1.Overview

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

History

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.

3.The Law and Procedure

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.

4.Client Care and Human Resources

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.

5. IT

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.

6.Charitable Work and Lobbying

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.

Lobbying:-

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.

7. Specific Group Actions

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 31^st 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.

8.Finances

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: admin@abneys.co.uk ,or peter@abneys.co.uk Web Site: www.abneys.co.uk

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