A v The London Borough Of Camden 2002

FACTS:-

The Claimant was born on the 18th July 1965. She was taken into care by the Defendant in January 1968 and returned to her mother in 1974. In 1977 her mother was committed to hospital and so she was again taken into care. Between the years of 1971 to 1975 and 1977 to 1982 she suffered physical and sexual abuse at two children’s homes for which the Defendant was responsible. She brought an action against the Defendant. Her particulars of claim were served on the 9th July 2001 and an order was made on the 24th September 2002 for a split trial on the issue of limitation. The only issue to be tried at that hearing was under section 33 of the Limitation Act 1980. It was admitted in the pleadings that the primary period of limitation under section 11 of the Limitation Act 1980 and the secondary period under section 14 (three years from the date of knowledge) had expired.

There was no issue taken (for the purposes of the trial on limitation) on whether the Claimant had suffered abuse or that such abuse contributed materially to her mental state. Nonetheless the Defendant reserved its right to question the Claimant on those issues at any eventual trial on liability.

HELD:-

His Honour Judge Hawkesworth QC identified five periods of time between the Claimant’s eighteenth birthday and the service of proceedings.

During the first period (1983 – 1986) – the Claimant was working but also receiving treatment for mental health problems from the GP. During this period she became addicted to prescribed drugs.

During the second period (1986 – 1993) – the Claimant was working for Camden Council, in a department responsible for the supervision of children in care. This was a difficult period for the Claimant since she was in contact with a particular individual, who it was alleged was one of the abusers at the care homes, in which she had resided as a child. In 1993 she saw a solicitor in connection with her claim.  That solicitor gave oral evidence before the judge. He had submitted an application for public funding to action against Camden which was at first refused, and then a second application was made, which was granted. However in 1994, the Claimant wrote to Mr Chater saying that she could not take the stress of litigation. It was not clear what advice she had received about limitation, but it appeared to the judge that she had never been given any specific advice on that issue. At that time Mr Chater had conduct of a linked claim proceeding against Camden, where the Claimant was in fact a friend of A.

The Claimant had also made a complaint in early 1987 about unfair treatment whilst in the care of Camden.  An investigation had been held but it had been inconclusive. There was also a difficulty in witnesses’ recollections deteriorating with the passage of time.

The Claimant had also spoken informally to a solicitor in 1988 about taking action against the Defendant. She said in a witness statement that this solicitor told her that she had a case and she should pursue it. The Claimant had changed her account in a later witness statement in which she said that she was not told that she had a case against the Defendant. The judge found that the Claimant was alert to the possibility of legal action.

Her GP notes disclosed that she had brought two other litigation claims, one for being knocked off the bicycle and the other for carbon monoxide poisoning.

From 1994 to 1997 the Claimant was pursuing a degree course and embarked upon a course of psychotherapy.

In February 1997 she returned to see her solicitor, Mr Chater. He applied for public funding which was granted in May 1997. A letter before action was written to the Defendant, and this was the first notification that they had.

The final period of time under consideration was from 1997 to 2002. Proceedings were not in fact issued until July 2001 and the judge said that this constituted inordinate delay. The judge was invited to consider whether a claim in negligence lay against the Claimant’s former solicitors. He did say that there would be a strong argument in support of the view that had litigation begun promptly and alongside the linked claim (which eventually settled for £12,000) the Claimant would have had reasonable prospects of obtaining a similar settlement, on an economic basis.

However the judge was not persuaded at this stage that the Claimant would have had such a clear case in negligence against her former solicitors as would mitigate any prejudice caused by a decision of the court not to allow her action to proceed.

There had been problem with the Claimant’s medical expert who was instructed in July 1997 but did not produce a report until May 1999. There were problems in obtaining the relevant notes and legal aid funding. A second medical expert was instructed and then conferences with counsel until proceedings were finally issued in 2001.

The judge had sympathy for the solicitors in relation to the problems with public funding. If protective proceedings had been issued, that would in all probability have resulted in a stay being imposed as it was in the case of the linked claim. During the time of any stay, the Defendant would not have carried out any further investigations pending the removal of the stay. Even if proceedings had been issued in 1997 or 1998, the case on limitation would still have been raised by the Defendant, particularly as she had approached solicitors more than three years before 1997.

The judge considered the psychiatric evidence (given by Dr Bird instructed by the Claimant and Professor Maden instructed by the Defendant). The judge concluded that it appeared to him axiomatic that the very nature of the Claimant’s personality disorder would make it particularly difficult to evaluate and interpret the circumstances of the alleged abuse as it also did to properly interpret her explanation for the delays and difficulties which she had encountered in pursuing this litigation.

Both medical experts agreed that it was difficult to be precise because of the passage of time and because of the lack of detailed information about the Claimant’s mental state at the material time. In particular the experts commented on the absence of records from one of the placements immediately after the placement at one of the children’s homes. The absence of those records made their job particularly difficult.

The Claimant’s own expert said that the Claimant had found it difficult to confront her abuse and take action. The Defendant’s expert, Professor Maden took a different view. He pointed out that the Claimant was not slow to allocate blame, and she had begun that process in 1987 when she complained to the local authority. The fact that the Claimant had abandoned the case in 1994 was indicative of her serious personality disorder.

Judge Hawkesworth considered section 33(3)(a) of the Limitation Act 1980, namely the length and the reasons for the delay on the part of the Claimant. The length of the delay from the Claimant’s 21st birthday in 1986 to the issue of proceedings is in total 15 years. During that time she suffered from a personality disorder which substantially contributed towards her failure to seek appropriate legal advice and accept that advice. However a number of points counted against her:-

• When the Claimant was working for the Defendant, she knew that her case could form a valid complaint and could be the subject of legal redress.
• Secondly she had a friend whom she knew was pursuing a similar claim.
• Thirdly her decision to discontinue her claim in 1994 was not taken in circumstances materially different from those which applied from 1997 onwards, and accordingly her personality did not wholly disable her from persisting in and with the necessary resolve taking legal proceedings to a conclusion.

The judge then turned to section 33(3)(f) “the steps, if any, taken by the Claimant to obtain medical, legal  or other expert advice and the nature of any such advice he may have received.” The Claimant’s decision not to proceed in 1987 or in 1993 cannot be justified, leaving aside the claimant’s personality disorder. However in weighing the circumstances as a whole, the judge could not regard it as equitable to leave out of account the difficulties caused to the Claimant by her personality disorder.

The judge then considered the cogency of the evidence, (Section 33(3)(b) Limitation Act 1980).

The issue here related to both liability and causation. Statements had been produced by the Defendant’s solicitors to show the attempts that had been made to find evidence. No documents had been uncovered that related to management supervision or inspection at the children’s home. There was a personnel file of a housemother at one of the children’s homes (St Edmunds Terrace), who was married to an alleged abuser. This showed complaints being made, but only towards the end of the period of time the Claimant was at that particular home. Two witnesses had been located. One was a teacher at a school attended by the linked Claimant. The other had been a residential care worker at St Edmunds Terrace, but she had been there after the Claimant had left.

In respect of the other children’s home (Maresfield Gardens), the Claimant could not give surnames of those she alleged had abused her.

There had been a police investigation into the St Edmunds Terrace, in respect of the linked Claimant’s case. The police spoke to thirty three witnesses and took statements from fourteen. The Defendant was able to find twenty two potential witnesses but was only able to trace and take statements from four of them.

No police investigation was undertaken into the Claimant’s allegations because the police were under the impression that all the allegations were of a physical nature and there was no corroboration.

The Claimant did have her social services file, but these did not assist in resolving the issues in the claim.

The judge was satisfied that the Defendant’s efforts to trace witnesses and documents were reasonable.

The judge’s conclusion was that the Defendant was seriously prejudiced in its ability to defend this case, both on liability and causation, in circumstances where there are inherent difficulties and dangers arising from the reliability of the Claimant’s evidence. Had the Claimant sought legal advice and acted upon it in the late 1980’s or early 1990’s, the quality and availability of such evidence would have been far greater.  It would not be equitable for this action to proceed. It would now be virtually impossible to conduct the close examination required of the circumstances pertaining the management and supervision of the care homes in which the Claimant was resident in order to determine the issues of negligence raised in this claim. There were also difficulties in relation to causation.