FACTS:-

The Claimant was a lady who was nearly 42 years old and her allegations of abuse related to the period between 1975 and 1981, when she was 8 to 14. The Claimant resided in the jurisdiction of the First Defendant up to November 1977. Between about November 1977 and January 1979 she lived in Redditch, within the area of the Second Defendant. Thereafter to the end of the material period (1981) she lived in the Third Defendant’s district.

The Claimant was allowed to live with a man who had convictions for sexual offences going back to the early 1960’s. He began abusing the Claimant on her eighth birthday and pleaded guilty to indecent assault in December 1977. However he was put on probation and then returned to the family home. The abuse continued until the Claimant reported the matter in October 1981 whereupon the abuser was convicted in July 1982.

The Claimant received compensation from the Criminal Injuries Compensation Board in 1985.

Proceedings were begun against the Defendants in 2006 following an agreed “limitation holiday.” The sole issue before the court was whether or not the claims were statute barred. 

HELD:-

Mr Justice Eady said that the two question before him were:-

• Whether the Claimant had relevant knowledge for the purposes of section 14 of the Limitation Act 1980.
• Whether, if she did, the court should exercise its discretion under section 33 of the 1980 Act to allow the claim through.

Justice Eady looked at sections 11 and 14 of the 1980 Act, which defined “the date of knowledge” from which the three year limitation period might run. He also looked at Section 33 and the recent case of A v Hoare [2008] 1 AC 844. This was one of a series of conjoined appeals, of which one, Young v Catholic Care (Diocese of Leeds) would appear to be closest to this one.

Section 14

In relation to section 14, the critical question was the nature of the Claimant’s knowledge. The authorities made it clear that the Claimant must be shown to have had knowledge of the factual allegations underlying her claim in respect of each of the Defendants. It was clear that she knew that she was abused from the outset in 1975, and that she knew that what was done to her was unlawful by December 1977.

However it was necessary (applying the case of Dobbie v Medway Health Authority [1994] 1 WLR 1234) to show that the Claimant had at least some degree of awareness that the various local authorities would have had relevant to her plight by virtue of child welfare responsibilities. The Claimant had no recall of any early visits by social workers. She remembered a brief conversation with her abuser’s probation officer at the end of 1979, and had been placed on the “at risk” register in July 1979 but her name was removed for reasons that were unclear. There had also been concern expressed in 1981 at a case conference at the decision to remove her name from the Child Abuse Register. In July 1982 the judge at the Crown Court trial was critical of social services. By this time, the Claimant was 15 years old.

Eady J said that she could not be expected at the age of 15 to have taken responsibility for suing any of the local authorities. However by no later than the age of 15, she was aware of the child welfare responsibilities of local authorities in broad terms, and yet put no complaint on the record against any of them until she was 37. The Claimant said that she only discovered the extent of the Defendants’ knowledge of her abuser’s criminal record from the 1960’s when she saw her written records.

Nonetheless it was clear that she knew of the conviction of indecent assault on herself in December 1977. Eady J said that it was surely that stark fact which would ring the loudest warning bells and he outlined a number of points that suggested that she had knowledge by the time she attained her majority on the 28th January 1985. These included:-

• She was abused from her eight birthday by her adoptive father and later raped
• He had been convicted of indecently assaulting her in December 1977
• The Claimant was aware of family rumours about previous offences
• The judge at the rape trial highlighted the failures of at least one social services department
• She was not removed from the abuser’s care until October 1981
• She suffered continuing trauma as a result of the abuse over a long period of time
• She knew that she had lived at various addresses and could have established the identities of the relevant local authorities.

Eady J concluded that the Claimant was fixed with knowledge at least from the time of attaining her majority. It could be safely said that she knew enough to make it reasonable for her to begin to investigate whether or not she had a case against any of the relevant local authorities (Broadly-Guy v Clapham [1994] 4 All ER 439).

Section 33 - Harrow Council

The Claimant had gone to live with the abuser in December 1969 by way of family arrangement. In December 1971, Harrow Council received an application from the abuser to adopt the Claimant and her brother. The adoption was formally granted in June 1972 and one of the primary criticisms of the First Defendant related to the advice it had given at that time to the court, which granted the adoption. In fact it was known that Harrow Council had grave concerns about the adoption, but the crucial report detailing its advice was missing. Eady J said that this missing report could well have been critical to the issues both of breach of duty and causation of damage.

One of the disadvantages from which the First Defendant suffered, was that running logs of the period were missing. There was in the judgement of Eady J, very serious prejudice to the First Defendant brought about largely by the long delay. There were no relevant witnesses available to offer any cogent recollection of these events.

In relation to the Claimant’s reasons for delay, Eady J went back to the points made in relation to the Claimant’s state of knowledge. He did not feel that the Claimant could be criticised for not confronting some aspects of the abuse, but that was not a complete answer to the issue of whether it was still possible to have a fair trial.

The Defendants all relied on the explanation given by the Claimant to their psychiatrist to the effect that she did not want to bring a claim until her children were old enough. The problem there was that this had been a deliberate decision taken by the Claimant, rather than something that was outside her control.

Although the discretion was unfettered, the court should never lose sight of the public policy considerations underlying the legislative regime governing limitation periods. There was no justification for imposing on this Defendant (Harrow Council) a trial in which the information had been significantly depleted.

Section 33 - Worcestershire County Council

The involvement of this Defendant with the Claimant was far less. She had been between November 1977 and February 1979 in the same household as the abuser for 33 days, although there had been fortnightly access visits. The records showed that the Claimant’s interests were monitored. There was no evidential basis on which it could be suggested that the Claimant should have been taken into care.

The Second Defendant’s counsel had submitted that the claim had no realistic prospect of success. There would be no point in dis-applying the limitation period because no case of negligence could be established on the available evidence. That was a perfectly sound argument.

There was only one witness who was involved at the time with the Claimant, and she had only a vague recollection. The Defendant was bound to be at a significant disadvantage. Eady J said that there was no sufficient evidence of a breach of duty such that justice required disapplication of the limitation period.

Section 33 – Birmingham City Council

The primary case here rested in the period from February 1979 to October 1981. The Claimant alleged that she should have been removed from Hayes’ care at some point significantly earlier than October 1981. Eady J said that where there appeared to be a strong prima facie case against a Defendant, particularly applying modern standards and criteria, it was all the more important that the Defendant should have the opportunity of fully investigating the case and explaining its reasoning.

The Third Defendant had argued that if the claim had been brought at an earlier date, when the position was governed by the House of Lords decision in X v Bedfordshire County Council [1995] 2 AC 633, it would have had a defence on the basis that no duty of care was owed to the Claimant. As the law had now changed, the Third Defendant was prejudiced by the passage of time. Eady J said that he did not need to decide that point in the circumstances of the case.

Another point taken by the Third Defendant was that decisions whether or not to take children into care could not be reviewed by way of a claim for negligence. Reliance was placed upon the words of Lord Phillips in D v East Berkshire Community NHS Trust [2003] EWCA Civ 1151 (para 49) who said that the effect of X v Bedfordshire was now reduced to a “core proposition” i.e. that decisions made whether to take a child into care were not reviewable in negligence.

The Claimant’s counsel countered that point by saying that the “core proposition” had been overtaken by events. In any event Lord Phillips in D v East Berkshire had said at paragraph 84 of his judgment that it would no longer be legitimate to rule that, as a matter of law, no common law duty of care was owed to a child in the pursuit of care proceedings. It was possible (according to Lord Phillips) that there might be factual situations where it was not just, fair and reasonable to impose a duty of care, but each case would fall to be determined on its own facts.

Eady J said that there was a tension between the two paragraphs of Lord Phillips’ judgment (paragraphs 49 and 84) but he would proceed on the basis that the Claimant’s counsel’s submissions were correct.

In this case there was evidence as to the considerable efforts made to track down witnesses and documents. However the upshot was that much had become untraceable.  Eady J had no doubt that the Third Defendant would be significantly hampered in their task through gaps in the documentation and lack of personnel. Therefore a trial of the issues was not going to be possible.

Therefore the section 33 discretion would not be exercised in the Claimant’s favour. 

Related posts:

1. A.B. And Others versus Liverpool City Council And Others 2001
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. A v Hoare, C v Middlesborough Council, X And Another v London Borough Of Wandsworth, H v Suffolk County Council, Young v Catholic Care And Others [2008]

FACTS:-

The Claimant was born on the 17th January 1964 and was aged 44. In August 1973 he was taken into care by Knowsley Borough Council at the request of his father. He was placed in a family group home where he remained (save for a two week period in another home) until November 1976. He was then returned to the care of his mother.

Some 18 months after his arrival, the Claimant was subjected to regular sexual abuse at the hands of Mr Robbins, who was employed from 1975 until 1985 as an escort officer. He did not tell anyone about the abuse.

The Claimant having returned to his mother, left school at 15 and found work. He married at the age of 25 and he and his wife had a baby girl in 1999. In November 2000 he was contacted by police in relation to another home, and he mentioned the abuse to the officers. He mentioned it to his wife two weeks later. She was a local solicitor specialising in childcare. The disclosure put strain on his marriage and in early 2001 he separated from his wife and they later divorced. He was also unable to return to work and resigned from his employment after being off for over a year in January 2002.

In August 2002, the Claimant sent a letter before action to the Defendants and a claim form was issued on the 20th June 2003. The case was stayed whilst the appeal in A v Hoare and Others [2008] 2 WLR 311 was awaited. Then in June 2008, it was listed for a preliminary hearing on limitation.

HELD:-

Judge Main went over the decision in A v Hoare. The medical expert evidence was provided by Dr Webster for the Claimant and Dr Boakes for the Defendant. Both experts were surprised by the extent to which the Claimant had such an inaccurate recollection of key dates and the duration of the alleged abuse. Dr Boakes said that this did raise the issue as to whether the Claimant had developed a false memory, although she was taken to one of her own publications and on recounting some 11 features of false memory syndrome, the vast majority of the indicators were absent.

The medical experts agreed that the event from between 1975 and 1976 did not result in any psychiatric injury. After the onset of disclosure in November 2000, the Claimant did experience the onset of a psychiatric illness, which was triggered by the police interview.

In relation to the injury that the Claimant suffered in 1975/1976, the Claimant’s own account was that he did not suffer any physical injury or discomfort. He was given sweets and cigarettes and provided with pornography, which made him sexually aroused. Judge Main said that whatever feelings of defilement, degradation and humiliation the Claimant experienced, these were not injuries. Reference was made to the case of Albonetti v Wirral MBC [2008] EWCA Civ 783.

However in the case of a child of 11 or 12 years, as a matter of law, no consent to a trespass to the person would be available to an adult, even in the absence of physical injury. Therefore in this case there was an accrued cause of action within the meaning of Section 11(4)(a) of the Limitation Act 1980.

There was greater difficulty when one looked at the longer time period under Section 11(4)(b) of the 1980 Act. Judge Main could see that the seeming lack of any injury might well go the question of whether the injury was “significant” under Section 14(1)(a) and under 14(3). This would also be relevant to the exercise of section 33.

Judge Main applied the section 14 test and quoted the dicta of Lord Hoffman at paragraphs 34 and 35 in A v Hoare.

In Albonetti the Claimant’s counsel had sought to argue that a Claimant who had been anally raped had not suffered a significant injury within section 14. That was not accepted by the court, but this case posed a more difficult question. In the case of Stubbings v Webb [1993] AC 498 Lord Griffiths had said that (page 506B) that whilst rape was almost certainly a significant injury, indecent fondling of a child raised a more difficult question.

This case was more than just indecent fondling. It concerned repeated oral penetration and indecent assaults over many months. Judge Main took the view that given the vulnerability and youth of the Claimant, it was reasonable for him not to have regarded his repeated sexual insults as “significant”. However as he grew older, the situation changed. Accordingly Judge Main was satisfied that by the age of 16, the Claimant did have knowledge of the “significance” of what had happened.

The Claimant had reached his majority in January 1982 and therefore had three years to commence his proceedings by January 1985. The actual delay before proceedings were in fact commenced was 18 ½ years.

The case under Section 11 of the 1980 Act was statute barred.

Judge Main then considered the provisions of section 33(3). The housemother of the home where he was abused had died in July 1996 and the housefather who abused him died in June 2004.  There were enormous evidential difficulties looking into detailed factual issues, over 30 years on. The cogency of any witness after so long had elapsed was bound to be affected, regardless of the number of witnesses still available to give evidence. How would the Defendant go about investigating the allegations when witnesses have long since left the employment of the Defendants, when witnesses have died and some if not al of the documents have been lost? Judge Main referred to the dicta of Lord Brown in A v Hoare (paragraph 86).

There was also an issue in relation to the abuser’s employment. He was not a care worker, but an “escort” employed by the Defendant. An examination of the vicarious liability issue would be very difficult to perform, and the case was very different to that of Lister v Hesley Hall [2001] UKHL 22.

There were also errors in recollection as highlighted by both medical experts.

Reference was also made to the case of sub nom Bowden and Whitton v Poor Sisters of Nazareth and others (Scotland) [2008] UKHL 32. In that case it was of some importance that the events complained of were every day events over a long period of time as opposed to one or two vivid incidents.

The Claimant had criticised the process whereby the Defendant had investigated the case, and alleged that no real effort had been made to find witnesses. Consequently it was suggested that Court had no real flavour as to just what the extent of the prejudice was. In relation to documents there would be no records of the actual assaults. The Claimant’s counsel submitted that the key question here was whether these assaults had taken place. Apparently there were witnesses who could corroborate the Claimant’s story, by way of similar fact evidence. The abuser had been interviewed by the police in 2003 but had not been charged, possibly because of the fact that he was 83 at the time. Therefore he could have been interviewed by the Defendant.

Judge Main summarised the provisions of Section 33(3):-

• Reasons for delay – the Claimant’s reasons for delay were reasonable.
• Effect of delay on the evidence – inevitably the Court would be faced with a difficult task in examining the evidence. However the issue of the individual complaints of assault made by the Claimant and the other three witnesses might well be very cogent and reliable evidence. Judge Main commented that the abuser would probably have made denials in any event.
• The conduct of the Defendant – there was some substance to the Claimant’s criticisms. It was surprising that the Defendant had not got access to the police files, and had made little progress in identifying and making contact with the long list of possible witnesses.
• The promptness of the Claimant – Judge Main was surprised that it took the Claimant until 2003 to make the claim, but doubted that the delay between 2001 (when the Claimant first suffered his psychiatric illness) and 2003 was very important. The Claim in any event was presented in the 3 years from November 2000 which put the delay in context.
• Steps taken by the Claimant – once the Claimant realised he was ill, he did seek assistance.

Taking these matters into account, it would be unfair to the Defendant to allow the case to proceed. It was not possible to see there could be a fair trial of these issues.

However Judge Main could see no good reason why the allegations of indecent assault and abuse should not be placed before the Court so that the Court could assess the weight, consistency and cogency of the evidence relied in support of these allegations. There was the issue of whether the Defendant was vicariously liable, but there would be abundant evidence before the Court to enable those factual questions to be answered adequately.

Related posts:

1. Albonetti v Wirral Metropolitan Borough Council [2008]
2. Rose Wood & Others v Kirklees Metropolitan District Council versus Kirklees Metropolitan District Council 2004
3. Jake Pierce v Doncaster Metropolitan Borough Council [2007]

FACTS:-

The Defendant, a non profit organisation operated two children’s homes for the treatment of emotionally troubled children. It practised total intervention in all aspects of the lives of the children that it cared for. It hired, C, a paedophile to work in one of its homes without knowledge of his background but after undertaking checks. He was dismissed after a complaint was made against him. He was then convicted of 19 counts of sexual abuse, two of which related to the Claimant. The Claimant sued the Defendant and one of the issues was whether the Defendant was vicariously liable for the actions of its employee. The trial judge and the Court of Appeal found that it was. The matter came before the Canadian Supreme Court.

HELD:-

McLachlin J delivering the judgement of the court considered the facts of the case. He then considered the “Salmond test” from Salmond and Heuston on the Law of Torts (19th ed. 1987) and the case of Canadian Pacific Railway Co. v Lockhart [1942] AC 591. An employee’s wrongful conduct was said to fall within the course and scope of his or her employment where it consisted of either (1) acts authorised by the employer or (2) unauthorised acts that were so connected with acts that the employer had authorised that they might rightly be regarded as modes - although improper modes of doing what had been authorised.

The question for the court was whether the wrong was so connected to an unauthorised act that it would be regarded as a mode of doing that act. In the case the Defendant had authorised the abuser to put the child to bed, and the abuser committed the sexual abuse whilst putting child to bed.

McLachlin J said that it was often difficult to distinguish between an unauthorised mode of performing an authorised act that attracted liability, and an entirely independent act that did not. It was possible to look at decided cases but such precedents were only helpful when they presented a suggestive uniformity on parallel facts.

Another approach was to establish a prima facie case and then shift the evidentiary burden onto the employer, so that the employer then had to show that the act for which it was not responsible. However it was unclear what the employer would then have to do to escape responsibility.

Increasingly courts confronted by issues of vicarious liability, were turning to policy for guidance.

This was a case where there was little helpful precedent to guide the court in determining whether the employee’s tortuous act should be viewed as an unauthorised mode of an authorised act, or as an independent act. McLachlin J considered three general categories of case:-

1. Cases based on the rationale of furtherance of the employer’s aims
2. Cases based on the employer’s creation of a situation of friction
3. The dishonest employee cases

In relation to the first category, the employee could be said to be acting in furtherance of the employer’s aims and therefore had “ostensible” or “implied” authority. This worked well for negligence claims but not for those grounded in assault.

In relation to the second category, this extended to intended assaults such as the bartender’s assault on an obnoxious customer.

Neither the first nor second category could extend to the third category, the dishonest employee case. At the heart of these decisions was consideration of fairness and policy.

There was a common feature. In each case, it could be said that the employer’s enterprise had created the risk that produced the tortuous act.

The issue in this case had come before the Court of Appeal in England in Trotman v North Yorkshire County Council [1999] IRLR 98 where the court had not found vicarious liability against a school council for the sexual abuse of a teacher, committed against a mentally handicapped student. It was held that this was an independent act.

Lachlin J said that the Court of Appeal in Trotman had not confronted the underlying policy of vicarious liability. Their decision also rested on the questionable conclusion that sexual torts by caretakers against children were closer to an assault by a shop assistant than a bank employee’s conversion. The English Court of Appeal should have described the act in terms of the employee’s duties of supervising and caring for vulnerable students.

Lachlin J then turned to policy considerations and considered the various commentaries on the doctrine. The first concern was to provide a just and practical remedy to people who suffered wrongs perpetrated by an employee. The second major policy consideration was the deterrence of future harm. If the scourge of sexual predation was to be stamped out, or at least controlled, there should be powerful motivation acting upon those who controlled institutions engaged in the care, protection and nurturing of children.

Underlying the cases holding employers vicariously liable for the unauthorised acts of employees was the idea that the employers might justly be held liable where the act fell within the ambit of the risk that the employer’s enterprise created or exacerbated. In addition, the policy purposes underlying the imposition of vicarious liability on employers were served only where the wrong was so connected with the employment that it could be said that the employer had introduced the risk of the wrong.

The inquiry was directed not at foreseeability of risks from specific conduct, but at foreseeability of the broad risks incident to a whole enterprise. However mere opportunity to commit the tort did not suffice. The enterprise and employment must not only provide the locale or the bare opportunity for the employee to commit his or her wrong, it must materially enhance the risk.

The court should be guided by the following principles:-

• The court should openly confront the question of vicarious liability, rather than obscuring the decision beneath semantic discussions of “scope of employment” and “mode of conduct.” 
• The fundamental question was whether the wrongful act was sufficiently related to conduct authorised by the employer to justify the imposition of vicarious liability. Where this is so, vicarious liability would serve the policy considerations of provision of an adequate remedy and deterrence. 
• There were subsidiary factors in determining (b):-
  the opportunity that the enterprise afforded the employee to abuse his or her power the extent to which the wrongful  act may have furthered the employer’s aims the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise
  the extent of power conferred on the employee in relation to the victim the vulnerability of potential victims to wrongful exercise of the employee’s power

Applying these general considerations to sexual abuse by employees, vicarious liability would lie in these circumstances.

The next question was whether there should be an exemption for a non profit organisation. Lachlin J rejected that argument. The perspective of the innocent child had to be considered. The protection of a child should not be governed by the fact that the organisation charged with that protection was non profit making. Essentially children should not bear the cost of the harm that has been done to them so that others in society might benefit from the work of non-profit organisations. Loss should fall on the party that introduced the risk and had the better opportunity to control it.

Related posts:

1. Mattis v Pollock (Trading as Flamingos Nightclub) [2003]
2. Majrowski v Guy’s and St Thomas’ NHS Trust [2006]
3. Lister and Others v Hesley Hall Limited [2001]

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. TCD v Harrow Council, Worcestershire County Council, Birmingham City Council [2008]
3. Areas

(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