LEGAL - Third Party Costs Order on £1m School Bullying Claim

I am looking back at some of the big legal cases from 2009... to find out what verdicts were delivered, often you will not see anything written again by way of a news report due to confidentiality, though if you dig enough you may see a commentary report or assessment made by legal or HR firms who use the cases as guidelines for advice.

The Story as reported on 3rd March 2009

Ex-pupil sues leading public school for £1m over claims bullies called him 'poor little rich boy', claims mental scarring.

A former pupil is suing a leading public school for almost £1million after he claims he was bullied by pupils who called him a 'poor little rich boy'.

'Taunted': Thomson as a teenager

John Thomson, 23, has launched a landmark High Court case claiming he has been left mentally scarred and his career ruined by repeated bullying and humiliation he endured at Berkhamsted Collegiate School. The university graduate is accusing staff of failing to protect him from fellow pupils who taunted him about living in a large house.

He claims he was picked on from the age of 11 by various boys who 'made his life hell' and the ordeal led to him developing a major depressive disorder. The school, which charges fees of £15,000 a year and whose alumni include Graham Greene, Michael Meacher and Emma Fielding, has insisted that the incidents were too trivial to be considered bullying.

The court heard that Mr Thomson-who lives in Meadway, Berkhamsted, Hertfordshire, attended the school between 1994 and 2002. After leaving he went on to study at Imperial College London but he says the abuse overshadowed his career prospects and he graduated with a second class degree when he had the potential to get a first.

Lawyers for the school, which is prized for its Christian values, pointed out that it is only two years since Mr Thomson graduated. Andrew Miller said it was unrealistic to suggest someone with his qualifications - 11 GCSEs, with ten at grade A* or A , four A-grade A-levels and a second-class degree - would have difficulty getting a job.

The alleged abuse began around 1996 when various boys 'started to pick on and tease him mercilessly', the court heard. His QC, Robert Glancy, told the court that the matter was reported to a senior teacher but no action was taken. His parents also complained to the school. Mr Thomson-an above-average student whose parents hoped would go on to Oxbridge, became withdrawn and subdued.

He would often be anxious and distressed at the start of a new term. He told a counsellor he felt 'his life was not worth living', Mr Glancy told Mr Justice Blake in London.

The chapel at Berkhamsted School , which is being sued by Thomson

The bullying took a new turn in 2001 - his GCSE year - when one fellow schoolboy 'manipulated various social circumstances him embarrassment and distress'. 'In particular, he received invitations to parties unexpectedly where he was subjected to sexual approaches by young women,' Mr Glancy added, claiming the girls were 'associated' with boys who made Mr Thomson's life a misery.

Mr Miller said the incidents at two out-of-school parties involved 'consensual sexual conduct'. His to cause ordeal culminated in a 'purported suicide attempt' shortly afterwards during a school trip to Greece, the court was told. A month later he sent a letter of complaint to the school governors and stood up in his science class, announcing he had been bullied.

In 2002, he moved to Aylesbury Grammar School where he did well. But he claims the bullying at a critical period of his adolescence led to a struggle finding suitable work.

Doctors said Mr Thomson was shy and had poor self-esteem and difficulties forming relationships, said Mr Glancy, adding: 'The claimant and his parents trusted the school to nurture and develop him intellectually and personally and the school has let him down.'

Hundreds of photographs showing Mr Thomson looking happy as a teenager may be used in evidence against his claims, it emerged last night. Many are believed to have been taken from social networking site Facebook.

The school denies it was negligent or in breach of its duty of care. source

DECISION

Third Party Costs Order

Where family had funded a claimant's litigation, there was a reasonable prospect of success in obtaining a third party costs order where the family were directly concerned with the facts of the claim, had taken an active role and gained a benefit from the litigation, and had sought to control its course.

JOHN THOMSON (Claimant) v BERKHAMSTED COLLEGIATE SCHOOL (Defendant) and (1) IAN THOMSON (2) GRACINDA THOMSON (Interested Parties) [2009] EWHC 2374 (QB)

Background

Mr & Mrs Thomson's son, John (J), a former pupil at Berkhamsted Collegiate School (BCS), had brought a claim for damages against BCS for failure to take proper measures to prevent him from being bullied whilst he was at the school. Two weeks into the trial, J discontinued his claim and BCS sought its substantial costs in defending the action which it alleged was wholly misconceived. J was unemployed and the costs of his litigation had been met by his parents (P). Accordingly, BCS wished to claim its costs from P pursuant to the Supreme Court Act 1981 s.51 and CPR r.48.2. Pursuant to that application BCS sought orders requiring P to file and serve disclosure statements setting out correspondence between them and J's solicitors, experts and counsel; in addition they sought orders against J with respect to disclosure and his claim of legal professional privilege.

Decision

On 2^nd October 2009 Mr Justice Blake held that...

(1) Before considering whether it was necessary to make the Orders sought by BCS, the Court needed to consider when a third party costs order was likely to be made in cases such as the instant one. The law as to third party costs was sufficiently stated inDymocks Franchise Systems (NSW) Pty Ltd v Todd (Costs) (2004) UKPC 39, (2004) 1 WLR 2807 and the following principles were relevant: (i) such an order was exceptional (ii) the application should normally be determined by the trial judge (iii) pure funders with no personal interest in the litigation would not normally have the discretion exercised against them, Hamilton v Al-Fayed (Costs) (2002) EWCA Civ 665, (2003) QB 1175 applied (iv) it was relevant but not decisive that the defendant had warned the non-party of the intention to seek costs or the non-party's funding had caused the defendant to incur costs it would not otherwise have had to incur (v) the conduct of the non-party in the course of the litigation was of relevance (vi) in a family funding context courts had been reluctant to impose third party costs orders against those family members who assisted a party for philanthropic and disinterested reasons and (vii) the inherent strength of the application was always a relevant factor, Dymocks applied. In this case, P were not merely funders but were directly concerned with the facts of the claim and played an active role in the litigation. There was substance to the suggestion that the litigation was speculative as to its prospects of success. It was doubtful that it would have been funded if T had not made funds available themselves. Accordingly, an application for third party costs had a reasonable prospect of success. The only doubt was over whether P gained a benefit from the litigation and sought to control its course.

(2) BCS could only demonstrate the element of control if it knew what communications P had had with the solicitors, counsel and experts in the case. Restricting the period of time during which the disclosure was required reduced the scale of the disclosure sought and any practical difficulties.

(3) J had claimed legal professional privilege but it did not normally exist in communications between a solicitor and third parties that were not immediately connected with that third party's witness statement or the giving of legal advice to the claimant. An analysis of the documents was required to determine which attracted privilege. The correspondence sought was likely to be probative and not privileged in its entirety and it was not disproportionate for the material to be sought.

Link to Judgment

source

Judge grants application over disclosure of correspondence

John Thomson v Berkhamsted Collegiate School (Defendant) & (1) Ian Thomson (2) Gracinda Thomson (interested parties)

(Queen's Bench Division — 2 October 2009)

John Thomson, the claimant, brought a claim against his former school for failure to prevent bullying. He subsequently discontinued at trial. The defendant sought to obtain a third-party costs order against the claimant's parents (interested parties) pursuant to rule 48.2 of the civil procedure rules as interested parties. The defendant applied for disclosure of the correspondence that passed between the claimant's solicitors and his parents. The parents opposed the application on the grounds that such documents were privileged.

In considering the application, the judge identified the relevant factors as: the strength of the application for third-party costs on present evidence; whether it would be obvious on summary assessment that the documents will be privileged; the potential value of the documents sought to determine the application; and whether an order would be just and proportionate in the circumstances.

The judge found that on the face of it the application was a strong one, as the interested parties were more than disinterested funders and had a vested interest in the claim succeeding. He was also convinced that the documents were potentially relevant, albeit he limited the period of time for which correspondence should be disclosed.

The judge did not consider that the documents were likely to be subject to legal professional privilege save for those relating to the interested parties' role as witnesses to the claim.

He noted the Catch-22 situation that if the correspondence was privileged in that it related to advice between a solicitor and his client, it would assist the defendant's case that the interested parties were, in fact, claimants.

In terms of proportionality, the judge recognised the exercise of disclosure would be carried out by the solicitors, in that they could extract such correspondence from their own files, and was not, therefore, an onerous duty on the parties. The judge thus granted the application for disclosure.

Comment

This is a potentially very important decision for schools and their insurers. Parents who believe that they can litigate through their children, and thereby avoid an effective adverse costs order, should take very careful note.

- Richard Wilkins, partner, BLM London. source

Looking a little further, this case started back in 2002

Fee-paying school faces legal test on bullying

An independent school that prides itself on Christian values is threatened with being taken to court by a 16-year-old boy who claims he was bullied because he lived in a big house.

John Thomson, 16, claims the school failed to protect him from the bullies who made his life a misery, laying in wait for him and ridiculing him as a "poor little rich boy" and a "social incompetent".

If the case against Berkhamsted Collegiate school, in Hertfordshire, reaches the High Court it will be the first legal test of the law relating to bullying in independent schools. Though lawyers say there have been "scores" of claims on behalf of pupils bullied in fee-paying schools, they have been dropped or settled out of court.

The boy's parents, Ian and Gracinda, of Berkhamsted, claim the school, which charges nearly £10,000 for day pupils and £15,000 for boarders, did not take sufficient steps to ensure his wellbeing and failed to implement or review its policy to tackle bullying. But the school says its solicitors have been unable to get details of the proposed claim, despite being notified three months ago that it was being made.

Though it did not want to comment on issues concerning a child's welfare, the school said it had taken the complaints by the pupil and his parents "very seriously".

"After a thorough investigation following established procedures, the parents disagreed with the conclusions and threatened to sue," it said in a statement from Berrymans Lace Mawer, the solicitors instructed to represent it.

"Ours is a caring school and the boy has received considerable pastoral support throughout."

Mrs Thomson said she and her husband had spoken to teachers at the school and Priscilla Chadwick, its principal, many times. However, she claims no satisfactory conclusion was reached.

"They seem to believe that it is just John's perception of the behaviour of the pupils and deny that bullying goes on there," said Mrs Thomson.

"John remembers quite clearly that it started when he invited three pupils home who then started to tease him about being a poor little rich boy.

"We do live in a big house, but we are not snobs. Last week someone came to the door when I was cleaning the letter box and asked if the lady of the house was in," she said. "Plenty of the pupils have well-off parents but this boy decided to pick on John."

Their son reported the bullying and a master spoke to the boys. "Two of them stopped but the other one carried on," said John. "He used to wait until I was on my own and say things, or just laugh at me.

"I tried to deal with it and kept thinking that I only had to keep going until I was 16 and then we would be split up in the sixth form."

But he claims it got worse last year, when he reached the sixth form, and one of the boys started to intimidate him by standing outside the door of his "house room", a rest room for students, who are divided into groups, or "houses".

The school, whose former pupils include Graham Greene, Michael Meacher and Emma Fielding, prides itself on its Christian ethos and aims to provide a good, all-round education, including a strong entry to the Duke of Edinburgh's Award Scheme.

But John claims that it started to take the problem seriously only recently.

"The ethos of the school is great for those who feel confident and are strong characters. Those who are not confident as a result of bullying in the school and those who are slightly weaker in character are having a terrible time," he told the chairman of the school's governing body in a letter last November.

John left the school after his AS-level exams and started at another one earlier this month. source