Litigation strategy

Faced with a growing number of claimants, the Crown grappled with how to respond. Cabinet considered alternatives to litigation, such as an inquiry or out-of-court settlement process. However, ultimately it stuck with litigation, in contrast with the approach it had taken with the Lake Alice group. In May 2005, the Attorney-General set out in a paper to Cabinet the approach the Crown would take to litigating abuse in care claims. It said the Crown:

• acted as a model litigant (although it did not specify what this consisted of – the generally accepted meaning being that it “played fair”)
• met liability if established but wouldn’t otherwise pay public money without good cause
• avoided ad-hoc mechanisms that “constitute an undesirable precedent for future claims”
• used public resources efficiently in responding to claims.

This was the essence of the Crown’s litigation strategy. It also said it would try to settle a claim if Crown Law and/or the relevant government agency considered a claim was meritorious or there was a realistic prospect of liability, but would not settle purely because doing so would be cheaper than defending a claim.

In May 2008, Cabinet confirmed it would not set up any specialised group settlement process, the advice to it being that there was still “no strong or clear evidence… of systemic abuse or failure within the psychiatric or child welfare systems during the relevant periods” and there was currently no basis for considering alternative dispute resolution processes or settlement packages, and any settling of claims after minimal investigation should be rejected. This was despite the increasing evidence of widespread abuse available.

Cabinet accepted an updated Crown litigation strategy that set out a three-pronged approach to historic abuse cases:

• Agencies would seek to resolve grievances early and directly with individuals where practical.
• The Crown would consider settlement for meritorious claims (but did not set out what it meant by ‘meritorious’).
• The Crown would defend unresolved claims in court.

In adopting this strategy, Cabinet and its advisors showed little recognition of the vulnerability of survivors, the significant difficulties that it knew survivors would face in the courts, or of any moral or non-legal obligations towards individuals abused while in the care of the State. Cabinet also showed no consideration of obligations under te Tiriti or the impact this strategy would have on Māori, despite being aware from at least 2007 that a large majority of claimants were Māori. Nor did it consider the possible domestic or international human rights dimensions to the claims or its response to them.

Listening services established

The Crown did, however, set up two forums for claimants who wanted to air their grievances. The Confidential Forum ran from 2004 until 2007, and listened to the experiences of 493 former in-patients, families of in-patients, and staff of psychiatric hospitals. The Confidential Listening and Assistance Service, ran from 2008 until 2015. It heard from 1,103 survivors who had been in State care, though it said it was not able to provide enough opportunity to prisoners to meet the service, and only managed limited engagement with people with learning disability or survivors in prison.

Both services heard people’s experience of abuse and helped them access records and social services. The later listening service referred anyone wanting to claim compensation to the appropriate government agency. However, both were narrow in scope. The terms of reference of the Confidential Forum did not allow it to comment on systemic issues, or publicly comment about anything presented to it. Neither service could make findings of fact or liability, and neither could recommend compensation.

Vigorous defence in court

The Crown vigorously defended those claims that could not be settled between survivors and the relevant government agencies. Several claimants persisted with this route, despite the significant legal barriers and the traumatic, adversarial nature of the court process. They included brothers Paul and Earl White (not their real names) and Keith Wiffin, who were found to have been abused at, among other placements, Epuni Boys’ Home in Lower Hutt, as well as two claimants, known as J and K, who said they had suffered abuse at psychiatric hospitals.

The Crown routinely relied on limitation defences, the ACC bar and immunities under mental health legislation. The Crown was certainly entitled to defend itself according to the law, and the law included the defences just described. The Crown was even obliged under the law to raise some of the defences in court. But by relying on these defences, the Crown created the impression that it was hiding behind technicalities to avoid accountability for serious abuse that happened in its care. It raised the limitation defence, which was optional, even against claims it knew were likely to be true. It also applied to the court to strike out claims brought by seven former psychiatric patients, without individual hearings, on the basis that under the mental health legislation the claims required leave from the court to proceed – something that was no longer available to most claimants because of the strict time limits set out for seeking leave. In making this application, it argued that abuse including serious physical assaults, the administration of electric shocks as punishment, and solitary confinement, were theoretically capable of being acts of treatment, care, or control, done in pursuance of the mental health legislation, and for which it had immunity.

Despite the Crown’s aspirations to act as a model litigant, it did not do so. The conduct of the Crown went beyond mere neutral defence of claims and included:

• requiring claimants to prove facts the Crown knew were likely to be correct
• causing long, avoidable delays and failing to keep claimants adequately informed of the progress of their cases
• failing to disclose relevant information damaging to the Crown case
• opposing name suppression for sexual abuse victims on strategic grounds
• opposing reasonable adjournment requests, despite a lack of prejudice to the Crown, when a claimant’s lawyer was without funding
• cross-examining witnesses to suggest survivors should have, as children, disclosed abuse at the time the abuse happened, or avoided the abuse
• cross-examining witnesses to suggest survivors were lying and colluding even when the evidence showed they were more than likely to be telling the truth
• making applications for costs against survivors personally, and making applications for orders that would have required the plaintiff to pay costs if they had not been funded by legal aid.

The Crown pursued these cases with a vigour that demonstrated it was not just concerned about the individual cases, but also about their consequences on the hundreds of cases yet to be brought. Its goal was to secure court decisions that reduced the number of claims it was facing, and lessened the bargaining power of other claimants. But more than that, some of the Crown’s conduct during trials seemed deliberately designed to discourage other claimants from seeking redress through the courts.

These tactics, and the impact they had on survivors, are illustrated further in the case studies in Volume 2.

Agencies develop in-house claims processes

As noted, the Crown’s litigation strategy stated it would attempt to settle claims deemed meritorious. The term “meritorious” was not explained in either the 2005 or the 2008 versions of the strategy, and views among government agencies about its meaning differed. Both versions suggested meritorious meant a claim had a good chance of overcoming the legal barriers discussed above, and they referred to settling claims where there was a “realistic prospect of liability”. But the Ministry of Social Development and Ministry of Health both gave evidence that they understood the 2008 strategy required them to settle with individuals who had a credible claim of being abused in State care, regardless of whether legal barriers such as the limitation defence and accident compensation legislation applied.

On this basis, the Ministry of Social Development, Ministry of Education, Ministry of Health and predecessor Crown Health Financing Agency – and more recently Oranga Tamariki – developed their own in-house claims processes to settle abuse claims out of court.

The processes – which continue to run to this day – are described in more detail in the next section below. Individuals can make a claim directly with the agency or through a lawyer without filing a claim in court.

Survivors unhappy with their settlement offer can take their claim to court, yet there they face a difficult battle as the Crown continues to rely on the legal defences available to it. In short, the Crown has full control of the settlement process and, as we will see next, almost guaranteed success in the courts.

Next: Result of the Crown strategy - Crown’s court successes deter prospective claimants