National Westminster Bank PLC v Luke Lucas & 5 ORS (2016)
The court approved payments from the estate of the late Jimmy Savile in satisfaction of claims made by the victims of sexual abuse perpetrated by him.
The scheme had been set up to deal with claims by a significant number of individuals that they had been sexually abused by Savile. The claims were made against the claimant bank, being Savile's executor, and against certain third parties on whose premises the alleged abuse had taken place. The scheme provided for the making and processing of claims and the assessment of compensation where claims were admitted. It also provided for compensation to be calculated by reference to particular tariffs, the amount of compensation depending on the seriousness of the assault. The scheme also made provision for the costs of claimants. It provided for the payment of £10,000 per claimant for certain claimants where those costs were incurred before the approval of the scheme. Future costs were provided for by a tariff. In each case, a claimant was entitled to recover the costs subject to the approval by a Chancery judge of the agreement of the bank to such costs. The scheme also stipulated that any agreement to the payment of a claim would only be made if approved by a Chancery judge and that no distribution of the estate would be made without the approval of a Chancery judge.
Given the evidence the court had heard about the scrutiny given to the claims and the manner in which settlements were reached, it would be appropriate to approve the agreements by the bank to make payment. Although the court had a discretion to refuse to approve a settlement which fell within the tariff, it was not appropriate to go behind the tariff amounts given that acceptance of liability for a particular type of assault listed in the tariff was justified. Similarly, it was not appropriate to go behind the costs tariff contained in the scheme. Accordingly, the amounts of the settlement agreements and the amounts of costs would be approved. Approving the distribution of the estate in the manner sought by the bank would mean that the claims of potential claimants whose claims were not satisfied by the distribution would be irrecoverable. The claims affected were out-of-time claims already intimated, claims which had been rejected and out-of-time claims not yet intimated. A line had to be drawn somewhere. The bank could not be expected to retain assets indefinitely against the possibility of proceedings being commenced in relation to any of the three types of claim. As to the first two types, they were all now time-barred subject to the power under the Limitation Act 1980 s.33 to extend the time for bringing proceedings. Those potential claimants had known of, and had intimated their claims, months, and in some cases, years ago. They had had every opportunity to bring claims but had not done so; and they had failed to do so notwithstanding that they knew, or must be taken to have known, the time for bringing claims under the scheme. Importantly, by raising claims under the scheme, the individual concerned had shown that he had knowledge of a claim which could, in the alternative, have been made in court proceedings. Once the claim under the scheme was rejected (whether on its merits or because it was out of time), it was incumbent on the claimant to get on with his claim, seeking as part of his proceedings an extension of time under s.33. If a claimant delayed in taking proceedings, as all the relevant claimants had done, he could not expect the court to delay the distribution of the estate. The position of potential claimants who had not yet intimated a claim was even weaker. The scheme had been widely advertised and, quite apart from such advertisement, the media exposure was so great that it was difficult to imagine that a person with a claim did not know that he could make it through the scheme. In any case, the bank had made formal advertisement for claims. The statutory protection for an executor who distributed after such advertisement in the absence of knowledge of a claim pointed strongly to the conclusion that the court should approve the distribution notwithstanding potential claims of the third type. Authorisation would therefore be given for payment by the bank of the agreed settlement amounts and associated costs out of the estate (see paras 31-34, 54 of judgment).