In February 2017, I wrote an update on the Historic Abuse Litigation Forum. This is an initiative of Master McCloud in the Queen's Bench Division to improve the way in which historic abuse claims are litigated.
The views expressed in this article are entirely my own, and do not represent the views of others in the Forum, whether acting for Claimants or Defendants.
One of the key aims of HALF is to produce a "Pre Action Protocol" for these claims, and standard directions to be given out once proceedings are issued. HALF now consists of over 80 members from both the Claimant and the Defendant side of litigation in this area. Essentially all the main players in this area of work are represented.
Following meetings between Claimant and Defendant law firms, a number of common issues were hammered out. This then led to the production by the Claimant group of a Draft Pre Action Protocol for Historic Abuse Litigation claims, which was then circulated around the Forum. The Defendant firms also produced their own protocol.
Briefly the Claimants' Protocol covered both cases involving both vicarious liability claims (i.e. abuse by care workers) and "failure to take into care" (i.e. claims against local authorities for breach of duty to a child in the community). The Defendants' Protocol only covered vicarious liability claims. The Claimants' Protocol very much followed the model of the existing Personal Injury Pre Action Protocol, but included features such as disclosure of social services records, the provision of undertakings and limitation moratoriums. It also allowed for a "Letter of Initial Notification" which would alert a Defendant to the existence and bare elements of a claim, but would precede the full Letter of Claim.
The emphasis of the Protocol was very much on getting the information that the Defendants needed to assess the claim, without the need to issue expensive court proceedings. In failure to take into care claim, the Protocol recognised that the disclosure of social services notes, was a lengthy and difficult process for Defendants, where their Data Protection duties would conflict with their duties under the Civil Procedure Rules.
On the 21st February 2017, the law firms and counsel attended a meeting at the offices of Berrymans Lace Mawer in London. The meeting was chaired by Master McCloud. At that meeting, the Claimant and Defendant firms were asked to assemble a small team to discuss agreement of a Protocol. The intention was that following that meeting, a voluntary Protocol could be produced, to be used by Claimants and Defendant in litigation and in time, it could be incorporated into the Civil Procedure Rules.
For the time being, standard directions have been left out of the process.
It was following that meeting that Master McCloud wrote to the Forum and said that she could no longer steer the Group.
The Group is very grateful to her for her initiative, and her work in putting this Forum together.
What has happened now, is that the Claimant and a couple of Defendant firms have agreed to a meeting on the 9th May 2017 at the offices of BL Claims in London, to discuss the Protocol. The Claimant firms will be sending myself, David Greenwood of Switalskis, David McClenaghan of Bolt Burdon and Justin Levinson of 1 Crown Office Row along to represent the Claimants' interests. At present we have yet to hear from the Defendant firms as to who they will send. It is not clear at present how much "buy in" we have from the Defendant firms or precisely what the meeting will achieve.
However the discussions between both sides are at least continuing, and there still seems to be great interest from Defendant firms in agreeing a protocol. The next step following the meeting will be to approach the Civil Procedure Rule Committee to see if they will consider any new Protocol.
More news soon.
Malcolm Johnson, Specialist Child Abuse Lawyer