A and Others v Leicester City Council: Liability

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