Latest news on the Historic Abuse Litigation Forum

Introduction

In December 2016, I wrote an article about 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 of Defendants. A number of very interesting ideas have emerged from the Forum, and this Article is an attempt to set some of those ideas.

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. However as we will see, other ideas have come up, which we examine below.

HALF now consists of around 80 members from both the Claimant and the Defendant side of litigation in this area.

The sub groups

There have now been a number of meetings between Claimant and Defendant firms, most of which took place prior to Xmas 2016. Sub groups were set up to consider the following issues:-
GROUP A: ANONYMITY ORDERS
GROUP B: DISCLOSURE
GROUP C: PROTECTIVE ISSUE OF CLAIMS
GROUP D: ADR
GROUP E: REDUCING DELAY
GROUP F: VULNERABLE WITNESSES AND PARTIES
GROUP G: COSTS AND PROPORTIONALITY
GROUP H: EXPERTS AND PROFESSIONAL WITNESSES

A series of notes were prepared from these meetings. They were prepared as a record of the discussion between those present on a without prejudice basis. All attendees spoke openly and contributed fully on the understanding that the matters discussed were not binding on their clients or colleagues.

Very briefly, these are some of the points that have emerged from the meetings:-

• Anonymity is generally something that causes little difficulty in these claims, although there is a standard order from the courts (PF10) which should be used by practitioners. However the Defendants pointed out that sometimes, witnesses (such as social workers) require anonymity as well. 
• Disclosure of records is a particular problem for Defendants, where those records (typically social services records) contain details of people other than the Claimants. What is suggested is a draft undertaking within the protocol, which will limit the types of people who can see these sensitive records. 
• Protective proceedings are sometimes inevitable when limitation is close, but the parties should enter in a limitation moratorium, so as to avoid the expense of issuing proceedings.
• Costs and proportionality have long been a problem in these cases. The Defendants suggested that some cases were capable of settlement without recourse to expert medical evidence or the use of barristers. Claimants disagree.

Within the new protocol, there needs to be a separate procedure for "failure to take into care" claims, and vicarious liability claims.

Also within the protocol, there needs to be an Initial Letter of Notification and a Letter of Claim. The Initial Letter should give the Defendant sufficient information to enable it to begin investigating the claim.

The Master's ideas

At the end of November 2016, Master McCloud produced a document "Historic Abuse Claims: working towards best practice in management and trial." 

The main points in the document are:-

• The Master wanted to draw on the success of the "Asbestos List" in the High Court - that is the system that was devised for the rapid progression of mesothelioma cases. 

• There should be consistency in the applying for and the making of anonymity orders 

• There needed to be a standardised approach towards disclosure, particularly of social services records

• There needed to be co-operation around the issue of protective proceedings.

• Anecdotally many cases are settling for under £100,000 save for fully defended matters. One idea put forward from the Forum was that court directions should timetable some specific space for ADR and/or early offers at the outset of the case, to be expected to take place before social services records or expert reports were obtained, and before a social care report was obtained. There might also be some scope for the RCJ/Master to be actively involved in facilitating ADR in some way. 

• For claimants who are not looking primarily for money, but who want a decision in open court on the evidence as to whether they were or were not abused and by whom, and who want findings of fact, there might be scope for a new expedited procedure (‘Historic Abuse Determination Hearing’) at which the focus is on a reasonably (but not excessively) streamlined court-based fact finding exercise and declaratory judgment if the Claimant succeeded in establishing abuse (or in admitted cases, declaratory findings as to what happened). This could be fitted within an Early Neutral Judicial Evaluation approach. 

• Reducing delay – the Master suggested that an informal letter based process be adopted to expedite straightforward applications. Case management needed to deal with other delays in the process.

• Informal ‘basic understandings’ or working arrangements could be established by agreement with Defendant and Claimant lawyers about how to ensure that vulnerable parties and witnesses (whether Claimant or Defendant) could be supported to give their best evidence in court, with special measures being considered at the case management stages.  

• Evidential difficulties, particularly in relation to social care experts can increase the risk that costs are disproportionate. Improvements could be made both as to procedural matters and costs management to avoid disproportionate costs from the outset. There was also a question as to the reasonable extent of use of counsel in low value abuse claims.

• The Master asked whether there was scope for involving the Royal College of Psychiatrists in the HALF discussions with a view to agreeing a panel of neutral experts willing to work for the Claimant or the Defendant, who could produce the initial expert reports for the parties assessing the claimant, for known costs and on known standard terms as to what the report covered and did not cover and at reduced cost. 

Plainly these are real issues, which the Master has observed from many years of sitting as a judge in the Queen's Bench Division.

The Master also produced another document, the "Historical Abuse Resolution Process" (HARP).

• This procedure would be used when the parties agreement and the protocol has been followed. The Claimant has to have capacity and there must be an admission by the Defendant that the Claimant is a victim of abuse. They may deny liability. 

• The Claimant would not want to make a damages claim for Pain, Suffering and Loss of Amenity and other heads of damage OTHER THAN for past and future expected costs of counselling and medical treatment and for the costs of support and treatment during the HARP process. 

• HARP would produce a narrative declaratory judgment by the court after due process which would make evidential findings in court about the circumstances and nature of abuse suffered by the Claimant, the life impact on the Claimant, the background and underlying factors which led to or contributed to the Claimant being subjected to abuse, and which with the consent of both parties also might make specific or general recommendations to the Defendant or others for the future prevention of such circumstances arising again. 

• HARP would facilitate and encourage the Defendant(s) to make (if the Claimant so wished and the parties agreed, an apology to the Claimant which was read in open court. 

• HARP would provide funding for support and medical treatment and connected expenses, if required, to the Claimant (i) during the HARP process, and in the case of a decision that the Defendant is liable, (ii) to ensure funding for support and treatment after the conclusion of the HARP process and (iii) to reimburse the Claimant for past treatment, counselling and support costs and connected expenses such as travel.

• HARP would address an unmet pressing social need for a means for humane, just, effective and reasonably rapid justice for abuse victims.

HARP is a very interesting innovation. Survivors of abuse do complain (as do other Claimants) about the adversarial nature of litigation and the length of time taken to reach a resolution. In particular they do want some kind of acknowledgement by the Defendant that mistakes have been made. This is a real attempt to address those issues.

Speaking personally, I don't think that any survivor would waive the right to compensation, save for their treatment. There are some psychiatrists, who take the view that treatment in many cases is not helpful. The Claimants' Group Draft Protocol does take into account the option of an apology and for the provision of treatment right from the start of the process. Finally over the years, Claimant and Defendant solicitors have developed ways of settling these claims quickly and effectively, particularly in large group claims against local authorities who essentially set up their own compensation schemes. The London Borough of Lambeth is a recent example with their proposed scheme for children who were resident at Shirley Oaks Children's Home.

However, Master McCloud has put forward other practical ideas.

• A meeting with the Royal College of Psychiatrists and the British Association for Counselling and Psychotherapy to discuss ways of getting more experts into the process of giving evidence in these cases. The meeting would look at (i) provision of a clinician pool or other independent vehicle to provide affordable but good quality assessment and treatment/support, (ii) medical professional input into judicial training in this field (iii) moderating expert fees. Master McCloud has already had positive feedback from the RCP 

• Judicial training in historic abuse cases. Master McCloud is already in conversation with other colleagues in the judiciary about the need for training. 

• From March/April 2017, Master McCloud is experimenting with reserving about 1 week in six for pre-allocated trial time. Master McCloud has said that she can prioritise historic abuse cases if people ask. The spaces are sufficient for 5 day trials as things stand and may reduce wait times at least for ‘5 day or less’ slots.

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The Claimants' Group Draft Pre Action Protocol

As stated above, one of the aims of the Forum is to set up a Pre Action Protocol for the conduct of claims prior to the issue of proceedings.

We already have a series of protocols for personal injury and clinical negligence claims.  All of these protocols are reported to work well in practice. Above all, they avoid parties rushing off to issue proceedings thus avoiding extra costs.

The Claimants' Group has now drafted a Pre Action Protocol. This has been taken mainly from the Personal Injury Protocol above, but it reflects some of the points that arose from the meetings.
It is by no means a final document, but rather a proposed first draft. The Defendants have yet to submit any draft of their own.

I am grateful to all those in the Claimants' Group who gave up their valuable time to attend the meetings of the sub groups and who helped produce this Protocol.

The new "Abuse Litigation Protocol" runs into about 30 pages and is too long to reproduce here.

However, this is what the structure looks like.

DRAFT ABUSE PRE-ACTION PROTOCOL
Contents
1. Introduction
2. Early issue and limitation moratoriums
3. Enforcement of the Protocol and Sanctions
4. Litigants in Person
5. The aims of the Protocol
6. The Structure of the Protocol
7. Pre Medical Report Offers
8. The Initial Letter of Notification
9. Therapy and medical treatment
10. The Letter of Claim
11. Status of Letters of Claim and Response
12. Letter of Response
13. Disclosure
14. Negotiations Following an Admission
15. Alternative Dispute Resolution
16. Quantification of Loss – Special Damages
17. Stocktake

Annexes
Annex A: Limitation Moratorium template
Annex B: Illustrative flow chart
Annex C: Undertaking as to records
Annex D: Initial Letter of Notification
Annex E: Letter of claim against individual and claim based on vicarious liability
Annex F: Letter of Claim – Breach of duty on the part of an institution
Annex G – Letter of Response
Annex H – Specimen Letter of Instruction to Expert

The following summarises very briefly how the new Protocol works.

• As stated above, one of the main aims of the Protocol is to prevent parties from issuing proceedings. The Protocol does this by encouraging parties to enter into limitation moratoriums and an example can be found in the Annexes. If proceedings are unavoidable then parties are encouraged to "stop the clock". 

• Litigants in person – a particular feature of this type of litigation is the presence of uninsured Defendants. The protocol seeks to set up a system whereby they can find legal representation, and enter into discussions with other Defendants. 

• Claimants begin the process with an Initial Letter of Notification sufficient to allow the Defendant to investigate the claim, which must be answered within 21 days of service. Thereafter the Claimant can send a Letter of Claim, which must be answered within 3 months of service. The parties are encouraged to negotiate a settlement if at all possible. 

• Pre Medical Report offers – The Claimants propose that no offer of settlement should be allowed before the Claimant has had the opportunity to produce an expert medical report. 

• Disclosure is recognised as being a sensitive process. The protocol provides an undertaken to be given by Claimants to Defendants so that Defendant can release as much as possible by way of disclosure without have to redact too much of that information.

The next steps

The next meeting of HALF is due to take place on the 21st February 2017 at the offices of Berrymans Lace Mawer in London. As HALF now numbers around 80 members, one representative of each law firm or chambers will attend.

The Master has made it clear that she is not expecting there to be final decisions at this meeting on the 21st February 2017. She intends this to be a catch-up session to ensure that the whole Forum is engaged with the work of the groups.