SS and Essex County Council
| Jurisdiction | England & Wales |
| Judge | Matthew Butt |
| Judgment Date | 28 February 2023 |
| Neutral Citation | [2023] EWHC 417 (KB) |
| Docket Number | Case No: QB-2020-002740 |
| Court | King's Bench Division |
and
[2023] EWHC 417 (KB)
Matthew Butt KC
(sitting as a Deputy Judge of the High Court)
Case No: QB-2020-002740
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Steven Ford KC (instructed by Browne Jacobson Solicitors) for the Defendant / Part 20 Claimant
Hearing dates: 17th to 19th January 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 28 February 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Matthew Butt KC
Matthew Butt KC:
I. INTRODUCTION
This trial concerns a Part 20 claim brought by Essex County Council (ECC) against the Part 20 Defendants “FF” and “FM” who between 1981 and 1998 were the foster parents of “SS” and later her carers until she was removed from their home in 2009. ECC seeks an indemnity or alternatively a contribution from FF and FM for compensation it paid to SS in the principal claim. Within that principal claim, SS alleged that she had been physically and sexually abused, starved, neglected and falsely imprisoned by FF and FM. ECC admitted both negligence and vicarious liability in the principal claim and on 18/10/22, the court approved a settlement in favour of SS in the sum of £325,000. ECC having paid that sum to SS submits that FF and FM are responsible for “the same damage” and thus liable under the Civil Liability (Contribution) Act 1978 (the 1978 Act).
II. THE PRINCIPAL CLAIMANT (SS)
SS has been granted anonymity to protect her Article 8 rights and is referred to as SS in her claim and for the purposes of this judgment. As the identity of SS would be obvious to anyone who knew her former foster carers if they were named, I have referred to the part 20 Defendants as the Foster Father (FF) and Foster Mother (FM) for the purposes of this judgment.
At all relevant times SS lived within the geographical boundaries of ECC where she resides at the date of this judgment. Having been removed from her parents, ECC assumed parental responsibility for SS when she was a child and its responsibility continued throughout her adult life as a vulnerable adult who was incapable of caring for herself.
It is clear that SS had very significant needs from birth including severe learning difficulties and autism. SS has and will always need help with basic tasks such as cooking, eating, washing and all other everyday activities. She is incapable of much intelligible speech and will sometimes repeat words and phrases she has heard from others without any apparent understanding of their meaning (known as echolalia). SS's reported echolalic utterances are of significance in this trial.
It would never have been possible for SS to have provided a witness statement or to give oral evidence, whatever accommodation the court might have been able to provide.
SS was placed into the foster care of FF and FM on 24/06/81 shortly after removal from her birth parents. After turning 18, she remained with FF and FM until an unconnected police visit on 14/05/09 resulted in her being removed from the FF/FM family home and placed within a residential home in Essex. She resides in a similar residential home to this day. SS was removed from FF and FM's care due to police and social service concerns as to what officers saw within the home. The police believed that SS was falsely imprisoned and had been abused. FF and FM were arrested by the police, but no further action was taken in relation to the criminal allegations.
III. THE PRINCIPAL CLAIM BETWEEN SS AND ECC
ECC admitted liability in open correspondence on 27/01/14 (on the basis of its own negligence) and requested that the claimant make proposals in relation to causation and quantum.
After ECC admitted liability, the Supreme Court gave judgment in Armes v Nottinghamshire County Council [2017] UKSC 60. The effect of the judgment in Armes is that a local authority in ECC's position can be vicariously liable for abuse by foster parents whether they were negligent in the monitoring of that foster placement or not.
SS's particulars of claim plead (a) sexual assault, (b) physical assault, (c) false imprisonment, (d) torture and starvation and (e) chronic neglect. The claim refers to that damage as having been caused “during the foster placement” or “at the foster home” albeit that the damage is alleged to have occurred between 1981 and 2009 (the period SS was with FF and FM, not the duration of the foster arrangement which ended in 1998 at the latest). ECC is said to be liable both in negligence for failing to prevent the damage and on the basis of vicarious liability. The vicarious liability must have ended in 1998 at the latest when FF and FM were de-registered as foster parents by ECC (see below).
SS claimed damages from ECC in the sum of £6,380,600.52. This was later raised to £7,407,999.49.
By way of a counter schedule, ECC responded:
“D's case on quantum is that C is entitled to an award of general damages for pain, suffering and loss of amenity to compensate her for whatever physical mistreatment, abuse and neglect she suffered as a result of the tortious conduct of [FF and FM] but that conduct has made no identifiable, discernible or quantifiable difference to C's need for accommodation, care and assistance (including transport and aids and equipment), case management or treatment.
…
D accepts that the court is likely to find that [SS] sustained at least significant emotional abuse and neglect whilst placed with [FF and FM], as evidence [sic] (not least) by her physical condition upon removal in May 2009. D also accepts that the duration of time over which such abuse was suffered by C justifies an award of general damages towards the top of the “severe” bracket of general damages for psychiatric and psychological damage caused by physical and/or sexual abuse in the 16 th edition of the Judicial College Guidelines. An appropriate award of damages is £100,000.”
ECC's alternative position (if the court did not accept ECC's evidence on causation) was that care costs should be restricted to 8 hours per week (said to amount to £91,538.54) and case management costs (said to amount to £78,792.56).
Terms of settlement were agreed between SS and ECC. This required the approval of the court as SS is a protected person. HHJ Lickley KC duly approved the settlement on 18/10/22. The terms of the settlement were that the Claimant may accept the sum of £325,000 inclusive of interest in full and final settlement of the claim. Costs were also ordered to be paid to SS on the standard basis, to be assessed. An interim payment of £200,000 has been made by ECC towards payment of costs.
It is the sum of the two figures above (£525,000) that ECC seeks from FF and FM by way of an indemnity. In the alternative ECC seeks a contribution towards this sum from FF and FM.
IV. THE PART 20 CLAIM
ECC issued a claim joining the foster parents as Part 20 Defendants on 08/01/21 claiming that FF and FM were responsible for the damage for which ECC had admitted liability.
FF and FM have represented themselves throughout these proceedings. They served handwritten documents which have been accepted as their defence and witness statements. They both deny that there was any abuse or neglect of SS. They say that this was “a good placement.”
Part 20 Claims are brought under the Civil Liability Contribution Act 1978. Under section 1 (1) of the 1978 Act (see below), a claim lies against FF and FM if they are “liable in respect of the same damage” as SS claimed against ECC.
The particulars of the Part 20 claim served by ECC refer to the damage in SS's claim as set out above. These particulars allege:
“insofar as the claimant may prove that she suffered personal injury alleged in the particulars of claim…that injury was caused by you in that you:
Committed acts of trespass to the claimant in the form of assault, battery and/or false imprisonment and/or
Negligently caused harm to the claimant and/or
Negligently failed to protect the claimant from harm caused by others”
By way of skeleton argument served shortly before this trial began, ECC submitted that:
(i) it would not seek a finding in relation to alleged sexual abuse of SS by FF and FM,
(ii) its case was that FF and FM subjected SS to assaults, false imprisonment, chronic starvation and neglect,
(iii) its case would broadly mirror the case advanced by SS against ECC as set out in her “schedule of abusive and neglectful experiences”
(iv) the focus of ECC's case would be the condition in which SS was found when the police entered the house on 14/05/09.
I note that SS's “schedule of abusive and neglectful experiences” alleges far more against FF and FM than the matters ECC stated it would prove within its skeleton argument. I also note that the schedule served by SS alleges sexual and physical abuse over many years.
ECC's position became more focused by the time closing submissions were made. The findings I was asked to make by Mr Ford KC (who represents ECC) were:
(1) SS was deprived of adequate and or reasonably nutritious food for up to three years prior to her removal by the police;
(2) food deprivation probably began rather earlier;
(3) SS suffered significant emotional abuse and neglect.
My note of Mr Ford's closing submission in relation to (3) is:
“SS was very seriously neglected having been kept in truly appalling conditions which included a filthy house that smelt of urine due to her being required to use a chemical toilet. She was confined to two small rooms at the back of the house behind a screen that she would not have been able to open. These were the...
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