England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL DISTRICT REGISTRY
QUEEN'S BENCH DIVISION
(MR JUSTICE IRWIN)

		Royal Courts of Justice Strand, London, WC2A 2LL
		7th February 2008

Lord Justice Ward:

1. This is an application by Mr Brian Cross for permission to appeal against the order made by Irwin J on 28 February last year when he dismissed Mr Cross's claim for damages. That was a claim for damage for personal injuries which he suffered whilst he was in foster care, voluntarily accommodation as I understand it, by the Liverpool City Council. He was placed with a Mr and Mrs Beesley in a home they were running, it seems at least arguably, on behalf of the council. He was there for some four years and he alleges that they were four very unhappy years, in the course of which he suffered a variety of physical, emotional and probably even sexual abuse.
2. The judge understandably found that he could not easily accept all the evidence Mr Cross placed before him for the obvious reason that these events happened a long time ago, and happened moreover at a time when the applicant was a young boy between the ages of 8 and 12. But the judge was satisfied that he had been cruelly treated. He was also satisfied, it seems to me, that the council were not aware of the brutality to which he was being subjected. That was a plank of the judgment. The main effect of the judgment was to find that time could not be extended under section 33 of the Limitation Act 1980, and consequently the action was statute barred and it was dismissed for that reason.
3. Smith LJ considered this application on paper in December last year and the reasons she gave for refusing it, which I need not read out, appear to be pretty convincing. However, since that time the House of Lords have considered the proper approach to late claims brought by those who have suffered abuse, and in their judgment, in the case of A v Hoare and others [2008] UKHL 6, their Lordships restated the proper approach to be adopted. In a nutshell, they shifted the emphasis from section 14 to section 33 and it may just be that, had Irwin J the benefit of that learning, he might have arrived at a different conclusion. I am not going to raise Mr Cross's hopes by saying that that is a result which is certain to follow, but if it is not arguable there is, I think, a compelling reason in this case why permission should be granted.
4. There is another factor here. I averted to the judge's finding that the council were not aware of what was happening in the home. Now it may be -- and I again I emphasise that it may be, not that it necessarily will be -- that were this case looked at in terms of vicarious liability, not in terms of systemic abuse, for which the council would only be liable if they were aware of it, then there might be a better prospect of success. It is plain from the papers before me that this children's home was being operated with Mr and Mrs Beesley there as the mother and father figure in the home on behalf of the local authority, and there are passages in the evidence which explain how the home was run in that way; so arguably this is a case of vicarious liability and the council would be liable whether they knew of the abuse or not.
5. There is another slightly disturbing feature to this case which concerns me. The applicant was part of a group action, as I understand it, being brought against the Beesleys. In circumstances which are not clear to me he was removed from that group action and had therefore to appear on his own behalf at the hearing assisted by a Mr Campbell, who I think was a mental health worker, though I am not sure about it -- but he was without legal advice. Now he tells me that his siblings who were in the home with him did receive the benefit of legal advice, did have their claims go forward and were successful; and it seems to me odd to say the least that, in the light of the judge's findings, that he, Mr Cross, was abused to some uncertain extent. It is odd and unsatisfactory that his siblings should have been awarded damages and he has nothing. I do not understand how that came about. I do not understand what charges the Beesleys faced for their care of children at or about the same time as they were looking after Mr Cross. It seems to me arguable that it is overwhelmingly likely that if they were guilty of cruelty to some in their care at this time, they were, as indeed the judge found, guilty of cruelty to Mr Cross.
6. For all of those reasons there seems to me to be a compelling reason for this court to look at the matter again. For all of those reasons it seems to me that the council would be very well advised indeed to review their responsibility towards Mr Cross and, rather than spend their money fighting this through the Court of Appeal, invite Mr Cross to a negotiation with a mediator sitting in the middle to hold the ring, and come up with a modest payment to assuage the harm that undoubtedly seems to have been done to Mr Cross. And so I will give permission to appeal, but I make the strongest possible recommendation that the parties engage in mediation through the auspices if necessary of this court; and I direct that the court send the usual mediation letter to that effect.
7. I ask the court office to explore the possibility of arranging pro bono counsel for Mr Cross, although it might equally be possible and probably preferable that, with some help, he finds good personal injury lawyers in Liverpool; and perhaps the office can offer the names of firms who are well known in this field and, armed with a copy of this judgment, seek legal aid in order to prosecute this appeal. He is not up to arguing this case himself; and so I hope legal aid or legal assistance of some kind will be available to him. The case can probably be concluded in half a day before three Lord Justices, or two Lord Justices and a High Court judge.

Order: Application granted