When an ‘out of court settlement’ is announced, it may appear to outsiders that a resolution has been arrived at by two warring sides. What may not always be clear are the nuanced pressures at play, pressures which give us clues to the limitations of the civil court process as a tool for openness and justice.
Civil claims are based on financial settlements – and only things that can be measured in financial terms under certain ‘heads of loss’ are considered as part of a settlement. That applies to both a settlement reached at the end of an open court process, and to an out-of-court settlement.
There can be additional outcomes – statements, policy recommendations, as well as the all-important judicial and public scrutiny – but the framework for the resolution process is primarily financial.
So if your life-plans have been de-railed by an undercover officer, you are only able to be compensated for the impact that can be measured in financial terms. For example, if you can prove your career has been derailed by the experience, you can claim for potential loss of earnings. If you can prove you’ve suffered psychiatric damage. there is a head of loss you can claim under. However, other losses may be impossible to measure in these terms. You cannot claim for the loss of opportunity to have children. You cannot claim for the emotional devastation.
This is hard. It is brutal. And it is a limitation of the system.
Unless your entire life (also in financial terms) is to be put on the line, and since getting legal aid is difficult, your case may need to be funded in other ways, for instance underwritten by legal insurance. Before anything goes to court, or is agreed out-of-court, a legal insurer will be making decisions on whether to gamble that you will win, so that they can avoid paying out (as with any form of insurance).
If you are offered more money out-of-court than the insurers or your legal team think you will get in open court, you may have little choice than to take the settlement, because the insurance company may not back you to go any further in the court process. All along, you will need to pay very close attention to your legal advice if any funding is to continue. If you proceed against the advice of your legal team, you could not only lose your funding, but also be liable for all the costs incurred by the other side from that point on. So, rather than be compensated at the end of the process, you could be bankrupted, and could lose any assets you may have.
This is also hard. Especially if your goal in bringing a case is to have events examined by a court, in the hopes that the court will recommend remedial action – for example, changes to a public institution – as well as financial compensation. A public institution with big pockets may be able to escape scrutiny, and therefore escape change.
So far this is what has happened in some, but not all, cases involving the actions of undercover officers who had long-term relationships with those they were targeting. The police have so far escaped scrutiny by the civil courts, and are attempting to escape change. They have made some important statements which may have changed the frame of the debate on undercover policing, but have provided nothing in the way of significant disclosure in any case brought so far.
Add to these two pressures a third: that the courts will always encourage the two sides to come to settlement by themselves, to save on court time and costs. And a fourth: attempts to come to settlement are done in mediation processes which are confidential. Neither side is able to disclose details of the negotiations. The confidentiality is crucial to the process – as part of ‘without prejudice’ discussions, a recognised way of seeking resolution – but a side-effect is that, yet again, secrecy abounds.
All of this might suggest that it’s not worth bringing civil claims. But those who do so have few options, and understanding these pressures help the rest of us realise the courage and tenacity it takes to fight a case. It may also help us understand why all of those who have settled so far say that the financial settlements are not worth as much as answers.
Those who have enough evidence to bring cases have done so to get answers as to why private abuse was done in the public name – and also in the hope of getting action to prevent it from continuing. They ask the courts, in good faith, to take on these questions – and if multiple public institutions fail at this task, it’s up to us, the public, to make changes to get the answers we all deserve.
More background information: Why civil cases?