Latest news from the Historic Abuse Litigation Forum

When I last reported on the subject of the Forum, a meeting had been set between Claimants' and Defendants' to try and hammer out a joint Pre Action Protocol. However prior to that meeting, Master Victoria McCloud then wrote to the Forum, to explain that she could no longer play a role.
 
So, the Group was left without judicial support for the time being. Nonetheless the Claimants offered to meet with the Defendants, and a date was set for the 9th May 2017 at the offices of BL Claims to discuss the Protocol. Prior to that meeting, the Claimants' team had meet to discuss and agree their joint approach, which is set out in the present Claimants' Draft Protocol.
 
Sarah Erwin-Jones of Browne Jacobson and Adam Weitzman QC of 7 Bedford Row kindly agreed to attend. It is not clear at present how much "buy in" there was from the Defendant firms and it was made clear neither had authority to bind any firm, insurance company or institution.
 
The minutes of that meeting have not yet been agreed. However, these are the main points:- 

• The Defendants conceded that their protocol might need adaptation – in other words they would agree to the inclusion of both failure to take into care and vicarious liability claims in the protocol. However they appeared to want a somewhat shorter protocol, and they said that the protocol should make it clear that the draft Annexes had to be capable of adjustment.
   
• The Defendants are meeting within a Special Interest Group of FOIL to discuss the protocol
   
• Adam Weitzman QC suggested that in relation to anonymity, the parties get an order under CPR 39.4 and 5.4C, which saved redacting documents and having to annotate them. He will draft an order for the next meeting.
   
• The Defendants' view is that the vast majority of claims are vicarious liability, and settle for £25,000 or less. They do not want it to be a presumption that medical evidence will be commissioned, because in their view a great many claims could be settled very easily without getting costly psychiatric reports and without obtaining medical records. The whole conversation between the two sides seemed (in their view) to be premised on the basis that every claim was worth £100,000, whereas in their experience a large proportion settled for very much smaller sums.
   
• The main objection to the Claimants' protocol was paragraph 7 – the bar on Part 36 offers prior to the service of medical evidence. The Defendants pointed out that no other protocol had a provision like Clause 7. This is what the Clause says:-

 
"7. PRE MEDICAL REPORT OFFERS
 
7.1     There shall be no offers of settlement made by the Defendant prior to the service of any expert medical evidence  unless specifically invited in writing by the Claimant."
 
The Claimants pointed out that the whole idea behind the protocol was the early provision of disclosure and information to the Defendants. If this was not agreed, then the Claimants would simply withhold that disclosure/information until they were ready to draft a full Letter of Claim. There was no point being open about a claim from the outset, if the Claimant was going to be wrongfooted by the Defendant. The Defendant answer to this was that Part 36 allowed for a court to vary the normal consequences of a Part 36 offer accepted late.
 
The objection to Clause 7 led to a discussion as to what would be the "trade off" for the Defendants accepting paragraph 7. In other words, what would they accept in return for their agreement to this Clause? 
 
Two options were suggested:-
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Option 1
 
The Defendant makes a pre-medical report Part 36 offer. The Claimant then obtains a medical report. If the Claimant then wants to accept the Defendant's offer, then the Claimant doesn't have to pay the Defendant's costs out of his damages, i.e. both sides drop hands 21 days from the date on which the Part 36 offer is made.
 
Option 2
 
If the Claimant accepted a Part 36 offer late, having obtained medical evidence and disclosed it, then he could only recover local court rates, i.e. no enhanced rate, throughout the case.
 
The day after the meeting, on the 10th May 2017, Master McCloud wrote to the entire Group again. She explained that her earlier concern was, understandably, that her involvement might have appeared to be "official". Alternatively it might have led to the position where, say, a solicitor relied on the protocol, but was then criticised by a different judge for using it or part of it.
 
Master McCloud explained what whilst she would not be able to engage in the Protocol work at a detailed level, she wanted to be kept informed. If both sides could agree to a Draft Protocol, then she would be happy in that event to pass it on to the relevant members of the Rules Committee to invite them to consider it as a joint claimant and defendant and stakeholder suggestion.
 
The next step is for Claimant firms to agree on which Option to put to the Defendant firms. We can then set a further meeting.