The Trust and beneficiaries came into conflict with Natwest in its role as executor and personal representative of the Savile. In particular the Trust – which was named in the will as the residual beneficiary of the estate and would have included intended bequests to charities such as Help for Heroes object to the way the Bank had allowed PI claimants (Slater and Gordon representing) to take precedence over the beneficiaries and the Trust and the exclusion of the Trust in setting up a compensation scheme ‘The scheme’ in consultation with PI claimants, and the third party defendants the BBC, the NHS , Barnardos and Mind.
The scheme was intended to assess claims and negotiate settlements within a set tariff so as to minimise costs, given that the there were limited funds in the estate, and that administration and prior legal hearing had already been significant.
The third parties had an interest in the estate, in that they would wish to recover claims made against them in whole or in part from the estate.
In the event the Trust were excluded from construction of the scheme, and received notice of it having been decided, subject to the ratification of the Court.
One of the central objectives of the scheme was to sift the good claims from the bad, in addition to deciding just how good in the sense meriting higher or lower payments within the tariff they were. To this end a barrister was to be appointed to assess the statement of claim and any medical evidence and other evidence in support or undermining. It was said that this was in the interest of the parties to the scheme, in the sense that unmeritorious claims would deplete funds in respect of meritorious ones.
An application to remove the Bank as executor was refused and the judge approved the scheme subject to one modification – that the Bank and Third party defendants had the express power to consider evidence from the Trust as to the merit of claims where there was information to be given. This was Clause 4:
“Clause 4 did not originally say in terms that the Bank and Third Party Defendants would be entitled to seek to obtain information about claims made under the Scheme from any other person who might have relevant information bearing upon such claims, but Mr Feltham for the PI Claimants assured me that this was properly covered by clause 4 as it stood, since that would be something to be done in making the assessment whether to accept or reject the claims. Since the individual beneficiaries maintained that they had information which might be relevant to assessing whether some claims were bogus or not, and were concerned that the Bank would not have regard to this in assessing such claims under the Scheme, I indicated that it seemed desirable to allay those concerns by making express provision in the Scheme allowing for this to be done.”
But the PI Claimants persisted. They said it was not possible for this scrutiny to take place. It would be unlawful, because so to do would mean the names of claimants would have to be disclosed to the Trust by the Bank, the BBC and others. It would appear so far as the PI claimants were concerned the sifting was strictly an internal affair.
PI Claimants maintained it was contrary to:
‘the Sexual Offences (Amendment) Act 1992 for the Bank or Third Party Defendants to identify to others a person who was making a claim in relation to sexual abuse.”
The learned judge reflected:
“I was concerned by this, both because no-one had presented any detailed reasoned argument to me to explain why this would be the effect of the 1992 Act (and I was doubtful, absent such argument, that it would be) and because it appeared to make the operation of the Scheme potentially unfair to the Trust and the individual beneficiaries, in that it might well in practice disable the Bank or Third Party Defendants from seeking from them information which could have a material bearing on the question whether a particular claim has merit or not.”
In the light of this key objective within the scheme itself, the parties were obliged to agree that:
“clause 4 of the Scheme should be modified to provide that any claimant wishing to make a claim under the Scheme will have to give consent for their name to be provided to such sources of information (including the individual beneficiaries) as the Bank and the Third Party Defendants might consider helpful to allow for evidence to be obtained to respond to the claim. I am satisfied that this adjustment to the Scheme avoids any problem arising from the 1992 Act in the operation of the Scheme and will allow for the possibility of appropriate access in the course of such operation to relevant information held by the individual beneficiaries and others.”
That the learned judge was puzzled by the reference to the Sexual Offences Amendment Act 1992 is hardly surprising. For this Act covers lifelong anonymity as to the publication of complainants’ names in respect of which criminal proceedings for alleged offences have been instituted.
This of course is singularly lacking in respect of the accused.
Even so it is usual or names of accusers to be disclosed in relation to the defence of civil claims, including the making of enquiries and sharing information and identities for that purpose, and in the sense that the executors are bound to act in the interests of estate and the beneficiaries, not just claimants (but including them in sifting the good from the bad for the sake of the good) it would be obliged to test the evidence in meaningful way which in turn means that naming and necessity are at one.
March 12, 2014 at 8:34 am
So it would seem that Slater & Gordon were demanding to be the sole arbiters of who was entitled to be a claimant in respect of alleged sexual assault- surely an obvious conflict of interest.
In addition if someone is accused of assault they have the right to know who their accuser is in order that they may provide a defense and in this matter surely that is no difference. Slater & Gordon appear to be sorely lacking in ethics and do deserve the label of ambulance chaser.
March 12, 2014 at 9:29 am
Very erudite Margaret Jervis. So what the law was really doing, until the Trustees objected, was facilitating the compo-cavaliers to just take the money and run, and nobody was even allowed to know them from Adam! Makes you proud to be British and no mistake.
“I’m the dandy highwayman who you’re too scared to mention
I spend my cash on looking flash and grabbing your attention
The devil take your stereo and your record collection!
The way you look you’ll qualify for next year’s old age pension!
Stand and deliver your money or your life!
Try and use a mirror no bullet or a knife! “
March 12, 2014 at 9:37 am
… and of course what makes this especially pernicious is that Savile never even did the things he has been accused of.
Truly this law of historical crime is a criminal activity of historic proportions!!
March 12, 2014 at 9:36 am
By the time all this legalising and arguing is over and done with……if ever, the only beneficiaries will be the legals and the bank with small portions left over……if any, for the poor anonymous victims of these mouldy old ‘crimes’, that are alleged to have occured so long in the past. No named charity to help the truly needy will get the benefit of his years of do gooding, that have been obliterated by his alleged do badding. Give up your names girls and go get the money that was due to these charities. Live with your conscience afterward if you are not a completely truthfully genuine claimant for personal injury.
March 12, 2014 at 10:51 am
Claimants have several avenues for pursuing ‘compensation’. The fact it deprives several charities which Savile must of thought long and hard about is pretty depressing. I believe very bad karma will descend upon those who are false claimants.
I do believe the claims in Yewtree and those by police, NSPCC upon no investigation will haunt the UK for years to come.
I do believe Anna Raccoon and Moor Larkin, rabbitway etc will one day be able to hold their heads high.
March 12, 2014 at 11:14 am
Head held very high “onwards” ! x
March 12, 2014 at 2:14 pm
High on a pole if some get their wily way………… ……….
March 12, 2014 at 6:33 pm
The avenues are given in the judgement. The Scheme is an agreement between the potentially liable parties to subvert litigation in the courts, which would allow for the ‘Rolls Royce’ scrutiny (no irony intended). But this was an option. However it was pointed out that if this failed the costs would be the responsibility of the claimant. So whether any would wish to take a punt on this (meaning, in terms, PI lawyers) is doubtful. Thing is the third party defendants are wedded to the ‘Scheme’ in order to limit their own liability and to recover from the estate where possible through indemnity. It would seem therefore that there is one rule for the ‘Scheme’ and another if individual suits are brought against the BBC etc. This may not please all claimants if they think they are being shortchanged by the ‘Scheme’.
March 12, 2014 at 11:25 am
I can see the issue of disclosure of names causing difficulty —legally and ethically—–and that it should be addressed with sensitivity —-I suggest its wrong not to acknowledge the principle of anonymity of a victim of an alleged sexual assault because the law acknowledges it —I think Slater and Gordon took the point badly and in too heavy handed a way and lost and in so doing may (I don’t know the details adequately to aver positive failing) but there could or might have been opportunity to procure undertakings that protected anonymity in so far as it was not detrimental to addressing the issues in hand. A slick lawyer on the other side might have offered these undertakings on notice that the anonymity point was being taken –but if one finds ones opponent a little self righteous and believing they know not just better than one does but the Court itself,—-and might seek to negotiate and construe the undertaking too restrictively its sometime best not to extend too much kindness and courtesy since it is misconstrued. Oh gosh they say criminal law is a middle class game played with working class pawns —increasingly this sounds like a game of middle ages inter village football with television commentary.
March 12, 2014 at 7:19 pm
People who complain of sexual assault and rape are not given anonymity before the UK courts, it is just that there are reporting restrictions on broadcasting the names of the accusers. The UK would be better off to move to the US system, by which there are no restrictions on reporting, but the press doesn’t disclose such identities unless there is a public interest in doing so (however that is interpreted.)
The other fact that this discussion seems to be overlooking is that in a criminal trial a case may be made based on similarities in the offender’s modus operandi described by multiple witnesses that could not be coincidental or the result of collusion. For example if the defendant always shouts “nah then, nah then–boys and girls!” as a he approaches a sexual climax, this could be a tell.
In the US pedophilia trial of renowned entertainer Michael J*cks*n these even came down to descriptions of markings on his reproductive organs that could only have been known to his close friends. In the impeachment trial of B*ll Cl*nt*n a well known bon viveur and head of state, there was evidence as to whether his penis was left-leaning– an issue aken very seriously in a country as conservative as the US.
March 12, 2014 at 7:34 pm
@ if the defendant always shouts “nah then, nah then–guys and girls!” as a he approaches a sexual climax, this could be a tell @
You are awful…..
But I like you….
March 12, 2014 at 8:10 pm
On the other hand if there was evidence that the accused never used his TV and radio catch phrases when off duty, but actually spoke with an Oxbridge accent, that could undermine the allegators.
Fact of the matter is that Yewtree has held the witness affidavits close to its collective chest, and no one yet has the faintest idea whether the allegations are backed by credible details or whether they are just the kind of garbage we saw in the Roache and LeVell trials. And, as the court seems to have pointed out, to get damages you also need proof that damage occurred and that it was caused by the actions of the person sued.
March 13, 2014 at 8:01 am
@Jonathan Mason You are quite right and my use of the word anonymity (which I picked up from the title of this piece) was poor in context . I disagree though with your contention that the system in the USA is necessarily better. I remain of the view that allegations are dealt with with sensitivity —-that goes for both complainant and accused —-what useful purpose is served by public debate within a personal context? —-I suggest publicity of the individual leads exactly to the outcome of the Savile case —trial by media —-and I suggest that is against what I believe to be the public interest—justice being more important than entertainment. The time for public debate is when general principles are being framed —the core principles that reflect Society’s values or the values Society aspires to.
Two interesting points unknown to me previously the evidence in the J*cks*n case and Savile’s usual speaking accent —-I have heard that Mick Jagger when in private is more urbane middle class than loud rocker.
March 13, 2014 at 8:51 am
On reflection neither anonymity nor reporting restrictions encapsulate the point I think might be worth consideration which really is the exercise of discretion about publicity in the interests of both parties in proceedings . —rather than in favour of individual interests —either party,—- or the sale of newspapers —or the glorification of the Police or CPS.
I wonder if anyone else has noticed the genre of television which is increasingly popular —as cheap to produce as cookery programmes no doubt—-and that is programmes about the day to day of running of the emergency services —with a particular slant that I see as encouraging the view that Society is so dire that greater powers of control are needed coz there are just sooooo many bad guys are out there —yes bad guys are out there but Society by nature under such tension or merely by repute?–perhaps the same sort of repute that Savile has posthumously acquired
March 13, 2014 at 1:19 am
As pointed out by others, claimants / victims are not granted anonymity except from publication. Anna’s previous article about Derryn Hinch also shows that even journalists can deliberately or mistakenly publish confidential details even when ordered by a court not too.
This matter also shows up the difficulty of publishing an accused’s name as well. It is claimed this gives the opportunity for same style evidence from other accusers to come forward. But what if the accuser is a serial false claimant ?.
Why should not the accused have , at least, the exact same opportunity to publicly trawl through the life of those who accuse them ?
The dangers of the “you will be believed” mantra are becoming more evident by the day. The anonymity should apply to both- the accuser and the accused. It gives power to one the other does not have. In Sydney at present a former soap star is on trial for assaults and the current accuser being questioned is almost bragging about the fact they sold TV and tabloid interviews and it seems from evidence emerging, were possibly being fed information by police.
And why are we not being told the details of Savile’s alleged crimes ?. There apparently were far more claimants than those who were accepted as the police outrageously decided he was guilty. How absurd or incorrect were those who did not have their claims accepted?.
On Jonathan King’s website he notes that during his trial a man contacted police to say that King had one day picked him up while he was hitchhiking and gave him a lift a few miles down the road and wondered if that was that some sort of assault.
The police / NSPCC have played a dangerous and very damaging game in this matter.
March 13, 2014 at 8:12 am
@Eric Hardcastle –This matter also shows up the difficulty of publishing an accused’s name as well.
I agree completely —its for the police to investigate not the media to canvas —and the police to investigate without encouraging. There are issues of proportionality but I wonder if a combination of the adversarial system and the extensive media is not something of the perfect storm One can’t legislate responsibility respect and decency and its a mistake to think that however much paper legislation is generated one can get good outcomes without them.
March 13, 2014 at 8:21 am
I think the statistics in France are that about 30% less cases than the UK actually proceed to trail under the Inquisitorial System. I doubt the French are nay more or less unlawful than the Brits.
March 13, 2014 at 8:22 am
My erratic typing is annoying me : I think the statistics in France are that about 30% less cases than the UK actually proceed to trial under the Inquisitorial System. I doubt the French are any more or less unlawful than the Brits.
March 13, 2014 at 9:49 am
The press media and the private legal firms actively co-operate. With the advent of advertising in the UK most legals firms will now have a press liason anyway. Some of what is going on may be all part of the growing pains of the de-regulation of British law. In relation to the sense of morality mentioned/implied/suggested by Fat Steve I suspect lawyers are specifically trained to follow the law rather than their conscience and thus the pursuit of money will always trump any other notions, where money is the motivator for their client. It seems very obvious to me that a piece of legislation to cut the link between Criminal law and Civil law would resolve most of what is going wrong over here. If a complainant wants to invoke the Crown then they should then remain with the Crown and accept whatever compo may be available via the Crown’s Compo System and they should then be directly unable to then pursue claims via any civil outlet. They always claim not to be interested in money anyway. The reverse is in force at the moment, whereby if a claimant accepts Criminal Compo they have to pay it back if they accept civil compo, so my suggestion is just an extension of principles already in force.
Another possibility would be that any civil action should then also have to entirely reimburse the criminal courts costs for whatever the case was that enabled the civil action to gain traction in the first place. Preferably that money should come from the fees garnered by the lawyers rather than the complainant. That would exercise the minds of the compo lawyering fraternity. The vast majority of civil compo cases never go to any court anyway. They are just a trade-off in cash between the civil lawyer and a Liability Insurance Company and it’s all relying on the Criminal cases that Joe Muggins’ like me have to pay for.
March 13, 2014 at 9:51 am
I don’t know enough about the French system or the values or structure of French Society to comment and I am always a little wary of statistical analysis. I practiced law within the adversarial tradition and I don’t see too much wrong with it in principal in many ways —- just the way it is increasingly practiced.
It was a system that was devised for administration on a local basis —hence within the criminal law the assize system at the highest level and Magistrates at the lowest —and was capable of delivering some form of justice in that context —within the way Society has become considerably less localised? I think probably it can but not without considerable reform.
I suspect my grammar and punctuation (from what my children tell me) is considerably more erratic than your typing
March 13, 2014 at 10:16 am
You are not totally wrong Moor Larkin about lawyers chasing the money but not solely for greed —often for survival —-the financial mathematics of legal practice lead in part to the outcomes that are presently experienced. Arrrggghhh that press officers are thought essential to successful legal practice
An interesting and totally novel idea to split the civil and criminal systems and it might address some issues but so radical is the idea I can’t really comment.
But I wonder if structural reform of the legal profession (amongst other things) might not produce greater equality of arms –a limitation on the size of Solicitors firms —perhaps in criminal and some common law matters —independence and personal responsibility at the bar was guaranteed by barristers being sole practitioners loosely affiliated under the chambers system.
If the first duty of any lawyer was genuinely to the Court rather than his client or his partners then one might have a system that could be brought under some sort of control.
March 12, 2014 at 11:38 am
* very bad karma will descend upon those who are false claimants. *
There have always been frauds and con-men and there always will be. A humane Society defends itself against them in a humane way, using facts and reason and so refusing to enter their made-up world. The complete abandonment of those principles of Fact and Reason by the policing and legal establishments of the Crown has left Society prey for the criminal classes, of which plainly lawyers are now among, along with bankers and other over-paid elites that have created an aura of invincibility around themselves in recent decades. The fantasies about the “power of Savile” merely reflects their own world-view, wherein they know that they can get away with anything, and so assume others are just as capable of it, and would want to own that power.
Our civic governance has become far more dangerous to us the people, than our political governance. UK Politicians have been reduced to puppets only able to sign off endless Inquiries, which can be profitably pursued by the same echelon of civics that created the perceived need for the inquiry in the first place and can be guaranteed to back up their mendacious buddies.
March 12, 2014 at 1:24 pm
Re: “There have always been frauds and con-men and there always will be. A humane Society defends itself against them in a humane way, using facts and reason and so refusing to enter their made-up world. The complete abandonment of those principles of Fact and Reason by the policing and legal establishments of the Crown has left Society prey for the criminal classes, of which plainly lawyers are now among, along with bankers and other over-paid elites that have created an aura of invincibility around themselves in recent decades. The fantasies about the “power of Savile” merely reflects their own world-view….” etc
March 12, 2014 at 11:50 am
A humane Society defends itself against them in a humane way, using facts and reason and so refusing to enter their made-up world.
True Moor Larkin and I suggest humane requires kindness, courtesy and understanding in the first instance ……..but malice ……malice for action (but not malice for the individual necessarily) when those humane principles are abused.
March 12, 2014 at 12:50 pm
Sally Stevens put it very succinctly the other day I thought:
“… it is legally concerning that these claimants have been allowed to progress this far without a hint of proof, just because they say so. This is the worst aspect of encouraging people to come forward, saying things like “You will be believed,” which should be modified in the case of a deceased defendant, such as Jimmy, to “Well, we’ll have to proceed on the assumption that he didn’t do anything, because that’s the law. However, if you wish to retain counsel and proceed against the accused’s estate, then expect there to be a LOT of questions to answer.” So far, these claimants have done nothing to prove their case. This is all happening on their say so.”
March 12, 2014 at 2:36 pm
@Moor Larkin A humane Society is judged as much (actually there is much academic research on the importance of funerary rights and the respect accorded to the dead in any Society as a measure of it and its values)) by how it treats its dead as it treats the living. I hold no brief for the way Savile has been treated in death —-quite quite the contrary and its symptomatic of the absence of kindness courtesy and respect that I set up as an important aspect of an humane Society. Reason and Fact alone would indicate what does it matter for the dead are the dead ?
March 12, 2014 at 3:02 pm
Jimmy Savile famously remarked “Bollocks to my legacy” when asked in 2001 how he would feel if after he was dead it was said he was a necro-paedo-phile. The fact that he was being asked, and was used to answering, such a question ten years before he died, suggests that he well knew the hatred lined up against him and that only his life stood between him and his defamation.
March 12, 2014 at 4:09 pm
‘Bolix’ more precisely according to the quotation in your rather interesting blog —having read it I must fervently hope that none of your children takes up with a fabian
March 12, 2014 at 4:33 pm
Bolix is a journalistic nicety I think. I suspect Sir James knew that of which he spoke………..
March 12, 2014 at 12:02 pm
What happens if the claimant does NOT give consent to their name being provided to the BBC etc ?
March 12, 2014 at 2:45 pm
More worrying is what happens if none of the claimants give consent and someone takes the point on their behalf (Gosh which Feminist will it be I wonder) that the Civil Law gives inadequate protection to victims of sexual assault —relying of course on the criminal legislation. I reckon it would have been smart practice to have given those undertakings I suggested might have been given just so such complaint could get legs. Liz Dux on Newsnight tonight as soon as she reads this post?
March 12, 2014 at 4:03 pm
I shall digest these recent posts and ponder upon the same
G the M
March 12, 2014 at 6:51 pm
One of the points not covered in this piece – and they are legion – is that the judge ruled that ‘claimants’ were effectively equivalent to creditors in insolvency disputes and should take precedence over beneficiaries. Although he recognised that there was no equivalence, he allowed the principle to prevail. This means that if a person makes a claim against a deceased person’s estate, even though this claim may be totally unfounded, it will be considered prior to the testator’s intended beneficiaries, with of course the resultant costs depleting the estate. In this he is effectively equating a documented unpaid debt in life with a hypothetical ‘debt’ by way of posthumous claim of abuse and damages, which could of course have a wide bearing on any future posthumous claims regarding any estate. This I would think was the gravamen of the judgment. And personally think it was decided on such question-begging basis that it ought to be subject to appeal as a matter of law and principle. Testators beware!
March 12, 2014 at 7:13 pm
if a person makes a claim against a deceased person’s estate, even though this claim may be totally unfounded, it will be considered prior to the testator’s intended beneficiaries @
This principle came into play when Georgina Ray showed up claiming to be Jimmy Savile’s daughter didn’t it? I recall reading someplace that if she had not stuck her not inconsiderable nose in, then the Estate would have been fully distributed long before ACPO/NSPCC and Williams-Thomas had constructed their tissue-thin “Exposure” charade. Far be it from me to suggest the dreaded Conspiracy Theory, but she was a very convenient Untruth for the legal jackals now snapping their nasty teeth in the hope of a bite of the dead big beast. I guess the world is full of such coincidences – enough to drive one dotty I imagine.
March 12, 2014 at 7:48 pm
Yes – have no idea about this Reay intervention , but it was that that extended the time limit on the distribution of the estate. Of course if it could be proven there were a conspiracy to this effect, then the entire shebang would be negated. And more. There is of course also the co-incidental JGE v Portsmouth diocese case in the courts which I have previously mentioned as to relevance and synchronicity/coincidence.
And just by way of coincidence, just before the instant case judgment was published, with the parties knowing the arguments and the decisions of the judge, there was a strange bout of scaremongering about anonymity re the BBC Janet Smith review and the ‘Sex off Act’ by Mark Williams-Thomas which appeared to have been responded to positively by Liz Dux – otherwise known as ‘PI Claimants’ on Twitter. I won’t go into this as others have the necessary evidence. But it appeared that Dux, without any scrutiny of her own, was underwriting this ‘scare’ by MWT.
Independent enquiries with the review established that this was unfounded and that MWT would be written to accordingly.MWT made no comment on this on Twitter having deleted a demand of an apology from me as to questioning this requirement (all in good faith ,I did not have any access at the time to the Chancery case or judgment ) but failing to apologise to claimants and others including me.
Dux made a dislocated comment about it being confirmed as to anonymity by the BBC. But of course Dux would have been intimately acquainted with the arguments of PI claimants in the case as they were hers. And accordingly in the tweet ‘exchange’ she might have been minded to question what the ‘Sex off Act’ cited by MWT was – was it the very same shroud waver that had failed to convince Mr Justice Sales?
We don’t know because despite being asked on Twitter, MTW would not reveal details of this nor the ‘Item 5′ which he claimed obliged ‘victims’ (claimants) to forego ‘anonymity’ – thus obviously raising unfounded alarm that claimants wouldaahve their names plastered across the the mainstream media. It all sounds like a pre-planned conceit to