This claims club is devoted entirely to issues that touch upon the handling of abuse claims – our specialist team will update you on the initiative being run by Master McCloud to introduce a protocol specifically for claims of historical abuse. We will discuss ways in which to secure a recovery direct from the abuser, and also a new limitation initiative to assist you in defending some very old claims.

1. Social care claims club
February 2017, Birmingham

2. Recoveries in social care claims
David Maggs

8. Recoveries from ….
• Residential social workers – itinerant but pensions?
• Social workers – property and pension?
• Teachers – property and pension?
• Foster parents? – property but no pension?
• Others?

9. NA v Nottinghamshire CC

10. NA v Nottinghamshire CC

11. When should you recover?
• Failure to remove ?
• TF v Lewisham

13. When should you recover?
• Breach of Human Rights?
• CZ & Others v Kirklees

14. When should you recover?
• Physical or sexual assault?

15. The basis of claim
• Civil Liability (Contribution) Act 1978
• S1(1)
• Subject to the following provisions of this section,
any person liable in respect of any damage suffered
by another person may recover contribution from
any other person liable in respect of the same
damage (whether jointly with him or otherwise).

16. The basis of claim
• Civil Liability (Contribution) Act 1978
• S1(4)
• A person who has made or agreed to make any
payment in bona fide settlement or compromise of
any claim made against him in respect of any
damage (including a payment into court which has
been accepted) …

17. The basis of claim …
…. shall be entitled to recover contribution in
accordance with this section without regard to
whether or not he himself is or ever was liable in
respect of the damage, provided, however, that he
would have been liable assuming that the factual
basis of the claim against him could be established.

18. Some practicalities
• Limitation – 2 years from date of settlement
• On whose behalf is the recovery made (insurer or
insured or both?)
• QOCS for the Claimant but not for you
• Conditional Discounted Fee Agreement – capped at
25% of recovery?

19. Some practicalities
• Has the abuser been convicted?
• Does the abuser have assets – property, pension,
shares, bank accounts
• Will the abuser deal with the Claimant’s claim
directly?
• Additional claim with Defence - or stand alone
proceedings?

20. Which assets?
• Property
• Sole or joint tenancy?
• Joint tenants or tenants in common?
• Children, the elderly, tenants?
• Mortgage?
• Charge versus Order for sale

21. Which assets?
• Pension
• Private not state
• Which scheme?
• What do the scheme regulations say?
• Pension drawn down?
• Attachment of earnings

22. Which assets?
• Bank account?
• Shares?

23. Recoveries
• Know your own mind
• Be clear with insurers
• Know your target
• Share the risk
• Act quickly

24. Limitation – a new approach
Susie Roome
Vicky Lapins
Lisa Davies

25. When we met in July 2016…
• New limitation initiative
• Straggler group claims but wider application
• A v Hoare – prejudice… can there be a fair trial?
Credibility assessment.
• RE v GE 2015 – shift focus from prejudice to reasons for
delay

26. When we met in July….
Checklist
• Reasons for the delay, and impact
- stigma, but publicity?
- physical as opposed to sexual abuse
- evidence available
• Causation
- difficult to unravel, numerous life experiences
• Proportionality
- less a claim is worth, less likely the Court is to allow it to proceed

27. When we met in July….
Checklist
• Credibility
- If allegations are too old to reliably find that they occurred…
- What of abuser’s credibility?
• Funding
- Lost insurance? Self funded? Will this case deflect funds from front
line social work?

28. When we met in July…
Checklist
• Prejudice other than main abuser/cause of action
- Are other abusers dead, documents lost etc. Can you
locate an appropriate expert
• Policy issues
- Limitation periods exist to prevent stale claims.

29. One we are fighting…
• 40+ years delay from incidents complained of, 30+ years out of time
• 1 indecent assault, plus physical abuse.
• Low value
• Significant inconsistencies
• Cl – unattractive character
• Significant sexual abuse revealed in medical records, not related to
this claim
• One alleged abuser dead
• No records.
BUT: alleged abuser convicted of abuse on others, settled over 100
claims in relation to him, no credibility.

30. Moving on….
What are we looking for when we assess the claims to
defend on limitation?
• Strong credibility arguments, plus at least one
other factor from the checklist.
BUT look at each case on its own merits.

31. Recent Judgments
• Catholic Child Welfare Society, Trustees of Middlesbrough Diocese,
Trustees of De La Salle
• 5 Judgments
• Group Action: Proceedings issued 18 July 2005 and GLO made 5
September 2006
• 249 claims
• Delay – police investigation and vicarious liability issue

32. Middlesbrough cases
• HHJ Gosnell:
• What would be your judgment?

33. Middlesbrough cases
GH – [2016] EWCH 3337 (QB)
- alleges physical abuse by Hartnett and Kelly
- alleges sexual abuse (masturbation, oral sex) by Father McCallen
- resident from 1981 – 1985
- - became anti-establishment, significant criminal record
- ashamed, stigma, put it to back of his mind.
- August 2003, spoke to probation officer and prison doctor. Problems in
children’s home but no detail.
- Saw solicitor in 2003, March 2005 transferred to Jordans.

34. GH
• Hartnett died on 22 March 2015, but provided full statement
denying abuse
• Gerry Kelly died on 21 November 1990
• Alleged witness denied report of abuse but was too old to attend
trial
• McCallen – denied abuse, but background of convictions for
indecent assault and buggery.
• Experts: task of experts made difficult due to deterioration in
cogency of evidence over time
• Prof Maden – didn’t know why he couldn’t bring claim earlier
• Ms Aitken – agreed with claimants explanation

35. GH
• Some missing documents, but not extensive
• Significant documentation does exist - medical records, more
recent social service records etc.
• Alleges abuse – March – June 1985
• Limitation period expired 5 February 1991 – 15 years out of date
• McCallen – “very unconvincing witness indeed.”
• Claimant – “not a convincing witness.”
• Equitable to allow the claim to proceed?

36. EF – [2016] EWCH 3336 (QB)
• Arrived at St Williams on 14 July 1972, aged 15.
• Alleged physical and sexual abuse (fondling, masturbation, digital
penetration) by Brother James Carragher, William Bruce (Brother
Thomas), Brother X.
• Left St Williams on 7 March 1973
• Habitual offender - 5 March 1991, life imprisonment for murder
• Inside Times – 2005; first statement on 8 October 2007.
• Drank heavily, he says to push the abuse to the back of his mind.
Shame, stigma.
• Very limited documentation – no education, social services records
or older mental health treatment records

37. EF
• Brother James called. Denied abuse. Tried and convicted of sexual
offences against pupils – 1993, 2004, 2015. Contended that he had
been wrongly convicted in 2004 and 2015. But admitted abusing
boys between 1972 and Feb 1980, despite his guilty plea!
• Brother X – man of good character, gave evidence and strongly
denied the allegations.
• Brother Thomas died in 1976, never asked about allegations.
• 2 of the 3 alleged abusers had no memory of the Claimant

38. EF
• Expert evidence agreed on limitation issues: reason for delay is that
thought didn’t occur to him until he saw the advert in Inside Times.
Nothing other than self-report to indicate the abuse troubled him before
then.
• Problem with cogency of evidence, would have been easier to assess if
brought in time
• Abuse alleged to have taken place between July 1972 - March 1973
• Limitation period expired on 13 June 1978. Proceedings issued on 17
October 2007 – claim was 29 years out of time.
• Would it be equitable to allow the claim to continue?

39. CD [2016] EWCH 3335 (QB)
- Claimant’s DOB 30.01.1978 (aged 36 at trial).
-He was made the subject of a care order at the age of ten following
his conviction for theft and criminal damage (setting fire to a school).
- Claimant was placed at St William’s School.
-St William’s School was an Assisted Community Home.

40. CD
• Claimant alleges abuse at St William’s School.
• He alleges that he was abused by the following
people:
• 1. Brother James Carragher (“Brother James”) -
rape during a residential trip and physical assaults.
• 2. Mr Noel Hartnett and Mr Ray Black (physical
assaults)

41. CD
- The Claimant did not report the alleged sexual
abuse to anyone at the time or subsequently.
- He also did not report the allegations of
physical abuse as he said that other staff must
have witnessed or been aware of pupils being
hit and did nothing about it and so there would
be no point reporting it.

42. CD
• The Claimant was at St William’s until 1994 and there
are detailed records of his time there.
• Claimant has 18 convictions for 62 offences with only
one offence committed after 2000.
• For the last 15 years or so he has been in regular
employment and has no issues with drugs alcohol or
offending. He is happily married and lives a normal
family life.

43. CD
• He claims to have dealt with the memories of
abuse by putting them to the back of his mind and
ignoring them.
• He reports occasional flashbacks.
• He was interviewed by the police whilst he was still
a pupil at St William’s as were all other pupils
about Brother James and he denied he had been
abused.

44. CD
• He was interviewed again by the police in 2003 and
again denied being abused.
• He first disclosed the physical abuse to his
solicitors in 2005 mentioning an incident in
Scotland but describing another boy as the victim.
• He eventually disclosed that he was the victim of a
rape in 2014 repeating this allegation to Professor
Maden in 2015 albeit in vague terms.

45. CD
• Brother James was called as a witness but denied
the abuse.
• Brother James conceded that he had been
convicted of sexual offences against other students
at St William’s but alleged he stopped abusing boys
by February 1980.
• Mr Hartnett died on 22 March 2015 but provided a
full statement prior to his death denying any abuse
– said any force used was reasonable.

46. CD
• Ray Black provided a statement denying liability.
He had poor health and was unable to attend trial.
• Despite the best efforts of the Defendant’s
solicitors documents were missing and witnesses
were untraced.

47. CD
• Professor Maden, a consultant psychiatrist for the Claimant opined as
follows at paragraph 153 of his report:
• “There are serious problems for the expert arising from the fact that the
material events took place over 20 years ago. Memory is not reliable over
such long periods of time. Recall is an active mental process in which
memories tend to become distorted with time to fit the individual’s
beliefs, needs and values. Both the content and meaning of recollections
often change with time. Event can and do acquire a significance years
later that they did not have at the time. ”
• Expert Ms Richardson however felt that the Claimant’s behaviour was
typical of a victim of child sexual abuse and felt that the physical abuse
had not been reported as it appeared “normal” at the time.

48. CD – Defendant’s limitation
arguments
• The Defendant complained that proceedings were
not commenced until 15 years after the cause of
action arose.
• Noel Hartnett had died and other alleged abusers
were too unwell to attend court.
• Some witnesses could not be traced
• Missing records
• Burden is on the Claimant to persuade the court to
exercise its discretion under s 33 LA 1980.

49. CD – Claimant’s limitation
arguments
• The Claimant alleges that the Limitation period
started on 30th January 1996 and expired on 30th
January 1999.
• Proceedings were issued on 18th January 2006 (but
adjourned until 2015 due to Supreme Court hearing
regarding vicarious liability and the 2015 criminal
proceedings). Admitted there was a 7 year delay.
• Delay was because the Claimant was too
embarrassed and ashamed to report the abuse.

50. CD - decision
• Would it be equitable to allow this claim to
proceed?

51. IJ [2016] EWHC 1(QB)
• Claimant’s DOB 04.04.1974 (aged 42 at trial).
• In 1985 at age 10 he committed his first offence.
• Placed in care in 1979.
• Between 1986 – 1989 he was placed at St William’s
school.

52. IJ
• Allegations of sexual abuse (rape, oral sex,
masturbation) by Brother James and Father
McCallen.
• Allegations of physical abuse against Mr Dillon and
Mr Flynn.
• The Claimant did not complain to anyone about the
sexual abuse he had suffered whilst at St William’s
because he was scared of Brother James.

53. IJ
• Claimant has amassed at total of 43 convictions for
107 offences and has served numerous sentences of
imprisonment.
• The Claimant was serving a sentence at the time of
the trial.

54. IJ - disclosure
• Claimant first disclosed the abuse to the police in
or around 2003 when they telephoned him to ask if
he had been abused at St William’s.
• He told the police that he had been physically and
sexually abused.
• Claimant contacted Jordans Solicitors in 2005
following an advert in the “Inside Time”

55. IJ – The Defendant’s case
• Brother James & Brother McCallen denied sexually
abusing the Claimant (both had been convicted for
similar offences at the school).
• Brother James recalled the Claimant.
• Gerry Dillon recalled the Claimant. Said any force
used was necessary to restrain the Claimant.
• Claim is statute barred due to law on limitation.
• Experts agreed that the delay complicated the
work of the expert.

56. IJ - Claimant’s limitation
arguments
• The Claimant alleges that the abuse took place
between May 1986 and July 1989.
• The Limitation period started on 4th April 1992 and
expired on 4th April 1995.
• Proceedings were issued on 17th October 2007
which meant that the delay in issuing proceedings
after the limitation period expired was 12½ years.
• The reasons for the delay was that the Claimant
was too embarrassed and ashamed to report it.

57. IJ - decision
• Do you think it is equitable to allow the claim to
proceed?

58. Middlesbrough cases
AB – [2016] EWHC 3334 (QB)
- Alleges physical abuse by Hartnett
- Alleges sexual abuse (masturbation, inappropriate touching, digital
penetration) by Brother James and (masturbation x20) by Brother X
- Resident from 1973-1975
- Significant criminal record, drink problem, violent relationships
- Embarrassed and ashamed. Tried to block out the abuse with alcohol
- 2001 interviewed by the police. Alleged sexual abuse by Brother James
and a vague allegation against Brother X
- Contacted Jordans in 2005 after receiving a letter from them

59. AB
• Hartnett died on 22 March 2015, but provided full statement
denying abuse
• Brother James – denied the abuse, but background of convictions
• Brother X – denied the abuse, no convictions
• Witnesses to whom the Claimant alleged he had disclosed the
abuse at the time were dead
• Experts: task of experts made difficult due to deterioration in
cogency of evidence over time
• Professor Maden – no reason why the Claimant could not bring a
claim earlier
• Mr Godsi – psychological reasons why the Claimant delaying coming
forward i.e. shame, embarrassment, felt he would not be believed

60. AB
• Limited documents
• Limitation period expired 25 January 1980 – 25 years out of date
• Claimant – not a very effective witness. Inconsistencies in
statements made in 2001, 2001 and 2014 and unable to explain
them. Emerged in evidence that he had first disclosed the abuse
to his mother in 1993
• Brother X and Brother James – gave cogent evidence. Both had no
recollection of the Claimant
• Four witnesses to whom the Claimant allegedly reported the abuse
at the time had died in the 1990s and 2010. A further witness
could not be traced
• Equitable to allow the claim to proceed?

61. Conclusion
• Previously we looked for strong credibility
arguments, plus at least one other factor from the
checklist when assessing limitation.
• Does this hold firm? In some cases yes but in
others, no.
• Judge did look at consistency, but also availability
of documents and witnesses.
• Ultimately limitation will be decided on a case by
case assessment but the checklist will assist.

62. McCloud Initiative
Susie Roome

63. What is it?
• November 2016 – informal user/consultation group
re historic abuse cases
• Master McCloud – only sole civil Master – “raising
head above the parapet.”
• How can these cases be better managed and tried?
• Working groups: anonymity, disclosure, delay,
experts, costs and proportionality, ADR…
• Historic Abuse Lawyers Forum (HALF)

64. What is it?
• Informal, not change in the law. But best practise can
be infectious.
• Memorandum of understanding/protocols between
leading Defendant and Claimant firms
3 months on:
• Working towards pre-action protocols and standard
directions for issued claims
• Historical abuse resolution procedure (HARP)

65. What is it?
• Who else is involved? Got momentum – ALARM, ABI,
psychs and pschologists, key insurers.

66. What next?
• Meeting with Master McCloud today – 21/2/17
• Report to IICSA
• Approach to interested parties – insurers, experts,
LSC, Civil Justice Committee, Jackson.
• Watch this space!

67. HARP
• Alternative resolution process
• Embryonic, and VERY different
• Applies when parties admit Cl has suffered abuse
• No pecuniary damages for past and future loss, just
PSLA and costs of medical treatment – given
through process irrespective of outcome
• No limitation defences available
• Narrative judgment which makes findings as to
what happened and how to improve in future.

68. HARP
• Inform practice, future risk management
• Prevents Defendant “taking control of the process
by making a large offer or an admission” – Cl can
still get declarative judgment
• Cl will know it is not just about the money
• Encourage apologies, more openness

69. HARP - implications
• Appetite?
• Will costs really reduce? Can’t avoid a fact finding
exercise.
• Disbarred from then making a damages claim?
• Who will fund the treatment etc? Insurers? But
what if no fault….
• Widening pool of experts, ongoing treatment
• “Address an unmet, pressing social need…”

70. Protocols – key issues to address
What is it that causes delay and increases costs in
these cases…
What is your experience?

71. Protocols – issues to address
• 3rd party disclosure, particularly police but also
family courts etc.
Increase costs by requirement to issue
• Refusal to give limitation moratoriums
• Disclosure between parties – what, how much,
redacted etc.

72. Protocol – issues to consider
• Letter of notification v letter of claim
• Pre- medical offers and the requirement for
medical evidence
• Availability of experts, waiting lists
• Court time
• Fixed costs – how would they sit with suggested
protocols and HARP?

73. Protocols
• Tool to direct inexperienced firms of non-institutional
Defendants (e.g. alleged abusers)
• Vast majority of clams in the market are VL.
• 2 protocols likely
• Most cl sol don’t turn their mind to quantum until they
get an offer or medical report – proportionality?
• Most cl sol cannot advise until full disclosure – weighs
more heavily on LA than clubs, scouts etc.
• Cl sol rely more heavily on Counsel than Def firms

74. Contact us…
David Maggs
E: david.maggs@brownejacobson.com
T: 020 7337 1005
Vicky Lapins
E: vicky.lapins@brownejacobson.com
T:
Susie Roome
E: susie.roome@brownejacobson.com
T:
Lisa Davies
E: lisa.davies@brownejacobson.com
T: 0115 908 4877

75. All information correct at time of production.
The information and opinions expressed within this document are
no substitute for full legal advice. It is for guidance only and
illustrates the law as at the published date. If in doubt, please
telephone us on 0370 270 6000.
© Browne Jacobson LLP 2017 – The information contained within
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