Recently, the Archbishop of Canterbury, Justin Welby, said that the Church of England “failed terribly” in dealing with concerns about abuse of teenage boys at Christian Summer Camps in the 1970s. The Christian Charitable Trust which ran the summer camps was headed by John Smyth QC, and in 1982 an internal enquiry by the Trust concluded that there had been a string of horrific sado-masochistic attacks on young people. According to the media the scale and severity of the practice was “horrific”. Notwithstanding this, the matter was not reported to the police, and Mr Smyth was allowed to leave the country after agreeing never to work with children again.
The Archbishop was not made aware of the allegations until 2013, at which point the police were involved. Last week the Archbishop said that he had worked at one of the holiday camps as a Junior Leader, but there was no suggestion that he was in any way involved in the abuse. His apology went on to say:-
“We recognise that many institutions fail catastrophically, but the Church is meant to hold itself to a far, far higher standard and we have failed terribly.” For that, he apologised unequivocally and unreservedly towards survivors.
The Archbishop is clearly a very decent and principled man, and is to be commended for the position he has taken. Unhappily, he is in good company, and in recent months many other present day leaders have had to apologise for the past failings of their organisations, and their predecessors. Last Autumn a number of football clubs faced allegations of sexual abuse, and in recent years a long list of local authorities, religious organisations and individuals have had to face up to historic claims.
Abuse cases can give rise to both criminal and civil liability. For the victims, suing is difficult, and for those defending the claims, be they the leaders of modern day organisations, or perhaps representatives of elderly relatives, there are also significant challenges.
For a victim seeking compensation through a civil claim, it is often only in adult life that he or she feels strong enough to seek some redress, and there are then concerns about whether it will be too late.
The Limitation Act gives the Court a wide discretion to extend the three year time limit within which claims much ordinarily be brought. If there is a latter day conviction for a historic crime, the Court will usually allow a civil compensation claim to be brought “out of time”.
However, the Claimant will still need to ensure that the proposed Defendant has funds to pay compensation. This is why claims are often brought against organisations, on the basis of vicarious liability. Thus any claims concerning the alleged abuse by John Smyth QC are likely to be brought against the Christian Charity that ran the summer camps, rather than Mr Smyth in person.
If there is no organisation behind the perpetrator of the abuse, it is very unlikely that there will be an insurance company to pay the damages. However, if the alleged abuser has assets – for example a home, or significant savings, then the Claimant will be able to claim against those assets.
Claimants also have a significant procedural advantage through something called “qualified one way costs shifting”. The rules of Court say that in any personal injury compensation claim the Claimant does not have to pay the Defendant’s costs even if the claim is unsuccessful. In practice this means that Claimants can bring a case on a Conditional Fee Agreement (popularly known as “no win no fee”) knowing that if they do not win the case they do not have to pay their own lawyers, and neither do they have to pay the Defendant’s legal costs.
This puts Defendants in a very difficult position, because they have to pay their own legal costs, regardless of whether or not the claim is successful. Therefore, even if they did not commit the abuse, the harsh reality is that it might cost less to settle the claim at the outset, than to successfully defend it. The only exception to this rule is when a Claimant has been “fundamentally dishonest”, and that can be very difficult to show.
Qualified one way costs shifting was introduced as part of a raft of reforms, which, taken together, made it more difficult for Claimants to bring cases. For the large insurance companies it was presumably a price worth paying, but for the small number of individuals who have to pay their legal costs from their own resources, it is rather rough justice.