Survivors had some early successes in the courts. The judge in Leoni McInroe’s case refused the Crown’s application to strike out her claims without a hearing, and in 2002 and 2003, two survivors established that the State was liable for abuse by their foster parents, and also that the limitation defence did not apply in their circumstances. The successes, however, ended there. The Crown’s litigation strategy produced a series of crushing defeats in 2007 and 2008. The claimants were unable to prove they had suffered some of the abuse alleged. And when the court found the claimants had, in fact, been abused in State care, it also found the State was not liable because of limitation and accident compensation legislation, and because the claimants could not prove their abuse in State care had caused them harm. The Crown was also successful in its applications for costs orders. In one case, the court held that a survivor had to pay costs to the Crown for bringing the case, and in other cases, the courts found the claimants would have been liable for costs if they had not been funded by legal aid. In those cases, the judge criticised the Legal Services Agency for funding the claims.

These decisions led the Legal Services Agency to re-examine its decision to grant legal aid to hundreds of other survivors. In 2008, it notified 1,151 people of its intention to withdraw their legal aid unless they could justify why they should continue to receive it and explain why their claims had sufficient “prospects of success”. About 200 claimants lost their legal aid, although about half had it reinstated after seeking statutory reviews or appeals, supplying more information to the agency or making fresh applications. This process placed a significant administrative burden on claimants and their lawyers, and greatly delayed their claims.

Overall, these defeats in the courts highlighted the difficulties survivors faced getting redress through the courts and had a considerable deterrent effect on other survivors considering litigation. Some survivors abandoned their claims after observing the gruelling process other survivors went through giving evidence and being subjected to cross-examination by the Crown, only to have a claim rejected on what seemed to be technicalities.

In addition, the Crown’s focus on managing litigation and limiting financial risk meant it focused only on responding to the individual claims brought and resisted a wider response. This minimised the problem and contributed to the invisibility of those unable to bring claims, such as many Deaf and disabled people.

For many survivors, the result is that the only practical option now available to them is the out-of-court claims processes developed by State agencies and administered and closely controlled by them.

Next: State agencies’ out-of-court claims processes