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:-
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:-
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).
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.
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
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
14. Negotiations Following an Admission
15. Alternative Dispute Resolution
16. Quantification of Loss – Special Damages
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.
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.
Malcolm Johnson, Specialist Child Abuse Lawyer