Friday, 18 January 2013

The Price of Silence

24 victims of historic abuse in Jersey have accepted compensation by the States. They're under gagging orders to stop them revealing how much money they've received but we do know it is between £1 and £60,000. Last year, Jersey's Council of Ministers issued an apology to all those who suffered abuse, and acknowledged the failings of the historic care system. In total, 128 Islanders have applied for compensation - all expect to settle their claims this year. (1)

A UK-based mining company, Monterrico Metals, has agreed an out-of court settlement to pay an undisclosed amount as compensation to 33 farmers in Peru. They say they were beaten and tortured by Peruvian police in an incident in 2005. The farmers accuse the company of complicity. As part of the out-of-court settlement, Monterrico Metals imposed a gagging order on the amount of the compensation payouts to the 33 Peruvian farmers and Leigh Day, the British legal firm which represented them. (8)

Britain's first personal injury case for the psychiatric injury caused by bullying, Walford v. Ford Motor Company, was settled out of court in February 1998. Settlement was conditional on a gagging clause.(9)

I cite the two other cases above after the Jersey one to show there is nothing new about settlements with gaggling clauses on the sum of compensation paid out.

A question was asked about confidentiality or "gagging" orders in the States on the 21st February 2012:

Deputy M.R. Higgins of St. Helier of the Chief Minister regarding the delay in making compensation payments to the victims of abuse at Haut de la Garenne:

Will the Chief Minister explain to the States the reasons for the delay in making compensation payments to the victims of abuse at Haut de la Garenne and advise whether any settlements will be subject to a requirement for claimants to keep the amount of the award private and confidential?

Senator I.J. Gorst (The Chief Minister):

Inevitably it has taken time to finalise the mechanism for delivering financial compensation to the victims of historic abuse when in the full-time residential care of the States of Jersey. This has also required close consultation with claimants' legal advisers and guidance from the States of Jersey's legal advisers including specialist U.K. (United Kingdom) counsel.

The only aspect of the scheme that may be subject to a private and confidential condition is the amount awarded for any individual claimant. We would not wish to divulge this information in order to respect the privacy of the claimant. However, we will publish the total amount awarded once all claims have been settled.

At present no objections have been raised on behalf of claimants to that suggestion. There is no intention for any restriction to be placed in relation to the underlying facts of any case.

It is clear from this that Ian Gorst fully expected confidentiality clauses to be in place, but only with respect to the sum paid for compensation. As far as the cases of abuse are concerned, there is no obligation for victims to remain silent about it, should they choose not to.

This makes it very different, for example, from a review in Australia at the moment, where "Justice Peter McClellan said non-disclosure agreements would not stop the commission inquiring into institutional responses to child sex assault." (2).

"The commission is aware that there has been considerable public discussion about the powers the commission has to inquire into matters which are the subject of confidential agreements," he said. "We wish to emphasise that under the Royal Commission Act, the commission has powers to compel the production of evidence, including documents. "We will not hesitate in an appropriate case to exercise those powers." (3)

This kind of confidentiality clause is one which has cast a long shadow in many cases where children were abused, and came up in 2004:

The use of confidentiality clauses in settlements with victims of abuse in Church institutions is again in the spotlight, with the revelation that an Anglican diocese in New South Wales prohibited about ten men from speaking publicly about their treatment they received in the 1940's and 50's.  The use of such clauses, described as gag orders by victims groups, has been under attack for several years now. (4)

But that's not the case with the Jersey victims. The only area on which there is a confidentiality clause is in the sum settled with each victim. That's good to know - there is no gagging order preventing them from speaking out about the abuse they suffered, should they so choose. This is a common form of settlement, but it doesn't apply in Jersey.

But the question remains, should the victims also be gagged on the sum of their settlements?

It is noticeable that while Senator Gorst says in the answers to the Questions in Hansard that the States would not wish to make than known "in order to respect the privacy of the claimant", he carefully avoids saying whether the claimants could decide to relinquish that privacy themselves. It's assumed that they would not.

Certainly in the USA, cases give rise to the general principle over there that:

A claimant's agreement to relinquish his right to litigate a claim, in exchange for money, is generally acknowledged to be sufficient consideration to support a binding contract. (5)

What we don't know, of course, is whether the victims in Jersey are happy with the way the settlement procedures have taken place, and the restrictions placed upon them regarding the sums involved. We also don't know if the confidentiality clause prevents them from even commenting whether they thought the sum was fair, without disclosing the sum itself. We don't know the wording of the confidentiality clause. The latter, at any rate, is something that should be public knowledge.

However, the most frequently cited reason for restricting or regulating confidential settlement agreements is that they delay the discovery of public dangers . In the case of the Jersey victims, they can still speak out, and the inquiry may well find lessons from their experiences for today.

If there were still deficiencies in child protection and care, the settlements do not prevent them speaking out; there is no delay on the discovery of public dangers in the clauses. There is nothing there that would hide information that is evidence of abuse. There is a delay on the inquiry terms of reference, but that's another matter.

In fact, the confidentiality clause goes back to 2009, where Terry le Sueur introduced it as an amendment to the proposition P.49/2009 - Child Abuse Compensation Claims: Freedom of Expression for Survivors:

At the end of the proposition, after the words "any judgment or settlement", insert the words "with the exception that there may be circumstances in which commercial terms relating to the sum of the settlement may be subject to a confidentiality agreement". (6)

When this came up on 28 April 2009, Terry le Sueur said:

We therefore agree that the States should not offer, seek or impose any form of confidentiality clause in any of the investigations or settlements with claimants which would impair their ability to speak of their experiences. However, it is very easy to envisage circumstances in which in order to settle one individual's valid claim, without prejudicing the interests of other claimants or the public, the size and related terms of the settlement should remain confidential.

In my view and I have sought advice on this, it is not a negation of the proposition. It simply amends one part of it dealing with the financial terms. Other than that the claimants are perfectly at liberty to say what they like, see whom they like, when they like within the normal confines of the law. (7)

What precisely was meant by those circumstances were delivered in a rather shambolic fashion, and it is difficult, reading it, to make any sense. However, Senator Alan Breckon fortunately asked a question which provided some clarity:

7.1.6 Senator A. Breckon:

I wonder if the Chief Minister could clarify that the actual point of the amendment is not to prejudice any other case that may be pending, and that is the intent rather than to frustrate anything that Senator Syvret wants to do?

Senator T.A. Le Sueur:
Yes, I believe that is an important consideration which would come out in the course of the actual debate on the subject itself. Each case needs to be discussed on its merits and one case should not necessarily be regarded as influencing another and if the outcome already determines a settlement. This is not uncommon in cases where there are more than one claimant and I would think that is just good legal practice

All I am saying is that there will be differences from one case to another and that we have to ensure that every claimant gets justice but that the outcome of this new settlement is related to the facts of that case and not simply related to the fact of cases in general

In other words, the reason for the provision was to ensure that the sum claimed by victim A (for example) could not be taken as setting a precedent for victim B, on the basis that each case had to be settled on its own merits. I'm not altogether happy with the logic of that - it seems to me that if the case of victim A has a notable family resemblance to that of victim B, then lawyers should be able to cite that in favour of a similar value claim.

The argument that each case should be dealt with "on its merits", favoured the States, but is it just that cases of abuse which have a close familial resemblance - so that anyone hearing the stories would think them very similar indeed - should have very different amounts of compensation awarded simply because of the prowess of the lawyers involved. That may be legal; it doesn't seem just.


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