How do the LSC treat Child Abuse Victims?

by Peter Garsden, as appearing in the Independent Lawyer Magazine in April 2007

How does one explain to the survivor of child abuse who has been abused in care that “those in authority” do not think that his/her case contains sufficient merit to justify public funding, when we have told him/her that we think he/she has a good case? To the survivor this is yet another example of abuse by the very system that allowed them to be abused in care in the first place. The effect of rejection can be quite severe in a fragile person who is on the fringes of mental health. They are uninterested in the semantics of the costs benefit analysis test, the proportionality of litigation, or the unfairness of the law on Limitation. The survivor thinks that they aren’t important enough to be helped and someone has failed to believe them once again. We explain that we can appeal, but the effect is the same.

At Abney Garsden McDonald we have been responsible for about 25 Child Abuse Group Actions over the last 10 years, some of which are still current. Indeed the LSC like group actions because they are more successful. Recently we achieved some publicity as a result of the recent Manchester City Council Group Action, where damages of £2.6 million were obtained for 167 survivors, or about £15,000 per Claimant.

The reaction of the Legal Services Commission (“LSC”) is to attempt to limit funding to the equivalent of £15,000 per certificate, even though some cases require much more work and others far less. Inevitably these types of case are extremely complicated. As the case gets closer to trial, funding becomes increasingly more difficult to get, to the extent that it is not uncommon for funding to be pulled just before trial, when the pressure is at its height. One is then faced with a classic conflict. The client desperately wants to tell his story in court, whereas the costs of doing so are very high. We owe a dual duty to the LSC and the clients, and feel under pressure to carry on. The inner anger generated by abuse sometimes overflows into irate calls to MP’s and the LSC. Some clients, however, just go away quietly, and accept that, being rejected again is an inevitable part of their history.

The restrictive nature of costs limits means that we are often expected to work pro bono beyond our certificate limit. This attitude commends itself to the LSC who believe that we, as solicitors, should be sharing in the risk with the LSC. Whilst counsel is sometimes prepared to work on the same basis, experts are not allowed to share in the outcome of cases with solicitors. In some other types of work it is possible to find other funders with whom to share the risk, but not in the area of child abuse.

In any event we are now subject to the Multi Party Action contract system with a rate of £70 per hour. In the rare event that we are able to make a claim against the LSC, arguments are deployed to limit their financial exposure. Sometimes we have to resort to Judicial Review proceedings.

Whilst the LSC expect detailed case plans, which take many hours to prepare, they are sometimes disproportionate to the amount of work authorised. We can spend many hours preparing a detailed case plan for a relatively small amount of costs. It is practically impossible to predict the course of the litigation, which always means the figures are inaccurate. They are a very crude way of controlling costs, and used as a stick to beat us with.

Before signing the LSC contract I spent considerable time asking for various clauses to be amended, or deleted. Like the Law Society, recently, I was told that this was a standard non-negotiable contract, and that I had to sign it before any more payments on account would be authorised or the costs limit increased. I signed stating that I was doing so under protest and without choice of supplier (child abuse cases are uninsurable).

Whilst the above sounds critical, I am more than aware that the LSC are simply the meat in the sandwich between the lawyers and the Treasury where the real problem starts. Would it have been possible to run complicated group actions in a new and developing area of law, where the Defendants are represented by insurers with deeper pockets than the LSC? Definitely not. Do I appreciate the funding support I have had? Certainly.

I agree that there should be a trusting partnership between suppliers and the LSC so that both can move together and win as many cases as possible. The problem lies, however, in my experience, that there is a lack of trust on both sides, which creates inevitable tension, and sometimes hostility. Events compound the lack of trust when the LSC often interpret the Funding Code as far as possible in their favour, make decisions which appear to be unfair, and charging rates have not gone up for over 16 years.

There is undoubtedly moral justification in the government paying money to the survivors of childhood abuse in care, whether the cases win or lose. How can it be fair for the government to place children in care, abuse them, and then deny them access to justice? Too little emphasis is placed on the need to support some of the most vulnerable adults in our society, allow them to “speak their truth”, and be believed. Justice seems to be more about statistics and financial efficiency, which certainly has its place, but must be kept in balance.

Peter Garsden is sole principal of Abney Garsden McDonald solicitors of Cheadle Hulme and Vice President of ACAL (Association of Child Abuse Lawyers)