Historic child abuse cases: a claimant’s perspective

Claimant lawyers Kieran Chatterton and Paul Durkin call for a more collaborative approach to the handling of historic child abuse cases.

Many local authorities are facing a large increase in the number of historic child abuse cases that they are dealing with. These can arise out of placement of children in residential homes, foster placements and also negligence for failing to act in a way that properly protects children in their care. These claims can date back, in some cases, to the 1960’s. It is welcome I am sure on all sides that victims of abuse feel more able to come forward now than in the past; though it remains the case overwhelmingly that victims of abuse never report to the police, a solicitor or social services. For most it remains their secret. How to handle such cases is the challenge for in-house lawyers and those that they instruct.

Claims for historic abuse remain a ‘specialist’ area of law, with most cases being outsourced by local authorities to a relatively small number of firms across the country. On the claimant side, again the number of firms with specialist departments is relatively small. However, it is worth bearing in mind that as the personal injury market in general shrinks following the Jackson reforms (which has had a negative financial impact for solicitors acting on both sides) there has been something of a rush to areas of law that continue to fall outside of fixed costs regimes. Switalskis for example now do very little ‘standard’ personal injury work; we focus on historic child abuse claims, clinical negligence and serious brain injury cases. Qualified one way costs shifting also has a part to play here for defendants, such that in most cases where the defendant wins they will not get their legal costs paid by the claimant.

Another important perspective is that historic child abuse cases have been fertile ground for the development of general principles of law, particularly relating to limitation and vicarious liability. With so many unknown claims, possibly dating back many years, it has been in both claimant and defendant’s interests to shape the law over the last 15 years or so. This obviously comes at a significant cost to those participating in such litigation. Having said that I think it is probably fair to say that the law for the vast majority of cases in this area (save negligence cases which are currently before the Supreme Court) is now quite settled. Most lawyers working on these cases are familiar with what makes a good or less good case on limitation, for example, and are experienced at weighing up litigation risk. It remains a mystery to me why there are still some lawyers who insist that every opportunity needs to be taken to ‘clarify’ the law through appeals to the higher courts. This is costly, unnecessary, and rarely helpful in clarifying the law. Satellite litigation is always a possibility if either party wants and has the money to pay for it.

It is against this backdrop that I wonder why, in my opinion, lawyers acting for the defendant have made the litigation of these cases more difficult and costly in the last few years. In the rare cases where I do deal direct with an in house lawyer cooperation levels are excellent and they tend to be dealt with in a more practical way. Mediation/arbitration however remains almost non-existent.

To give one recent example of a case I am dealing with, the defendant’s solicitors were present at an entire criminal trial at which our client secured convictions for serious sexual abuse. They then asked me to provide them with the indictment and certificate of conviction which are now very difficult to obtain. This was not a mistake, they said that they could not advise their local authority client without them. If this case goes to trial we will need these documents, but why are they necessary at such an early stage?

Another problem area is the redaction of records, such as social care files. We are all aware of data protection and how important this is, but it is the case that for many claims redaction does not need to happen at all, the Court of Appeal judgment in Dunn v Durham makes that clear. Despite this, in most cases the records provided to us will be heavily redacted, presumably at great cost to their client.

There also seems to be a move to requesting mutual disclosure of huge amounts of records early on in a case. I have no problem disclosing what I have, but I do wonder why it is necessary. It is easy to make the argument that all cases have to be thoroughly investigated and assessed but I think this often assumes that reading records will allow one to arrive at a definitive conclusion on any given case. These cases (should they end in Court) are far more nuanced than this, let’s not forget we are talking about sexual abuse that happened many years ago and the courts have a lot of discretion on how they decide such cases. Poring over hundreds or thousands of pages of records does not change the essential facts that we should all be addressing, including i) did the abuse happen, ii) is the perpetrator alive, iii) what effect has the abuse had on the claimant. There are others, but these central questions are rarely answered by reference to historical records.

Lawyers can get bogged down in detail but with proportionality being the flavour of the month we should not lose sight of what is important, i.e. that a victim of abuse has had the courage to come forward, and bringing a sensible settlement to his or her case with an appropriate apology is important and often equally well received as any financial compensation. Lawyers on both sides can be guilty of losing sight of this, maybe looking for the ‘next big case’ that will change the law. In reality the vast majority of cases should be capable of settlement quickly and at modest value in terms of both damages and costs. It saddens me greatly when I see large companies such as Barclays Bank try to pull the law back 15 years to deprive victims of abuse from claiming, (Barclays Bank Plc v Various Claimants [2018] EWCA Civ 1670 (17 July 2018)).

I also draw attention to the compensation scheme recently set up by the London Borough of Lambeth. This went live in January 2018 and is a simple and effective means of compensating children that were in their care and suffered abuse. The outcome at this early stage is that many more victims of abuse will get the recognition and compensation they deserve. Lambeth, under the scheme, have put aside issues of liability and limitation, although there is a strict verification process to ensure public money is properly spent. The victims are legally represented and Lambeth also have their own solicitors, but we are not getting bogged down in technical legal matters. The victims are the focus of the scheme and in being so they are the principal beneficiaries of the scheme, not the solicitors.

At Switalskis we take a client centred approach to such claims, putting the client first and focusing on what outcomes they want in the context of what is often a frightening legal process. We would welcome a more collaborative approach to these sensitive claims and feel now is the time to consider more use of alternative dispute resolution. This may include mediation, apologies or schemes such as the Lambeth one described above.  Our clients often simply want a voice and an acknowledgment that they have been wronged.  Solicitors for both sides should avoid attritional  litigation in which only the lawyers are the winners and the losers are victims of abuse and local government funds.

Kieran Chatterton and Paul Durkin are solicitors at Switalskis. Kieran can be contacted on 0800 138 4700 or This email address is being protected from spambots. You need JavaScript enabled to view it..