XY (A Child) v A Local Authority

Posted by Malcolm Johnson on

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The Claimant brought proceedings in relation to alleged physical abuse and harassment by a primary school teacher over a period of several months. The claim was framed in assault against school, as the employer of the teacher and in negligence for failing to prevent the assaults.

Proceedings were issued in  October 2014 and a Defence entered denying liability. The Defendant then served a Request for Further Information pursuant to Paragraph 1.6 of Practice Direction 18 and CPR 31.14(1) in January 2015. Around the time of service of that Request, Directions Questionnaires were exchanged between the parties, listing their witnesses.

There were 8 questions in the Defendant’s Request. Briefly these required the Claimant to:-

  1. Clarify whether the accounts of the abuse in the Particulars were intended to be comprehensive, and if not to set out each and every instance of abuse.
  2. To identify other pupils (referred to in the Particulars of Claim) of the Claimant’s class, who had suffered abuse
  3. To set out the abuse that those other pupils had suffered
  4. To describe information that the Claimant was allegedly forbidden by her teacher to disclose
  5. To describe terms used in the Particulars, which were “secret words”, a “certain compliant manner” and “serious punishment.”
  6. To describe in more detail exactly what abusive or threatening words or conduct were used by the teacher and set out the date and time of each such incident
  7. The identity of other pupils who were alleged to have been abused, details of what happened and the date and time of each such incident
  8. The dates and details of the complaints made and the identity of those complainants

The Claimant objected to all 8 requests and the matter came before Master Yoxall on the 23rd April 2015.

The Claimant relied on several well known cases. In McPhilemy v Times Newspapers Ltd (Re-amendment: Justification) [1999] 3 All ER 773 Lord Woolf said that the need for extensive pleadings should be reduced by the requirement to exchange witness statements, although pleadings would still mark out the parameters of the case.  In the pre CPR case of Det Danse Hedeselskatbet v KDM [1994] 2 Lloyds Rep 534 Colman J in the Commercial Court laid out a number of helpful principles, which included:-

  • Service of interrogatories (one of the Pre CPR forms of Part 18) before exchange of witness statements would almost always be premature.
  • Requests for information ascertainable by cross examination at trial would normally be inappropriate

Finally in Hall v Selvaco (1996) Times 27 March the Court of Appeal said that interrogatories were not to be regarded as a source of ammunition to be routinely discharged as part of an interlocutory bombardment preceding the main battle.

Before Master Yoxall, the following points were made for the Claimant:-

  • These were mainly requests for evidence or the identity of witnesses and thus premature.
  • At the time of the events in question, the Claimant was aged between 7 and 8. She could not realistically provide a perfect account of what had happened with dates and times of the various incidents.
  • Children’s evidence in civil claims is of a different nature to that of adults, and is treated as such (Rule 32.3). In the criminal courts, section 14(4) of the Children and Young Persons Act 1933 states that where continuous offences of abuse are alleged against a perpetrator, it is unnecessary to specify in the charge, the dates of the acts constituting the offence.
  • These requests were oppressive in nature, particular as there had been no disclosure thus far from the Defendant. that they would

For the Defendant, it was said:-

  • Practice Direction 18 stated that a request should be confined to matters which were “reasonably necessary and proportionate to enable the first party to prepare his own case or to understand the case he has to meet.” The issues were whether the factual allegations were true, whether those allegations amounted to torts or assaults and whether the school had notice of them and should have prevented them. The alleged tortfeasor, the teacher would be expected to address and respond to the specific details of the acts of the abuse (as opposed to vague assertions), the identity of other specific children alleged to have been abused, and the details of the complaints made against her. The Defendant referred to two cases Delos v CAE Electronics (2001) Unreported (QBD) and Harcourt v Griffin (2007) PIQR Q9. There was a danger that matters would be identified for the very first time in the Claimant’s witness statements, thus forcing the Defendant to apply for permission to serve supplementary witness statements. 
  • The Pre CPR interrogatory cases were irrelevant. As the authors of the White Book 2015 explained at Rule 18.1.2 it was only “requests which do not relate to a matter which is contained or referred to in a statement of case” which were akin to interrogatories.  The requests here focussed solely on the pleaded case.
  • The Defendant was not oblivious to the Claimant’s age and had framed its requests in such a way as to allow her to give as much detail as she could. That was hardly oppressive and moreover children had no blanket immunity from Part 18.

Master Yoxall heard the solicitor advocate for the Claimant and counsel for the Defendant. He bore in mind that the Claimant was a child and that the provision of witness statements was often an appropriate place for further information to be provided in cases. That said, the Defendant had to be aware of the case that it had to meet. Master Yoxall did not think that it was necessary for the Claimant to identify other pupils who were alleged to have been abused. There was an indirect reference to the inclusion of other parents of children at the school in the Claimant’s Directions Questionnaire. Likewise Master Yoxall did not think it necessary at this stage for the Claimant to be obliged to set out the precise words used by the teacher. That would come with the witness statements.

However he would order a response to Request 7. This Request went to the part of the Particulars of Claim in which reference was made to two other pupils, which the Claimant could clearly identify. Request 8 should also be answered This went to a pleading relating to the school’s failure to investigate conduct when the Claimant’s parents complained to the Defendant. It formed one of the particulars of negligence in the case. Otherwise no further information was necessary at this stage. Master Yoxall commented that on exchange of witness statements, there might well be a need for supplementary statements, but that could be accommodated on exchange. He would order costs in the case. 

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About the Author

Malcolm is an Senior Associate in our London office, with nearly twenty years' experience.

Malcolm Johnson
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