A test case to be won at all costs

Brothers Paul and Earl White (not their real names) brought a claim in the High Court against the Crown for physical and sexual abuse they suffered while in State care at boys’ homes in the 1970s.[i] Their case reached the High Court in 2007 and the Court of Appeal in 2010.[ii] The case had profound consequences for other survivors contemplating court action against the Crown.

Early years and abuse

Paul was born in 1959 and Earl in 1961. They had eight other siblings. Both were subjected to physical violence, emotional abuse and neglect at home. Child welfare officers made at least 37 visits to their home, schools and relatives. Their father taught them to steal. After their mother left the family in 1965, Paul and Earl were twice briefly put in a Presbyterian boys’ home. In 1972, they went to stay with their mother where her partner abused them. In October of that year, Paul was sent to Epuni Boys’ Home in Lower Hutt where he remained until May 1973. In April 1974, Earl, aged 13, was committed to the care of the Director-General of Child Welfare and also sent to Epuni Boys’ Home. Both boys were placed in solitary confinement on admission and suffered physical abuse from staff and other residents.

A psychological report later in 1974 recommended Earl be placed in a family-type home, but instead he was taken to Hokio Beach Training School in Levin. It was no different to Epuni Boys’ Home and he endured physical violence from staff and other residents. Earl was also sexually abused by the cook, Michael Ansell. Court records show Ansell sexually abused him at least 13 times. Ansell was convicted in 1976 on six charges of indecency against three boys, at the same time Earl was at Hokio Beach Training School, but authorities made no attempt to identify any other victims. At the time of the abuse, and for many years afterwards, Earl thought what had happened to him was normal.

Earl left Hokio Beach Training School in May 1976, aged 15. He tried to join the armed forces but was rejected because of his lack of education. He was unable to keep steady employment. He said he became “trapped in a cycle of crime and drugs”, which, in combination with a cigarette addiction from the age of seven and alcohol misuse, severely affected his health and led to periods in prison. His long-lasting regret is that having never had a chance to make anything of himself, he has not been able to afford to provide the things he desires for his children and grandchildren, such as nutritious food and proper housing.

Legal battle

In early 1999, Paul and Earl requested their records from Child, Youth and Family Services. Earl was shocked by what Child Welfare knew about the abuse he had suffered at home. He was also distressed to learn his mother had warned the agency that the boys should not be left with their father. The hours Earl spent trying to make sense of his records added to his distress.

In December 1999, Earl White filed civil proceedings through Sonja Cooper of law firm Cooper Legal. Paul White filed proceedings in 2001. Both brothers wanted to resolve their matters as quickly as possible through alternative dispute resolution, rather than go through an adversarial court process. From June 2001 Ms Cooper made numerous attempts to settle with the Crown. However, there were no settlement offers from the Crown until 2005, when it made two settlement offers. The first one was an offer of $40,000 to Paul and $20,000 to Earl, each including legal costs, and the second was an offer of $50,000 to Paul and $30,000 to Earl, again including legal costs. These offers were significantly less than Child Youth and Family Services had authorised. Both brothers were prepared to accept the offers if their legal costs of about $20,000 were additional, so they could personally receive the amounts offered. 

Negotiations ended inconclusively, in part because Crown Law considered Ms Cooper’s approach in pursuing broad and novel claims had “to a very large extent tied the Crown’s hands on settlement”.[iii] In a letter to Ms Cooper, it noted “if the Crown settles on the basis of the claims as pleaded in the [White] proceedings you will undoubtedly look to the Crown to do the same for your hundreds of other clients.”[iv] It told Ms Cooper the Crown couldn’t budge on the settlement offer. Ms Cooper asked why Paul and Earl were being forced to go to court when the government was about to start an out-of-court process that meant the relevance of establishing legal precedents in these cases was limited. Documents show the Crown considered at the time it was “not an option” to settle the case because of the precedent it would establish.[v] In practical terms, this meant the only option for Paul and Earl was litigation.

The case was finally heard in the High Court in a six-week trial from June 2007. The High Court issued its 155-page judgment in November 2007. It found the brothers had suffered abuse, including sexual abuse in Earl’s case, and that the State had breached its duties to the pair. However, it accepted the Crown’s defence under the Limitation Act 1950, namely that the lawsuit had been brought more than six years after the time period allowed by law. The court also largely attributed the brothers’ psychological and other difficulties to their childhood experiences at home, and possibly to a genetic predisposition, too. It said Earl’s sexual abuse at Hokio Beach Training School had not made a material contribution to his difficulties, adding that any mental injury suffered as a result of the sexual abuse was covered by the Accident Compensation Act 2001 or predecessor Acts. The court did not award the brothers damages.

The brothers appealed. The Legal Services Agency refused to fund the appeal, and the Crown required security for costs. The brothers had no means to pay that security, and their lawyer Sonja Cooper’s firm made the payment. The appeal was heard in August 2009, but the outcome was the same.

In June 2009, while awaiting the outcome of the appeal, the Crown discussed offering an ex-gratia payment and apology to the brothers, on the basis that the out-of-court process run by the Ministry of Social Development would have delivered them something based on what was now accepted as fact. Crown Law and the ministry reached the view that there were significant problems with such an approach at that stage of the proceedings, both for the Crown’s overall broader litigation strategy in relation to abuse in care claims, and because what happens on appeal is an unknown factor.[vi]

In June 2010, following the Court of Appeal judgment, the Ministry of Social Development wanted to settle with Paul and Earl. Crown Law opposed the ministry’s proposal to make an ex-gratia payment to the brothers, because it felt that making a payment now would be inconsistent with the arguments the Crown had made during litigation, including that the claims lacked merit and would not succeed because of the Limitation Act and causation principles. It also thought it would be inconsistent with the Crown strategy to encourage informal resolution, as to make an ex-gratia offer after litigation would “work against the incentives operating to encourage people out of litigation, contrary to the strategy, by showing that if you stick with the litigation long enough, get minor factual findings, but lose the ultimate claim, you may still get money”.[vii] It is surprising that Crown Law described the findings as “minor”. The High Court had found 13 incidents of sexual abuse against Earl as well as physical and psychological abuse against both brothers.

Despite Crown Law’s objections, the ministry went ahead with ex-gratia payments of $25,000 to Earl, and $10,000 to Paul. As part of each settlement, the Legal Services Agency also contributed to their legal costs, which amounted to $10,000 for Earl. He later described the payment as a “joke and an insult against the repeated sexual and physical abuse that the court found happened”. Both brothers also received an apology, which Earl considered neither genuine nor appropriate.

Reactions

Earl said he and his brother felt they had “got caught in the legal crossfire” of the first case to go to trial about abuse in social welfare homes. “I feel we were dragged through the courts so the Crown could use our case to test things like the Limitation Act and the ACC bar, so they could stop future claims being made, and limit what they paid other victims of abuse who came forward.” Records show that Earl’s belief was in many ways justified – a ministry report shows it believed both Crown Law and Cooper Legal would approach the White trial as a “test case”[viii] to determine the courts’ view on legal and factual matters that would be relevant to many other similar claims, including how the defences of the Limitation Act 1950 and ACC legislation apply to such claims. Another report and Crown Law correspondence also show that Crown Law believed the result in the White case would help the Crown decide how to deal with a large number of other abuse claims.[ix]

Earl said the Crown knew abuse took place, “but during the trial they tried to make it look like it was my fault the abuse had happened, and they used every available excuse and technicality in court to ‘win’”. He said the Crown treated him like a defendant in a criminal trial, rather than a victim of abuse, and in this his view was also justified. Notes from a meeting of lawyers and ministry staff on the case record the view that, in preparing for other witnesses, the team should “approach it like a criminal trial”.[x]

Earl said he was put through “12 years of what felt like torture, and in some ways, it was worse than the abuse I suffered … it just kept going on and on. It was hugely stressful, and the depression and anxiety were inevitable”.

An official from the Ministry of Social Development told us the case “was a perfect example of the fact that litigation doesn’t work and doesn’t achieve the outcomes that you would hope for, for the claimant”.[xi] Two other witnesses at the hearing made the same point.

The Crown’s actions

Failure to respond appropriately to the merits of the case

The Crown’s first failure was to assess and respond adequately to the merits of the case. As early as 2002, draft advice from Crown Law to the Ministry of Social Development stated that “the circumstances [of Earl’s case] are relatively compelling: the plaintiff attended the school at the same time as Mr Ansell who all but admitted to sexually abusing other boys in circumstances similar to those alleged by the plaintiff. In my opinion, it is likely the plaintiff would be able to prove on the balance of probabilities that he did suffer the abuse that he alleges.”[xii] The Crown knew about Ansell’s convictions for sexual abuse of three boys in 1976, at the same time Earl was at Hokio Beach Training School. The draft Crown Law opinion above also noted that the school’s investigation seemed unacceptable and the failure to inform Police inexcusable.[xiii] And the Ministry of Social Development learned Ansell had also come to the attention of Police in 1969 for alleged indecent acts on a boy.[xiv] The ministry conceded during the inquiry’s State redress hearing that its database should have held at least two concerns about an employee at Epuni Boys’ Home who was there at the same time as Earl and who was later convicted of physically abusing him, and that this information should have been available in making an assessment about the brothers’ claim.[xv] Even more information would have been available if the ministry had not destroyed numerous human resources and staff files – only six of 28 staff files relating to the brothers’ claim could be found.[xvi]

The information available to the Crown included a research paper from Cooper Legal summarising information about physical and sexual abuse suffered by its clients between 1960 and the early 2000s at 16 institutions, including Epuni Boys’ Home and Hokio Beach Training School.[xvii] By the time the brothers’ trial began in June 2007, Crown Law had been served with 54 proceedings relating to abuse at Epuni Boys’ Home, and 41 proceedings relating to abuse at Hokio Beach Training School. All involved abuse between 1950 and 1990. It also had Ansell’s conviction history.

Crown Law and the ministry should have treated the brothers’ claims as meritorious from at least 2002, given the amount of information available suggesting physical and sexual abuse probably took place. By 2008, the Crown’s litigation strategy explicitly said that settlements would be considered for any meritorious claims. That year, the Ministry of Social Development said it was keen to settle some cases involving an alleged perpetrator with a conviction for a similar offence because it had assessed such cases as having “high legal risk”.[xviii] Earl’s case fell into this category on account of Ansell. Despite the extent of its knowledge about the abuse, Crown Law adopted the approach that Paul and Earl were lying or exaggerating, and other witnesses who gave evidence of abuse happening at Epuni Boys’ Home and Hokio Beach Training School should not be believed because they might have spoken to each other or colluded in their evidence. It decided to force Ms Cooper to apply to have “similar fact” evidence admitted and to oppose her application. The High Court found the witnesses had not colluded and it would be speculative to find their evidence had been otherwise contaminated. The High Court also found a number of the witnesses for the White brothers to be impressive and reliable, and preferred their evidence over the evidence of three of the former staff members of Epuni Boys’ Home.

The Crown, far from behaving like a model litigant, was, in Earl’s words, “uncooperative and strategic” and “wanted to win at all costs” despite the harm he and his brother had suffered and the distress the legal proceedings were causing. Crown Law was well aware that abuse survivors, particularly sexual abuse survivors, were vulnerable individuals, and that litigation was emotionally difficult for them, as well as for witnesses – not to mention the demands on their time and drain on their funds. It was therefore disturbing to view Crown correspondence suggesting possible lines of cross examination for the witnesses, including that it would have been easy enough for the boys to avoid the sex offender had they wanted to – a sentiment Solicitor-General Una Jagose described as “an absolute failing to understand the nature of sexual abuse of children”.[xix]

When asked, the Solicitor-General also acknowledged that the adversarial litigation process leaves lawyers open to the danger of tunnel vision.[xx] She said the Crown had processes to try and make sure it didn’t fall into that trap, but in our view, evidence of this loss of perspective can be seen in the decision to instruct private investigators to dig into the brothers’ lives and the lives of other witnesses from the homes. The investigators’ work was both extensive and intrusive. They sought out information from Work and Income New Zealand, ACC, Housing New Zealand, the Department of Internal Affairs, the Department of Corrections, Police and Baycorp. They also unearthed banking, medical and employment records, and they approached the brothers’ older sister and Earl’s daughter to see if they would be witnesses for the Crown. In 2018, a government inquiry looked at the use of surveillance in this case. It found there were indications in the file that the investigators used techniques involving low-level surveillance, or something close to it, together with a covert approach for at least one person of interest. Solicitor-General Una Jagose accepted that Crown Law’s instructions to the investigators in the White case were “too broad”, and as a result “they were not properly bounded in a way that meant that the Crown could be confident that its agents were doing not only what it could by law, but what it should”.[xxi]

Procedural actions caused unnecessary distress

The Crown’s procedural actions caused significant – and unnecessary – distress. Crown Law, for example, opposed name suppression applications for Paul and Earl and their witnesses, a move that caused enormous distress and that Solicitor-General Una Jagose described as “improper” and “not able to be justified”.[xxii] We were concerned to see documented advice to the Ministry of Social Development that opposing name suppression “may also discourage other persons in the same position”. Ms Jagose said “that is not a good basis to oppose name suppression” and called it “remarkable and improper” if that was the intention.[xxiii]

In December 2006, the Crown and its lead counsel Kristy McDonald QC discussed raising “abuse of process” as a defence, decided against it, but later did just that, only to have the application dismissed by the High Court.[xxiv]

The Crown, for the first time, used its statutory powers to require both Paul and Earl to undertake psychiatric assessments, despite having been previously assessed by a psychiatrist.

Failed to disclose relevant information

In addition to initially claiming legal privilege over Ansell’s criminal conviction history, to avoid disclosure to Earl and his lawyers,[xxv] the Crown was late in disclosing relevant documents. On 12 March 2007, with only three months before the trial date, Crown Law located 407 Hokio Beach Training School files, of which 90 were relevant to Earl’s case; and 17 Epuni Boys’ Home files, of which four were relevant to the brothers’ case. This put their lawyers at a serious disadvantage in preparing for trial because they had to review a large amount of material, consider new information, assess whether it presented new issues, and seek further information all within a very short time. They had already largely prepared their case and briefed witnesses. The Crown also formally admitted to very little about the brothers’ claim, prompting the Judge to remark that this was “somewhat surprising” given “much of their case is squarely based on the contemporary records of the Child Welfare Branch”.

Treating survivors as criminal defendants

Once the hearing began, the Crown cross-examined Paul and Earl, and their witnesses, like criminal defendants. Earl said he was cross-examined for two days, at times very aggressively and always in great detail, about each incident of violence and sexual abuse, with much made of the fact his memory was patchy and he had a criminal history. The judge intervened at least twice out of concern about fairness. All witnesses were cross-examined to test for collusion. The Crown also omitted to call at least one witness because it believed he would provide factual evidence unhelpful to its case.[xxvi] Finally, lawyers from Cooper Legal told us the Crown refused to tell them which witnesses it would call until the last minute, which placed unnecessary burdens on Cooper Legal.[xxvii] Ms Jagose told us witness lists were agreed between the parties and that those who argued the case for the Crown could not recall a failure to advise who would be giving evidence.

Seeking costs against survivor plaintiffs

The Crown sought costs of $42,917.94 against Paul personally, but the judge rejected the application. Such a step is rare against a plaintiff relying on legal aid, and the Legal Services Agency expressed surprise at this attempt.[xxviii] The agency required Earl to repay just under $3,000, which he did in $5 weekly instalments deducted from his benefit. The Crown also sought a costs order against Paul and Earl, and the judge granted $811,631. The Crown took no formal steps to recover this sum, although it did consider doing so at one time.[xxix]

In responding to a question at our hearing, the Solicitor-General agreed that the overall impression of the White case was of a piece of litigation conducted aggressively by the Crown, with a strong sense of how that would be experienced and what the effect of that would be, not only on the White plaintiffs, but on other potential claimants.”[xxx]

Summary and findings

We find that Crown Law and the Ministry of Social Development:

• did not comply with the Crown litigation strategy that required them to settle meritorious cases, because it wanted this to be a test case for future similar claims
• did not behave as a model litigant
• approached and conducted the case in a “win at all costs” manner, which was unnecessarily adversarial, legalistic and aggressive
• instructed private investigators to seek personal information about the White brothers and other survivor witnesses in an overly broad way, which did not rule out surveillance
• lost sight of the human beings involved in the claim and caused them further harm and distress
• failed to disclose an abusive staff member’s conviction history, claiming legal privilege
• was late to disclose numerous relevant documents, disadvantaging the White brothers
• adopted flawed thinking about sexual abuse victims and survivors in cross-examining witnesses and assessing the case
• continued to minimise the Crown’s moral responsibility and delayed making an ex-gratia payment to the Whites even after the High Court found that abuse had occurred
• sought court costs orders against the plaintiffs personally, despite the plaintiffs having no money to pay costs and despite this being a test case.

Next: Keith Wiffin: Crown resistance despite strong evidence of abuse 

[i] Witness Statement of Earl White, WITN0009001 (Royal Commission of Inquiry into Abuse in Care, 15 July 2020); Transcript of evidence of Earl White from State Redress Hearing Phase I, TRN0000001 (Royal Commission of Inquiry into Abuse in Care, 24 September 2020).

[ii] White v Attorney-General HC Wellington CIV-1999-485-85 (28 November 2007); White v Attorney-General [2010] NZCA 139.

[iii] Letter from Chris Mathieson, Crown Law to Sonja Cooper, Cooper Legal, regarding letter of 22 September 2006, CRL0028381 (25 September 2006), p. 2.

[iv]  Ibid.

[v] Minutes by Debra Harris of White litigation team meeting on 7 December 2006 between Crown Law and Ministry of Social Development, CRL0040575 (8 December 2006), p. 52.

[vi]  Email from Una Jagose, Crown Law to Garth Young, Ministry of Social Development, regarding letter edits, CRL0025722 (5 June 2009).   

[vii]  Transcript of evidence of Solicitor-General Una Jagose QC from State Redress Hearing Phase II, 4 November 2020, pp. 1163-1164; Email from Una Jagose, Crown Law to David Shanks, Ministry of Social Development, regarding Crown Law’s opposition to the proposed ex gratia payment, CRL0025885 (14 June 2010).

[viii]  Internal report from Zoe Griffiths to Hon Ruth Dyson, Associate Minister for Social Development and Employment, Departmental Report: Update on historic claims against Child, Youth and Family, MSD0002007 (2006), pp. 3-4.

[ix]  Letter from Chris Mathieson, Crown Law to Dr Michael Cullen, Attorney-General, regarding the Whites’ historic physical and sexual abuse claim, CRL0022719 (24 January 2007); Internal Ministry of Social Development memorandum from Deputy Chief Executive, Corporate and Governance to the Leadership Team, Historical claims by former wards of the state, MSD0002030 (26 February 2007), pp. 2-3.   

[x] Handwritten notes of meeting regarding White litigation attended by Kristy McDonald QC, Crown Law and Ministry of Social Development, CRL0040575 (28 November 2006), p. 46.  

[xi] Transcript of evidence of Garth Young for Ministry of Social Development from State Redress Hearing Phase II, TRN0000018 (Royal Commission of Inquiry into Abuse in Care, 22 October 2020), p. 373.

[xii]  Draft opinion from Andrew Irwin, Crown Law to Zoe Griffiths, Department of Child, Youth and Family Services, regarding an offer of settlement, CRL0026754 (10 December 2002), p. 2.

[xiii] Ibid.

[xiv] Internal report from Garth Young to Anne Tolley, Minister of Social Development, Historic claims update, MSD0001056 (21 September 2017), p. 4.

[xv] Transcript of evidence of Garth Young from State Redress Hearing Phase II, 21 October 2020, p. 308.

[xvi]  Ibid., pp. 292-294.

[xvii] Cooper, S., Culture of abuse and perpetrators of abuse at Department of Social Welfare Institutions: A paper based on the civil litigation proceedings of clients represented by Sonja M Cooper, MSC0000650.  

[xviii] File note by Lynn Martin, Crown Health Financing Agency, regarding Historic Claims Working Party Meeting on 12 February 2008, MOH0000032 (13 February 2008), p. 1.

[xix] Transcript of evidence of Solicitor-General Una Jagose QC from State Redress Hearing Phase II, 3 November 2020, p. 1141.

[xx] Ibid., p. 1105.

[xxi] Ibid., p 1006.

[xxii] Ibid., pp. 1024-25.

[xxiii]  Ibid., p. 1024.

[xxiv] Minutes by Debra Harris of White litigation team meeting on 7 December 2006 between Crown Law and Ministry of Social Development, p. 52.

[xxv] Transcript of evidence of Sonja Cooper and Amanda Hill for Cooper Legal from State Redress Hearing Phase I, TRN0000003 (Royal Commission of Inquiry into Abuse in Care, 1 October 2020), p. 502.

[xxvi]   Email from Michael Hodge, Crown Law to Ministry of Social Development and Crown Law regarding Brian Manchester’s statement on departmental systems, CRL0026158 (24 April 2007).

[xxvii]  Transcript of evidence of Sonja Cooper and Amanda Hill from State Redress Hearing Phase I, 1 October 2020, p. 481.

[xxviii]  Transcript of evidence of Brett Dooley and David Howden for Ministry of Justice from State Redress Hearing Phase II, TRN0000026 (Royal Commission of Inquiry into Abuse in Care, 29 October 2020), p. 990.

[xxix]  Email from Una Jagose, Crown Law to Jacinda Lean, Department of Child, Youth and Family Services, regarding White costs, CRL0024070 (13 October 2008).

[xxx]  Transcript of evidence of Solicitor-General Una Jagose QC from State Redress Hearing Phase II, 4 November 2020, p. 1160; Minutes from meeting of Claims Strategy Group, MSC0000512 (12 October 2009).