I was astonished to read in a news report today that the fallout from the scandal over Savile that erupted in 2012, over six years ago, is still going on. Following the Smith report three years ago, I assumed things had quietened down.
But no. According to the report, the NHS has been “forced” to pay a £1.1 million legal bill in respect of Savile claims. It states that on average, 52 victims received just £9,615 each. Meanwhile, the claimants’ lawyers received £600, 000.
The report quotes Peter Saunders, founder of the National Association for People Abused in Childhood: “The real winners in these situations tend to be the lawyers, I’m afraid.” I don’t always agree with Saunders (in particular about his opposition to Blackstone’s ratio), but he speaks admirable sense on this occasion.
This prompts a reflection on the dynamics of group injury claims in England, which have always mystified me. The English courts have made a number of decisions over the years, which overall have turned this into a rather perverse industry.
It’s anomalous that claimants from abroad can sue in English courts, for example. Why should residents of South Africa, Kenya, Nigeria or Iraq be permitted to bring claims in the UK?
Another feature of the UK’s injury scene is the elasticity of its limitation regime. Traditionally life was simple. You had three years in which to bring a personal injury claim (once you had turned 18), whilst claims of assault – known as trespass to the person – had a more generous time limit of six years.
Judges had, and still have a power to extend time in injury claims where it is “equitable” to do so, having regard certain criteria, namely:
“ all the circumstances of the case and in particular to—
(a) the length of, and the reasons for, the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 by section 11A or (as the case may be) by section 12;
(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;
(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;
(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”
The key consideration is the date of knowledge: the time when a potential claimant has the knowledge that they may have a legal claim is not always the same as when the injury was sustained.
Acts of rape or indecent assault were formerly treated as trespass claims, with a strict time limit of six years. If you missed it, that was the end of the road.
The European Court of Human Rights upheld this regime in a case called Stubbings in 1996, when it said:
It is noteworthy that limitation periods in personal injury cases are a common feature of the domestic legal systems of the Contracting States. They serve several important purposes, namely to ensure legal certainty and finality, protect potential defendants from stale claims which might be difficult to counter and prevent the injustice which might arise if courts were required to decide upon events which took place in the distant past on the basis of evidence which might have become unreliable and incomplete because of the passage of time.
The case of Stubbings had previously been litigated all the way up to the UK’S highest court, without success. So, what changed?
PI lawyers proceeded to drive a series of test cases through the English courts, arguing that cases of rape or sexual assault should be categorised as acts of negligence or breach of duty, and so the discretion to extend time could be invoked.
The headline case involved a retired teacher who in 1988 had been subjected to an horrific assault by a serial rapist named Hoare. He tied her up and attempted to rape her. In 1989, he was jailed for life for that attack and for assaults on other women. He was released in 2005.
Like most criminal assailants, Hoare had no assets to make him worth suing. The teacher received £5, 000 from the Criminal Injury Compensation Board.
But a year before his discharge from prison, while on day release from prison, Hoare bought a Lotto ticket and netted the sum of £7 million. So, the teacher sued him. Initially, she was unsuccessful, as both the High Court and the Court of Appeal referred her to the Stubbings rulings.
She then had to persuade the House of Lords to change its ruling in Stubbings. On the face of it, there was no reason why the UK’s highest court should reverse its earlier decision (which is a rare event anyway).
Looking at the matter dispassionately, it would make no sense to allow litigants to bypass limitation rules simply because the person they are suing out of time has got lucky, and come into some money.
The Lords’ ruling in Hoare (2008)
But the Lords were persuaded that it was time to put victims of assaults in the same bracket as persons injured by negligence.
Their approach was influenced by the fact that, increasingly, the courts were permitting claims of vicarious liability for negligence, against institutions whose employees had committed sexual abuse. Accordingly, it made increasingly little sense for assailants themselves to be subject to a different time limit.
Lady Hale was rather blasé about the implications of the ruling:
A fair trial can be possible long after the event and sometimes the law has no choice. It is even possible to have a fair trial of criminal charges of historic sex abuse. Much will depend upon the circumstances of the particular case.
Lord Brown was more circumspect:
….a substantially greater number of allegations (not all of which will be true) are now likely to be made many years after the abuse complained of. Whether or not it will be possible for defendants to investigate these sufficiently for there to be a reasonable prospect of a fair trial will depend upon a number of factors, not least when the complaint was first made and with what effect. If a complaint has been made and recorded, and more obviously still if the accused has been convicted of the abuse complained of, that will be one thing; if, however, a complaint comes out of the blue with no apparent support for it (other perhaps than that the alleged abuser has been accused or even convicted of similar abuse in the past), that would be quite another thing. By no means everyone who brings a late claim for damages for sexual abuse, however genuine his complaint may in fact be, can reasonably expect the court to exercise the section 33 discretion in his favour. On the contrary, a fair trial (which must surely include a fair opportunity for the defendant to investigate the allegations—see section 33(3)(b)) is in many cases likely to be found quite simply impossible after a long delay.
“Mau Mau” litigation
This has not stopped extraordinarily ambitious litigation from being pursued. Last August, the High Court threw out a test case brought by Ms Kimathi, a Kenyan, against the UK’s Foreign Office alleging torture prior to Kenyan independence in the 1950s and 1960s. She was the first of some 40, 000 Kenyans taking on the UK. This was a marathon piece of litigation, which began in 2013.
The judge concluded that a fair trial was impossible, having regard to the claimant’s failure to put forward any reasons for delay, and because:
it is now essentially impossible for the Defendant to have any proper opportunity to find documentary or witness evidence with real relevance to the core allegations
After the Court of Appeal refused permission to appeal, and the judge reached the same conclusion in a second case, the “Mau Mau” litigation quietly folded.
The cost of these failed claims must be astronomical. The claimants, represented on a “no win, no fee” arrangement, were described as illiterate, impecunious, non-English speakers. How on earth could such mass litigation even get off the ground? It seems absolutely extraordinary.
Turning back to Savile, the new report I have referred to does not explain much about the cases, or why settlements had to be approved by the High Court (this is only required for infants and those lacking mental capacity).
One thing that many people may not appreciate is the cost of issuing a High Court claim. At present, the fee for issuing a claim worth between £5, 000 and £10, 000 is £455 (or £410, if filed online). Thereafter the issue fee is 5% of the value of the claim. The issue fee for a claim for more than £200, 000 is £10, 000.
I do not know how many of the Savile claims against the NHS were on a “no win, no fee” basis. I do not know if the claimants were asked to provide the cost of the issue fee or of any expert reports: in personal injury litigation, a claim must be accompanied by an expert medical report confirming the injury and the prognosis. Possibly the awards were low, because the claims issued were for awards of £10, 000 or less?
But here we run into another mystery. There is a small claims track in the civil court, for claims under £10, 000. Litigants in such cases in the small claims track generally have to bear their own costs, though there are some limited exceptions.
In what are known as Low-Value Personal Injury Claims, there are fixed costs. To summarise, fixed costs in a claim which is for not more than £10, 000 are a maximum of £1, 550; for a claim that is between £10, 000-£25, 000, they are a maximum of £2,250.
I am struggling to see how the costs of taking the Savile claims against the NHS managed to rack up to £600, 000, therefore. I am sure there is a reasonable explanation; but what it is, I don’t know.