{"id":3154,"date":"2024-08-01T14:21:29","date_gmt":"2024-08-01T04:21:29","guid":{"rendered":"https:\/\/testblogs.griffith.edu.au\/gci-insights\/?p=3154"},"modified":"2024-08-01T14:21:55","modified_gmt":"2024-08-01T04:21:55","slug":"redress-and-civil-litigation-myths-and-realities","status":"publish","type":"post","link":"https:\/\/testblogs.griffith.edu.au\/gci-insights\/2024\/08\/01\/redress-and-civil-litigation-myths-and-realities\/","title":{"rendered":"Redress and civil litigation: myths and realities"},"content":{"rendered":"\n

By Juliet Davis<\/a><\/p>\n\n\n\n

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There is a myth<\/a> that civil litigation is superior to redress schemes for institutional wrongs such as sexual and physical abuse.    <\/p>\n\n\n\n

This myth is supported by three claims:<\/p>\n\n\n\n

1. \u2018Civil litigation establishes legal liability and redress schemes do not.\u2019<\/p>\n\n\n\n

2. ‘Civil litigation can address all relevant wrongs and harms to victim\/survivors.\u2019<\/p>\n\n\n\n

3. ‘Civil litigation provides better outcomes for victim\/survivors.’<\/p>\n\n\n\n

These claims are misleading and must be challenged.<\/p>\n\n\n\n

First, let me briefly set out what is meant by redress schemes. To do so, I draw upon my work in the International Redress Project, led by Professor Kathleen Daly. Redress schemes are established by state and non-state institutions (such as churches). Most operate for a fixed period (1 \u2013 10 years) and have specific eligibility criteria. Successful claimants may receive a range of outcomes, including a money payment, apology, and counselling. <\/p>\n\n\n\n

Claim 1: \u2018Civil litigation establishes legal liability, redress schemes do not.\u2019<\/strong><\/h3>\n\n\n\n

This claim assumes that all civil litigation ends in a court judgment.<\/p>\n\n\n\n

A court judgment establishes legal liability. It also orders a money payment. However, only a tiny share of civil claims (less than 2% in institutional cases) end in judgment. Most civil cases are settled outside of court.<\/p>\n\n\n\n

It is unrealistic to focus on civil judgments when comparing civil litigation and redress schemes. Instead, we need to compare like with like.<\/p>\n\n\n\n

Judgments are court-determined. Settlements and redress schemes are not.<\/p>\n\n\n\n

Settlement agreements are negotiated between the parties and commonly exclude liability. Likewise, a redress scheme does not establish liability. Both involve the payment of money without a court order.<\/p>\n\n\n\n

It is a myth that civil litigation establishes legal liability, when only a tiny share does. We instead need to consider whether outcomes are court-determined or not.<\/p>\n\n\n\n

Claim 2: ‘Civil litigation can address all relevant wrongs and harms to victim\/survivors.\u2019<\/strong><\/strong><\/h3>\n\n\n\n

We are all aware of media stories<\/a> of individual survivors receiving high civil payments for institutional sexual abuse. You may have also heard that law reforms<\/a> have improved access to civil justice for sexual abuse, as well as physical and emotional abuse in some circumstances.<\/p>\n\n\n\n

These kinds of stories may lead people to believe that civil litigation is now open to addressing all<\/em> institutional wrongs experienced by victims. This is not the case.<\/p>\n\n\n\n

Sexual and physical abuse claims fit within personal injury law. However, many other forms of institutional wrongs do not, including perpetuating a climate of fear, humiliation, and control, and systematically failing to meet children\u2019s basic needs. Redress schemes can address a broader range of institutional wrongs than civil litigation.<\/p>\n\n\n\n

Claim 3: ‘Civil litigation provides better outcomes for victim\/survivors.’<\/strong><\/h3>\n\n\n\n

It is true that, on average, civil payments are generally higher than redress scheme payments. However, this is not always the case<\/a>.<\/p>\n\n\n\n

Even if we accept this claim, it is not sufficient to only compare average payments.<\/p>\n\n\n\n

We need to consider all the outcomes that civil litigation and redress schemes may provide.<\/p>\n\n\n\n

Civil judgments order money. Research with survivors<\/a> makes clear that money alone is often an insufficient form of justice. Money should form part of a group of measures available to survivors.  <\/p>\n\n\n\n

Redress schemes offer a range of outcomes that survivors have said they want<\/a>, including:<\/p>\n\n\n\n