Examination of Witnesses (Questions 560-580)
MR PETER GARSDEN AND MS FRANCES SWAINE
TUESDAY 11 JUNE 2002
560. We do need to guard against facilitating false allegations. That is a fine line that has to be drawn.
(Mr Garsden) Absolutely and I am very much in favour of that. I applaud this Committee for bringing in any regulations that will introduce a better and a fairer system of justice, I really do. That is why I qualified as a lawyer in the first place.
561. Would you accept the need for a prohibition on the advertising by solicitors of compensation actions in this type of case?
(Mr Garsden) I think you have to look at this situation in the round. I know the Law Society at the moment are looking at the claims investigating agencies and the way in which they should be regulated. I say we fall in line with them and you should not discriminate between the child abuse market and the general personal injury market. Just as advertising may bring about false allegations in general personal injury claims so it might do in child abuse cases. I have read the examples quoted to the Committee. One of them was what was said at a meeting and I have tried to get in touch with the solicitor who allegedly said this and I have not been able to do so. The other one was a general advert in the Prisoners' Journal talking about your rights as a child abuse victim. There are hundreds and thousands of those adverts all over the press because all the regulations have now been relaxed by the Law Society and, in fact, we are encouraged to market our practice. I think it would be totally unfair to discriminate against the child abuse victim, he is the one person who needs protection, he is the one person who is unlikely to come forward, as is evidenced by the fact it has taken 30 years to uncover it. If he was going to respond then he would have come forward before now. He has not come forward before now because of repressed memory and the shame and the intimidation, the threats that were made to him at the time. I do not think there is any more I can say on that.
562. Have you ever known of cases where a genuine child abuse victim has been in a worst state after going to court than they were before?
(Mr Garsden) Absolutely. It is an incurable thing, the effects of child abuse, it stays with them for the rest of their lives and to the grave. You cannot make their lives better, they have been irreparably damaged in pubescence, a lot of them, and the process that they have to go through of the courts and the CICA that I have described is abusive as well. We have to make sure that we minimise the damage to the claimant. Long-term we do not see them unfortunately and it may be that with proper counselling and therapy they can once again lead a stable life or a stabler life. I think, unfortunately, the suffering continues during the litigation process and the sooner the litigation process can be ended the better.
(Ms Swaine) I agree with that.
563. One way of reducing the time the litigation process takes is to direct these claims in the direction of the Criminal Injuries Compensation Authority and away from class actions of the sort you pursue.
(Mr Garsden) If that body provided justice and did not disallow claims where there have been evidence of convictions in the way that has been vaguely outlined then, yes, I agree. That is why I am talking about the Irish system. If we had a better CICA, a non-fault system, then, yes, absolutely.
564. Just one final point. A couple of years back the Lord Chancellor proposed to withdraw Legal Aid for all personal injury cases, and you referred to that in your evidence, and he was persuaded, partly by you, I think, to reinstate that for abuse cases. Is that right? Have I got that right?
(Mr Garsden) I do not know exactly how the process took place. Certainly I sent a letter to the Lord Chancellor.
565. I am not making an issue of this but one of your claims on your website is that you were a key person in this achievement.
(Mr Garsden) I do not sit in the Lord Chancellor's shoes and I do not know how influenced he was by what I said. All I can say is that I did write a letter and one of the most important points about the letter was that the Lord Chancellor wanted to substitute Legal Aid with something, he therefore approached the insurance industry and got them to hopefully take the place of Legal Aid because solicitors cannot run cases for eight years without some support. Because there was no insurance backing for child abuse cases he therefore kept it in this area because there is a public interest in doing so.
566. So if insurance was discovered for child abuse cases Legal Aid could be withdrawn in those cases too?
(Mr Garsden) I do not know.
(Ms Swaine) The other issue relates to the Human Rights Act.
567. You said "I do not know" but clearly that was where you were leading us just now.
(Mr Garsden) Pardon?
568. You clearly were leading us to the point where if insurance were to be available by some happy chance in child abuse cases then there would be no case for Legal Aid to be available in those cases.
(Mr Garsden) You could argue that, but it is not.
569. No. What would happen if we were to recommend, regardless of whether insurance was available or not, the removal of Legal Aid in these cases, in other words for them to be made available as for all other personal injury cases, what would be the consequence of that?
(Mr Garsden) I would go out of business tomorrow probably and so would any other solicitor trying to fight these cases because
570. For the victims because at the end of the day it is for the victims.
(Mr Garsden) Most of the victims are unemployed. A much higher proportion of the victims are very poor and some of the most disadvantaged people in our society and their lives have been ruined. To take away a fluid and supportive judicial system, the Government has decided, as it has with other areas that have public interest, not to take Legal Aid away because of the right to a fair trial. If there is nothing to replace Legal Aid, ie no insurance, you offend the right to a fair trial and you breach section 6 of the Human Rights Act, I think that is the problem.
571. What about no-win no-fee?
(Mr Garsden) I cannot possibly sustain an eight year group action on a no-win no-fee basis, I would have gone out of business and been bankrupt years ago. It is financially impossible.
572. Even though your chances of victory are very high?
(Mr Garsden) If the insurers agreed with me then they would be supporting these cases but they do not agree with me, they think they are very risky cases, as indeed they are.
573. Ms Swaine, do you want to comment on that?
(Ms Swaine) I wanted to say with regard to Legal Aid that the financing of these particular claims is one of the Lord Chancellor's exemptions partially because of the Human Rights Act and the fact that the defendants are public bodies as defined in the Human Rights Act and the negligence itself is something that would be looked at right up to the European Court. We are making applications to the Legal Aid Board under public interest. I do not suppose you know the application forms but it is under the public interest section with regard to those exemptions and I do not think it is simply related to our claims that these individuals are people who warrant Legal Aid over and above any other personal injury victims but I think you will find that the exemptions are tied into the requirements now with the Human Rights Act.
(Mr Garsden) I think it is important to see Legal Aid as a loan rather than a gift.
574. Yes, I understand that. Let us go over the consequences. One consequence would be that all these seven or eight year cases would disappear, would they not?
(Mr Garsden) If you took away Legal Aid?
(Mr Garsden) One would not want to speculate what would happen.
576. The first thing that would happen is you would go out of business.
(Mr Garsden) I probably would. Not in the immediate future but certainly in the long term.
577. Secondly, all these traumatic cases that last five, six, seven, eight years would not occur.
(Mr Garsden) No, I do not think that is true. Do you mean there would be no prosecutions?
578. I thought you said they would all stop. Not prosecutions, the civil claims.
(Mr Garsden) They would probably still go to the CICA.
579. That brings me to where I was attempting to get. The result would be claims would be dealt with in eight months to a year, quite a lot of them would be successful, some would be relatively modest, trauma proportionately reduced.
(Mr Garsden) I have already given you my view on the CICA, have I not? If it was a better and fairer system then maybe but it is not. It is unfair to the victims not only of children's home abuse but also rape victims. There have been countless campaigns by the newspapers about the way in which the CICA deals with the victims of rape. In fact, I remember Jack Straw promising before the last election when he was Home Secretary, I think, to reform the CICA system so that it was fairer to the victims of crime but as far as I know it has never happened.
580. Thank you very much for your evidence. May I say you have stood up extremely well under cross-examination but I guess you are used to that.
(Mr Garsden) I wish I was.
Chairman: Mr Garsden, Ms Swaine, thank you very much. I am not going to terminate this session now, I would just like five more minutes with Mr Webber. Thank you very much for coming.