Legal

The third way

Schools are often the subject of litigation. Whether with personal injury claims or judicial review proceedings, litigation is distracting, time-consuming and a drain on schools’ limited resources, writes Peter Wake

Two sorts of claims have become increasingly prevalent recently: failure to educate and bullying claims. The former might be described as claims relating to a school’s alleged failure to address a pupil’s educational needs. The latter is typically an allegation that teachers have failed to take adequate steps to protect a pupil from bullying. To establish that a teacher has been professionally negligent is difficult and funding is not readily available.

This litigation does not lend itself to the infamous “no win, no fee” funding of standard personal injury claims. The Legal Services Commission is cautious about providing public funding. Claims of this type are frequently funded by a family as the claimant does not have the requisite means.

If the school defends the claim successfully, it can end up in a position where it cannot recover the substantial legal costs from a claimant without funds. Attempting to recover costs from any third parties who funded the action can be considered, but is it a case of throwing good money after bad?

Bully for you
This was a decision facing Berkhamsted Collegiate School recently (Thomson v Berkhamsted Collegiate School QBD 2009). The school was sued by a former pupil for failing to prevent his being bullied. The claim was discontinued two weeks into the trial, leaving the school with a costs liability of around £250,000. The claimant was ordered to pay it, but could never realistically do so. Part of his claim was that he was rendered unemployable as a result of the school’s alleged negligence.

The school believed that the parents were the driving force behind the litigation; not simply because they funded it but because they had clearly been upset with the school and arguably had an agenda of their own.

The parents had considered independent legal action against the alleged bullies and had previously threatened to sue the school. The evidence in the case indicated that the parents were, in fact, directly concerned with the facts of the claim.

Beyond expectation
Although the judge made it clear that a costs order of this type is exceptional, he was satisfied that the school had reasonable prospects of obtaining costs from the parents. He emphasised that such an order will not be justified in cases where the third party has merely funded the claim and that the Court has rightly been reluctant to impose such orders on well-intentioned family members.

His reasons for concluding there were reasonable prospects of an order can be considered to apply broadly to other similar cases:
• at times, the parents had also been considered the clients of Mr Thomson’s solicitor;
• the parents had intervened in the litigation and sought to control it;
• there was a suggestion of evidential input and manipulation by the parents;
• it was arguable that the parents had an agenda of their own;
• the claim was speculative, and could not have been funded without the parents’ assistance; and
• the parents had been previously warned that the school would seek costs from them.

Schools and LEAs are often forced to defend speculative but expensive claims brought by individuals that cannot possibly pay costs if their claim is unsuccessful. Often, in failure to educate and bullying claims, a relative will fund the action.

If such funding is simply a gesture of goodwill from someone who does not stand to benefit or seek to control the case, there are limited chances of recovering costs. However, this case should give potential funders pause for thought as there may well be occasions when a school can recover its costs from them.

Peter Wake is an associate in the local government team of Weightmans LLP. Peter can be contacted on peter.wake@weightmans.com or on 0151 242 6866.

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