant did not have the money, the Respondent did have rights. In the event, the court had an overall discretion that required the granting of an injunction. Judge Mackie added that he considered the claim for damages to be a good one and that at present no damage was going to be suffered by the Defendant. He granted the injunction with immediate effect together with costs.

We set about drawing up the order, which was approved by the judge and sealed the next day. We then served the sealed order on the Defendant, and lodged it with the Land Registry using Form RX1. We are now awaiting the formal judgment before proceeding to an assessment of damages.

It goes without saying that freezing injunctions are not granted lightly. Judge Mackie was concerned to examine all aspects of the evidence, before making his decision and the matter was (as he said) very much within his discretion. It is submitted that if the Defendant had replied to the Letter of Claim (for instance if he had said that he would appoint solicitors to deal with the claim) then it might have been difficult to obtain the order at that time. Furthermore the application was granted on notice. We think that an emergency application would have failed, without better evidence of the Defendant’s intentions in relation to his property.

The claim continues to assessment of damages, but this order was the first concrete result for the client as it may be her best chance of securing the very asset that will satisfy her judgment.

Related posts:

1. Our Clients
2. Abuse Compensation
3. Child Abuse

FACTS:-

The case concerned group litigation, under the name “North Wales Children’s Homes Litigation”. Mr Justice Scott Baker decided the issue of quantum of eleven claims arising out of child abuse at various children’s homes in North Wales.

HELD:-

Mr Justice Scott Baker considered the difficult question of putting into monetary terms compensation for the abuse that each individual had suffered, and most particularly the effect that it had had on him or her. He had heard evidence from a Dr C N Jones, which he accepted, to the effect that children who are abused tend to develop psychological problems in adult life more frequently than children who have not had such experiences. There was no one specific psychiatric syndrome or mental illness associated with childhood abuse, although there were a number of common features.

Some survivors of childhood abuse went on to develop symptoms typical of post traumatic stress disorder. Survivors of abuse also had higher rates of various non-specific psychiatric conditions. Reported rates of alcohol and drug abuse were higher in survivors of abuse and there were higher rates of criminal and anti social behaviour. There was also a higher rate of sexual dysfunction and survivors tended to experience great difficulty in forming long lasting trusting emotional relationships and this might be partly related to sexual problems.

The difficulty was predicting how a particular Claimant’s life would have progressed had he been properly treated. Another expert, Dr Bronks said that while there was no difficulty in accepting the general principle that ill-treatment and neglect in childhood could lead to psychiatric disorder, it was very much more difficult and often impossible to know whether or to what extent this had occurred in any individual case.

There was also issues of recollection, since much of the abuse occurred so long ago. Justice Scott Baker said that he had taken particular care not to reject one aspect of a Claimant’s evidence just because that Claimant was disbelieved on another. He did not find it surprising that Claimants had made late disclosures but he had found great difficulty, where a Claimant had given conflicting accounts on different occasions.

There was an issue of law as to what was capable of happening in these children’s homes and what actually happened. Justice Scott Baker said that if the homes were not properly supervised, there was an increased risk of sexual and physical abuse. There was clear evidence from the Waterhouse Report that there had been mismanagement of the children’s homes in question. The Defendant’s poor supervision did render it likely that the children would be abused by the staff, and it was by this route that in Justice Scott Baker’s judgment, liability could be established.

Standard of proof

Justice Scott Baker referred to the case of H (Minors) [1996] AC 563. In that case the court said that the more serious the allegation, the less likely it is that the event occurred, and hence the stronger should be the evidence.

Causation/apportionment of damage

Once the breach of duty has been established, the next issue was to identify the damage. Damage to the personality or psychological difficulty was much more difficult, particularly where there were competing causes. The first question was whether the Defendant’s breach of duty made a material contribution to the particular Claimant’s condition. It was enough that it was not so small that the law should not take account of it.

It would be the wrong approach to discount any of the Claimant’s damage simply because there was a chance that he or she would have suffered from similar problems in later life. Justice Scott Baker said that he had paused to consider the question whether it had been proved to the ordinary civil standard that matters other than the abuse had caused or contributed to the Claimant’s problem.

The court had to do its best in each individual case, after weighing up all the evidence. What justice did demand was that the court should make the best estimate that it could, in the light of the evidence, making the fullest allowances in favour of the Claimants for the uncertainties known to be involved in any apportionment. The burden was on the negligent defendant to show who had contributed to the Claimant’s injury.

Justice Scott Baker said that there was an impossibility of making a precise apportionment between what the Defendants’ negligence had caused and what has been caused by other factors. He had taken a broad view and done his best to reach a fair conclusion on the whole of the evidence. It was very much a matter of feel.

Criminal offences by Claimants

A number of the Claimant had criminal convictions. Justice Scott Baker was not satisfied in any of the cases that the criminal convictions were the result of the abuse. However even if the causal link were proven, there were public policy reasons why the court would not lend its aid to a Claimant who relied on his own criminal or immoral act.

Lost earning capacity

A number of Claimants had alleged that the abuse had affected their ability to work. In none of the cases had a detailed Schedule of Loss been advanced. It had not been possible to assess the case on a conventional basis. There were other factors which had affected the Claimants’ ability to work. Justice Scott Baker had awarded a round sum for past loss of earnings.

In relation to future loss of earning capacity, the conventional approach would be followed based on Smith v Manchester Corporation (1974) 17 KIR 1. The loss did not have to be established on the balance of probabilities. There had to be a certain amount of speculation but there must be some basic facts upon which the court can make its forecast.

Therapy

There were a number of cases where there was a claim for therapy. The question was – was the treatment necessary and appropriate to the extent that the Claimant was likely to benefit? Would the Claimant take it up? Was it wholly or partly attributable to the abuse?  For how long was it required, how frequently and at what cost?

Pain, suffering and loss of amenity

Justice Scott Baker referred to the Judicial Studies Board guidelines as helpful, although they predated at the time of judgment, the Court of Appeal’s decision in Heil v Rankin 2000 PIQR 187. Psychiatric damage attracted damages in severe cases in the range of £25,000 to £50,000, in moderately severe cases, £9,000 to £25,000 and downwards accordingly for the moderate and minor cases. Post traumatic stress disorder was treated separately, and the awards in the most severe cases were said to fall in the range of £28,500 to £40,000.

Justice Scott Baker referred to the Beck litigation before Potts J, in which one of the Claimants was awarded £80,000 for pain, suffering and loss of amenity.  She had suffered many rapes, one act of buggery and substantial physical, emotional and mental abuse over a period of three years. That award would be worth £87,200 in today’s value.

In Heil v Rankin, the court had left for another day any view on the submission that the existing guidelines for psychiatric injury were too low. Justice Scott Baker said that the JSB Guidelines did seem to be on the low side. He found the award of £80,000 in the Beck case useful as providing an upper marker for the kind of damage the present Claimants had suffered.

Expert evidence

There were 14 different experts. This had created a great deal of unnecessary duplication and consequently cost. Justice Scott Baker commented that one of the difficulties for the expert, was that the cornerstone of any opinion would be the abuse or facts eventually established at trial. He referred to the Ikarian Reefer [1993] 2 Lloyds Reports 68 where the court set out some of the duties and responsibilities of expert witnesses. Furthermore there had been little attempt in arranging for the experts to meet to try and identify their differences.

Amanda Coxon

Ms. Coxon was born on the 20th January 1965, and was at the date of trial 35. She was in Chevet Hey from 13th September 1979 to 15th February 1980 and in Bersham Hall from 12th June 1980 to 7th January 1981. She alleged that she was bullied at Chevet Hey and that she was physically and sexually abused at Bersham Hall.

She was the eldest of three children and only had hazy memories of her childhood. Her mother was physically and emotionally abusive and she was bullied at school. At the age of 14 she went to work in a club in Holywell and began a relationship with a boy who drank there. She thought that she was pregnant and was beaten by her father. She then asked her GP if she could go into care and was placed at Chevet Hey. There she was physically abused by other children in front of staff and raped by an unknown man (although the rape formed no part of her case).

Justice Scott Baker felt that the regime here was lax and that Ms. Coxon was entitled to compensation for what had happened there.

In February 1980, Ms. Coxon returned home. She was then sent to Bersham Hall on 12 June 1980. There children were given pocket money and cigarettes. Justice Scott Baker said that the giving of cigarettes seemed to be an abdication of responsibility. Ms. Coxon ran away on three or four occasions. She was locked in the care home’s secure unit. The conclusion of the Waterhouse Report was that this secure unit had been used illegally, and Justice Scott Baker regarded such use as negligent as well as false imprisonment. She was then seriously physically assaulted by the deputy superintendent.

She was also sexually abused by a care worker, a Mr Hart. The abuse amounted to indecent touching and she had vague memories of having sex with this man. She had told the Waterhouse Tribunal that after the first incident, nothing else had happened. The care worker gave evidence and he denied everything.

Justice Scott Baker concluded that the first incident of indecent touching had taken place. Mr Hart was not a convincing witness. He had denied that he ever knew Ms. Coxon even though she produced a card from him. There was a climate in which staff could take liberties with children in the knowledge that no-one was likely to take the child’s side. Therefore the Defendants were liable for this assault, and it was accepted that the assault had taken place.

Ms. Coxon also suffered a barrage of verbal abuse from staff and residents. In January 1981 she was transferred to Silverbrook Children’s Home in Pontypridd and after a couple of months, she was returned to her mother. She was then place with foster parents, returned to a convent school and then she took up a series of temporary jobs in shops and a youth training scheme. None of the jobs lasted very long because by then Miss Coxon had developed a serious drink problem. She moved around the country, staying with various boyfriends and suffering from serious psychological and physical symptoms. Eventually she married a drug addict, and her situation deteriorated even further. She was out of work, taking and supplying drugs and she was suffering from panic attacks and self destructive behaviour.

She then moved in with a man called Tim, stopped taking drugs and gave birth to a son and a daughter. Eventually she married Tim, who went to work in Saudi Arabia. After his departure, she became ill again but was helped by a friend. Tim returned from Saudi Arabia and then found another job in Oman. Whilst there she was raped by a man whom she was helping to paint murals. They came back to England and she gave evidence to the Waterhouse Inquiry. In August 1998 she separated from Tim and for the last year had had a settled relationship with another man, as well as regular employment.

The Claimant’s medical expert was Mrs C B Garland, a consultant clinical psychologist. The Defendants had called a Dr Kathryn Abel.

Justice Scott Baker said that there was no doubt that the Claimant was of well above average intelligence. Ms. Garland had said that the prolonged maltreatment to which she was subjected, had produced a degree of hardened mistrust in the adult world.  However Justice Scott Baker felt that her evidence was somewhat partisan. She had concentrated too much on her treatment in care rather than at the rather broader picture of what had been happening at other stages in the Claimant’s life. He had gained more assistance from Dr Abel who had put produced the following percentages:-

• 50 per cent to experiences at home
• 30 per cent to personality and family factors
• 20 per cent to experiences in care

Justice Scott Baker did not think that in this case there was sufficient precision to be able to make assessment in terms of percentages. This was not a case where one was dealing with statistical risks such as epilepsy following a head injury. He considered the history of the Claimant’s life and the available evidence. He thought that the ill treatment at Chevet Hey and more particularly at Bersham Hall had a very significant effect on Miss Coxon’s later life and employment prospects. However there were other factors. She was a great deal better now albeit vulnerable.

He would assess pain suffering and loss of amenity at £35,000.

In relation to loss of earnings capacity, the Claimant was said to be earning £100 to £125 per day. Justice Scott Baker was satisfied that the abuse had affected her earning capacity, and had she not been abused she would probably have had some work from time to time. He would assess this figure at £20,000 to the date of trial and for future handicap on the labour market, he would put the figure at £5,000.

He would award £10,010 for therapy and the cost of travel would be £709.80 taking into account accelerated benefit.

Total award - £70,719.80.

Stephen Cross

Mr Cross was born on the 25th October 1969 and he was at the date of trial, 30. His claim arose out of the time that he was at Cartrefle between November 1984 and April 1986. He claimed abuse by a man named Norris, who was the officer in charge of the home. The involved leering at him when he was naked, this happened at least eight times and on two or three occasions when he was in the shower grabbing hold of his penis. There were other occasions when he would grab and pull out a clump of pubic hair.

The Claimant had had an unhappy childhood. His father was violent to his mother and both parents were violent to him. At the age of 14 he was taken into care by the local authority and placed with foster parents for nine months. He was then placed at Cartrefle. At first things were alright, and he looked on Norris as something of a father figure. However Norris became threatening although he did not use violence on the Claimant.

Justice Scott Baker accepted that there had been threats of violence.

The Claimant had left Cartrefle at 16 and took on two training courses but there were no suitable jobs. In 1989 he worked for about six months with a tyre company in Wrexham but left after assaulting the foreman. In 1993 he worked for six months in a vineyard. Thereafter he had suffered from depression and remained unfit for work. There had been a number of suicide attempts and he suffered from nightmares.
Justice Scott Baker did not find the Claimant a convincing witness, as he frequently contradicted himself. He did not accept that the Cartrefle abuse contributed to his suicide attempts. His own psychiatric expert, Dr Friedman said that it had been difficult to obtain a coherent account from him. However the abuse by Norris had exacerbated and reinforced his problems. With reasonable care, it was likely that he might well have had a more settled adult life with a greater likelihood of employment. Justice Scott Baker said that he did not think that the Claimant’s subsequent life would have been very different. He did not think it was established that the Cartrefle experiences had exacerbated his employment problems to the extent that he had earned any less than would otherwise have been the case.

Therefore the abusive events that were either proved or admitted in the case fell at the lower end of the scale. This was not a case that called for therapy, the only heading for damages was for pain, suffering and loss of amenity, which would be assessed in the sum of £7500.

Elizabeth Ann Davies

The Claimant was born on the 19th May 1962 and at the date of trial was 38. She was placed at Little Acton Assessment Centre in Box Lane, Wrexham between the 28th June 1977 and the 4th August 1977 when she was 15. She alleged physical and sexual abuse there. The head of the home was a man named Bird.

She alleged that she was made to sit in a cold bath with her clothes on, and then made to eat toast with nasty tasting sauces on it. Then she was made to sit in a chair whilst two of the other girls cut her hair off. Mr Wilson, the deputy head of the home then made her go upstairs to a bedroom. She was then raped by the deputy of the home, a Mr Bird. In her written statement, she said that only the head of the home, Mr Bird was involved in the rape. In evidence in chief she said that it was Wilson who made her go upstairs to the bedroom and on cross examination, she said that it was Bird who took her upstairs.

Her evidence was difficult. At times she was very distressed and she also had difficulty in telling her story. The allegation of rape was not made until long after the event and there were other serious inconsistencies in her account.

Justice Scott Baker had to ask whether it was more likely than not that she was raped by Mr Bird, who denied the allegations. There was no independent evidence to support that claim. On the other hand the following matters were cause for concern:-

1. the lateness of the complaint
2. her inconsistency about who told her to go to the bedroom
3. that she told Dr Shapiro, one of the medico legal experts that she wasn’t certain Bird had raped her
4. the fact that she had a termination in December 1977 but made no reference to Bird
5. the inherent likelihood of rape occurring in the circumstances she described
6. her inconsistent evidence to the police
7. her failure to tell Dr Herbert about being raped. Dr Herbert was seeing her for therapeutic purposes
8. the fact that she made a claim to the Criminal Injuries Compensation Board that did not include any allegation of rape.

However the allegations of physical assault and sexual assault did not stand or fall together.

The Waterhouse inquiry had commented on her evidence. There was evidence of a termination in December 1977, but the medical evidence indicated that the conception occurred after the Claimant had left Little Acton in August 1977. She had given evidence to North Wales police in 1992 to the effect that no abuse had occurred at Little Acton. However there was evidence from other residents at Little Acton that bullying took place there.

The Claimant had admitted having intercourse with a boy after she came out of Little Acton. There was also evidence of previous sexual activity.

Mr Wilson had been suspended on the 15th July 1977 for a relationship with a boy for which he was subsequently prosecuted.

Mr Bird denied all the allegations, however a report commissioned by Clwyd County Council criticised his management of Little Acton Assessment Centre quite severely. He was a weak individual who was not up to the job, but there was nothing that supported an allegation of rape. However the evidence did support the kind of background that would have allowed the hair cutting episode to occur. The Claimant’s mother gave evidence as to the state of her hair, and there was also supportive evidence from her social worker and a houseparent.

Therefore the sole incident to be compensated was that of the bath/hair episode. Justice Scott Baker was not persuaded that it was responsible for any of the other problem she suffered in later life. The appropriate award was £2500.

Terence Desmond

The Claimant was born in 1962 and was 38 at the time of trial. He was at Bryn Estyn for two years between 1976 and 1978. He was sexually abused by Peter Howarth and Paul Wilson. The assaults consisted of oral sex, masturbation, indecent assaults and sexual acts with Mr Howarth’s dog. He was also assaulted by two other members of staff.

The Claimant had had an unsettled childhood. After leaving Bryn Estyn he had not been able to work, having difficulty with authority. He had had a relationship and two children, but that had broken up. He had a substantial record as a petty criminal. He was anti social and got into fights as well as uncontrollable fits of rage. He had sexual difficulties as well as nightmares.

His medico legal expert, Professor Green said that he would require a period of therapy over two years and that he suffered from Post Traumatic Stress Disorder Major Depressive Disorder. He showed some signs of Antisocial Personality Disorder. There were some documents from pre Bryn Estyn. At that time there was some optimism for the Claimant’s future, but he was already displaying a significant degree of anti social behaviour. He had been described as below average intelligence.

The Defendant’s expert diagnosed mild Post Traumatic Stress Disorder as well as a personality disorder. He did not think that treatment would make a significant difference to him. There were a number of factors that put the Claimant at a very high risk of developing personality disorder irrespective of the abuse. The abusive experiences had contributed to the cause of his personality disorder by 10 – 15%. The PTSD had had a small but significant effect on his ability to work. His low IQ suggested that he would have remained at the bottom of the labour market. It was also speculative whether he would take up any therapy offered to him.

Justice Scott Baker said that he was satisfied that the Claimant would have suffered from a personality disorder in any event.  However the sole cause of his PTSD was the abuse at Bryn Estyn. The Claimant had also developed a major depressive disorder.

In summary, the Claimant required compensation for the fact of the abuse which was:-

1. serious
2. committed over a substantial period by several people
3. both physical and sexual
4. inflicted at a vulnerable age

He also required compensation for what it had done to his life from 1976 to the present and the legacy that it would leave for the future. The Claimant was not entitled to seek compensation for a life of crime.

For pain, suffering and loss of amenity, the award would be £50,000.

In relation to loss of earning capacity, the Claimant had not worked for ten years and before that never managed to hold down a job for very long. The contribution to these problems from the abuse should be assessed at £20,000.

In relation to future disadvantage in the job market, the Claimant was now 38 and he had another 27 years potential working life ahead of him, with some improvement if treatment were given. A figure of £17,500 would be awarded.

In relation to therapy, the Claimant had said in evidence that he was motivated to begin this. Justice Scott Baker would make an award of £6525 along the lines of Professor Green’s recommendations.

Garym Jones

This Claimant had no problems until he was 14 years of age, when he got into petty thieving and made a bomb hoax call. He was first sent to Bersham Hall for six weeks and then to Bryn Estyn for nine months, from where he absconded. He claimed that he had been threatened, his clothes were removed and he was forced to wear shorts, which embarrassed and humiliated him. He was then sent to Bersham Hall. There he was punched by a member of staff and he described the regime as being one of intense fear. A man named Blackman was also unpleasant to him. He was ridiculed for being tall and gangling and for his poor English, since Welsh was his first language. He was at Bersham Hall for six weeks in 1973.

The allegations in relation to Bersham Hall only emerged after he made his claim in July 1999. No mention was made of it to the Claimant’s medical expert, Dr Jones and the Claimant did not give evidence to the Waterhouse Inquiry. Justice Scott Baker did not regard the late inclusion of his claim as adverse to his credibility and regarded his account as correct.

After a while at Bryn Estyn, the Claimant noticed that certain boys were asked up to a member of staff, a Mr Howarth’s flat and also that these boys appeared to be favoured. The Claimant decided to try and get on the list of boys chosen to go up. On the first visit, Howarth put his hand inside the Claimant’s pyjamas. He also witnessed on other occasions Howarth fondling other boys. After this he said that he did not want to go to the flat. He had made a limited disclosure to his mother in front of the principal, Mr Arnold but there was some confusion about how this happened.

The Claimant and Defendant’s solicitors had each instructed medical experts, Dr Jones and Dr Bronks, but ended up relying on the other party’s expert. Neither were called to trial and there was inconsistency in the accounts that the Claimant had given to each expert.

The Claimant said that he absconded from Bryn Alyn on at least 18 occasions. He described various incidents of physical assault and humiliation by staff. When he was only 15, he was sent to Glamorgan Farm School in South Wales. Here the regime was tough with physical violence very much the norm, but he was never sexually abused here and was better able to cope.

The Claimant said that just over two years in various children’s homes turned him into a hardened bully and wife beating adult with a serious criminal record. His offences were mainly drink related and he reacted to problems with violence. Since leaving care, he had never been out of care for more than a year or two at a time.

Justice Scott Baker said that it had to be borne in mind that the Claimant did have problems prior to being sent into care. The problem was the absence of social services records.

Over his working life, he had had 10 or 12 jobs. His longest period of single employer was as a tree planter and feller. He had worked for six months as a concreter but had to leave because of a back injury in 1995 or 1996. He received incapacity benefit and was unfit for work for reasons unrelated to the abuse. In January 1999 he was sent to a probation hostel and started to speak of his experiences in care. Since he left the hostel, his mental state had improved.

The Claimant had a brother with a serious drug problem and a criminal record.

Justice Scott Baker said that it was not suggested that the prison sentences arose out of anything but the Claimant’s own free will. Dr Bronks said that absent the abuse in care, his approach to particular situations might have been different. Dr Jones said that with proper management and care, the behaviour that led him into care might have improved.

The sexual aspect of the abuse was not serious, but the physical and emotional aspect was more serious. Dr Bronks apportioned the effect of the abuse as follows:-

Bersham Hall – 30 per cent
Bryn Estyn – 60 per cent
Neath – 10 per cent

The difficulty was the lack of evidence pre abuse. Justice Scott Baker felt that whilst he had clearly had problems prior to going into care, the experience in care had a very significant effect on his subsequent life, although not quite as great as the Claimant believed. The figure for pain, suffering and loss of amenity would be assessed at £30,000.

As for disadvantage in the job market, damages would be assessed at £10,000.

Peter Jones

The Claimant was born in 1959. His claim arose out of abuse whilst he was at Bersham Hall (December 1972 to July 1973) and Bryn Estyn (March 1974 to August 1975).

The Claimant had a bad start in life, but by contrast to the other Claimants he had in more recent years made some success of his life. He was a self employed decorator and painter. He had led an honest and violence free life for the last 15 years. He had also overcome his drink problem although amphetamine dependency remained.

As a child, his father had left home when he was three. His mother entered into a relationship with a man who was violent and sadistic and made him steal.

Whilst at Bersham Hall he was indecently assaulted by a member of staff named Leake who caressed his genitals, masturbated him and performed oral sex on him. This continued whenever Leake was on duty. The abuse extended over a period of over four months and occurred three of four times a fortnight. He was also abused by another member staff by the name of Taylor, who would kiss him, fondle his genitals and rub his penis against the Claimant’s body. He would also put his penis between the Claimant’s arm and chest and masturbate him to ejaculation. This happened some four or six times. He was also taken to Taylor’s flat on five or six occasions, and bathed and stroked. The Claimant also suffered from the harsh regime at Bersham Hall.

He was sent home but quickly resorted to his former behaviour with the result that he was sent to Bryn Estyn the following March. He was made to fight an older boy in a boxing ring by another member of staff, Goldswain, who used to strike the boys with a trainer which he kept in his hand. The Claimant was also set to clean a swimming pool, and kept in it whilst it was being filled up. He was accused of a break in at the office (which he denied) and this led to his being sent to a Borstal having been promised a favourable report.

Justice Scott Baker accepted the Claimant’s evidence that when he went to Bersham Hall, he was someone who stole and played truant, but he was not violent. This was something that came about as a result of his time at Bersham Hall and Bryn Alyn.

The Claimant had had three children with one woman and a number of relationships with others. He had difficulty with trust, which extended beyond his personal life to his business life. He spent a total of five of six years in custody for violent offences. Justice Scott Baker that although the treatment in these institutions was a contributory factor to his personality, it was by no means the sole factor. He was keen to take up the offer of therapy that both parties’ medical experts had recommended.

The Defendants admitted the abuse by Leake and Taylor, together with responsibility for what Taylor had done, but there was the issue of whether they were responsible for what Leake had done. The Claimant argued that there was no evidence of any external supervision of Bersham Hall by the Defendants. The Defendants owed a direct non-delegable duty of care towards the Claimant. Alternatively the Defendants were responsible for Leake’s conduct by reason of Taylor’s failure to report it.

Justice Scott Baker said that the recent case of Trotman v North Yorkshire County Council [1999] IRLR 98 closed the door on any claim based on vicarious liability. However the Defendants were vicariously liable for Taylor’s breach of duty in failing to draw his employer’s attention to the abuse. The Defendants also owed a direct duty to the Claimant to take all reasonable steps to provide a safe home for them. There was not a shred of evidence to suggest other than that Leake was put in charge of the home and left to get on with it, with no supervision at all. Proper supervision would have (a) made it a much great risk for the senior management to undertake such abuse and (b) would probably have resulted in any abuse being discovered.

Justice Scott Baker then turned to the medical evidence. The Claimant’s expert was Dr Friedman and the Defendant’s expert, Professor Zeitlin. There was a suggestion that some of the Claimant’s problems could have been caused by organic brain damage. However neither expert seemed to think that this made any difference to their reports.

Dr Friedman and Professor Zeitlin were agreed in their diagnosis of personality disorder and amphetamine abuse. Justice Scott Baker had records of the Claimant’s pre abuse problems. In his judgment, the causes of his violent and anti social behaviour were to be found in his treatment at home and at Bersham Hall and Bryn Estyn.

It was not suggested that his criminal offending was anything other than as a free agent. The sexual abuse was sustained and serious and his life had been affected. Justice Scott Baker took into account the fact of the abuse and the longer terms effects.

The appropriate figure for pain, suffering and loss of amenity would be £25,000.

In relation to loss of advantage in the job market, no award would be made. The Claimant had sought compensation for the first 10 years before he was self employed, and during some of that time he was in prison or out of work. The question was whether it was established on the balance of probabilities that the abuse he suffered caused him to earn less during that period than would have been the case had he not been abused. Justice Scott Baker was not satisfied about this, and as to future loss there was no reason to suppose that the Defendants had put him at any disadvantage in the job market.

In relation to therapy, Dr Friedman had thought that 100 sessions were necessary at £75 per session. There were problems with finding a therapist in the Claimant’s locality, and no clear evidence on that point. Taking a broad view, Justice Scott Baker would fix the figure at £5,000.

Ian McCloughlin

The Claimant was born on the 24th July 1964 and at the time of trial, he was 35. He was in Bryn Estyn from the 25th November 1978 to the 12th December 1978, in Bersham Hall from 12th December 1978 to the 9th March 1979. He was eventually again at Bryn Estyn from 25th July 1980 to the 16th August 1980.

The Claimant had five sisters and two brothers and his father was a motor mechanic, who was violent to both him and his siblings. His parents separated and he ran away from home. He began committing thefts.

He was placed at Bryn Estyn where he was abused on one occasion by Howarth, a house master. The abuse consisted of mutual masturbation. He absconded and was transferred to Bersham Hall. There he was bullied and he was struck in the face by a housemaster.

After leaving Bersham Hall, he returned to crime and was eventually sent to Risley Remand Centre.

There was evidence of his personality and problems as a child.

Justice Scott Baker said that it was unrealistic to conclude that but for the harsh and uncaring regime at Bersham Hall and the sexual abuse at Bryn Estyn, his life would have turned out differently. His offending had become a way of life from an early stage. He had had a relationship with a woman and a son by her, but this had broken down. In 1989 he met his present wife, and there were problems in that relationship. He had begun a business recently but not with much success. In the past he had sporadic employment.

Justice Scott Baker said that the evidence did not support a claim for either loss of earnings or being at a disadvantage in the job market.

The Claimant’s psychiatrist, Dr Jones did not recommend treatment.  However he did say that the Claimant’s sexual dysfunction was likely to be due to the abuse complained of. The pre care experiences would have led to some problems, but not to the entirety of the problem he had had. The abuse in care had contributed to the personality disorder and that contribution was a significant one. However the Claimant’s periods in custody and his criminal acts were caused by his own free decision.

The award would be £24,000 for pain, suffering and loss of amenity.

David May

The Claimant was born in 1968. He was at Bryn Estyn between 8th February 1982 and 20th February 1983. He had two elder and one younger sister. His parents separated but not until he was 17. He started getting into trouble at the age of nine and at the age of 12, a care order was made.

He was placed at Bryn Estyn in Clwyd House. There was a lot of bullying that went on, but nothing was done by staff. There was a climate of violence and the excessive use of force in the day to day contact between staff and residents. Also children were allowed to control other children under a system called “top dog”.

Whilst at Bryn Estyn, Norris called him into his office and asked him about sex with girls. He then made inappropriate comments about the size of the Claimant’s genitals. There were then other occasions when Norris made subtle threats against the Claimant.

The Defendants had called a social worker, who had visited the Claimant at Bryn Estyn. The Claimant had not made any complaint to this social worker, but Justice Scott Baker did not think that was of much consequence given that the two did not get on. However the social worker’s evidence did give an independent picture of the Claimant’s personality at the time.

Contemporaneous documents showed that he had enjoyed his stay at Bryn Estyn. Justice Scott Baker felt that this was illustrative of the management’s failure to understand his needs and feelings. He frequently absconded.

The Claimant said that when he left Bryn Alyn he was a total mess. Justice Scott Baker said that this was substantially correct but the difficult question was what he would have been like, had he not been abused at Bryn Estyn.

However he had been seriously sexually abused by two men, Preece and Williams for which he received an award of £8,000 from the Criminal Injuries Compensation Board. There was no mention in the documents from the CICB about any earlier abuse but there was reference in medical notes prior to the Claimant making the application to the CICB.

The Claimant had never had any regular form of employment and had been in and out of prison. He had a relationship with a woman, and a child but that broke up. He went on to have two further relationship both of which produced children, but these had run into difficulties.

The Claimant’s medico legal expert, Dr Friedman made a diagnosis of post traumatic stress disorder, personality disorder and alcohol dependence syndrome. The PTSD was directly attributable to his experiences of in Bryn Estyn and his alcohol abuse and other difficulties were largely his way of trying to deal with unpleasant intrusive memories. According to the Dr Friedman, the Claimant would have had a more settled life.

Justice Scott Baker could not accept Dr Friedman’s evidence that the abuse by Preece and Williams would have unlikely but for what happened in the home. There was a gap of about two years between leaving Bryn Estyn and meeting these two men. He did accept Dr Friedman’s evidence that Norris behaviour over 12 months did frighten May significantly and had a damaging effect on him. The sexual humiliation also had an effect. However the most important factors leading to the Claimant’s problems neither predated nor postdated his time in Bryn Estyn.  Dr Friedman had apparently produced his report before he had sight of the material documents, and his conclusions were not justifiable in light of the documents and the whole of the evidence.

Dr Friedman had recommended psychotherapy, but Justice Scott Baker was quite unpersuaded that he would do undertake such a course of treatment. What happened to him at Bryn Alyn was only a small part of his problems and consequently no claim for treatment was made out. Nor was there any claim for being at a disadvantage on the labour market.

The award for pain suffering and loss of amenity would be £15,000.

Marcus Roberts

The Claimant was born in 1960. He alleged abuse by a house mother by the name of Heather Lynn when he was at a care home, Upper Downing between the 20th October 1975 and the 12th January 1976. The Claimant’s father was a policeman and his mother a radiographer. He was the eldest child of four brothers. A younger brother died of a drug overdose in 1993.

The Claimant had had an unhappy childhood. He was frequently assaulted by his parents and blamed for misdemeanours by his brothers. He was also bullied at school. He began truanting and committing offences and so he was sent to Upper Downing. There his housemother instigated sexual activity with him, which included sexual intercourse and oral sex. This occurred repeatedly. The Claimant would become shaky before intercourse and the housemother would calm the Claimant down with alcohol. He found later in life that alcohol alleviated this problem.

On the 12th January 1976 he moved to Little Acton. The housemother sent him a number of letters. She took him off site in a car on one or two occasions and they had sexual intercourse again. Justice Scott Baker said that although Roberts was confused by the relationship, he was satisfied that he nevertheless obtained some pleasure from it.

In February 1976, a number of letters from Heather Lynn were discovered in his possession but no action was taken against her. He was not happy at Little Acton and after about four months, he was moved to Cartrefle. At some point, Heather Lynn was also moved there. There was some confusion about his evidence but the relationship appeared to continue. Then it ended and she started a relationship with another boy. He was then moved to Neath Farm in Glamorgan. Contemporaneous documents showed that the reason for this was that the Claimant was in further trouble.

At Neath Farm he was badly bullied but nothing that happened there was the responsibility of the Defendants.

He left care at 18 and found work, but started taking drugs. He was in and out of prison, at one point receiving a 2 ½ year sentence for robbery and another sentence for stealing shotguns. Finally he came out of prison, and got a job with Hotpoint for whom he worked for six years. He bought his own flat. He also attended a number of clinics and undertook a number of detoxification programmes. He had given up heroin, but still drank heavily and took cannabis as well as a number of prescribed drugs. He was now on sickness benefit.

The Claimant’s medical expert was a Mrs Cohen. However she had not seen the Claimant before producing her report, and appeared to rely on the report of a psychologist who had seen him. Mrs Cohen concluded that the sexual abuse by Heather Lynn was one of the causes of the Claimant’s drug abuse and that he required treatment to address his post traumatic symptoms. She also concluded that the Claimant’s sexual and relationship problems were directly caused by the traumatic sexual abuse by Heather Lynn with family background making a minor contribution to the relationship problems but not the sexual ones. The drug abuse was caused by a range of factors. Overall a significant proportion of his adult problems could be attributed to his abusive experiences in care. However she included within that period of time, his experiences in Neath Farm, for which the Defendants were not responsible.

Mrs Cohen had said that sexual abuse by females was a subject that was generally unreported, but there was emerging evidence that its consequences were more serious than had been previously recognised. She identified four factors suggesting damage, which were:-

1. traumatic sexualisation
2. betrayal
3. stigmatisation
4. powerlessness

The Defendant’s expert, Professor Zeitlin, did not think that damage was indicated in this case. Pubertal and post pubertal males had a very high sexual drive and it was very difficult to look at what sexualisation meant. Justice Scott Baker said that in his view, there was no evidence of sexualisation in this case, nor betrayal of trust, nor stigmatisation. The final factor, powerlessness was not relevant in this case. He preferred the evidence of Professor Zeitlin. The relationship with Heather Lynn lasted about eight weeks, it was instigated by her but he was not coerced. He obtained some physical pleasure but his primary emotion was confusion. The vast majority of his problems had their root in the way he was treated at home, at Neath Farm and the drug abuse.

General damages would be assessed at £5,000. The abuse had not affected his employment situation at all, nor was there any established claim for psychotherapy.

Stephen Wakefield

The Claimant was born in 1956. He was at Bersham Hall between March and May 1973 and in Chevet Hay between May and December 1973. He was the youngest of three brothers and two sisters. His eldest brother went into care but he did not. He was taken into care because he had committed a burglary. He was placed at Bersham Hall and claimed that he was sexually abused there on two occasions by a member of staff by the name of Michael Taylor. Both incidents involved mutual masturbation. The Claimant also alleged that he was at Bersham Halls, there was further abuse by a man named Stevens who made the Claimant have anal intercourse with him. Soon after that, Stevens then moved in with the Claimant’s mother at which point the intercourse stopped.

However there was a problem with the chronology. The evidence suggested that Stevens had abused the Claimant before he went to Bersham Hall. Justice Scott Baker concluded that it was likely that the abuse by Stevens preceded that of Taylor. The Claimant was not a reliable historian.

The Claimant also had another friend by the name of Gary Cooke, who was a youth leader. He also had a sexual relationship with Cooke and at the age of 16 ½ he went to live with him.

When the Claimant was 17 ½ he joined the Army but he left after a short time and formed a relationship with a local girl in Wrexham. This lasted about 18 months and they had a daughter.

The Claimant gave evidence to the Waterhouse Enquiry and found the experience extremely harrowing. His employment history was erratic and for most of his adult life, he had been out of work. He took an overdose in 1994 and was in hospital for six months with brain damage. He was in receipt of long term sickness benefit.

The Claimant’s medical expert was Dr Dawn Henderson, a clinical psychologist. The Defendant called Dr Kathryn Abel, a research fellow in psychological medicine at King’s College, London.

Dr Henderson had said that there was no significant difference between herself and Dr Abel in their findings on examination. She said that in her opinion the Claimant’s abuse experiences appeared to have had a significantly negative effect on his emotional health, although they were not the sole cause of his difficulties. However Dr Henderson said that she had not read the social services records when she wrote her report and that these records made no substantial difference to her conclusion. She had also been under the impression that that the abuse by Taylor had been sustained when the Claimant was 14 whereas in fact he was 16 at the time. Again she said that this made no difference to her conclusion.

Justice Scott Baker said that he did not find Dr Henderson to be a very convincing witness. He was satisfied that the Claimant had misled both Dr Henderson and Dr Abel about which abuse came first, although it was not suggested that he had deliberately done so.

Dr Abel’s evidence was that the abuse by Taylor was relatively minor in the context of everything else that was happening and Justice Scott Baker accepted that conclusion. The two incidents of abuse by Taylor could not be held responsible for nor did they materially contribute to any of the sad events that followed later in the Claimant’s life. Quantum for pain, suffering and loss of amenity would be assessed at £2,000.

David Wynne

The Claimant was born in 1968. He was at Bersham Hall from the 10th March 1981 to the 18th September 1981 and from the 23rd October 1982 to the 10th December 1982. He was then at Chevet Hay until January 1985.

At the age of four, the Claimant and his twin sister were put in the care of Clwyd County Council Social Services Department. They were placed with foster parents, who adopted the Claimant. He was harshly treated by his parents and he was relieved to go into care.

At Bersham Hall he was humiliated by staff because of his stutter and physically assaulted by staff. He was frequently put in the secure unit, and made to wear just his pyjamas. He could also recall being required to strip naked and stand in the corner with no clothes on. Sometimes he was ordered to take his clothes off in front of female staff.

Between his two spells at Bersham Hall, the Claimant spent about 12 months in a foster placement but this came to an end because Wynne was abusing solvents and stealing.

He went back to Bersham Hall and the culture of violence continued as before. On more than one occasion, a member of staff had washed his private parts. This had made him distressed and embarrassed.

The Claimant was then moved to Chevet Hey but the violence started to re-emerge when staff from Bersham Hall and Bryn Estyn moved to that home. Staff continued to physically assault the children. The Claimant was also threatened by staff, and at one point, a staff member threatened him with a revolver. One member of staff, Marshall Jones set his Alsatian dogs on the children in his back garden. On two occasions, Mr Jones made the Claimant suck his penis.

A female member of staff, Jackie Thomas expected boys to have sex with her. The Claimant was given alcohol and cannabis. Sometimes other people would have sex in the flat in front of the boys. Ms. Thomas also had an interest in the occult and she and the boys would play a Ouija board. The Claimant did have sex with Ms. Thomas. He gave evidence to the effect that he found this stimulating but on another level, he knew what he was doing was wrong and felt dirty about it. He was also buggered by Dave Birch, another member of staff at Mr Birch’s house. He began glue sniff and well as self harming.

He finally left care but was given no help to set up on his own.

His life after care involved excessive alcohol consumption, offending and large proportion of his time in prison. He was eight weeks in a psychiatric unit. He suffered from nightmares, flashbacks, low self image and he found it difficult to establish relationships. At present he had been off drink for over a year.

The abuse by Birch and Marshall Jones was disputed by the Defendant. There were allegations of physical abuse against Marshall Jones by other children but no sexual abuse. Marshall Jones was now dead.

The allegation of sexual abuse against Birch was made very late in the day. Birch denied this emphatically and he had been acquitted of sexual abuse against other complainants. Justice Scott Baker said that he did not find Birch a particularly impressive witness. He had sought to give the impression that there had been little wrong at the homes where he worked. On the other hand, Justice Scott Baker had serious doubts about various aspects of the Claimant’s credibility.

Justice Scott Baker had come to the very clear conclusion that sexual abuse was not proved against either Jones or Birch.

The Defendant had called Michael Barnes, a member of staff who was alleged to have physically assaulted the Claimant.  Mr Barnes also expressed surprise at the allegations against another member of staff, Roberts. The Waterhouse Report had concluded that he had used physical violence against children, but he had been away from Bersham Halls during the Claimant’s second stay there. Justice Scott Baker was prepared to conclude that he had been generally aggressive and that Roberts had been guilty of one incident of assault when he threw a television set at the Claimant.

There were three medical experts, Mrs Garland, Dr Friedman and Professor Zeitlin. Justice Scott Baker criticised the evidence of Mrs Garland and said that her evidence was not objective.

Dr Friedman said that the Claimant’s symptoms were not sufficiently severe to warrant a diagnosis of post traumatic stress disorder. He had had a very disturbed adult life and what happened at Bersham Hall and Chevet Hey had played a major part in his problems. However Dr Friedman said that he did not have access to many of the documents until after he had seen the Claimant, so he could not question him on them. He concluded that 50% of the Claimant’s problems were due to his abuse in care, but conclusion was based on what the Claimant had told him.

The expert from whom Justice Scott Baker had obtained most assistance was Professor Zeitlin. He had said that the characteristics of abuse most commonly linked to later disturbance were:-

• early age
• by a person who is close
• that it is penetrative
• that it persists over time

Even in well run children’s home, only a small proportion of the children made satisfactory adjustments. About 50% of children with conduct disorders made satisfactory adjustment to adults life and that ignored loading factors such as early separation. The Claimant was a very high risk of not making the adjustments. This was a case where a great deal of help was obtained from the documents.

Justice Scott Baker said that the proven or admitted abuse was physical abuse over a period of six months in 1981 and six weeks in 1982 and over two years at Chevet Hey. The length of time over which the abuse took place was of some importance as was the young age of the complainant when it began. There was also sexual abuse by Jackie Thomas at Chevet Hey, although the Claimant’s evidence suggested that it had not had a long term effect on him. However the evidence of Professor Zeitlin was the most persuasive of the three experts. The writing was already on the wall for the Claimant by the time he went to Bersham Hall. The figure for pain, suffering and loss of amenity would be assessed at £14,000, but the claim for loss of earnings or being at a disadvantage on the job market was not made out.

Limitation

Justice Scott Baker then addressed the issue of limitation. The Claimant had reached his 21st birthday on the 3rd May 1992, but proceedings were not commenced until 16th July 1999. The Defendants contended that it was up to the Claimant to prove that his “date of knowledge” for the purposes of section 14 of the Limitation Act 1980 was later. The Claimant had been telling people about the abuse more than three years before he issued proceedings. His evidence was that it was only when he was seen by Dr Morris, a prison doctor two years ago, that he found that he could speak honestly and in detail to someone about what had happened to him in care. However he also said that he always knew that what was done to him by his adoptive mother was also wrong. Consequently for the purposes of section 14, the Claimant was out of time.

However that was not the end of the matter. Section 33 of the Limitation Act 1980 gave the court discretion to allow the matter to proceed. Justice Scott Baker considered the provisions of Section 33(1) and Section 33(3), and he concluded that it would be equitable to allow the action to proceed. There was minimal prejudice to the Defendants who had largely admitted the aspects of the claim that he had found proven. It would have been otherwise for the allegations that he found unproven. It was very painful for the Claimants in these cases to relive the events and the Waterhouse Enquiry had brought matters into the public domain. Justice Scott Baker did not think the evidence on the matters which he had found established was any less cogent that they would have been had the action been brought in time. Consequently limitation would be waived.

Summary

Related posts:

1. Various Claimants v Leicestershire County Council 1996
2. X (Minors) v Bedforshire County Council, M (A Minor) And Another v Newham London Borough Council And Others, E (A Minor) v Dorset County Council, Chirstmas v Hampshire County Council, Keating v Bromley London Borough Council [1995]
3. Phelps v London Borough of Hillingdon, Anderton v Clwyd County Council, in Re G (A Minor) By His Next Friend, Jarvis v Hampshire County Council [2000]

FACTS:-

The Claimant suffered serious head injuries at the age of 17 on the 9th September 1980 when he was involved in a road traffic accident. He commenced an action on the 24th December 1980 with his father as litigation friend, but adopted the action himself after reaching the age of 18 on the 24th July 1981. In September 1987, after receiving advice from his solicitors and counsel, he accepted an offer to compromise his claim for £76,000 plus costs.

In December 1993, the Claimant issued proceedings against his former solicitors claiming damages for professional negligence and breach of contract. The writ was not served until May 1996. Liability was denied. In June 1997, the Claimant was examined by a neuropsychiatric rehabilitation consultant, who expressed the view that since the time of his accident, the Claimant had been a “patient” within the meaning of section 94(2) of the Mental Health Act 1983.