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IICSA published its final Report in October 2022. This website was last updated in January 2023.

IICSA Independent Inquiry into Child Sexual Abuse

Accountability and Reparations Investigation Report

C.9: Resolving the claim

Case management

88. If the parties are not able to settle the claim pre-action, a claimant may decide to start proceedings by issuing a claim form at court. Once claims have been issued the court has extensive powers to manage cases under the CPR.[1] Judges routinely use these powers to direct the parties to exchange witness and expert evidence, to order the disclosure of documents, to determine which issues may be considered in the litigation, to hold hearings of any preliminary issues (see above on limitation) and to set the timetable for trial.

89. Defendants may try and defeat the claim before it reaches full trial. One way in which they can do this is to strike out the claim, for example if there are no reasonable grounds for bringing the claim or if there was a failure to follow a rule, practice direction or order.[2] One example of this was the unsuccessful application made by Nugent Care to strike out the St Aidan’s and St Vincent’s claims on the basis that the claimants had breached the rules by issuing claims using letters in place of their own names.

90. Peter Garsden said that this was a “technical point” which wasted “two years of the litigation” and was “typical of litigation at the time”.[3] Stephen Bellingham agreed that such an application would now be considered to be “aggressive”. He told us that it would not now be appropriate to strike out an entire claim on such a basis, and that modern procedure would make such an application unnecessary.[4] Peter Garsden accepted that it would not be raised now but said if he was being “truly cynical, I would say that if it was allowed, then those points would still be taken”. He also acknowledged that this was an “adversarial process and I can’t blame defendants for taking whatever points they can”.[5]

The trial process

91. Where the facts of a claimant’s sexual abuse, or its effects, are in dispute, the claimant will ordinarily be called to give evidence at trial. The claimant’s own version of the facts will be set out in a written statement. With the judge’s permission, this may be supplemented by oral evidence in response to questions from the claimant’s own barrister, known as examination-in-chief. The claimant will then be questioned by the barrister for the defendant (or in some cases the defendant perpetrator himself). During this process, known as cross-examination, the claimant will usually be challenged on all of those parts of the evidence that the defendant does not accept.

92. The civil courts, unlike the criminal courts, do not have special rules governing the questioning of vulnerable witnesses such as victims of child sexual abuse. Claimants are treated like any other personal injury claimant. They may therefore be questioned robustly and in detail about their experiences before, during and after their abuse, with the intention of undermining some or all of their accounts.

93. Although a number of victims and survivors told us of their wish to give evidence at trial, the actual experience of doing so is invariably very difficult for them. As Paul Durkin said:

“Some clients say they want their day in court, but I know that they don’t want their day in court because it’s such a rigorous forensic process. It’s probably the last thing that they want to face, in reality.”[6]

94. AR-A87 was abused at St Aidan’s. In 1998 he brought a claim against Nugent Care Society and later became one of the lead claimants in the North West Children’s Homes litigation. He told us that he prayed for his day in court when he could tell the judge what had happened to him.[7] That day, he said, was:

“important because I needed to be believed. That was the most important thing, to actually have my day in court. I wanted to face my abusers and to be believed by the court that what happened to me did happen … I was looking forward to looking at my abusers and saying to them, ‘I’m not a child no more’”.[8]

95. The trial judge ultimately rejected AR-A87’s claim on the grounds of limitation. But AR-A87 said that he still felt happy because “the judge himself turned around and said in court that he believed every word I said … it was a small win on my behalf because the judge himself believed me”.[9] The judge recognised this in his judgment, commenting on “the satisfaction of being heard and believed”.[10]

96. Following a successful appeal,[11] AR-A87’s claim was reheard before a different judge. Again, the judge accepted that he was sexually abused but, for different reasons, also rejected his claim on the grounds of limitation.[12] This time, the Court of Appeal upheld the judge’s decision on limitation.[13]

97. AR-A87 told us that the pressure of repeated court hearings about his abuse made him ill. He said that he did not realise it at the time, but he was suffering with mental health problems, and that the pressure tore his family apart and nearly ended his marriage.[14] However, although his claim failed, AR-A87 still believed that:

“It was a valuable experience because I came out of those two courts and I was literally ecstatic because both the judges believed my story and, at the end of the day, that’s all I wanted: I wanted to be able to stand there, give my evidence and for somebody to turn around and say, ‘I believe you … ’. That to me was everything.”[15]

98. AR-A23, who was a lead claimant in the Bryn Alyn group action, also lost her case despite the trial judge accepting that she had been abused. But she too said that the recognition of the abuse was more important:

“The judge had found that I was abused by John Allen. This was a great relief for me. Finally, I had been believed. It was recognition that I had been abused and also vindication for being disbelieved for so many years and no-one listening.”[16]

99. However, the experience of AR-A23 and other claimants in the Bryn Alyn litigation also exemplifies how difficult it can be for victims and surviviors of child sexual abuse to give evidence in the civil courts.

100. The Bryn Alyn claims proceeded to trial in early 2001. The defendant’s insurer, RSA, did not advance a positive case in relation to the fact of the abuse (except in one case) but conceded very few issues and still required each claimant to prove every element of their claim.[17] This made AR-A23 feel like she was “being abused all over again” as she had to “relive everything, in intimate detail”.[18]

101. The claimants were cross-examined about the issue of causation, namely factors other than their abuse that may have caused their psychiatric injuries.[19] Claimants were also questioned about their credibility,[20] their disclosure of the abuse,[21] their date of knowledge (for the purposes of limitation)[22] and the management of the school.[23]

102. While AR-A21 now feels that the experience was therapeutic, at the time the prospect of giving evidence was “daunting”.[24] The psychiatrist in the case noted that AR-A21 got more agitated as the trial approached and AR-A21 himself explained that this was because giving evidence required him to re-open painful memories:

“You’re sort of reliving that thing over and over again, and each time it became more painful to do so.”[25]

103. Those claimants who gave evidence explained how it felt to have to speak about their experiences. AR-A23 and AR-A29 both said it was “horrible”.[26] AR-A21 said that it was “embarrassing, and it was like reliving again everything that had gone on”.[27]

104. Some felt the thrust of the questions was that they were lying about the abuse. Even though the question of whether the abuse occurred was not actually disputed, the process of giving evidence exposed and re-ignited a fear of not being believed.[28]

105. Lord Faulks QC, the barrister representing RSA, sought to explain the parameters within which an advocate can challenge whether or not the abuse took place. He stated that, if a defendant witness denies the abuse took place, it should be put to the claimant. Where there is no such denial it may be appropriate to “put in issue whether it took place” but it has to be done “carefully and with appropriate circumspection, because you have no positive case to put”.[29] He also agreed with Alistair Gillespie[30] that claimants may need to be challenged directly on what effect the abuse has had on them, so that the issue is not simply determined on the basis of expert medical evidence.[31]

106. When asked about the Bryn Alyn litigation, Lord Faulks pointed out that there were no objections to his questions from the experienced High Court judge or the barristers representing the claimants.[32] He said he was obliged as a matter of fairness to put these issues to the claimants in cross-examination in order for the defendant to make the arguments in their closing submissions.[33] Nevertheless, he recognised the experience of cross-examination would not have been pleasant[34] and that, when challenged about events in their past, a claimant might feel that they were being accused of lying.[35] He also suggested that it may actually be the whole experience of litigation, rather than the trial alone, which was traumatic for claimants – having to repeatedly tell and relive their experiences on numerous occasions.[36]

107. Looking at the present day, Lord Faulks stated that, as the law is now more straightforward, fewer people have to give evidence. When asked about the possibility of changing the way in which claimants are questioned, he cautioned against preventing defendants from challenging cases through a “more traditional approach”.[37]

108. A number of other witnesses, on both the claimant and defendant side, supported looking at adopting special measures for vulnerable witnesses in civil claims.

108.1. Peter Garsden said that the civil claims process was “out of date” in this regard and it needed to change.[38]

108.2. Stephen Bellingham stated that “it’s something that absolutely we should be actively looking into”.[39]

108.3. Carolyn Mackenzie said that she endorsed replacing traditional cross-examination and replacing it with another approach.[40]

109. Melissa Case explained that, although the family courts were following behind the criminal courts in relation to the treatment of vulnerable witnesses, the civil courts had some way to come. She told the Inquiry that the Master of the Rolls (the most senior civil judge in the Court of Appeal) had asked the Civil Justice Council to look at the issue of provisions regarding vulnerable claimants and that the Ministry of Justice would support any recommendations. She was also open to the need for legislation, but warned of the time that this could take.[41]

Settlement

110. The CPR encourages early settlement of claims.[42] Parties may make written offers of settlement to each other at any time during the litigation process. The process of settlement may take many forms and the CPR encourages the use of alternative dispute resolution methods, which may include discussion and negotiation or mediation.[43] The CPR also provides a written mechanism for settlement, known as a Part 36 offer. A party who rejects a Part 36 offer may face financial penalties, including additional legal costs, if the amount of compensation they ultimately receive at trial is less than the sum previously offered.

111. Settlement removes the risk of a claim being rejected by the courts and avoids victims and survivors having to suffer the stress and trauma of a contested trial. But claimants may still be left dissatisfied by both the process of settlement and its outcome, ie the payment of compensation without judgment and accountability. This can be seen in the Forde Park and St Leonard’s litigation, where the views of the lawyers instructed by the claimants contrasted deeply with the experiences of a number of victims and survivors who gave evidence.

Settlement of the Forde Park claims

112. The lead solicitor and counsel who acted for the claimants in the Forde Park litigation explained to us the complex process by which the claims were settled. This involved detailed consideration of the value of each claim and the risks that the litigation might be unsuccessful, both on generic issues and on factors specific to each case.[44] Elizabeth-Anne Gumbel QC, leading counsel for the claimants, told us that despite the risks in proceeding to trial, for example losing on limitation, the settlement figures achieved were “more or less on the basis of full liability”, and that they compared very favourably with awards in the North Wales litigation.[45]

113. Nevertheless, some but not all victims and survivors were unhappy with the amount of compensation that they were awarded.[46] For example, AR-A41, who received in the region of £50,000, compared his compensation to the amount expected for a broken leg.[47] Penelope Ayles, the lead solicitor for the claimants, said such unhappiness was unsurprising, “because how can you put a figure on something that devastated their childhood and changed their whole lives”.[48] Elizabeth-Anne Gumbel and Henry Witcomb, junior counsel for the claimants, agreed that the levels of damages are generally too low in child sexual abuse claims, but the former observed that “we can only work within the system in place”.[49]

114. The claimants’ legal team told us that they provided advice to individual claimants as to the potential value of their claims and the risk that they might receive less at trial. They also explained to them the process of offers and counter-offers.[50] However, a number of victims and survivors said that they did not understand how their settlements had been reached and that they were not given explanations.[51] Penelope Ayles told the Inquiry that she was “very sorry” that the claimants were unhappy with the communication but that she did the best she could to explain the process. She acknowledged that the concepts in litigation are difficult to understand and that some time had passed since the settlements were reached.[52]

115. Some of the claimants’ feelings about the lack of explanation may have been compounded by what was described as a ‘take it or leave it’ approach to the offers of settlement.[53] Penelope Ayles said that although she might not have used those terms, “in reality, that’s where you ended up if they weren’t prepared to take the offer”. She explained that, as the claims were publicly funded, if an offer was made that the claimant’s lawyers thought was reasonable, they would have to tell the Legal Aid Board (now the Legal Aid Agency), which would stop funding the claim.[54]

116. A number of victims and survivors were left disappointed that they had not had their “day in court”.[55] However, as Elizabeth-Anne Gumbel explained, as with all civil cases, although clients may want their ‘day in court’, when appropriate levels of damages are offered it is not possible to go to court just to fight the claim.[56]

117. Finally, as with victims and survivors in the other case studies, many had brought civil proceedings hoping for an apology, an explanation and acceptance of responsibility.[57] However, the claims were settled without an admission of liability and the lawyers told us that, in such circumstances, it would have been difficult to obtain an apology from the defendant through the civil claims process.[58] A number of victims and survivors were, and continue to be, extremely disappointed by this.

118. It is clear from the evidence that we heard that the claimants’ legal team worked hard to secure favourable settlements for all of their clients. That some victims and survivors nevertheless felt dissatisfied with the process and its outcome illustrates how the civil justice system cannot always provide satisfactory accountability and reparation for claimants.

Settlement of the St Leonard’s claims

119. There was a relatively fast resolution to the 58 civil claims arising from child sexual abuse at St Leonard’s. A central factor in the speed of resolution was the early admission by Tower Hamlets that, subject to any defence of limitation, it was liable for any personal injury that the claimants suffered as a result of abusive treatment or neglect while resident at St Leonard’s. Malcolm Johnson noted that the defendant seemed to have made the decision to pay the claims, and then did so at speed.[59]

120. From the outset, the parties’ solicitors worked constructively together and sought ways to quickly resolve the claims.[60]

121. Tracey Storey considered that St Leonard’s had proved a useful model for the resolution of complex claims.[61] She was pleased to have avoided protracted proceedings, which some of her clients did not have the resilience to face, and the risk of losing on what her clients might see as technical causation or limitation arguments.[62]

122. Malcolm Johnson agreed that the speed with which the claims resolved was “enormously helpful”.[63] He stated that civil litigation can be:

“enormously damaging because it’s adversarial and, therefore, it recreates many of the elements of the abuse in itself because people are being told, ‘Well, you could be lying’, and this is what happened to them when they were children.”[64]

He added that “the single-most important thing about child abuse compensation claims is that they should be resolved with as little adversarial process … as possible”.[65]

123. However, two of the claimants in the St Leonard’s litigation, Paul Connolly and AR-A15, said that the settlement of their cases prevented them from having their day in court. For Paul Connolly, the “whole point” of the litigation was “to have our day in court, because we didn’t have it in the criminal court”.[66] Tracey Storey said that this opportunity was lost early in the litigation as the defendant accepted liability. She observed:

“So there was never going to be a full examination of how St Leonard’s happened, what led to – what made it happen, what made it so horrible, who failed whom. That was never going to be examined in this litigation. I think that was very disappointing for a lot of people.”[67]

124. Tracey Storey said that clients need to be made aware that there will be pressure to settle cases, so that they know they will have to make difficult decisions.[68] When asked whether he understood that the case might settle out of court, Paul Connolly said that was “never the intention”.[69]

125. Peter Garsden, who was not involved in the St Leonard’s claims, sought to explain why some victims and survivors may be disappointed by the settlement process:

“what we have heard a lot from all the survivors of abuse is that they feel completely disengaged with the civil judicial process. Even those that have got damages go away feeling disenchanted and unhappy, and I think the reason is that they’re not engaging properly – sorry that’s not their fault, it’s our fault. They are not being engaged as much as they should be in the settlement process, so they don’t feel that they have – they are part of it.”[70]

He suggested that mediation may be one solution:

“With mediation, at least they would go to the mediation, they would be able to look the defendant in the eye, they would take ownership of the settlement process, they would feel part of it and it would perhaps be a more satisfying experience than simply getting a letter with a cheque.”[71]

Length of time to resolve proceedings

126. The length of time to conclude claims can vary depending on a number of factors such as whether the claims proceed to trial, the number of issues in dispute and the level of case management by the court. The Bryn Alyn claims and the St Aidan’s and St Vincent’s claims are examples of particularly protracted litigation. In both cases, the litigation first began in the late 1990s and did not conclude until around 2010.

The Bryn Alyn claims

127. The Bryn Alyn claims raised a number of legal issues such as causation, limitation and the proper approach to the quantification of damages. The litigation was further complicated by insurance issues – in particular, whether RSA or Eagle Star were obliged to indemnify the company for the abuse that had taken place, and the terms of the exclusion clause of the insurance policy provided by RSA (see above).

128. Another effect of the exclusion clause was to create a conflict between Bryn Alyn (the insured) and RSA (the insurer). This resulted in RSA being joined as a separate defendant, rather than conducting the litigation in the shoes of Bryn Alyn.[72] As a consequence, there were two stages of the litigation against RSA – first determining the liability of Bryn Alyn and then enforcing the judgment against RSA under the insurance contract.[73] The claimants’ solicitor said that RSA forced them to have a trial on the underlying issue of the liability of Bryn Alyn before they dealt with the insurance policy.[74] However, he subsequently agreed with RSA that the enforcement of the insurance policy did need to be determined after Bryn Alyn’s liability to the claimants had been established.[75]

129. Alistair Gillespie told us that the Court of Appeal’s judgment on the terms of the exclusion clause is now a precedent for cases where similar exceptions might arise. He also said that the problems that arose with insurance in the Bryn Alyn claims do not normally arise in civil litigation.[76]

130. By the time the outstanding Bryn Alyn claims finally settled, some claimants just wanted an end to the matter, even if they felt that the damages they were being offered were inadequate. For example, AR-A24, whose claim settled for £21,000 some 12 years after his first disclosure, said:

“This was not enough for what I had been through, but by this point in my life I had had enough of fighting and just wanted to bring matters to an end.”[77]

St Aidan’s and St Vincent’s

131. Paul Durkin told us that he felt his clients were “confused as to why the litigation took so long”, and said that from a claimant’s perspective “it was a very, very difficult claim”.[78] AR-A87, who was a lead claimant, told us that the process of repeated hearings and appeals was “very, very difficult, not just for me, but for my family, because I ended up ill due to all the repetitive information that I had to give about my abuse”.[79] In retrospect, he would not have joined the group litigation:

“the reason for that being … the amount of time that it took for these court procedures to take place. It took approximately 12 to 13 years of my life away”.[80]

132. Some of the delays in the resolution of the claims were beyond the control of the parties, including problems with the availability of judges.[81] It is also clear that the law at this time was in flux, particularly during the period of almost three years between the trial of the original test cases and the resolution of the law following the decision in A v Hoare.[82] Paul Durkin told us that, by this stage:

“I think that it would be fair to say that finally the defendant and the claimants’ lawyers had an understanding of lines of engagement, and there was a tacit understanding that we should look at settling claims and discontinuing claims. Because this was at the end of a long process: two courts of appeal, three trials. The law was more settled. We were looking at vicarious liability. There was more understanding of limitation.”[83]

133. However, the decision by the defendant, Nugent Care, not to settle the claims early on also inevitably contributed to their duration. Stephen Bellingham and Alistair Gillespie told us that most child sexual abuse claims conclude without the need for a trial. Alistair Gillespie said that only about 10 percent of claims in which his firm are instructed enter litigation in the first place and that 90 percent are resolved between the parties without the need to resort to litigation,[84] which should be a last resort.[85] However, he was unable to say how many of the 90 percent "fade away”, ie are discontinued.[86]

134. We also heard that the time to resolve child sexual abuse claims is now significantly shorter than previously. David Nichols said that the average duration of a case, not necessarily involving a trial, is about 1.8 years, which is slightly longer than in other personal injury claims.[87] Malcolm Johnson agreed that the process of settlement had sped up.[88] Tracey Storey was not convinced that this was the case but agreed that more conversations are now being had between the parties.[89]

References

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