Chequered past: more personal injury claims are on track

Most people thought Jimmy Savile was a slightly odd, recently deceased DJ on 29 September 2012. But a day later, sexual allegations against him, revealed in an ITV documentary, hit the headlines. Operation Yewtree (the Metropolitan Police Authority’s investigation into Savile and his associates) began soon after, and since then historic sexual abuse has rarely been out of the spotlight.

There is a judicially approved compensation scheme to provide Savile’s victims with capped payments from his estate, which has been advertised in the national press. So is there going to be a deluge of historic sexual abuse cases against perpetrators?

Are erstwhile employers of abusers – and their insurers – looking into a financial pit? What are the courts going to do with these claims, and is it time for a quicker, cheaper method of settling them?

Police reports

Recent crime figures show an increase in reports of both rape and other sexual offences in the first full year since the Savile allegations became public: rape reports are up by 20 per cent while the other reporting has risen by 15 per cent. If we take ‘historic’ offences to be those allegedly committed one year or more before the report to the police, the best estimate suggests that 30 per cent of sexual offence reports to the police last year were historic (around 18,000). As for the increase in reporting, about half of that was down to historic complaints (an extra 4,000).

The increases have been attributed to a two-fold ‘Yewtree effect’. First, there are the reports directly linked to the Met’s Operation Yewtree investigation. Second, there has been a wider effect: an increased willingness of complainants to make historic complaints generally. It is, therefore, not just Savile’s estate and the BBC that should be concerned. Historic allegations are being made across the country against individuals both famous and unknown.

It should be noted that allegations do not necessarily result in criminal convictions. Numerous well-known defendants have walked free after a criminal trial. For every Stuart Hall or Max Clifford there has been a Michael Le Vell or William Roache. A conviction is, of course, not a prerequisite, but logically it will help a civil claim.

Not every police report will translate into a civil claim. Some complainants do not seek compensation at all. Others receive compensation from the defendant through the criminal justice system or from the state. But there are some complainants who will want to pursue civil claims.

Also, there will be some complainants who will not make a complaint to the police but will wish to bring a civil claim. The huge publicity – the wider Yewtree effect – will undoubtedly translate into an increased number of enquiries to civil practitioners, but it is the recent changes to the law that mean such enquiries are likely to translate into claims (albeit not always successful ones).

All this comes at a time when it is harder than ever to predict the outcome of civil proceedings for alleged abuse, and practitioners must be cautious when advising on vicarious liability and limitation.

Vicarious liability

Most allegations of sexual abuse of children are not against the rich and famous but those with access to the young and vulnerable (family, carers, teachers, etc). Many claimants discover that their abuser is not worth suing as they do not have any money. This is where the recent developments become important.

The law relating to vicarious liability of third parties for sexual abuse had been developing well before the Savile allegations hit the news. An area that was always founded on policy rather than legal principle has had to adapt. Claims against local authorities, schools and the Catholic church have led to a move away from the restrictive Salmond doctrine and towards enabling victims of sexual abuse to find someone with money to sue.

In Lister v Hall, the House of Lords changed the approach of the English courts, opening the door to vicarious liability claims for sexual abuse. The Supreme Court’s most recent consideration of this area in Various Claimants v Catholic Child Welfare Society indicates that change in this area has not yet stopped:

“The precise criteria for imposing vicarious liability for sexual abuse are still in the course of refinement by judicial decision…Vicarious liability is imposed where a defendant, whose relationship with the abuser put it in a position to use the abuser to carry on its business or to further its own interests, has done so in a manner which has created or significantly enhanced the risk that the victim or victims would suffer the relevant abuse.

“The essential closeness of connection between the relationship between the defendant and the tortfeasor and the acts of abuse thus involves a strong causative link… These are the criteria that establish the necessary ‘close connection’ between relationship and abuse.”

This open-ended judgment creates uncertainty with the inevitable result for third-party defendants that settlement may become a more attractive option than protracted risky litigation.

Limitation issues

By their very nature, historic claims will be made long after the alleged abuse took place and limitation issues will inevitably arise. Once this would have caused insuperable limitation problems in bringing a claim for an intentional assault and resulted in convoluted claims based on negligence.

However, the House of Lords decision in A v Hoare [2008] 1 AC 844 acknowledged the failings of the civil justice system in this respect (noting that it caused “arid and highly wasteful litigation turning on a distinction of no apparent principle or other merit”) and allowed claims based squarely on trespass to the person.

That is not the end of the story. The House of Lords in Hoare also reinterpreted section 14 of the Limitation Act 1980 to provide an objective test effectively leaving trial judges in most historic cases to make decisions on limitation using their discretion under section 33 instead.

Although this looked like a victory for defendants, as claimants have lost what had been a relatively easy argument using a previously more subjective test under section 14 of the Act, it is in keeping with the civil courts’ desire for a more global consideration of the merits of each abuse claim; the court is able to consider the possibility of a fair trial for the defendant as well as the claimant’s explanation for the delay. The effect, as with limitation, is to introduce uncertainty.

Savile scheme

The Savile scheme may provide a way forward in that it aims to provide “as much clarity as possible, as quickly as possible and at the least cost possible”, following the models seen in road-traffic cases, etc, under the CPR protocols.

This is not to say that the Savile estate coffers have simply been opened; a barrister will be given the job of reviewing all the evidence in relation to a particular claimant and they will then make a recommendation as to whether the claim should be accepted, rejected or accepted in part.

Advertising was an important part of the scheme’s design. There is a pot of £3.3m and if putative claimants do not register in time, they will lose all chance of getting any money.

The scheme is a fascinating development and the publicity, particularly in relation to the ads, has led some to speculate that there will be a deluge of claims, and settlements, as a result.

The ads probably won’t generate many more genuine claims. Although third parties were part of the negotiations in relation to the scheme and can seek indemnities, these will rank behind the alleged victims’ claims. There is unlikely to be much money left to pay indemnities. Litigation against third parties is therefore likely to continue even after the scheme is closed.

A related question is whether we will see replicated schemes in other cases. The courts would certainly encourage it: the Savile scheme was drawn up after a clear judicial steer from Mr Justice Sales at an earlier hearing in the litigation. The Savile estate had a rather easier decision to make than most defendants: with no live alleged abuser to deny the allegations, settlement made financial sense.

Not all defendants will take the decision to settle, particularly where there is an alleged abuser, or other witnesses, denying the allegations and able to give evidence, but many will be looking at their balance sheet. The apparently robust but low-cost approach of the Savile scheme is one that may well look attractive in group litigation cases.

Future claims

Undoubtedly, the increase in civil claims arising out of historic sexual abuse allegations will continue. The claims will keep coming and the courts have shown themselves willing to find ways to help people have their cases heard. That is not to say that all developments have been one-sided: the increased role of section 33 in limitation arguments allows a greater consideration of whether the defendant can fairly be tried.

Therefore, the question becomes not whether there are going to be more claims, but how are they going to be managed. The new challenge is to find a cheaper, quicker method of obtaining justice in these cases. The Savile scheme is perhaps just the start. SJ

Catarina Sjölin Knight is a barrister, senior lecturer at Nottingham Law School and door tenant at 36 Bedford Row. She thanks Felicity Gerry QC for her contribution to this article