UK & Europe
Clyde & Co has recently secured a discontinuance in a historic abuse case against our client, a local authority.
The Claimant had alleged that the Defendant council was liable for abuse she suffered whilst in foster care and for neglect prior to removal into care/a failure to remove.
We maintained a defence in respect of limitation, breach of duty and causation, and sought to have the Claimant medically examined by a psychiatrist. The Claimant strongly resisted this move. The robust stance taken resulted in the Claimant discontinuing her claim at an early stage of proceedings and prior to the listed CCMC, which resulted in considerable savings for the local authority and insurer client.
The Claimant was formally received into the care of the Defendant in 1979. The Care Order ended in 1994 when the Claimant turned 18. The Defendant was faced with allegations on three separate issues: neglect prior to the Claimant’s removal into care/a failure to remove; sexual abuse by a foster carer when the Claimant was first placed in care; and sexual abuse by the brother and (minor) sons of a second foster carer.
However, following the decision in CN v Poole, the Claimant abandoned the pre-care component of the claim and this was not formally pleaded within the Claimant’s Particulars of Claim. The Claimant focussed upon the alleged abuse by the first foster carer and the abuse suffered when placed with the second foster carer.
We raised limitation as an issue, submitting that the Claimant was 23 years out of time to issue her claim. The delay had caused significant prejudice to the Defendant. Direct evidence could not be obtained from one of the foster carers as they had passed away.
We also maintained a robust defence on breach of duty and causation. We relied on the decision in Armes v Nottinghamshire County Council, citing that the Defendant did not owe the Claimant a non-delegable duty, and reiterated that the Local Authority was not under a duty to ensure reasonable care for the safety of children in its care when they are in the care and control of foster carers.
The Defendant had complied with its statutory duty pursuant to s21(1) of the Child Care Act 1980 by providing accommodation and maintenance to the Claimant. The Defendant had placed the Claimant in foster care and thereby discharged its duty to provide accommodation and maintenance. The Defendant was not responsible for providing the Claimant with daily care at that stage; this was the role of the foster carer, and that was when the alleged abuse was said to have occurred. Regarding the acts that took place by the foster carer’s brother and sons we argued that the Defendant did not have any knowledge that these third parties were a risk to the Claimant.
The case was document heavy and involved voluminous records. Disclosure was an ongoing issue including disclosure of third-party records.
We wished to instruct a psychiatrist to examine the Claimant and review all the relevant medical records, as we intended to challenge the reliability of the Claimant’s psychiatric diagnosis and prognosis advanced by the Claimant’s expert. However, the Claimant refused to attend two arranged appointments and clearly wanted to avoid the expert’s involvement. We maintained our position, making it clear that we intended to obtain a court order obliging the Claimant to attend the medical examination.
We also obtained a social care report detailing compliance with the statutory requirements in place at the time. The draft report allowed us to assess the evidence and prospects of success at an early stage. Although the report required additional information and documentation for completion, the existing materials indicated that the Defendant had undertaken all reasonable checks and references as would be expected at the time in relation to the appointment of the foster carer whose file we had. The expert concluded that the Defendant’s procedures were consistent with those expected at the relevant time.
We maintained a robust defence with respect to limitation, breach of duty and causation which resulted in the Claimant not pursuing the failure to remove allegation when she issued proceedings. Once the Claimant had litigated, we continued to insist the Claimant be examined by a psychiatrist. We made it clear we would be seeking disclosure of her counselling records at the CCMC. By flagging these numerous hurdles and maintaining a robust approach, the Claimant decided to discontinue her claim prior to the CCMC.
The matter discontinued at a relatively early stage of proceedings which resulted in significant cost savings. Based upon the Claimant’s pleaded value of £50,000 and the Claimant’s costs to trial, anticipated savings totalled at least £150,000.
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