56. Victims and survivors who wish to make a civil claim will usually need to instruct solicitors to prepare and manage the litigation. When deciding whether to take on a case, solicitors will consider the merits of the claim, including the quality and nature of the available evidence and, if the claim is non-recent, the strengths and weaknesses of any limitation arguments. There may also be practical issues, such as the means of the defendant and whether it has insurance cover to pay compensation and legal costs if the claim is successful (see below).
57. There may be funding issues for claimants, many of whom do not have the means to pay their own costs or those of the defendants if their cases are lost. Without some form of litigation funding, they are unlikely to be able to pursue their claims. Some claims are funded by legal expenses insurance, if available, or by public funding from the Legal Aid Agency. However, Billhar Singh Uppal told us that the means test for public funding is now “very, very restrictive”; he said one of his Bryn Alyn clients who qualified for legal aid in 1994 would not do so now.[1] Peter Garsden made a similar point in the context of the North West child abuse litigation.[2]
58. Most claims now proceed under a conditional fee agreement (CFA) backed by an insurance policy. In those cases, the claimants’ lawyers will only be paid if the claims succeed. If the claims fail, the defendants’ costs will be paid by the insurers. If insurance cannot be obtained, claimants must fund the claims themselves if they want to proceed, including paying for the lawyers’ time and disbursements such as medical reports.[3]
59. Solicitors will also consider the potential value of a claim compared to the likely legal costs, which may be substantial in complex cases. If the costs of pursuing a low-value claim are high, some or all of those costs may not be recoverable at the end of the litigation, even if the case succeeds. There are a limited number of insurance companies that offer policies protecting claimants against losing their claims. Those insurers will only offer policies to those claimants whose cases are likely to succeed and, even then, the premiums may be unaffordable. As a result, some victims and survivors find that solicitors are unable or unwilling to pursue their claims.
60. A claimant’s solicitors will consider whether the defendant has the means to pay any damages and costs arising from a claim. If the defendant is a large, solvent institution, such as a local authority, this will not be an issue. But if the organisation is small, insolvent or no longer exists, the solicitors will want to confirm that there is (or was) insurance in place.
61. Public, private and charitable institutions usually have public liability insurance to meet any legal liabilities for injuries and losses suffered by members of the public. This may include liability for claims of child sexual abuse, although historically such insurance policies may not have included specific provisions for such claims. Even where there is an insurance policy in place, it may contain clauses excluding liability for deliberate acts of abuse by the person who took out the insurance policy, as was the case in Bryn Alyn.
62. Public liability insurance policies will ordinarily stipulate a minimum amount, known as the deductible, that the policyholder must contribute to a claim before the insurer adds its contribution. They will also set the insurance limit, ie the maximum amount that the insurer will pay towards any covered claim.
63. Some potential defendants are uninsured and so are responsible for the financial risks of any litigation. Where uninsured defendants may not have the resources to pay compensation or legal costs, it may be pointless or difficult to bring claims against them.
64. Difficulties can arise in the identification of the correct insurer for the relevant periods, especially in historic litigation. This can be seen in the protracted North Wales litigation concerning Bryn Alyn.
64.1. Although, originally, RSA was prepared to indemnify Bryn Alyn Community (Holdings) Limited from 1 July 1973,[4] it was confirmed several years later that RSA was not liable for the period prior to 22 August 1976.[5] This was a result of new evidence found in searches conducted by RSA. These searches were not undertaken until 2004, which Alistair Gillespie acknowledged was a mistake.[6]
64.2. Similarly, there was then a delay before the claimants’ solicitors themselves conducted further searches and, in October 2008, discovered a letter from 1973 which showed that Eagle Star was the relevant insurer.[7] The court agreed that this delay was caused by the failures of the claimants’ solicitors.[8]
65. This might have been avoided if a public liability register had been in place, recording the defendant’s insurers throughout the relevant periods. As regards the benefit of such a register, David Nichols, UK Chief Claims Officer at Zurich, said:
“I think you can see examples of where you can speed up an understanding of the coverage that exists, and over multiple years, which is of course something that we need to be mindful of, and indeed understanding where the cover may have been held, it does fast track some scenarios.”[9]
66. If a prospective claimant is able to secure legal representation, their solicitor will take preliminary steps to investigate the claim, including obtaining documents such as medical records. While this is taking place, or once it has concluded, the solicitor will write a letter of claim to the defendant. This will summarise the nature of the claim, including the allegations of sexual abuse and any consequential damage and losses.
67. Letters of claim are one of the steps required by the Pre-action Protocol for Personal Injury Claims, which applies to child sexual abuse claims. The protocol’s objectives are to encourage the exchange of early and full information, early investigation, settlement before proceedings and the efficient management of any proceedings. It requires a claimant to include sufficient information in the letter of claim for the defendant to assess the merits of the case and its potential value. The defendant is then required to produce a letter of response that admits or denies the claim, with reasons if necessary. Disclosure is also encouraged in order to help clarify or resolve issues in dispute.[10]
68. There is currently no pre-action protocol specifically for child sexual abuse claims. However, with the assistance of Master McCloud (a judge), a group of representatives for both claimants and defendants have each prepared a draft of a pre-action protocol for non-recent abuse claims. These drafts have now been supplied to the Civil Procedure Rule Committee (which makes the rules) for review.[11]
69. Defendant representatives told us that they hoped a new protocol would improve the procedures governing letters of claim from claimants (which may be too vague) and the early disclosure of records by both sides.[12] However, aside from documents such as the claimant’s employment and medical records, we were told that it is often the defendant that is in possession of the documents relating to the claimant’s time at an institution.[13]