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
March 2017, Exeter

2. Limitation – a new approach

3. Context
• Fresh look at approach to limitation
• Straggler group claims but wider application
Context:
• High volume claims in initial group – group actions
• Further groups or individual claims

4. Straggler group claims
• Local and national publicity
• Convictions:
- Not guilty plea
- No credibility
- Multiple victims, long period of offending
- Still alive, located and available to give evidence
• Now VERY stale

5. Legal Framework
• No procedural remedy, not abuse of process
• A v Hoare [2008] UKHL 6 – changed the landscape:
– Reasons for delay
– Cogency of evidence
– Effect of delay on the issues to be decided
– Key issue: ‘did it happen?

6. Legal Framework
• RE v GE [2015] EWCA Civ 287
- No one s.33 factor more important than the others
- Possibility of a fair trial is not the overriding
consideration (Necessary but not sufficient)
- Overriding consideration is what is fair to both
parties
- Cl should have progressed the claim more quickly

7. Checklist
• Reasons for the delay
• Causation
• Proportionality
• Credibility
• Funding
• Prejudice other than main abuser/cause of action
• Policy issues

8. 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.

9. 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.

10. Recent Judgments
• Archbishop Bowen and The Scout Association v JL
• The Claimant had recovered £20,000 at trial
• He had failed in his argument that grooming of him
in his early years meant that when he attained 18
he could not consent to his relationship with the
abuser

11. JL continued
• The abuse occurred 1984 -1987
• JL 18 in 1985
• Primary limitation expired 1988 - 1990
• JL had therapy 2009 & consulted solicitors 2010
• Proceedings issued (against the church) 2011
• Delay between 9 and 23 years
• Scout Association sued 2013
• Abuser died April 2014

12. JL continued
• 1999 Abuser arrested regarding offence with
another boy
• 1999 and 2000 JL gave statements to police
• Abuser charged with 15 counts of indecent assault –
five related to JL
• Abuser pleaded guilty to the JL counts and some
others in 2000

13. JL continued
• Conviction of abuser – section 15(1) of the Sexual
Offences Act 1956
• “the consent of a man of sixteen or over to the
“indecent” act is a defense to a charge under this
section”

14. JL continued
• Trial 2015
• Claim for about £500,000
• Judge disapplied limitation
• Defendant’s appealed

15. JL continued
• Little of the criminal evidence survived
• In 2003 in his petition to leave the priesthood the
abuser undermined his guilty plea – the consent
point
• In 2012 a draft witness statement was taken from
the abuser by the church’s lawyers but he died
before he signed it

16. JL continued
• To succeed on appeal Judge must have
misdirected on law or misapprehended the facts
• “where a judge determines the section 33
application along with the substantive issues in the
case he or she should take care not to determine
the substantive issues, including liability, causation
and quantum before determining the issue of
limitation and, in particular, the effect of delay on
the cogency of the evidence” - Nugent Care

17. JL continued
• Delay was between 21 and 23 years not between 9
and 23 years
• Abuser’s death hampered the Defence

18. JL continued
• “When this court observed that the judge must
decide the issue on the exercise of the discretion
under s.33 before reaching the conclusions on
liability, it was enjoining a judge to decide the s.33
question on the basis, not of the finding that the
abuse had occurred, but on an overall assessment,
including the cogency of the evidence and the
potential effect of the delay on it” - Raggett

19. JL continued
• The judge recognised that JL was shown to have
been deliberately misleading in descriptions he had
given in his business life and the way he promoted
himself.
• There was a “tendency to inaccuracy and
overstatement”. He had misled the treating
therapists and his medical experts by saying that
the abuse started at thirteen (an allegation which
formed no part of the claim).

20. JL continued
• The judge found that JL understated the number of
visits he made to the abuser when he was an adult.
• The visits themselves were voluntary and he chose
to stay over from time to time. JL had told his
medical expert that the sexual incidents occurred
“at intervals of a few years” when they were in
fact much more frequent, indeed regular

21. JL continued
• The Judge concluded that JL’s evidence “as to the
supposed effect of abuse on his business generally
to be unconvincing.”
• from the time he made statements to the police in
support of the prosecution JL was asserting that he
had been the victim of abuse.

22. JL continued
• the problem with reliance upon a revelatory
experience when in therapy as a good reason for
not having sued earlier, is that it was based upon
false premises.
• until the criminal prosecution, JL delayed in
bringing any claim relating to the pre-university
years because he believed that he was in a
relationship with the abuser which was unique.

23. JL continued
• Even when that realisation was shattered JL, whilst
willing to stand in a Crown Court and give evidence
against the abuser, did not wish to bring
proceedings.
• If there has been a conviction the problems of
investigating antique events may be of less
consequence. In the overwhelming majority of such
cases that may be so because the conviction proves
the tort.

24. JL continued
The Judge was wrong to have disapplied limitation.
He had taken into account too short a period of delay
and had not weighed the adverse findings he made
against the claimant in considering the range of
matters which informed his decision on limitation

25. Recent Judgments
• AP (BY HIS LITIGATION FRIEND, BA) v TAMESIDE
METROPOLITAN BOROUGH COUNCIL
• no presumption under the Human Rights Act 1998
s.7(5) in favor of an extension of time to bring
proceedings for claimants who lack capacity and
therefore depend on others in order to make a
claim.

26. AP continued
• The extension period sought represented one-and-
a-half times the primary limitation period
• It was inexplicable that the solicitors had taken no
steps to protect his position by issuing a protective
claim before or just after expiry.
• The legal aid matter could not justify extending
time.
• The claim would be a huge administrative burden
to the Defendant - costs likely to be substantial.

27. Recent Judgments
• (1) MLIA (2) CLEL v CHIEF CONSTABLE OF
HAMPSHIRE
• The court refused to extend the one-year
limitation period for a human rights claim brought
against a police force in relation to its alleged
failure to adequately investigate complaints of
abusive behavior and harassment - a seven-and-a-
half year delay in bringing the claim and the
claimants could have sought advice on a potential
claim earlier

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

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

30. Middlesbrough cases
GH – [2016] EWCH 3337 (QB)
The claim:
- physical abuse by Hartnett and Kelly
- 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.

31. GH –evidential position
• 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 too old to attend trial
• McCallen – denied abuse, but background of convictions for
indecent assault and buggery.
• SWs not called, but little effort to trace them
• 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

32. GH - prejudice
• Some missing documents, but not extensive
• Significant documentation did exist - medical records, more recent
social service records etc
• Witness evidence as above
• Alleges abuse – March – June 1985
• Modest value?
• Limitation period expired 5 February 1991 – 15 years out of date,
20 years after incidents complained of.

33. Equitable to proceed?
• Yes
- explanation for delay, if true, may well be a good reason
- documentation was available – “extensive and illuminating”
- witnesses recollection may have dimmed, but denied any abuse occurred
at all (or were peripheral to the case)
Did the claim succeed?
• McCallen – “very unconvincing witness indeed.”
• Claimant – “not a convincing witness.”
• NO!

34. EF – [2016] EWCH 3336 (QB)
• The Claim
• 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.

35. EF
The evidence
• Very limited documentation – no education, social services records
or older mental health treatment records
• 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

36. EF - prejudice
• Loss of key documents
• 2 of 3 witnesses – no recollection
• 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. Prof Maden said assessment now impossible.
• 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.

37. EF – equitable to proceed?
No
- particular concerns about the cogency of the evidence due to Claimant’s
vagueness on details.
- Important contemporaneous documents are lost
- not a good reason for the delay. Most likely reason – that it simply didn’t
occur to the Cl to make a claim.
- length of delay.
Note: Did abuse likely occur – evidence vague, inconsistent, sometimes
implausible. Failed to discharge burden of proof.

38. CD [2016] EWCH 3335 (QB)
The claim -
• -Claimant alleges abuse at St William’s School, attended late
1980’s - 1994.
• Sexual abuse - Brother James Carragher (“Brother James”) - rape
during a residential trip and physical assaults.
• Physical assaults - Noel Hartnett and Ray Black (physical assaults)
- The Claimant did not report abuse at the time
- Did not report physical abuse as he said 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.
•
-

39. 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.

40. 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.

41. 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.

42. CD
• Brother James was called as a witness but denied the abuse.
• 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.
• 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.

43. CD
• Professor Maden
• “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.

44. 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.

45. 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.

46. CD – equitable to proceed?
Yes
• Documentation was available.
• Claimant provided good reason for delay.
• Only a 7 year delay – relatively short.
• Claimant a clear compelling witness.
• Documentation still available.
• Key witnesses gave statements.
• However, the Claimant twice denied the abuse to the police.
And credible…awarded £14,000 damages.

47. Conclusions on approach?
• Documentation is important
• Witness evidence is important, but not if everyone is just going to
deny any and all abuse anyway!
• The Court does not like being messed around – delay can’t just be
due to not thinking about it.
• But it may be reasonable to put it to the back of the mind, or to
fear disclosure due to shame or stigma.
• A vague or inconsistent Claimant is less likely to be allowed to
proceed, although this is not a determining factor.

48. Recoveries in social care claims

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

55. NA v Nottinghamshire CC

56. NA v Nottinghamshire CC

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

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

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

61. 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).

62. 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) …

63. 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.

64. 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?

65. 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?

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

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

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

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

70. Questions?

71. The McCloud Initiative

72. What is it?
• November 2016 – informal user/consultation group
re historical 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).

73. What is it?
• Informal, no 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).

74. What is it?
• Who else is involved? Got momentum – ALARM, ABI,
psychs and psychologists, key insurers.
• Attempt to increase the pool of experts and reduce
costs.
• Keeping IICSA involved.

75. What next?
• Interim meeting with Master McCloud by Claimant
and Defendant solicitors– 21/02/17.
• Claimants and Defendants had prepared separate
pre-action protocols
– D = Vicarious Liability only
• Agreement/disagreement on the detail.
• Drafting group – next meeting in early summer.

76. 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.

77. 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.

78. 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…”

79. Protocols and HARP – key issues
to address
What are the current challenges with abuse cases…
What is your experience?

80. Current Issues
• Disclosure between parties is expensive – problem
of redaction.
– Electronic solution – data room?
• 3rd party disclosure – police/family courts. Costs
increased by requirement to issue.
– How will a voluntary protocol help?
• Insufficient information from Cl when records
requested.

81. Current Issues cont…d
• D’s dragging feet on a limitation moratorium.
– Both issues to be addressed by a beefed up letter of
notification stage.
• Relatively high costs of handling claims.
– Pre-action protocol should streamline.
– But C’s want a ban on pre med offers.
• Very high expert costs.
– Is increasing pool possible…?

82. Challenges with HARP
• How relevant to present risk management is a
declaratory finding in old cases?
• Who will fund rehabilitation in cases where liability
is not proven?
• Will Claimants sacrifice good future loss claims –
Claimant’s solicitors professional obligations.
• Cannot settle a case with a payment of damages.
• Do D’s wish to forego a limitation defence?

83. Challenges with HARP cont…d
• Do all Claimants want a declaratory judgment?
– Do some want early compensation and resolution?
– Are there other avenues for recognition?
• Increased costs – investigating liability in vicarious
liability claims?!
• The Elephant in the Room …

84. Contact us…
David Maggs
E: david.maggs@brownejacobson.com
T: 020 7337 1005 M: 07879 885 216
Susie Roome
E: susie.roome@brownejacobson.com
T: 0115 976 6147 M: 07946 144 858
Jo Pruden
E: jo.pruden@brownejacobson.com
T: 01392 458726 M: 07967 590 872

85. 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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