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Update Bulletin - September, 2007

Re: PTSD Group Action

I have now received the advices of Senior Counsel in relation to the judgments of 29th June and 3rd July and he has advised, as requested, in relation to 2 specific matters:

1. An appeal against the findings of Mr. Justice Coghlin; and

2. How to deal with the remaining individual cases.

I will summarise for you the advice which we intend now to follow:-

1. The Appeal

As you are aware Mr. Justice Coghlin found in our favour in relation to a number of issues, in particular, training, culture and treatment and in these respects the Chief Constable failed to discharge his duty of care. Clearly we are delighted with the success on those issues and an appeal is not necessary.

One of the issues on which the judgment appears to have ruled against us is the issue of resources. Mr. Justice Coghlin recognised in his judgment that the main problem faced by OHU was, as we alleged, a problem of under-resourcing. We concluded, however, that this was not the Chief Constable's fault, but may have been the fault of the PANI or NIO. He held that since neither was a party to the Action he could not make a finding against them. This is the main finding against which we will appeal. It is our view that the finding was wrong, that the Chief Constable's duty could not be delegated and that, in any event, no evidence regarding this issue was called by the Defendant.

Regrettably, there is one major issue which was lost and that is in relation to the pre-1986 period. The Judge rejected our submissions to the effect that the Chief Constable should have been aware of the risk to the health of officers from exposure to traumatic events before the establishment of the OHU. This part of the judgment was devastating, not least because it ruled out claims for some of the worst affected people. We have reviewed at length the evidence and the findings on the issue and it is with great regret that I have to report that we cannot find sufficient evidence on which to base an appeal. This letter is designed to inform all of you of the position and therefore it is not appropriate for me to go into further detail here, but I will write separately and individually to all of those who fall into this category to explain the position further.

The final point in relation to the Appeal is regarding the lead cases. As you are aware we were dismayed and also perplexed at the lead case judgments which were given several days after the generic judgment. There were, of course, lead cases which were difficult, such is the nature of selecting representative cases in a group action, but it was disappointing in the extreme to lose all ten cases. It left many of you confused and it is difficult to provide a logical explanation. The difficulty, however, in appealing the lead cases is that they were decided on a factual basis and it is always difficult to go to the Court of Appeal and challenge a finding of fact.

Senior Counsel has advised, however, that there are a number of lead cases where there are grounds for an appeal, largely on the basis that the cases have been decided without fully taking into account the generic findings. We are therefore proceeding with an appeal in 5 of the lead cases on limited grounds.

2. Directions for the remaining cases

It is Senior Counsel's advice that it is plain, on the findings made by Coghlin J. that some of the remaining 5000 cases are bound to succeed.

The difficulty, of course, is that, because of the findings in the 10 lead cases, the Defendant is currently taking the view that each case will have to be fought individually. Clearly this is a massive task and is contrary to the whole basis of a Group Action. In these circumstances we believe that there is a real need for the parties to mediate to see whether a workable resolution of the claims can be achieved.

In the past the Defendant has not made any attempt to resolve the matter by mediation. Senior Counsel has therefore advised that a summons for directions should be issued. This means that we would be asking the Court to direct that the parties should mediate and also give directions as to how the remaining cases should be resolved.

As a result of the advices of Senior Counsel we will lodge a Notice of Appeal by 30th September and also issue a summons for directions, the latter to be heard as soon as possible.

The position will have to be reviewed after those steps have been taken and after the reactions of both the Court and the Defendant have been ascertained. If the Appeal proceeds it is unlikely to be heard until early 2008.

I very much regret that I am not in the position I had hoped to be in at this stage - i.e. to be able to provide answers to the many questions and to give some guidance regarding the individual cases. Unfortunately the judgment did not provide clear guidelines, but we hope that the directions which we will now request from the Court will give some guidance as to how the cases should now proceed. It is our hope that the Defendant will enter into sensible discussions as to a way forward.

I shall update you further as soon as I am in a position to do so.

Yours faithfully,

EDWARDS & CO.,

Dorcas E.A. Crawford.