Child abuse claims “extremely hard on survivors” – Switalskis’ lawyer gives evidence at Inquiry

On 6 December 2018, Paul Durkin of Switalskis’ Child Abuse Compensation team, gave evidence to the Public Inquiry known as the Independent Inquiry into Child Sexual Abuse (“IICSA”). Here he describes the evidence that he presented to the Inquiry.

IICSA has a number of modules looking at different areas of the civil litigation process in cases surrounding historical child abuse. The particular module I gave evidence to was “Accountability and Reparations for Victims and Survivors of Abuse”. I was asked to give evidence for the reason that I was involved in a long-running group action called the “St Aiden’s St Vincent’s” group action. That litigation commenced in 1997 and finally concluded in around 2012—therefore lasting a total of 15 years. The Inquiry wanted to know why the litigation took so long to resolve, with a view to seeing if the current legal process effectively delivers redress to victims and survivors of child sexual abuse and exploitation.

The Inquiry invited evidence from witnesses representing claimant groups, defendant solicitors and insurers. The accountability and reparations module of IICSA examined in detail what the current mechanisms are for supporting compensation and whether or not they help or hinder the right to accountability, compensation and guarantees of non-recurrence. For the survivor of abuse this is about recognising the wrongs they have suffered and trying to put them right.

I was able to give evidence as to how the St Aiden’s St Vincent’s group action was fought tooth and nail by the defendants, The Nugent Care Society, and the affect this had upon the survivors I supported through the litigation process for 15 years.

The defendants deployed various technical arguments to defeat the claimants’ case, all of which were perfectly legitimate tactics for the defendant. The net effect of the intense litigation process was the defeat of some of claims on technical grounds, vastly increasing legal costs on both sides and considerably lengthening the timespan of the case.

The barrister for IICSA asked questions about the tactics used by the defendants and compared those tactics with similar cases in which the defendants settled the claims at an early stage.

There was detailed analysis of how the defendants used limitation (arguing that the claimants were out of time to bring their case under statute) as an initial issue and limitation generally as a tactic to defeat the claims.

Whilst giving evidence at IICSA, I argued that the use of legal technical grounds to defeat a claim was unhelpful and that claimant and defendant lawyers should focus on whether or not the claimant had been abused and concentrate on obtaining the truth of the matter, rather than the non-essential factors which defendants used to defeat claims.

I explained to IICSA that I felt that the litigation process was extremely hard on the survivors. I asserted that it was a blunt tool for the claimants, many of whom simply wanted to have a voice, be believed and obtain justice.

The current process of litigation makes it extremely difficult for individuals to obtain redress, as solicitors have to select claims that had a realistic chance of success. Given the many legal obstacles to a successful claim, this means that many claims simply don’t get off the ground.

Giving evidence on the abuse claims process: What’s the alternative?

I was asked questions as to what alternatives there may be to the current gruelling litigation process and I suggested that there should be a wider use of “redress schemes”. A redress scheme is an alternative to the Court system and is designed to avoid legal complications and to address the wrongs of the past with compensation, sincere apologies and other remedies. I have experience of dealing with redress schemes in the Republic of Ireland, Jersey and currently the Lambeth Redress Scheme. My experience of these redress schemes is that, whilst not perfect, they deliver redress and reparation to claimants in a timely, efficient and cost effective way. Schemes such as this also reduce the survivor’s stress as the overall tone of the process is much less defensive—everyone is working towards the same goal, justice for the survivor.

I do hope that IICSA are able to understand that, for survivors, the current gruelling litigation process is simply not fit for purpose. I am aware that as a result of the Scottish Inquiry into childhood abuse, the Scottish Government has announced they intend to set up a redress scheme and a similar redress scheme is being suggested in Northern Ireland following a similar Inquiry.

I do feel that in future more and more people will be brave enough to come forward and give an account of their abusive experiences in childhood. It is important that those people are treated in a sensitive and compassionate way, which only a redress scheme can provide. That society is able to acknowledge, with sincerity, the wrongs of the past and as far as possible provide redress to those individuals to enable them to move forward with their lives.

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