Victim’s lawsuits against Adams and McGuinness could make legal history

Yesterday, it was reported in the Belfast Telegraph that victims of IRA violence during the 1970s were to sue Gerry Adams and Martin McGuinness.

The action, if it goes to a trial will be almost as interesting from a legal point of view as it will be from a political view.  The following is my partially informed view of the case, wearing my lawyer’s hat.

The first obstacle to be faced by the victims is the laws on limitation of actions, which prevent claims being brought if the incidents giving rise to the claim happened more than a certain length of time before a legal action is launched.  These laws, as they apply to Northern Ireland, are set out in the Limitation (Northern Ireland) Order 1989 (“the Order”). 

The action brought by the victims will be in Tort for Assault.  Most actions in Tort are subject to Article 6.  Where Article 6 applies, the time limit for bringing an action is 6 years from when the cause of action accrued (i.e. when the incident happened).  Where a personal injury occurs, Article 7  applies and the time limit is 3 years from when the cause of action accrued or the PLaintiff’s (victim’s) date of knowledge, whichever is the later.  

An initial look at the law suggests that the victims are more than 20 years late from bringing an action but their claim can still succeed if they can use one of the exceptions set out in the Order. 

One of those exceptions relates to the Plaintiff’s “date of knowledge”  referred to in Article 7(4)(b)  of the Order.  Another is the Court’s discretion to allow an action to be brought out of time under Article 50 of the Order.   The provisions relating to “date of knowledge” and the Court’s discretion under Article 50 are connected in the sense that they only apply to personal injury cases. 

Before last year, it was thought that neither the “date of knowledge” provision, nor the Court’s discretion under Article 50 could be used where a claim arose out of non-accidental injury.   Putting it another way, it was thought that if the personal injury arose as a result of an an assault, the limitation period was 6 years under article 6 but if it was a negligence claim, the limitation period was 3 years from the Plaintiff’s date of knowledge which could be a very long time after the event.  In the case of Stubbings –v-Webb [1993] AC 498 which was about child sexual abuse,  the House of Lords held that term “negligence, nuisance or breach of duty” under Article 7(1) only referred to non-intentional torts such as negligence. 

Last year, in the case of A –v- Hoare [2008] UKHL 6, the House of Lords overruled its earlier decision in Stubbings v Webb.   Now, the term “breach of duty” does apply to personal injury resulting from assault. 

From my reading of the Belfast Telegraph report, the victims may be able to say that they did not have the requisite knowledge to bring a claim because they did not have knowledge of the evidence linking the attacks to Messrs.  McGuinness and Adams.   Part of the victim’s case could well be that until papers were released  from the Foreign Office to the Public Records Office they did not have the knowledge which would have caused the 3 year period to begin running.    

There is one other exception under the Order which the victims might rely upon.  That is in respect of concealment.  Article 71 of the Order can apply if any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant.  If there has been deliberate concealment, time (the 3 – year period) does not start to run until the concealment has been discovered or if it could have been discovered with reasonable diligence. 

Of course, without knowledge of everything which is in the victims’ solicitors file, it is not possible to know exactly which of those exceptions in the Limitation Order they will rely upon.  One thing is for certain.  The Limitation law will be very carefully considered by both sides.

Those interesting legal aspects do not necessarily end there.   Lawyers will be familiar with the term “vicarious liability.”  This is liability which can be fixed against a defendant because of an association which exists in law linking the person who carried out the act with the Defendant.   The doctrine requires the Defendant to have some sort of responsibility or control over the third party who committed the wrong.  Normally, vicarious liability is associated with Employers and Business Partners but what about being an official in an organisation which is responsible for the Act?  The victims might be able to prove conclusively that the attacks were carried out by the IRA but may not have any evidence to link them either to Adams or McGuinness.  If they can prove, however, that McGuinness and Adams were members of the IRA (perhaps this will be no problem in relation to McGuinness but trickier in relation to Adams) they may then be able to ask the Court to invoke the doctrine of vicarious liability.  It is not as easy a point as it looks.  In normal kinds of vicarious liability, the relationship between third party and defendant is a legal one. 

One thing is for certain.  These lawsuits will make news like few others.

Most serious MP expense cases should be subject to criminal investigation

The reports coming from the Daily Telegraph are showing irregularities in expenses claims in varying degrees.  In some of these cases, the evidence of dishonesty is so compelling that it looks like an “open and shut” case of fraud. 

 In the case of an MP who claims expenses on a mortgage which did not exist, there is a prima-facie of the MP having committed the offence of obtaining a pecuniary advantage by deception.  

I said before that we should let out the “dirty bath water.”  However, you can not ignore an obvious crime.   It is not just the integrity of Parliament which is on the rack.  It is also the system of law and order.  Those cases such as revealed in the Telegraph today should be the subject of a criminal investigation.

Solicitor sues Catholic School for £5 million over sex abuse by a priest

I do not usually write about stories which are nothing to do with politics. I am making an exception in relation to a report that has caught my eye because my next post will be about the related subject of domestic abuse.   

Stories about child sexual abuse have regularly appeared in the media for a generation and they have all but ceased to be the source of political issues.  However, many people were not aware that until last year, it was not possible for a victim to bring a claim against the perpetrator of child sexual abuse once the victim had reached the age of 24.  At that point, they were known to be ‘statute-barred’.  

Just over a year ago, the House of Lords in the case of A –v- Hoare [2008] UKHL 6 made it possible for victims to bring a claim much later.  So long as the victim can show that their date of knowledge (basically knowledge by the victim that there was a link between the act of abuse and the damage suffered by the victim) is less than 3 years before the bringing of an action, the victim is not statute-barred.  

A report in the Times a few days ago indicates that a solicitor, who alleges that he was abused as a child by a priest at a Catholic School in Lancashire is bringing a claim for damages against the school.  He alleges that he did not connect his under-achievements at work, failed marriage and binge drinking until he had a breakdown in April 2005.  He launched his legal action before a 3 year period from that time, which would have ended in April 2008.  

The Priest alleged to have committed the abuse is dead.  So long as the Claimant proves he is within the 3 year period, he still has to show that the Priest was acting in the course of his employment when the abuse occurred.  That may turn out to be the more tricky part of the case.   

For an update on this post, click here.