|
|
|
Protocol for Child Abuse? |
|
|||||||||||||
|
|
He co-ordinates most of the child abuse children’s home group actions in the North of England. He is the Press Officer of ACAL, former publisher of this Newsletter, (This article appeared in the ACAL Newsletter of February 2002)created and maintains the ACAL website www.childabuselawyers.com The Questions 1. Is there room for yet another Protocol for Child Abuse Compensation Claims? 2. What are the benefits and disadvantages of a Protocol? 3. What makes child abuse cases unique and suited to a Protocol? If you dial into the Lord Chancellor’s website http://www.dca.gov.uk/ you will find that Protocols have now been developed for a number of different areas including defamation and professional negligence. As child abuse compensation claims are growing in popularity there seems no reason why a nationally established Protocol for our area of law should not be beneficial. In the preamble to all the Protocols is a “mission statement” which set out their purpose. The common themes appear to be “openness, timeliness and to provide an alternative to litigation.” Does child abuse law fit neatly into the above purposes? Uniqueness Because most child abuse compensation claims are historical they are out of time in limitation terms and time is always of the essence. The worst anxiety the fee earners suffer from in my team derives from not knowing with any certainty the date of knowledge under Section 14 Limitation Act 1980. It is a moving wicket and can range from the date that the Claimant was at the home to the date he receives his Psychological Report maybe thirty years later, which tells him that he is actually suffering from a personal injury and that in the past when he has felt unwell the cause has been PTSD (Post Traumatic Stress Disorder). Under Section 33 Limitation Act 1980 the Defendants can argue that the Court should not give the Claimant the benefit of its discretion if the case has not been pursued expediently enough. If there is a way therefore of freezing limitation the Claimant’s Solicitor will be appreciative. Because insurance indemnity premiums are high, out of prudence we generally choose the earliest limitation trigger possible, which may be the date your client was interviewed by the Police. This may be over two years before he consulted you. There may be therefore a rush to issue proceedings before you are ready to do so. At this stage you have no medical report and costs can escalate when one has to make an application to extend the period of time to serve either the Claim Form, or the pleadings. If therefore a Protocol can be agreed whereby limitation is frozen in time, surely it should be encouraged. The CPR was introduced in an effort to discourage not encourage litigation. The Disadvantages It is very difficult to fill this paragraph with any meaningful argument. If the Defendant’s Solicitor is devious and untrustworthy he can use the Protocol to extract as much information out of you as possible, some of it in a bare and unsophisticated form, at a time when Court Rules would not oblige you to disclose anything, terminate the Protocol period and then try to use the information you have disclosed against you in subsequent litigation. There are safeguards to prevent this happening as appear below. The Protocol can also lull both sides into a state of stagnation because “the pressure is off.” There is a way of combining the Protocol with Court proceedings and regular Case Management Conferences where, for example, one issues proceedings, applies for a stay, institutes the Protocol away from the Court, but goes back to the Court on three monthly Case Management Conferences to report what is going on. This model has been used in group actions I have co-ordinated. It could also be tailored for use in individual cases. The Process Attached to this article is an example of a Protocol I have attempted to implement in connection with a children’s home called St Edmund’s, on the Wirral. The Protocol is intended to be linked to a Group Litigation Order but could be amended quite easily and used “stand alone.” The process becomes quite complicated when linking it to a Group Litigation Order and therefore I have ignored it. The main points however are as follows:-
Conclusion Does the Protocol in child abuse cases therefore achieve the purposes? Openness – Neither side are able to hide their evidence. At the earliest possible stage the Defendants can analyse your case effectively and come to a conclusion as to whether or not they are going to settle it, or invite you to issue proceedings. The alternative to the Protocol is “drip feed disclosure.” The result of conventional litigation is that the Defendant will not really know what your case is all about until the doors of the Court, when much time has been wasted and costs escalated out of all proportion to the damages claimed. In the process your client will no doubt become frustrated. Child Abuse Claimants are of course more anxious than others. The sooner the litigation concludes therefore the better. Timeliness - If the disclosure process is speeded up, the Defendant is able to examine the issues more quickly and a settlement is on the table within six months, then surely not only time but costs have been saved. Provide an Alternative to Litigation - One cannot guarantee that when the Defendant has seen all your evidence he will not insist upon a full trial in any event. If this happens then arguably time has been wasted when perhaps it would have been more prudent to proceed through the Courts with allocation questionnaires, Directions and trial. Any disadvantage however is avoided by any negotiations being without prejudice to litigation. Accordingly you are able to marshal your evidence once again before disclosing witness statements in subsequent Court proceedings, should negotiations break down. If you can avoid a Train Driver’s timetable through the Courts where litigation proceeds at a pace which neither side are happy with, then possibly it is an advantage. The Protocol however must not be used as an encouragement to sloth. Finally, in my personal experience the Protocol has made litigation more pleasant, improved relationships with the Defendant’s Solicitors, and encouraged settlements. I have not as yet experienced a situation where we have gone through the Protocol with Defendants who have then insisted upon litigation. If you decide to use the Protocol, ACAL I am sure would welcome feedback at: ACAL Hopefully a nationally agreed Protocol can be introduced into the Civil Procedure Rules. "The ABC Children’s Homes Litigation" Informal Protocol 1.
Purpose and Outline 1.2 The Protocol will commence on [INSERT DATE] and continue until terminated upon 3 months notice by either party in writing ("the protocol period"). 1.3 During the protocol period, in accordance with the Group Litigation Order proceedings already issued and served will be stayed and in the case of any Claimant who would otherwise have issued proceedings during the Protocol period it is agreed that time ceased, or will cease (as appropriate) to run for the purposes of limitation as from the date that formal notice of a claim was given in writing to SDCC. Formal notice of claim shall include such of the details as are set out at Paragraph 2 as are in the Claimant’s knowledge or possession. 1.4 The Protocol applies to all claimants whose names appear in the Schedule herewith and to any further Claimant on whose behalf formal notice of claim is given to the SDCC. 1.5 Any information disclosed under the terms of the Protocol period is on a without prejudice basis. 2. The Protocol 2.1 If requested to do so the Claimant’s solicitors will provide the following information (a “formal notice of claim”), as is in the Claimant's knowledge: 2.1.1 The Claimant’s date of birth. 2.1.2 The home address of the Claimant at the time of admission to the Home. 2.1.3 The dates of the Claimant’s admission to and departure from the Home and if the Claimant was admitted to the Home on more than one occasion, the dates of each such admission when the Claimant attended the Home. 2.1.4 The name of the Claimant’s social worker at the time of residence in the Home. 2.1.5 Where the Claimant was in the care of a local authority the name of that authority as well as the name of any other authority holding the Care Order. 2.1.6 Sufficient particulars of the abuse alleged to have been suffered and name(s) of the person(s) responsible and position occupied where known including, where possible the dates between which the abuse was alleged to have taken place. 2.1.7 Where the Claimant alleges that the alleged abuse took place in the presence of others the identity of such person(s). 2.1.8 Where the Claimant alleges that any other person was notified of the alleged abuse the identity of the person notified. Where the person notified is either a relative or friend of the Claimant any communication with such person will made through the Claimant's solicitor. 2.1.9 Where individuals allege that complaints about their treatment were made by them or on their behalf: 2.1.9.1 Details of the complaint(s); and 2.1.9.2 Details of to whom the complaint was made. The above details may more conveniently be provided by the disclosure of a witness or police statement. 2.1.10 It shall be open to either party to serve on the other party on a without prejudice basis witness evidence in support of their allegations. 2.1.11 Details of any claims for special damages. 2.1.12 Particulars in support of a claim for damages for loss of status upon the open Labour Market. 2.1.13 The Claimant shall provide details of how their claim is funded. 2.1.14 Particulars of any other establishment where the Claimant alleges that he was abused. Where SDCC have or acquire independently of the Claimant any of the information referred to at 2.1 above, they will within 28 days of the date of acquisition of the information provide such information to AGM. For the avoidance of doubt, in those cases which are already issued and where statements of claim have already been served, the further information set out at Para.2.1 above, need only be provided if requested by SDCC. Disclosure of Medical Evidence 2.4 Where medical evidence has not yet been provided the Claimant will disclose, within six weeks of receipt of a medical report, the medical evidence upon which he intends to rely, or an account of any continuing health problems of which the Claimant has actual knowledge and which are alleged to be caused by the abuse complained of. Records 2.5 The Claimants will disclose any relevant records, to include all GP, hospital, psychiatric, and probation records if already in their possession, and if requested to do so send to SDCC signed Forms of Consent for disclosure of the above records, these records to be sent simultaneously to both parties. SDCC's Individual Disclosure Within 42 days of a formal notice of claim, where SDCC holds individual files about Claimants and where they have not already been provided, SDCC shall provide AGM with details of what survives and copies in accordance with the “Public Interest Immunity” Paragraph(6) of the GroupLitigationOrder. SDCC's Generic Disclosure 2.8 Upon request SDCC will provide AGM with a list of relevant documents that survive in relation to St. Edmund’s Children’s Home. Where documents no longer survive, SDCC will, if possible, tell AGM the circumstances of their disappearance or destruction. Generic Solicitors obligations 2.9 Periodically by prior arrangement, the parties' solicitors will undertake jointly a “stock take” of the issues in dispute and the best way to manage the litigation and will do so either by way of a without prejudice telephone conversation or a without prejudice meeting. |
|
||||||||||||||
|
Abney Garsden McDonald, 37,Station Road Cheadle Hulme, Cheshire. SK8 5AF Tel: +44 0161 482 8822 Fax:+44 0870 990 9350 Email: admin@abneys.co.uk or [name]@abneys.co.uk |
