Abney Garsden McDonald, Solicitors have entered Most Enterprising
Firm of the Year and Litigation Team of the Year because of
work done in developing the new practice area of child abuse
compensation claims to the extent that the firm is now the leading
firm in the country in this area. The Child Abuse Department
based at the Cheadle Hulme Office has grown by at least 600%
in as many years. In the last year we have pushed back legal,
medical, procedural and moral boundaries in this very important
and sensitive area of law. We have made a contribution to changing
the law, which has assisted the disadvantaged and abused claimants
for whom we act.
In the Litigation Team of the Year
Awards we enter the Child Abuse Department who have worked upon
and concluded successfully at least two group actions resulting
in substantial compensation awards to all victims dealing with
the homes of Danesford in Congleton, Cheshire, and Kilrie Children’s
Home in Knutsford. In addition we are currently working upon
and endeavouring to settle compensation claims in respect of
a total of 20 group actions, all of which relate to child abuse
compensation claims against the owners and managers of children’s
homes, mainly in the North West of England, but in other parts
of the country as well.
The cases are well documented in
the press. They involve severe emotional, physical and sexual
abuse of children between the 1950’s and 1990’s. Most of the
claimants are now adults without money, shelter, sexual orientation,
psychological normality and life functioning ability. They are
some of the most disadvantaged members of our society and most
in need of its protection, not least because of the damage that
our society has done to them whilst in its social care
Before Peter Garsden, the Partner
in charge of the Child Abuse Department, was instructed by his
first child abuse client in 1994 he was a Personal Injury Panel
member dealing with civil litigation. Since the first case arrived
he has developed and built a team of 22 staff dealing exclusively
in this area of law. From one claimant he has risen to become
Lead Solicitor in 20 group actions, assisted by a team of 9
solicitors, 6 para-legals, 5 secretaries and 2 administrators
over a period of 7 years. The department now has national acclaim
and an excellent reputation for this niche type of work. Mr
Garsden dealt with all the work himself until recruiting his
first assistants in 1996 and his first solicitor in 1997. Since
1997 the department has therefore grown from 2 to 22 individuals
or a rise of 1000%. The rapid expansion has accompanied nationwide
Police investigations into child abuse in children’s homes.
The success of the firm is recognised by the entry into the
Legal 500 Directory this year September 2001. In the last year
alone the department has grown by 3 extra solicitors, 2 para-legals,
2 secretaries and 1 administrator. The expansion is meteoric
and difficult to contain. A summary of the achievements is as
follows:-
i) Employees —
a rise in staff of 1000% since 1997.
ii) Group Actions — experience and ability
to deal with 20 children’s home group action compensation claims
has been developed over a short period of time. The firm now
has a reputation for leading group actions and probably has
more experience than most other firms in the region and probably
the country.
iii) Building
—We have moved from a small High Street office to a large
three-storey building and expansion continues.
iv) Website —
In 1999 our website was launched www.abneys.co.uk.
It has been recognised in an award by Delia Venables the Consultant
as “about as good as a small firm site could be.” It contains
a number of useful features and facilities particularly for
the survivors of abuse, for whom there is an information page.
v) Intranet —
An internal Intranet has been launched for internal use by the
whole firm and in particular the Child Abuse Department. There
are a number of training documents, initiatives and assistance
given to new members of the team and existing members. There
is little training material in this important area of work and
such documents as are available are linked.
vi) Media Exposure
— Mr Garsden, Department Head has made numerous appearances
on national and local television discussing the subject of child
abuse. He is often asked to comment in an expert capacity. He
has appeared on radio, newspaper articles and has lectured extensively
on the subject. He has developed substantial experience in dealing
with the media in a positive and defensive manner. Appearances
have contributed to knowledge and information for survivors
of abuse, who have been encouraged to make disclosures and come
forward as a result of seeing articles and/or news stories.
Psychologically the disclosure process is of assistance to the
survivor.
vii) Procedural Systems
and Methods of Working — The Child Abuse Department
has evolved numerous new procedural systems and ways of working
when dealing with this new and developing area of law. Methods
of client care, procedural legal devices, precedents etc. have
been developed in an area of law where no precedent previously
existed. Methods of organisation of group actions have been
initiated, developed and established.
viii) The Law
— The firm has contributed quite substantially to changes
in the law full details of which appear below.
Abney Garsden McDonald have contributed
to changes in the law in several areas:-
i) Vicarious Liability
— The case of Lister v Hesley Hall Limited came before
the House of Lords in March 2000. Abney Garsden McDonald were
not the Instructing Solicitors, but the Lead Co-ordinating Solicitors
in charge of the group which spurned the series of three cases.
. Vicarious liability and the responsibility for the actions
of care workers who physically and sexually abuse children was
established in a landmark decision. Mr Garsden was instrumental
in finding two Canadian cases which were the main planks of
the House of Lord’s decision during the case’s preparation.
The abuser concerned is common to other groups, which Abney
Garsden McDonald are co-ordinating. Mr Garsden has written an
article on the Lister case for the Family Law Journal. It can
be viewed if necessary on the firm’s website. Leading and Junior
Counsel who dealt with the House of Lord’s Appeal are instructed
by Abney Garsden McDonald upon most of their group actions.
ii) Public Interest Immunity — Abney
Garsden McDonald had been instrumental in developing ways round
public interest immunity privilege which attaches to social
care records and other types of documents in these types of
cases. Methods of obliging local authorities to disclose their
documentation both before and after the Data Protection Act
by way of novel Court Order in the group actions have been obtained.
iii) Unused Material arising from Police Prosecutions —
An idea started in the Cambridge Child Abuse Cases and has
been developed quite extensively by Abney Garsden McDonald.
A Protocol and Draft Orders have been designed and evolved which
are now used regularly at Manchester High Court where all the
cases are managed. It enables the Police to release with Court
protection their material through the use of agents to examine
the documents in private for the Court. Further details can
be provided if necessary.
iv) Child Abuse Protocol — Because
all these cases are out of time proceedings sometimes have to
be issued before it would be ideal to do so and before any Protocol
can be complied with. Abney Garsden McDonald have assisted in
designing a special Child Abuse Protocol for use in these types
of actions, whereby the proceedings are stayed, limitation frozen
and the parties exchange documentation away from the Court’s
case management powers in order to narrow issues. Abney Garsden
McDonald are hoping to be able to contribute to the creation
of a Child Abuse Protocol for publication by the Lord Chancellor
and incorporation into CPR.
v) Group Actions — Abney Garsden McDonald
have devised a form of Group Litigation Order which is now used
repeatedly to administer efficiently the group actions they
co-ordinate. It has evolved since the Civil Procedure Rules
introduced a part dealing with Group Litigation Orders and costs
in March 2000. The gestation of this model has included much
debate and design work upon a proper Generic Costs Order, which
is agreeable to not only the Legal Services Commission but also
the Defendant. A method of organising these group actions had
to be devised which suited their format. The cases are a mixture
of group litigation and individual cases. At first we wrestled
with the model of a joint writ with schedules attached. That
was later abandoned in favour of a collection of individual
proceedings joined together by a Group Litigation Order. Methods
of pleading had to be discussed. A suitable model has now been
devised.
vi) Case Preparation — A method of
preparing cases had to be invented because none existed previously.
The type of documents that were needed, how they were processed
and in what order work was done had to be devised. Peter Garsden
has worked upon flow charts which incorporate division of labour
between solicitor and para-legal together with accompanying
precedents have been designed. Precedents evolve all the time.
A Limitation Questionnaire, which gets to the heart of the complicated
areas of limitation, has been designed with the help of Counsel.
These cases are all complex because there are issues of limitation,
liability, causation and quantum. They are all multi-track cases,
which attract high care and conduct mark-ups. A standardised
precedent bank and workflow has been designed to assist the
individual solicitors in the team work uniformly. A “Welcome
Pack” has also been designed which is distributed to individual
solicitors whom the firm co-ordinates. This is a costs saving
devise which assists a Claimant’s Solicitor prepare his case
if he is being co-ordinated in one of the groups and does not
have much experience of this type of work. There are checklists,
advice sheets, flow charts and other documents of assistance.
vii) Quantum — When these cases first
arose in 1994 there was no precedent at all on which to base
any assessment of quantum. Since then Abney Garsden McDonald
has worked with Counsel upon bracketed figures for use in these
types of cases.
viii) Medical Evidence — We have worked
very hard with psychologists and psychiatrists in order to establish
new and developing areas of psychology and psychiatry. New types
of disorder associated with historical child abuse have emerged.
Checklists have been designed and prepared for the experts to
use. Skeletons for each report have been agreed with the team
to ensure that all the issues are dealt with and some uniformity
arises. A new area of damage was discovered with the assistance
of a Genital Urinary Physician for those boys who had been anally
abused. Physical damage was found to exist many years after
the event. The medical data is unique and will be used in the
future to break novel medical ground.
As this was such a new and developing
area of psychology it was very difficult to know how most effectively
clients should be handled. They were damaged, secretative and
very angry. Improper client handling could have resulted in
triggering them into symptomatology. Much time was invested
into training staff in the correct methods of client care and
handling. The use of psychologists, therapists and other professionals
was made in order to arrive at a proper method of dealing with
them. Arguably a claimant is triggered into symptoms every time
he visits his solicitor and talks about the abuse. Much work
had to be done upon support system, disclosure, healthcare and
stress counselling. Resources had to be found for the claimants
to use once they had been to see us. This was new and has been
developed over the years.
Solicitor Care and Human
Resources — Over the years methods have been
established to ensure the psychological health of the members
of the Child Abuse Department. Much reading and training has
been carried out in order to ensure that any distress is disclosed
and dealt with at the time. Much effort is put into avoiding
psychological harm by the staff. Methods of dealing with difficult,
angry and abusive clients have been devised. In the last year
particularly we have found counsellors who can assist staff
off load emotion and deal with problems on a one to one basis.
There are two counsellors any member of staff can go to free
of charge when the need arises. Lessons have been learnt over
the years when staff had found the work too over whelming and
left. This issue has been addressed more efficiently in the
last year. The irony is that a good Child Abuse Solicitor has
to be committed enough to put up with the emotional stress,
but not so committed that the emotive effects become invasive
to them.
The growth of the department by
1000% and the co-ordination of group actions make the efficient
use of information technology essential. Since 1995 immense
investment has taken place in hardware and software. A Microsoft
Access Database has been specially designed with the correct
fields to enable all the relevant data to be held centrally
upon each claimant. The data is quite complex in that claimants
move from home to home and there is an overlap of abusers. Several
of the claimants were abused at more than one home and are involved
in more than one group action.
The department is acting for or
co-ordinating 800 claimants whose details have to be managed
centrally on computer. It is often necessary to mail merge certain
types of claimants who went to different homes. The database
acts effectively as a querying system.
Inevitably an efficient network
of over 30 computers are linked together by a central server
with scanning facilities for third party documents, internal
and external email, as well as access to the Internet for every
fee earner. Research is often necessary and the Internet is
an essential tool.
From a very early stage we became
determined and committed to running these trials on computer
at Court, which would save time and expense. We have made contact
with a third party provider called Legal Technologies in London.
They won an award recently for their contribution to the “Bloody
Sunday” Enquiry. They have advised us and provided us with software,
which has saved an enormous amount of time. All our documents
are scanned onto CD Rom. Sixty thousand pages can be searched
for a word or part of a word in less than a second. Links can
efficiently be made between different pieces of information.
For example we wanted to find out who the music teacher was
at one home because one boy said he had been abused. We managed
to search the CD Roms and find out his name because another
boy had mentioned him as being a music teacher. This process
took a matter of seconds and manually would have taken hours
if not days.
The system of scanning in documents
was set up and designed to cope with the huge generic discovery
by the Defendants. We anticipated piles of historical child
abuse documents of record.
We have opened up negotiations with the Court with a view to
sharing our database in a limited format so that the Court are
aware of exactly which claimants are in the group as and when
changes are made. This principle we hope will involve database
warehousing. We have other third party IT specialists called
T@B who helped create and maintain our databases.
We have been looking for a suitable
platform for child abuse group actions for a number of years.
We have found a Case Management System called Proclaim manufactured
by Eclipse Legal Systems of Bradford. We are investing in the
new technology software at the moment. It will be adapted and
designed for use specifically with child abuse cases. We are
also hoping to transfer the group action databases to the new
system. Electronic warehousing of documents will thus become
even easier still. Efficiency will increase.
The Child Abuse Department works
very closely with many support groups for the victims of abuse
all over the country. In the last year alone Mr Garsden has
put in at least four hundred hours for charitable causes. We
assist them organise and administer their own associations,
network them together and provide points of reference for them.
They often lack cohesion and organisation but have immense enthusiasm.
Mr Garsden helped set up a Charity called Abuse Watch in the
North West. He is the Secretary and founder member of it. It
assists the victims of abuse. Its purpose was to weld together
the disparate support groups all over the country and provide
some focus. Peter Garsden is a Management Committee Member of
NAPAC (National Association of Parents Against Child Abuse).
Once again he assisted in the formation of that Charity. Peter
Garsden has been instrumental in setting up and maintaining
ACAL (Association of Child Abuse Lawyers). He is one of the
Executive Officers, Press Officer, created and maintains their
website www.childabuselawyers.com,
writes articles for them and has edited the Newsletter, lectures,
attends meetings and advises members from all over the country.
The purpose of ACAL is to help
professionals deal effectively with cases of abuse. Mr Garsden
has donated much legal material and assistance to the organisation
in order to assist training on methods of working, which he
has created.
i) Sex Offender’s Register
— In 1996/97 Mr Garsden attended a meeting in the Houses
of Parliament with Abuse Watch and NAPAC. The result of which
was the commitment by the Government to the setting up before
the election of the Sex Offender’s Register and the rushing
through of legislation to assist the victims of abuse.
ii) Public Enquiry — Mr Garsden lobbied
intensely MPs from all over the North West and the country in
order to persuade them to support his application for a public
enquiry to deal with the North West cases. Whilst he did not
succeed what actually resulted was the North Wales Tribunal.
iii) Legal Aid
— At a time when the Government was proposing to withdraw
legal aid from personal injury work Mr Garsden lobbied the Lord
Chancellor’s Department and MPs to support the retention of
legal aid for child abuse cases. He was successful. At this
time he worked quite closely with Colin Stutt of the Legal Aid
Board in London who made a recommendation that it be preserved
for child abuse cases. Indeed it is one of the few areas of
personal injury work where legal aid has been retained on the
grounds of public interest. The lobbying was therefore successful.
iv) The Police
— Over the years Mr Garsden has worked very closely with
the local Police Forces and the Chief Constables of Gloucester
and Dwyfed who are the National organisers of historic child
abuse enquiries. Methods of communication between solicitors
and the Police in a very sensitive and volatile area of abuser
prosecutions have been established. A method of working whereby
the Police act as a post box for the solicitors after the prosecution
is over has been established. Ways round the restrictions of
data protection and public interest immunity have been devised.
Regular meetings have taken place with the Chief Constables
above with a view to establishing national guidelines for the
release of unused material subject to public interest immunity
arising from the criminal prosecutions of abusers.
v) Data Protection
— Lobbying was done before the Data Protection Act came
out in order to assist in the release of social care records
which strictly speaking are subject to public interest immunity
by local authorities. The law on records was relaxed by the
Data Protection Act 1984 Section 20. Mr Garsden had written
a long letter to the Data Protection Registrar and the Social
Services Inspectorate explaining his frustrations in not being
able to obtain copies of such documents, which was interfering
with the processing of his cases.
i) Danesford — This children’s home
in Congleton, Cheshire was investigated by the Cheshire Police
between 1995 and 1999. It resulted in the successful conviction
of 4 abusers. A group was formed of between 35 and 50 claimants
depending on what stage in the action one judges it. It was
co-ordinated by Abney Garsden McDonald. The writ was issued
in January 1997. The Defendants took many technical points,
which delayed its progress. Eventually however payments into
Court on behalf of all claimants were made, increased and settled
resulting in compensation to approximately 35 victims in the
sum of £400,000. Whilst the case is concluded and the final
Order has been made the costs have yet to be processed. Inevitably
the Legal Services Commission will be repaid any monies advanced
on account in respect of costs and disbursements and it is highly
unlikely that there will be any deduction made from any of the
damages awards in respect of irrecoverable costs.
Over the years the case has been dealt with by a number of solicitors.
It was finished off under the management and control of Peter
Garsden and Paul Durkin. Assisting them were several Para-legals
including Susan Connors, Suchitra Bhattacharjee Shona Waby and
Molly Whittall. Secretaries Janet Watkins and Carrie McDowell
have also assisted. Administrators Vicky Officer and Richard
Davies have been in charge of documentary filing and sourcing.
ii) Kilrie Children’s
Home — This is a small group of 16 claimants. Abney
Garsden McDonald were the Co-ordinating Solicitors. The claims
arose out of physical and sexual abuse at Kilrie Children’s
Home, Knutsford between 1966 and 1980 ie over a 14-year period.
Of the 16 claimants that started the group 5 withdrew and 11
obtained successful settlements. The final Order was the 31st
October 2001. The total damages were £100,000. The case was
brought to a successful conclusion by the issue of proceedings,
a group Directions Order, a Practice Direction, intense negotiation
with the other side’s solicitors in a convivial fashion and
frequent Case Management Conferences through the Judge. The
Team involved was Peter Garsden with the assistance of the para-legals
referred to above in the Danesford Team.
In summary both cases broke new
legal ground by establishing liability for acts of physical
and sexual abuse before Lister changed the law. New letters
of practice and procedure were arrived at as described above.
New levels of quantum were devised and settled. Intense evidential
research was necessary in order to arrive at a successful conclusion.
Credit must also go to the other members of the Child Abuse
Department Team currently in post not referred to above who
are helping to co-ordinate other group actions and many individual
cases in this new and developing area of work namely:- Generic
Solicitors Deborah Corcoran and Carmel Cahill. Individual Solicitors
Jonathan Houghton, Susan Dawson, Samantha Follows, Terence Cathcart,
Richard Giles and Hywel Thomas. Para-legals Shona Waby, Mazhar
Ali and Harry Ahuja.
Finally, mention must be made of
the firm’s financial position as a result of these child abuse
cases. It has been enormously difficult to finance them on High
Court Legal Aid Rates of £75 per hour or £66 per hour in County
Court Cases. Financial prudence has therefore been necessary.
The benefit of being able to invoice some of the generic work
on a monthly basis cannot be ignored. Any capital accumulated
has been put towards investment in information technology, new
buildings, office furniture and other staff benefits. Certainly
the firm’s turnover has increased. Any profits earned however
have been continually invested in the employment of new staff
and wages, which have helped generate increase in the work in
progress. There is undoubtedly investment in the future in that
when these actions are successful and costs are settled, the
mark ups we will be requesting are considerable and hopefully
will compensation for financial hardship in the past. Prudent
budgeting and financial management are essential with such massive
growth. Planning is essential, budgeting is important. Paul
McDonald, the other Partner of Abney Garsden McDonald is solely
responsible for financial management and is now the Managing
Partner with little or no responsibility for fee earning work.
This ensures the effective management of the growth of the firm.
Peter Garsden
© Abney Garsden McDonald, 37 Station
Road, Cheadle Hulme, Cheshire SK8 5AF Tel:0161 482 8822 Fax:
0161 483 8833 Email: receptioin@abneys.co.uk
,or peter@abneys.co.uk
Web Site: www.abneys.co.uk
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