The Investigatory Powers Act 2016 Page 10 spring 2017 Speeding up property disposals: top tips for a smooth transaction Page 4 Fresh evidence of fraud Page 6 >>> continues on page 2 keeping it locallocal authority legal update hilldickinson.com/localauthority The Cities and Local Government Devolution Act 2016: what does it mean for local authorities? The Cities and Local Government Devolution Act was labelled a ‘devolution revolution’ by then chancellor George Osborne who also claimed that the Act would ‘fix the current broken system of financing local government’. Mark Fitzgibbon and Victoria Madsen consider what the Act really means in practice for local authorities. 2 Welcome keeping it local spring 2017 >>> continued from page 1 Welcome to the latest edition of keeping it local, Hill Dickinson’s local authorityfocussed legal update. We have included the usual selection of articles from across the range of disciplines in which we specialise for our public sector clients. On the front page we focus on The Cities and Local Government Devolution Act 2016. Mark Fitzgibbon and Victoria Madsen consider what it means for local authorities. Emma Townley provides some tips on how local authorities can speed up property disposals in light of the on-going drive to rationalise the public sector property estate and Megan Clarkson Bowly discusses the controversial innovation clause in The Children and Social Work Bill currently progressing through Parliament. What will it mean for children’s services? Natalie Green considers some recent cases in which the defendants uncovered fresh evidence of fraud after the original case was concluded and considers how local authorities can benefit from these decisions. Mark Stanger takes a close look at The Investigatory Powers Act 2016, and how this will affect local authorities powers of investigation and surveillance. If you would like any more information about the areas covered or would like to make suggestions for what you would like to see covered in future editions, please do get in touch. Best wishes, Sarah Swan Senior Associate Head of Local Authority Group firstname.lastname@example.org The Cities and Local Government Devolution Act (the Act) represents a significant shift towards policies in favour of localism. Not only is this significant from a constitutional perspective; it also serves to encourage and promote investment in regeneration following the financial crisis. When the Act came into force, then local government secretary Gregg Clark commented that the Act ‘opens the door for [local authorities] to come forward with their own proposals for having a greater say over how their area develops over the coming years.’ What does the Act do? Fundamentally, the Act provides a framework for the devolution of Government powers. It introduces directly elected mayors to combined local authorities, who have certain powers devolved to them. These powers may be applied across various regions in the United Kingdom by virtue of secondary legislation, (although it is expected at this stage that the Act will be invoked mainly by England’s largest city-regions), which create a ‘devolution deal’. A devolution deal is an agreement between central Government and a city or county region that gives that region a degree of control over their area that they would not otherwise have had. A devolution deal may, for instance, enable a region to take responsibility for a financial decision that affects their area, and determine how public money should be spent. The Act is generic in the powers it transfers to local authorities, and the types of devolution deals that may arise are thereby equally disparate. The non-prescriptive nature of its drafting is deliberate; the Act recognises that each region has its own particular needs and requirements, and as such, it would be ineffectual to take a prescriptive, ‘one size fits all’ approach to a devolution deal. Quite the opposite, in fact: the Act appears to favour the notion that each local authority should have the capability to shape devolution deals which enable it to make its own decisions tailored to its specific economic and social landscape. The sorts of powers that have been devolved to date via a devolution deal relate to transport, business support, land and housing, and more recently (and with much controversy!) health and social care integration. For example, Manchester’s combined authority completed a devolution deal which involved, amongst other things, the devolution of the transport budget, responsibility for franchised bus services and integrated smart ticketing across all local modes of transport. The West of England combined authority embarked on a devolution agreement on 16 March 2016, which gave the West of England significant new powers over improved transport, planning, skills and employment. Furthermore, the West of England also received control of a £900 million investment fund over the course of 30 years, to boost economic growth within the area. The Sheffield city region also agreed a devolution deal with the Government, which enabled it to accelerate the delivery of its strategic economic plan, and thereby strengthen its position as a world class centre for advanced manufacturing and engineering. What does the Act mean for local authorities? The Act is a victory for local authorities in view of their lengthy fight to secure control and power over their own funding and expenditure. Of course, this independence undoubtedly comes with added responsibilities, and there is still the unanswered question as to how national and local accountability can be aligned in the context of a devolution deal. The reality is, however, that local authorities are now able to seek a greater level of autonomy and liberation, and the question is, will local authorities embrace their new creative freedom, or will they merely become satellites of central Government? Watch this space... Victoria Madsen email@example.com Mark Fitzgibbon firstname.lastname@example.org New avenues for public-to-public co-operation Public procurement law has previously acknowledged two so-called ‘public-to-public’ exceptions to the application of the Public Contracts Regulations 2015 (PCR 2015) to otherwise fully procurable contracts. The first is the ‘Teckal’ or ‘in-house award’ exception for contracts let between a contracting authority (or authorities) and a subsidiary organisation. The second is the ‘Hamburg Waste’ exception relating to genuine inter-authority co-operation agreements. However, a ruling of the European Court of Justice (ECJ) handed down on 21 December 2016 in the case of Remondis GmbH & Co -v- the Region of Hannover, Germany and others (C-51/15), appears to have created a potential third way of exempting agreements between public bodies from the full application of the PCR 2015 or their equivalent within the EU. The Region of Hannover and the City of Hannover (as contracting authorities) both held responsibility for waste disposal and treatment in their local areas. They agreed to delegate waste management responsibility and powers to a special-purpose association (i.e. separate legal entity) for waste management created by statute by these contracting authorities. Remondis had challenged this transfer on the basis that the special purpose association to which the tasks had been delegated had not been identified through any form of competitive selection process. Remondis therefore alleged that a public contract had been let in breach of the applicable public procurement regime. Hannover asserted that the special purpose association fell outside of the scope of public procurement law on the basis that its creation and the subsequent transfer of functions was done via statutory instrument and not through a public contract under which remuneration for a service was being paid. This was purely a measure of internal state (re-)organisation as to how the performance of functions was to be achieved. The ECJ was persuaded by Hannover’s arguments and sided with the contracting authorities in its conclusions. It stated that: ‘An agreement concluded by two regional authorities, such as that at issue in the main proceedings, on the basis of which they adopt constituent statutes forming a special-purpose association with legal personality governed by public law and transfer to that new public entity certain competences previously held by those authorities and henceforth belonging to that special-purpose association, does not constitute a “public contract”. ‘However, such a transfer of competences concerning the performance of public tasks exists only if it concerns both the responsibilities associated with the transferred competence and the powers that are the corollary thereof, so that the newly competent public authority has decision-making and financial autonomy, which it is for the referring court to verify.’ In other words, the ECJ found that an arrangement implemented by a contracting authority (or authorities) which constituted a genuine delegation of functions (as opposed to a remunerated provision of services) would not be a procurable public contract. The delegation in question must be complete, giving the recipient full control over how the function in question is to be performed but in such cases, direct appointments may be permissible. It is perhaps possible to see how this could have direct application in a local government context within a section 101 Local Government Act 1972 delegation of functions situation, for example. Whilst the Hannover case conditions will still need to be respected moving forward, this new case provides a legal basis for a potential ‘third way’ in which contracting authorities could procure goods, works or services without a need for full application of the PCR 2015. Mark Fitzgibbon email@example.com James Clayton firstname.lastname@example.org 3 4 5 keeping it local spring 2017 Speeding up property disposals: top tips for a smooth transaction Title review Instruct your legal team to review the title and prepare a title pack before marketing the property for sale or rent. This will ensure that all necessary title documents are readily available when heads of terms are agreed. An early review will allow your solicitor to identify any title defects or missing title deeds and assist in formulating a strategy for dealing with such issues from the outset. Title registers often contain historic entries which are no longer relevant; for example, entries relating to expired or forfeited leases. Applications to the Land Registry to remove such entries and update the title should be made as early as possible; this may require the submission of supporting evidence or statutory declarations, which will take time to collate and prepare. This tactic will avoid having to deal with enquiries by the buyer or tenant, unnecessary delays in the transaction and potential price chipping. Unregistered land Send all deeds and documents of title to your solicitor in advance of any disposal, to allow sufficient time for review and preparation of an epitome of title. As with registered land, such a review allows any title issues to be identified and managed at the outset. In cases of both registered and unregistered land, you should consider instructing your solicitor to prepare an overview title report, summarising any matters which require further investigation and recommending steps to take to prepare the title for disposal. This will allow you to formulate your negotiating strategy with any potential buyer or tenant from a position of knowledge. Plans Review the title plan and check that it matches the boundaries on the ground. If disposing of part of a property, instruct a surveyor to prepare a Land Registry-compliant plan. If dealing with unregistered land, plans to old title deeds can often be difficult to interpret. To avoid any delay in the buyer or tenant dealing with the unregistered plans and any surprises in the plans not matching the position on the ground, instruct a surveyor to produce an overlay plan. Any gaps in ownership can be identified and a solution formulated. Occupiers Is the disposal with vacant possession or subject to leases and licences? Your solicitor can advise on the legal steps required to enable vacant possession to be given. If the disposal is to be subject to leases and licences, collate all documentation including management information. Prepare a schedule listing all leases and licences and extract key information for the schedule such as rent payable, rent review dates, term commencement and end dates, any break dates and service charge caps as well as details of any disputes with tenants. Such a schedule will provide a useful tool for managing enquiries. Commercial Property Standard Enquiries (CPSE) Replies to CPSE should be prepared in advance of a disposal. CPSE should be answered fully and correctly, otherwise buyers will push back and raise further enquiries. Preparing replies to CPSE in advance will also identify any issues which can be dealt with before they cause delay. Planning history/ building regulations Given the particular issues around planning and section 106 agreements where land is owned by a local authority, it is essential that you establish the planning position and ensure that all relevant planning and building regulations documentation is ready to make available to the buyer or tenant at the outset. Third party consents Are there any restrictions on the title requiring the consent of a third party before the disposal can complete? An early approach will avoid delays in progressing the transaction to exchange and completion. Crichel Down rules Surplus public sector land and buildings originally acquired through (or under threat of) compulsory purchase may need to be offered back to its former owners. Your solicitor can advise on whether the rules apply and, if so, what steps need to be taken. Whilst technically not compulsory for local authorities, the Government recommends that local authorities do comply with these rules. With the on-going drive to rationalise the public sector property estate, ensuring that surplus local authority land and buildings are ready for sale or letting is crucial to the successful completion of a transaction. Emma Townley sets out some top tips for streamlining property disposals, to minimise delays and the scope for renegotiation of the agreed terms, and to avoid potentially abortive transactions and wasted costs. 1 2 3 4 5 6 7 8 Good planning in advance of a disposal can minimise delays and mitigate hurdles to getting deals done. If you would be interested in attending a workshop session on preparing for disposal, please contact the author to register your interest. The workshop will provide an overview of the documentation, information and processes required to ensure an efficient transaction. Emma Townley email@example.com 7 keeping it local spring 2017 6 Fresh evidence of fraud The appeal decisions in Brighthouse Limited -v- Tazegul  and Hayward -v- Zurich Insurance Company PLC  demonstrate the courts’ continuing commitment to tackling fraudulent claims. Natalie Green looks at how the courts in these cases dealt with fresh evidence of fraud after the original case was concluded, and considers how local authorities can benefit from these decisions. Brighthouse Limited -v- Tazegul Facts and issues The claimant alleged that the defendant driver, Mr Alleyne, collided with the rear of his vehicle as he slowed down for traffic. In contrast, Mr Alleyne alleged that the claimant overtook him, pulled sharply in front of his vehicle and slammed on the brakes thereby causing the collision. Mr Alleyne thought that the claimant deliberately caused the accident. The claimant relied upon an independent witness, Mr Hydara. Hydara said that he had witnessed the accident but did not stop at the scene. He said he saw the claimant later that day and provided his details then. Hydara did not attend the morning of trial. However the claimant’s wife contacted Hydara’s partner via Facebook and Hydara later attended to give evidence. In light of this, the defendant made further enquiries during the lunchtime adjournment and discovered that: • The claimant’s wife and Hydara’s partner had been Facebook friends for around four months; • Both Facebook profiles contained photographs of Hydara’s partner and the claimant’s wife socialising at the bar where the claimant worked as a doorman; • Hydara shared 75 Facebook contacts with the owner of the bar. On cross-examination, both the claimant and Hydara denied knowing each other either before or after the accident. Despite this, the trial judge preferred the claimant’s evidence and was satisfied that Hydara was telling the truth. He found as fact that Hydara witnessed the accident; he had not come to court to give perjured evidence and there was no sufficient connection between the claimant and Hydara to undermine their evidence. The judge awarded the claimant £6,425.49 in damages and £7,083.12 in costs. Additional evidence and appeal Following the trial the defendant found further Facebook evidence which suggested that Hydara and the claimant were, contrary to their denial, friends. The fresh evidence of fraud consisted of Facebook entries in which the claimant and Hydara had commented on and ‘liked’ each other’s posts. Most notably was an entry dated 8 April 2015 in which the claimant commented on a picture of what appeared to be Hydara, his wife and child and said ‘Gorg family warrior growing now.’ The defendant applied for permission to appeal. One of the grounds of appeal was that the claimant and Hydara had perjured themselves and that the judgment was therefore obtained by fraud. Permission to appeal was granted on the basis that HHJ Coulthard expressly stated in his judgment that Hydara had not given perjured evidence and that there was no sufficient connection between him and the claimant, yet further evidence had come to light, arguably to the contrary. The decision The court had to decide whether, in light of the fresh evidence, the trial judge had been deliberately misled. Judgment could only be set aside at the appeal stage if the fraud was either admitted or the evidence was incontrovertible. The appeal court was not satisfied that this high threshold had been met. However, the court did find that the Facebook evidence suggested the relationship between the claimant and Hydara went beyond what was admitted in the instant case, and was capable of casting fundamental doubt on the truthfulness of the evidence. The threshold of whether the fresh evidence disclosed a prima facie case of fraud and perjury was satisfied; therefore the issue of fraud should be determined before the judgment of the court below is set aside. The case was referred to back to HHJ Coulthard to determine the issue of fraud. Hayward -v- Zurich Insurance Company PLC Facts and issues The claimant in this case had originally sought damages from his employer for an injury at work. The defendant, via its insurer Zurich, contested quantum on the basis of surveillance evidence and pleaded within the defence that the claimant had exaggerated the extent of his injury for financial gain. The claimant’s claim was ultimately settled for £134,973.11. However, two years later, Zurich was approached by the claimant’s neighbours, who stated that they believed that the claimant had in fact fully recovered from his alleged injuries one year before settlement of his clam. As a result of this evidence Zurich issued proceedings in deceit against Hayward alleging fraudulent misrepresentation and seeking to recover the difference between the amount paid and the damages which the claimant would have received had he been truthful. The appeals At first instance Zurich was successful and Hayward’s award was reduced to £14,720; he was ordered to repay the balance of the settlement. Mr Hayward appealed the decision on the basis that the settlement agreement should not have been set aside. The Court of Appeal allowed the appeal and found that if a party enters into a settlement having pleaded that facts or assertions central to the opposing party’s case are dishonest or fraudulent, it cannot later rescind that settlement on the basis of misrepresentation. The Court of Appeal held that Zurich’s belief in the truth of the misrepresentation was a relevant consideration in its claim of fraudulent misrepresentation. The Supreme Court disagreed with the Court of Appeal and held that Zurich had compromised the claim before being in receipt of evidence to support the true nature of Hayward’s injuries. The Supreme Court was satisfied that Zurich had been induced into the settlement based on Hayward’s fraudulent misstatement. Effects of Brighthouse and Hayward The courts were faced with great difficulty in reaching a decision in cases which had been fully compromised. Courts often find that public interest in certainty of a contract or a judgment is of paramount importance. However, the decisions reached by the courts in these cases are good examples of the robust approach defendants can expect the courts to adopt in cases where there is evidence of fraudulent misrepresentation. In Hayward, Lord Clarke stated that whilst there is a public interest in encouraging parties to settle disputes, settlement agreements are not immune from reassessment following a finding of fraud. He concluded that ‘it is difficult to envisage any circumstance in which suspicion would preclude unravelling a settlement when fraud is subsequently established’. It is yet to be seen how HHJ Coulthard will view the fresh evidence in the case of Brighthouse. However, one would hope the judge will find that he was misled and take a different view of the claimant’s evidence especially in light of the decision in Hayward. Local authorities should continue to run appropriate cases to trial and plead their case in full including pleadings of fraud and misrepresentation. If a case settles but fraud is later established the settlement is by no means immune from being unravelled. Natalie Green firstname.lastname@example.org 8 9 keeping it local spring 2017 The changing face of children’s services The Children and Social Work Bill (the Bill) is progressing through Parliament and is heralded as both revolutionary and controversial. The Bill seeks to change processes for looked-after children and amend the regulatory framework for social workers. Megan Clarkson Bowly discusses the contentious ‘innovation’ clause and what this means for children’s services. The innovation clause The innovation clause gives the secretary of state the power to allow a local authority to opt out of children’s social care legislation and develop new ‘innovative’ ways of working. In November 2016 the House of Lords voted to remove the innovation clause from the Bill, considering it to be ‘fundamentally flawed’ with a lack of evidence to justify such measures. However, the Government has reinstated the clause in an ‘altered and improved form’. To opt out, local authorities must first consult appropriate safeguarding partners and relevant agencies. The authority must then apply to the secretary of state to make regulations under what is currently clause 32 of the Bill. The secretary of state must in turn consult with an expert panel to include the children’s commissioner and chief inspector of education who will consider the capability of the local authority, the likely impact of the regulations and the adequacy of measures to monitor that impact. Any exemptions granted will last for three years with an option to extend for a further three years. Why? Opponents of the Bill from within the social work profession have argued that the clause will undermine fundamental child care legislation in place to protect the rights of vulnerable children. Carolyn Willow, director of Article 39, a group which fights to protect children’s rights, says that ‘Free rein to remove statutory duties towards vulnerable children is being marketed as innovation - there is nothing new or creative about taking away social care rights from the children in our country who most need them.’ She argues that commercial thinking drives the change; ‘Legislation will vary between areas. If this is intended to force competition, ministers must realise that children who need protection and care are in no position to choose where this comes from.’ Professor Eileen Munro, academic and author of the Governmentcommissioned 2011 review on child protection, initially supported the innovation clause but has now withdrawn her support on the basis that it would pose a ‘serious danger’ if the wide-ranging exemption powers were contained in statute. Instead, she has called for the Government to pursue ‘less ambitious but still useful’ reform by amending specific laws that block innovation. Undoubtedly, the innovation clause will change the way children’s social care negligence claims are dealt with as regulation will vary between councils. The initial challenge in any claim will be to establish what regulation the local authority did or did not abide by at the time of the claim. Local authorities will have to ensure they keep very clear records of their regulatory framework, along with evidence that it was followed. Even if it is established that a local authority has opted out of certain regulation, the law might prove difficult to apply. It will be very difficult to apply the objective standard of the reasonable man to a situation when professionals have been encouraged to use their subjective judgement. What next? The next review of the Bill will be the report stage. It will be interesting to see how the House of Lords responds to the reinsertion of the innovation clause, given the initial criticism. Hill Dickinson’s abuse and social care team will watch the Bill’s journey through Parliament and its ultimate implementation with interest and will keep clients closely informed. Megan Clarkson Bowly email@example.com Sarah Swan firstname.lastname@example.org 10 11 keeping it local spring 2017 The Investigatory Powers Act 2016 The Investigatory Powers Act (IPA) 2016 received royal assent on 29 November 2016. Although it has been heavily criticised, the Government says that the IPA consolidates existing powers of investigation and surveillance and updates the law to keep pace with a ‘digital age’. Mark Stanger takes a look at the new law and what it means for local authorities. Limitation in abuse claims: it’s not off limits Hill Dickinson’s specialist abuse and social care team recently defended a claim at trial involving alleged historical abuse in the 1970s and 1980s. The High Court refused to exercise its discretion under the Limitation Act 1980 to allow the claims to proceed. Ian Carroll considers the decision and likely impact in other cases. The IPA, widely labelled by critics and petitioners as the ‘snooper’s charter’ has been introduced to overhaul the legal framework governing the use of surveillance by public bodies. It replaces the Data Retention and Investigatory Powers Act 2014 (DRIPA) which sunset on 31 December 2016. As it comes into force, it will also replace parts of the Regulation of Investigatory Powers Act (RIPA) 2000. Key powers The IPA creates a framework under which public bodies can exercise powers of investigation. The powers granted include: • The power to access communications data • The power to intercept communications i.e. content • The power to require communications service providers to log and retain internet connection records for up to 12 months (not available to local authorities) • Bulk powers i.e. access to large quantities of data/mass surveillance • Equipment interference e.g. hacking While the majority of these powers were already being exercised under more general powers of investigation, the IPA seeks to restrict the circumstances under which they can be used through the inclusion of additional safeguards. These include: • A ‘double-lock’ for the most intrusive powers, whereby an authorisation, or ‘warrant’, to intercept information issued by a secretary of state will also require a review by a panel of judicial commissioners (who will have the power to veto) • The judicial commissioners’ panel will be overseen by a single senior judge; the newly created investigatory powers commissioner • New protections for journalistic and legally privileged material, and a requirement for judicial authorisation for acquisition of communications data that identify journalists’ sources • Tough sanctions, including the creation of new criminal offences, for those misusing the powers Additional safeguards have been put in place for politicians or members of Parliament for whom a warrant can only be granted with the permission of the prime minister. This has been met with a fierce response from critics. What does this mean for local authorities? As public bodies, local authorities are responsible for protecting public resources, services, and data. Local authorities will retain many of the same investigatory powers to access communications data (with the exception of internet connection records). However, they will need to ensure that they comply with the additional safeguards contained within the IPA. Local authorities are likely to come under additional scrutiny as they will always require judicial authorisation. This requirement stems from concerns over the misuse of data, which the Government is keen to address to maintain public confidence, and it will be a criminal offence to obtain data without lawful authority. While local authorities cannot serve a data retention notice to access internet connection records, any business or organisation operating a public or private network could be served with a data retention notice and local authorities could well fall within this. They will need to implement processes to comply with any such notice. Too far? In December 2016 the Court of Justice of the European Union (CJEU) handed down its long awaited decision in the joined cases of Tele2 Sverige AB -vPost-och telestyrelsen (C-203/15), and Secretary of State for Home Department -v- Tom Watson and Others (C-698/15). It was held that traffic and location data can only be subject to interception if it is targeted, strictly proportionate and justified by one of the specific purposes listed in the judgment. These include safeguarding national security, public security and for the detection and prosecution of criminal offences. In considering what level of surveillance would be just and necessary, the CJEU’s ruling considered the impact on ordinary people feeling under constant surveillance and how this would affect private lives. The ruling stated that ‘general and indiscriminate retention of data... exceeds the limits of what is necessary and cannot be justified within a democratic society.’ What next? In light of the CJEU judgment, many opponents to the IPA have called for it to be rewritten. The secretary of state has yet to confirm a date for it to come into force and legal challenges may cause delay. However, local authorities should be aware of the new provisions and ensure that they are prepared to implement the appropriate processes when the time comes. Mark Stanger email@example.com Background The claimants alleged that they were the victims of serious sexual abuse by a now deceased Roman Catholic priest (M) at various times between 1979 and 1986. In 2012, the claimants commenced civil claims for compensation, alleging that the defendant organisation was vicariously liable for M’s assaults. As well as claiming general damages for the assaults, the claimants also made substantial claims for loss of earnings totalling over £800,000. The defendants accepted that they would be vicariously liable for any assaults proven by the claimants. However, M had died in 2004 and, apart from the claimants’, there had been no record of any complaints against him, either before or since his death. It was argued that M’s death and the length of delay had rendered the defendants unable to carry out a meaningful investigation so that a fair trial was no longer possible. The defendants raised a limitation defence on the basis that the claims were statute barred and the court should not exercise its discretion to allow the claims to proceed. Judgment The claims were dismissed. HHJ Langstaff found that the available evidence was insufficient for either claimant to discharge the burden of proof to the requisite standard to prove that the abuse had occurred as alleged. Further, even if the claimants had discharged the burden of proof, the judge considered that such were the difficulties caused by their delay he would have refused to exercise his discretion to permit the claims to continue in any event. On the facts, the second claimant made a complaint to the defendants and the police in 1995. The first claimant did not make any complaint until 2006. The judge commented that their delay after having known of the abuse and being able to talk freely about it exceeded the three-year primary limitation period in both claims but there was no clear explanation to justify the delay. The judge stated that ‘a passage of time beyond the primary limit which begins after a long delay which might be forgiven is not rendered more easily excusable because of the water already under the bridge: to the contrary, it makes taking quick action all the more incumbent on the would-be claimant.’ The judge also found both claimants to be unreliable witnesses, meaning that the delay had affected the cogency of their evidence. In particular, both claimants advanced ‘grossly inflated’ claims for loss of earnings with little supporting evidence, which gave the judge no confidence in the honesty and reliability of the claims as a whole. The judge also rejected the psychiatrists’ opinion that the alleged abuse had caused chronic PTSD. In particular, the first claimant’s personal history included being wrongly convicted and imprisoned for the murder of his partner. The judge considered it counter-intuitive to think that a person who was framed for a murder he did not commit, spending over two years in prison as a consequence of which he lost the custody of his young son (in respect of which he admitted in court that he had suffered flashbacks and intrusive thoughts) was actually suffering from chronic PTSD caused almost entirely by the alleged abuse. It followed that although it was possible that one or both of the claimants had been abused by M, a fair trial of these allegations was no longer possible. Further, the judge found that it would have been impossible to make any award for the financial losses claimed as well as assessing general damages. This would have involved ‘extracting the uncertain contribution made by any such abuse as might have occurred from other factors operating independently upon the mental state of the claimants’. Such were the problems of this assessment and ‘disentangling a tortious cause from one that involves no breach of duty’ it meant that a fair trial of those issues was no longer possible. Conclusion This judgment demonstrates that limitation still remains a valid defence in appropriate cases. It shows that the courts are prepared to attach proper weight to the principles underlying limitation in these types of cases. This follows on from the Court of Appeal’s recent decision in RE -v- GE  in which the Court refused to exercise its discretion to allow the claim to proceed where the claimant had delayed over four years from when she had been advised she could pursue a claim, despite the alleged abuser still being alive and available to give evidence. Here, the death of M, long before proceedings were issued and where no other complaints had been made against him, was still an important factor for the purposes of limitation and is a factor often present in many other claims. The effect of this was best evidenced by the fact the defendants were simply unable to cross-examine the claimants directly on the account of abuse which they gave. The allegations had never been put to M and there was no way of the defendants knowing whether the abuse had occurred. Nor did the defendants have any basis to challenge directly the truth of the claimants’ accounts of abuse. To have done so would also have served little purpose other than to run the risk of aggravating any injury which had already been caused. Organisations should therefore consider all relevant factors when considering a limitation defence and defendants should not feel constrained raising this defence where it is appropriate to do so. Ian Carroll firstname.lastname@example.org keeping it local spring 2017 hilldickinson.com/localauthority Key contacts Sarah Swan Senior Associate Head of Local Authority Group email@example.com +44 (0)151 600 8961 Mark Fitzgibbon Partner firstname.lastname@example.org +44 (0)161 817 7216 Lisa Kelly Partner, Public Sector Fraud email@example.com +44 (0)151 600 8958 Liverpool Manchester London Sheffield Piraeus Singapore Monaco Hong Kong The information and any commentary contained in this newsletter are for general purposes only and do not constitute legal or any other type of professional advice. We do not accept and, to the extent permitted by law, exclude liability to any person for any loss which may arise from relying upon or otherwise using the information contained in this newsletter. Whilst every effort has been made when producing this newsletter, no liability is accepted for any error or omission. If you have a particular query or issue, we would strongly advise you to contact a member of the local authority team, who will be happy to provide specific advice, rather than relying on the information or comments in this newsletter. About Hill Dickinson The Hill Dickinson Group offers a comprehensive range of legal services from offices in Liverpool, Manchester, London, Sheffield, Piraeus, Singapore, Monaco and Hong Kong. Collectively the firms have more than 1150 people including 190 partners and legal directors. 8 March 2017 Hill Dickinson training event - Adult social care, deprivation of liberty safeguards and managed care organisations for North West Legal Consortium members Hill Dickinson, Liverpool office 28 March 2017 Hill Dickinson training event - Social media investigations and The Investigatory Powers Act 2016 St Helens Council 1 April 2017 Hill Dickinson presentation on vicarious liability Local Government Weekend Law School, Warwick University 28 April 2017 Hill Dickinson is hosting a North West Alarm event on Brexit and Insurance Hill Dickinson, Liverpool office 10 May 2017 Hill Dickinson training event - Civil litigation update for North West Legal Consortium members Hill Dickinson, Manchester office 18 May 2017 Hill Dickinson training event - Social Media Investigations and The Investigatory Powers Act 2016 Warrington Council 25-27 June 2017 Alarm national conference Manchester University Events calendar 2017 Hill Dickinson will be at Alarm’s national conference in Manchester from 25-27 June 2017. Hill Dickinson head of costs Paul Edwards will be chairing the costs panel and our Blue Light Team is also presenting. Don’t forget to come and visit us on our stand, we look forward to seeing you there!