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The government spent more than $3.5 million defending itself against historical abuse claims in the past decade.
The figure – obtained under the Official Information Act – includes the legal fees Crown Law charged the government between 1 January 2014 and 1January 2024.
Fees from Crown Law Office ($1,513,384.55), external lawyers ($1,639,352.81), silks ($247,372.89) and instructed barristers ($121,986.05) came to a total $3,522,096.30.
It’s just a snapshot of what the government has spent fighting survivors in court over the years, given litigation stretches back beyond the time period captured by the request.
Many significant cases, like the White trial, came before this decade bracket and the government has also spent money on associated programmes, like the Crown Response Unit.
Abuse survivor and advocate Keith Wiffin said the true spend would be much higher and believed it was a complete waste of public money.
“When you look at this in its entirety, going back many, many decades for which we’ve had resistance, denial and minimisation, the cost of this will be astronomical.
“So it does feel like a tip of the iceberg to me and the really sad thing about that is it’s been a monumental waste of taxpayer’s money because it hasn’t brought about solutions and just and fair outcomes for those who’ve suffered.”
In two weeks’ time the Government will deliver its apology, a significant milestone for survivors’ decades-long battle for recognition and redress.
Part of this battle has been litigation, where survivors have taken government departments to court and the Crown has fought back.
Since May 2005, Crown Law has handled abuse in care cases in line with a “litigation strategy” directed by Cabinet and most recently updated in December 2019.
This strategy includes requiring agencies to resolve grievances early and directly with individuals, to consider settlements for all meritorious (likely to win) claims and for these claims to be full and final without admission of liability.
Wiffin said survivors went up against “massive” Crown resources in these cases and often came out the other side worse for wear.
“It has caused harm because it’s an adversarial model that re-traumatises all those that have to go through the process.
“And it’s often done by the Crown with the full knowledge that these are meritorious claims which they are duty bound to find solution to outside of litigation.”
The Royal Commission criticised Crown Law’s handling of meritorious claims in its final report; finding the agency did not comply with the litigation strategy it had been set that required it to settle such cases.
One such case it referred to is the White trial, where two brothers – known as Paul and Earl White – brought a claim to the High Court in the mid-2000s, for physical and sexual abuse they suffered while in boys’ homes in the 1970s.
Wellington lawyer and principal partner at Cooper Legal, Sonya Cooper, has been working on historical claims cases, including the White trial, for nearly 30 years.
Cooper said a $3.5 million spend on Crown litigation seemed “conservative” and likely reflected the fact that many cases stopped progressing during the Covid-19 pandemic.
She also pointed out the Crown Response Unit, set up to coordinate the Crown’s response to the Royal Commission, would have likely cost millions.
“I think if you add that, you’re probably talking closer to $10 million that the Crown has spent in legal costs defending the Crown.”
“You could be looking at as much as 50%, 30 to 50%, of what’s been paid to survivors that’s actually been paid out by the Crown to defend the Crown.
“That’s just deeply cynical and I think just actually shows what the Crown’s priorities have been and continue to be.”
Cooper said the Crown had known it couldn’t reasonably defend itself against claims for decades and continued to fight cases anyway.
“When you think about what could have been done for survivors, what should have been done for survivors, with that money, that’s probably another $20,000, $30,000 per survivor that could have been paid out, if not more.
“I just think it shows a lack of morality on the part of the government and on the part of the state that it has always defended its position and that it continues to do.”
$3,522,096.30 was spent between 1 January 2014 and 1 January 2024. Photo / RNZ / Nate McKinnon
The Royal Commission’s final report found political and public service leaders “spent time, energy and taxpayer resources to hide, cover up and then legally fight survivors to protect the potential perceived costs to the Crown, and their own reputations”.
RNZ approached Attorney-General Judith Collins last week, asking if she thought what has been spent in the past 10 years on litigating historical claims cases had been a good use of taxpayer money.
Collins did not directly answer the question, instead providing a five-paragraph response that referenced the Government’s policy of trying to settle abuse in care claims out of court.
“Litigation is not an easy process for claimants bringing historic abuse claims and there are many legal hurdles faced by abuse in care claims, as the Abuse in Care Royal Commission noted,” she said in the statement.
Wiffin said the Crown should stop this type of litigation immediately.
“For the most part, as far as I can see, this is trying to defend the indefensible in that these are often obvious, meritorious claims.
“So for me, it’s about an attempt to abdicate taking full responsibility. That money should have been invested from day one in seeking solution and achieving just and fair outcomes for those who suffer.”
Both Wiffin and Cooper expressed hope that the Government’s apology next month would bring a different approach to recognition and redress for survivors, though both were sceptical about this actually happening.
