Guidance on fee earners in abuse cases: TRX v Southampton Football Club Ltd [2022] EWHC B7 (Costs) - Rochelle Powell, Temple Garden Chambers

22/03/22. The substantive claim was brought by a victim of convicted football coach Bob Higgins, who perpetrated a campaign of abuse against boys at the Southampton academy in the 1970s and 1980s. It was settled for £4,000 shortly after proceedings were issued. Some £65,523.26 was then claimed in costs. The matter came before Master Brown to determine the appropriate hourly rate and level of fee earner.

The Law

The Master considered the “seven pillars of wisdom” under CPR 44.4(3), which state as follows:

“(3) The court will also have regard to –

(a) the conduct of all the parties, including in particular –

(i) conduct before, as well as during, the proceedings; and

(ii) the efforts made, if any, before and during the proceedings in order to try to resolve the dispute;

(b) the amount or value of any money or property involved;

(c) the importance of the matter to all the parties;

(d) the particular complexity of the matter or the difficulty or novelty of the questions raised;

(e) the skill, effort, specialised knowledge and responsibility involved;

(f) the time spent on the case;

(g) the place where and the circumstances in which work or any part of it was done; and

(h) the receiving party’s last approved or agreed budget.”

Decision

Considering the particular facts and circumstances of the case, the Master reduced the claimant’s costs from £65,523 to £23,000. He noted that the matter could “have been resolved an at earlier stage”, it settled for “a relatively modest sum” and “it was not readily apparent that it was a very complex case”. He held that whilst it was reasonable to instruct a specialist firm in London, the matter:

“…could reasonably and adequately have been dealt with by a grade C solicitor in such a firm. Such an instruction would be sufficient to protect the claimant's interests… one would reasonably expect a grade C solicitor who will be qualified and would have had experience with sexual abuse claims for up to four years, to be able to conduct the claim as the principal or main fee earner.”

However, “greater involvement” of a grade A fee earner was considered appropriate for the more “generic costs aspects of the bill”. Similarly, “some input by way of supervision” from a more senior fee earner (grade A or B), was also reasonable.

Comment

The decision and its correct interpretation has been the source of much debate amongst personal injury lawyers. Whether claimant or defendant, it is important to note that this case is not authority for the proposition that all non-recent abuse cases should be dealt with by a Grade C solicitor. However, it provides useful guidance as to the court’s approach in relatively straight-forward, low value cases.

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Price v United Engineering - Jim Hester, Parklane Plowden Chambers

04/03/22. I have been asked by a number of people if I can cover some of the cases which are frequently seen in Industrial Disease cases. This Article is the first such ‘essential’ case. This case considers evidence, inference and prejudice when considering Section 33 of the Limitation Act 1980.

Price v United Engineering [1998] P.I.Q.R. P407 per Brooke and Waller L.JJ.

The Facts

The Claimant brought a NIHL claim on said to have been caused by noise when working at two steelworks. The case was set down for a trial of the preliminary issue of limitation.

The first instance Judge found that the Claimant had known of his potential claim by the end of 1986. The claim was out of time under section 14 of the Limitation Act 1980, having been issued in November 1992.

When considering section 33, the Judge took into account that:

• Both Defendants had long since ceased to trade.

• There had been numerous liquidations, takeovers and amalgamations in the steel industry.

• Some sort of apportionment exercise would need to be undertaken. This was not just between the Defendants but also other noisy employers who were not defendants.

• Whilst the Defendants had called no evidence on the point, records may have been destroyed, and potential witnesses may have died or become untraceable. The cogency of evidence at trial had been seriously affected.

• The delay was not the Defendants fault, but lay with the Claimant and his solicitors.

The Grounds of Appeal

The first ground of appeal was in relation to a subpoena which the Judge had quashed. The Claimant’s solicitors had sought to subpoena a Senior Claims Manager of the insurers of both Defendants. The Claimant sought evidence as to whether other claims had been settled at the works where the Claimant had worked.

The second ground of appeal related to the fact that the Judge had taken into account that records may have been lost and witnesses may have died or become untraceable. The Defendants had not called any evidence on the point.

The Subpoena Appeal

The court found that evidence that other claims had been settled was not a relevant factor when considering whether the Defendants were prejudiced by the delay in the case before the court. Insurers may settle claims for a number of reasons, so as not to incur the costs of litigation. The court found that evidence as to the settlement of other claims should not be allowed.

The court noted that some NIHL claims were difficult to defend. It was also considered that if a case is brought within 3 years of the date of knowledge then a defendant may be prejudiced, but simply cannot complain of it. It is only when a case is brought beyond the 3rd anniversary of the date of knowledge that prejudice can be considered by the court (as per Gwentoys).

The Appeal as to whether an Inference could be drawn

The court found that the Defendants did not need to call evidence as to the fact that records may have become lost or witnesses may have died/ become untraceable. The court was entitled to draw such an inference.

The Judge was also entitled to take into account the fact that apportionment would need to be undertaken. Although it was submitted by the Claimant that a broad brush approach might be taken (so not to disadvantage the Defendants), the court found that this was not consistent with justice.

Conclusion

This short Judgment (the Judgment itself only runs to about 5 pages) is helpful case when considering section 33 and the evidence available to the court. In short:

• Evidence that other similar claims have been settled is irrelevant as to assessing prejudice in the case at hand.

• The court may make an inference that records may have become lost over time, and that witnesses may have died or become untraceable. The Defendants did not need to call evidence as to the nature of the records or witnesses.

• That difficulties in apportionment can be taken into account. This is more likely in multi-defendant claims, and those where some employers are not pursued.

• That witnesses’ memory may fade.

Of course, if a defendant is able to call specific evidence as to prejudice caused by records being lost, or witnesses having died/ become untraceable, then that is very likely to be more persuasive of prejudice than an inference.

This article was originally published at https://jimhester.me

Image ©iStockphoto.com/nicolas_

'Failure to Remove' Claims: Some Further Developments - Paul Stagg, 1 Chancery Lane

02/03/22. These two significant judgments are both of considerable assistance to those defending ‘failure to remove’ claims against local authorities.

Negligence Claims: the Tindall Case

In a series of articles published last year, I analysed in detail the decisions at first instance in HXA v Surrey CC [2021] EWHC 250 (QB) [link] and YXA v Wolverhampton CC [2021] EWHC 1444 (QB), [2021] PIQR P19 [link], and the decision of Stacey J on appeal [link]. A further article by my colleague Katie Ayres looked at the decision of Lambert J in DFX v Coventry CC [2021] EWHC 1382 (QB), [2021] PIQR P18 [link]. The claimants in HXA and YXA have now sought permission to appeal to the Court of Appeal. The outcomes of the stalled appeal in Champion v Surrey CC and the part-heard application in DEF v Kirklees MBC are awaited.

The focus of the argument in the cases decided to date has been on whether a duty of care is owed by virtue of an assumption of responsibility by the defendant. The decision in Tindall v Chief Constable of Thames Valley Police [2022] EWCA Civ 22 focuses principally on other exceptions to the general rule, which have not yet been the subject of any decision in the context of ‘failure to remove’-type claims. It will be recalled that in N v Poole BC [2019] UKSC 25, [2020] AC 780 at [76], the Supreme Court approved the following summary of the exceptions from an article.

In the tort of negligence, a person A is not under a duty to take care to prevent harm occurring to person B through a source of danger not created by A unless (i) A has assumed a responsibility to protect B from that danger, (ii) A has done something which prevents another from protecting B from that danger, (iii) A has a special level of control over that source of danger, or (iv) A’s status creates an obligation to protect B from that danger.

As the name of the case makes clear, the case is nothing to do with social services. It concerned a road traffic accident on a freezing spring morning in 2014 on the A413. Black ice had formed on a section of the road. Very early in the morning, a passing motorist, Mr K had skidded on the ice and crashed. He was hurt, though not seriously. He telephoned the police and reported his accident, and the fact that there was ice on the road. Officers arrived about 20 minutes later, and in the meantime Mr K was seeking to alert other road users to the danger. The officers were informed by Mr K of the danger, cleared the road of debris and placed a sign on the road to instruct motorists to go slowly. Insufficient attempts were made to secure the attendance of a gritting lorry. Mr K was taken away in an ambulance. The officers then removed the sign and left the scene. Some 20 minutes later, the claimant’s husband was driving along the road when a driver coming in the opposite direction lost control on the ice and collided with his car. Both, tragically, were killed.

The pleaded case against the police was that the officers had made the danger worse in that following their attendance, Mr K ceased his efforts to warn vehicles. They had also failed to take proper steps to protect motorists using the road.

In her judgment [2020] EWHC 837 (QB), [2021] RTR 1, Master McCloud dismissed the police’s application to strike out. An appeal was directed to proceed directly to the Court of Appeal.

Giving judgment for the Court of Appeal, Stuart-Smith LJ reviewed the authorities in detail at [23]-[53]. He gave a useful summary at [54] in the following terms (citations omitted):

i) Where a statutory authority (including the police) is entrusted with a mere power it cannot generally be made liable for any damage sustained by a member of the public by reason of a failure to exercise that power. In general the duty of a public authority is to avoid causing damage, not to prevent future damage due to causes for which they were not responsible ….

ii) If follows that a public authority will not generally be held liable where it has intervened but has done so ineffectually so that it has failed to confer a benefit that would have resulted if it had acted competently ….

iii) Principle (ii) applies even where it may be said that the public authority’s intervention involves it taking control of operations ….

iv) Knowledge of a danger which the public authority has power to address is not sufficient to give rise to a duty of care to address it effectually or to prevent harm arising from that danger ….

v) Mere arrival of a public authority upon, or presence at, a scene of potential danger is not sufficient to found a duty of care even if members of the public have an expectation that the public authority will intervene to tackle the potential danger ….

vi) The fact that a public authority has intervened in the past in a manner that would confer a benefit on members of the public is not of itself sufficient to give rise to a duty to act again in the same way (or at all) ….

vii) In cases involving the police the courts have consistently drawn the distinction between merely acting ineffectually …. and making matters worse ….

viii) The circumstances in which the police will be held to have assumed responsibility to an individual member of the public to protect them from harm are limited. It is not sufficient that the police are specifically alerted and respond to the risk of damage to identified property …. or injury to members of the public at large …. or to an individual ….;

ix) In determining whether a public authority owes a private law duty to an individual, it is material to ask whether the relationship between the authority and the individual is any different from the relationship between the authority and other members of the same class as the individual ….

Coming to his conclusions, Stuart-Smith LJ rejected the suggestion that the police had done anything to stop Mr K warning motorists: at [66]. Although not expressly so stated, this deals with exception (ii) from the article mentioned above. Furthermore, the police did not make the danger worse by removing their sign before leaving; they were merely restoring the road to its former state: at [67]-[68]. It was not therefore a case where the police created the risk, or made it worse.

At [71], a further submission for the claimant was rejected in the following terms:

I cannot accept the Claimant’s submission that a duty can arise in circumstances “where a defendant had the power to exercise physical control, or at least influence, over a third party, including a physical scene (such as the accident scene in the present case) and, absent their negligence, ought to have exercised such physical control.” The submission is far too wide. If correct, it would mean that whenever a public authority has the power to prevent harm and, if acting competently, ought to have prevented it, then a duty of care to prevent the harm arises. This is directly contrary to the firmly established principles that are set out in and derived from the authorities to which I have referred.

At [72], Stuart-Smith LJ referred to the case law on the ‘control exception’ (iii) in the article cited in Poole. Of Dorset Yacht Co Ltd v Home Office [1970] AC 1004, it was said that of the Borstal officers that:

…. the officers’ control over the trainees was (or should have been) complete, the trainees were a known source of danger, and the officers introduced the danger into close physical proximity to the claimants’ boats.

In the instant case, by contrast, the police officers “came across a potential danger for the existence of which they had not in any way been responsible”.

Two principle points can be derived from this judgment in relation to ‘failure to remove’ claims in negligence:

— It is frequently suggested by claimants that by failing to intervene, or by returning a child from respite care as in YXA, the defendant created or enhanced the danger to the child. That argument was well dealt-with by the Master in HXA, but this decision makes it clear at a higher judicial level that merely allowing a pre-existing danger to continue cannot amount to the creation or enhancement of a danger.

— Similarly, it is frequently suggested that there was a failure on the part of social workers to exercise control over parents or others responsible for abuse or neglect, so that exception (iii) applies. The judgment makes it clear, as it should already have been, that the exception is much narrower than that. In fact, since social workers cannot exercise physical control over any person who presents a danger to a child, the chances of relying on it ought to be even more fanciful than is the position with the police.

HRA Claims: AB v Worcestershire CC

The case law so far has focused on claims in negligence. Until now, there has been no judicial consideration of the possible parallel claims under the Human Rights Act 1998, save for a passing mention in the DFX case, in which the judge found that the failure of the claimant to prove breach of duty in her negligence claim was also fatal to her claim under the 1998 Act, and declined to consider the other issues arising under the Act: at [247]. This is mirrored by the surprising paucity of claims which have reached the Strasbourg court.

The judgment of Margaret Obi, sitting as a Deputy High Court Judge, in AB v Worcestershire CC [2022] EWHC 115 (QB) is the first which considers a claim under the 1998 Act in detail. The claimant was a young man born in 2002 and now aged 20. He lived in the area of the second defendant, Birmingham City Council (“BCC”), until about November 2011, and then in the area of the first defendant, Worcestershire County Council (“WCC”). There were periodic references to social services. The claimant was not accommodated at any time by BCC, but following a disclosure to his school that he had been pushed and scratched by his mother, in July 2013 he and his younger brother were placed in foster care, where he remained until April 2014. He initially expressed himself to be happy to have returned home, but later complained that his mother was calling him names and hitting him. In August 2014, he was accommodated by agreement after an allegation was made that he had sexually abused a friend of his brother. He never returned to the care of his parents.

The tortuous and deeply unsatisfactory procedural history of the litigation was summarised by the Deputy Judge at [10]-[19]. Initially, claims in negligence and for breach of Arts 3, 6 and 8 of the Convention were being advanced. The defendants made applications to strike out and for summary judgment. By the time of the hearing, the court was considering the fifth version of the Particulars of Claim which had been advanced, and all the claims except the claims under Arts 3 and 6 of the Convention had been abandoned.

The Deputy Judge summarised the case law cited to her concerning the meaning of “inhuman and degrading treatment” in Art 3 at [28]-[32], the test for the imposition of an operational duty to protect at [33]-[35], and the investigative duty at [36]-[37].

The Article 6 Claim

The Deputy Judge dealt shortly with the claim under Art 6. She accepted the defendants’ submissions that although Art 6 created rights in relation to “the determination of …. civil rights and obligations”, there was no such right at issue. The claimant did not have a civil right to seek a care order or to have one made: at [54]. In any case, it was not arguable that a care order would have been made on the basis of any of the particular incidents identified in the Particulars of Claim: at [55]. Since the gravamen of the case was that a care order should have been applied for at an earlier stage, it added nothing to the Art 3 claim anyway: at [57]. The Art 6 claim was therefore struck out.

The Article 3 Claim

In relation to the Art 3 claim, the issue was whether the defendants should be granted summary judgment. She dealt with three substantive issues arising on the claim:

— whether the treatment of the claimant ever met the threshold for treatment or punishment falling within Art 3;

— whether an operational duty could be owed under Art 3 to children living in the community; and

— whether an investigative duty could be owed under Art 3 to children.

The judge was critical of some of the ongoing deficiencies of the claimant’s pleaded case, which referred to two chronologies, one of which had been served late in the day, and which asserted psychiatric injury but in respect of which no medical evidence had been served: at [61]-[62]. At [63] she noted that although it had been argued that inferences could be drawn as to the nature of ongoing treatment, it had not been pleaded that the court would be invited to infer that there was additional ill-treatment of him beyond that recorded in the records, and that it was accepted that the claimant would not be able to add anything to the content of the records at trial.

She then entered into a detailed analysis of the allegations made in relation to the two local authorities: at [65]-[85]. This will repay careful reading, but she accepted that most of the incidents which came to the attention of the authorities were transient in nature and did not involve persistent or sufficiently serious neglect or abuse to bring them within the scope of Art 3. Furthermore, there was no arguable case that a care order ought to have been sought at any stage, the cogent reasons for breaking up the family being absent despite the mother’s unsatisfactory care: at [86]. The Art 3 claim was therefore bound to fail in terms of the existence of a duty and causation.

The second issue was one which had been raised on behalf of BCC. She accepted the submissions made on its behalf that it was established by authority that the operational duty under Art 2 could only be owed to those over whom the public authority had exercised control. Since the claimant had never been in the control of BCC, no operational duty could be owed by the council towards him: at [88]-[93].

Both defendants relied on the third argument, which was that the investigative duty was directed towards the identification and criminal punishment of behaviour, rather than the protection of individuals. The Deputy Judge again accepted that submission: at [94]-[100].

Summary judgment was therefore granted to the defendants, and the claims against them brought to an end.

Discussion

“Inhuman and degrading treatment” is not well-defined in the Strasbourg jurisprudence. There has been a noticeable dilution of the concept by the Strasbourg court over the years. The position of the court appears to be that sexual abuse of a child to any degree would fall within the meaning of that phrase, while physical abuse would do so if it caused substantial injury, pain or suffering or was repeated or inflicted in humiliating circumstances. The position in relation to neglect is less clear. In Z v UK (2001) 34 EHRR 3, the case brought by the unsuccessful claimants in X v Bedfordshire CC [1995] 2 AC 633, the court referred to the “serious ill-treatment and neglect suffered by the children over a period of years”: at [70]. The UK government did not contest that the Art 3 threshold was crossed: at [72], [74]. In DP v UK (2002) 36 EHRR 14, it was said that a “clear pattern of victimisation or abuse” needs to be shown to justify severing family ties: at [113].

The importance of the Deputy Judge’s decision in relation to this issue, therefore, is to show that unless there is evidence of consistent neglect or ill-treatment of sufficient severity, a claimant is unlikely to succeed in demonstrating that the Art 3 threshold is crossed.

The second argument accepted by the Deputy Judge is much more far-reaching. If correct, it should enable many, perhaps most claims under Art 3 to be defended on the basis of the absence of a duty, because most ‘failure to remove’ claims arise from children who are experiencing neglect or abuse within the family home.

The obvious question is what is required for a child to be within the “care and control” of a local authority. Does this require a care order? Or is it sufficient if a child, as with this claimant during the latter part of his time in WCC’s care, is cared for temporarily under s20 of the Children Act 1989? It is debateable whether “assumption of responsibility” in the case law discussed by the Deputy Judge has the same meaning as in the private law of negligence. Further clarification of this point is needed.

The conclusions on the other issues are useful, because there is a frequent misconception amongst claimants’ representatives that the investigative duty applies to local authorities, or that there is a viable claim under Art 6. As the Deputy Judge’s judgment shows, there is nothing in these arguments. It is correct that the operational duty under Art 3 necessarily involves an obligation of inquiry, because there will be liability if the public body ought to have been aware of the risk of Art 3 ill-treatment, not merely when it did know. However, there is no separate obligation of investigation other than that inherent in complying with the operational duty (assuming that it applies at all).

You can download a PDF version of this article here.

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