Child abuse victims secure claim from their abuser
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In the case of JXL and Another v Britton  two sisters were raped by the Defendant in 1989. J was 10 or 11 years old at the time, and S was 7 or 8. J was raped twice, and S once. The defendant was acquitted at his trial of the first count in relation to S, but convicted of the second offence relating to the occasion when both victims were raped. He was sentenced in April 2012 to a total of 22 years custody.
The victims issued civil proceedings against the defendant and judgement with damages to be assessed was entered. The defendant finally appeared at trial saying that he had not read the trial bundle and that he wanted an adjournment. He also denied liability. The judge, Mr Andrew Edis QC said that the defendant had repeatedly refused to open correspondence from the claimants' solicitors. He had deliberately failed to take part in these proceedings and any adjournment would simply to irrecoverable expenses. There would be no adjournment.
Judge Edis said that he would not have permitted the Defendant to cross-examine the victims for the reasons that applied in criminal proceedings by virtue of section 34 of the Youth Justice and Criminal Evidence Act 1999. The only issue here was the quantum of damages, and consequently cross-examination would serve very little useful purpose.
Both claimants relied on medical evidence from a Consultant Psychiatrist, Dr Jane O'Neill. Dr O'Neill said that all the consequences she identified were caused by the defendant's criminal conduct to her.
J's claim was for a total compensatory award of £75,000 general damages and £84,174 in past losses (including loss of earnings) and treatment costs.
S's claim was for £105,000 in general damages and £167,360 in special damages.
Their claim was advanced in three parts: damages for the rape, damages for the psychiatric consequences of the rape, and aggravated damages. The expression "aggravating features" had been used in identifying the factors which required a substantial award of general damages for the rapes themselves. There was also a claim to aggravated damages as a separate head.
Judge Edis said that the judgement in AT & ors v Dulghieru , did not justify this approach. There was nothing in the judgment where the Judge assessed general damages for pain suffering and loss of amenity where he identified "aggravating features" as playing a part in that stage of the assessment.
An award for aggravated damages was justified in a case of this kind, but Judge Edis considered that he should approach the assessment of general damages in a two stage way. First, he should assess a sum which was designed to compensate each claimant for pain suffering and loss of amenity. This sum should reflect the approach taken in Griffiths v. Williams (Court of Appeal 21 November 1995, unreported), and Lawson v. Glaves-Smith (Executor)  EWCH 2865.
The aggravated damages award would reflect the injury to feelings, humiliation, loss of pride and dignity and feelings of anger or resentment caused by the actions of the defendant. It was at this stage that the issue of abuse of trust was most likely to be relevant. In the present case, the element of trust was not the dominant feature of the offending. The defendant was trusted to have the care of the claimants in his home when they were visiting his niece and daughter. This was trust of a different order from that which was placed in a parent, teacher or other carer. Nevertheless any adult who was in caring for a child in the absence of her parents did have a level of responsibility for that child.
In these circumstances, the judge would award damages for pain, suffering and loss of amenity as follows:
- J - £32,500
- S - £40,000
In relation to aggravated damages, the judge would make an award of £25,000 in the case of S and £15,000 in the case of J.
He also awarded the special damages claimed in the victim's schedules of loss.
The resulting judgments, exclusive of interest would be:-
- J - £131,674
- S - £232,360
Sadly as with so many cases of this nature, the defendant was pleading poverty. Judge Edis said that the defendant’s ability to pay the judgment sum and costs would be considered at any enforcement proceedings, and was irrelevant to the exercise which he had to perform.
In any event, both victims would almost certainly have claims to the Criminal Injuries Compensation Authority, which might well result in their receiving substantial compensation from the state.
This case illustrates not only the way in which quantum in child abuse cases is assessed by the courts, but also the bizarre behaviour of defendants.
Despite his conviction, this defendant came to court to dispute liability. He tried to convince the court that his failure to open correspondence was in some way a ground for the trial to be adjourned, and also that his lack of means put him beyond the reach of the court. These are all behaviours well known to solicitors, who specialise in this area of work. Defendants in child abuse claims are notorious for their “head in the sand” attitude and their constant assertions that the whole legal process is in some way “unfair” despite the fact that the issue of their guilt has already been comprehensively determined.
Sometimes these defendants will claim that they cannot find or afford representation. In fact there are firms of solicitors who specialise in defending uninsured defendants facing civil claims. One answer to the funding problem is to allow the defendant’s solicitor to take a charge over the defendant’s property, so that they can be assured payment at the end of the case. This will probably mean the defendant having to sell his property.
In the writer’s experience the majority of defendants take the course of instructing a competent solicitor, once they have been referred.
Since April 2013, the advent of Qualified One Way Costs Shifting will almost certainly mean that even if the defendant wins his case, he cannot recover their costs. That makes settling the case quickly, an even more attractive option.