Unlike in the employment tribunal, it is not necessary to show some sort of employment relationship in order to bring a claim to the court. All that is necessary is to show that the victim suffered damage at the hands of the trafficker.
Claims are often brought in the courts where it is not possible to show that the trafficking situation gave rise to any contract between the victim and trafficker. It is common to bring claims for instance for children or those working in sex trafficking in the courts.
The courts can only consider a complaint that happened within the last six years. For example, if a claim is presented on 1 December 2016 then the court can consider all conduct from the 2 December 2010 onwards. It normally cannot consider anything before that date.
Accordingly, if someone has been held in servitude for 10 years they can only claim for the last six years and can only recover compensation for what happened during the last six years. Further, for every week that they delay bringing a claim, their compensation will reduce by one week.
In certain situations it may be possible to argue that this six year limit should be extended. However the law in this area is as yet unclear.
Funding a court claim
Unless the claim is worth less than £10,000 it is very rarely advisable to bring a claim in the courts unless the victim has legal aid funding. This is because a victim who brings a claim against their trafficker in the courts will have to pay the traffickers’ legal costs if the victim loses the case. These costs could amount easily to tens of thousands of pounds. If a victim has legal aid funding, then they are usually protected from having to pay the traffickers legal costs.
A victim will usually need considerable support to obtain and then keep their legal aid funding throughout the case.
A victim will need to provide evidence of their financial situation. If they do not have bank statements etc. usually the support provider will need to provide considerable documentation. A victim may have to provide documents about income and assets in their home country as well.
There are very high fees in the courts. For instance, a claim for £100,000 (which would not be unusual for a victim) attracts the fee of £10,000. This will be covered by legal aid or if a victim is of limited means they may obtain remission from the fee so they do not have to pay.
Bringing a claim in court
Generally speaking, the court is a more formal environment than the employment tribunal and can be found more intimidating by victims. However, most claims, but not all, in the courts settle without going to a hearing. It is common for claims to be settled by way of a mediation session where the victim and trafficker do not have to meet.
The courts may apply special measures in a hearing to protect a victim from the traffickers for instance screens or perhaps video evidence. These options are more easily available for particularly vulnerable victims, for instance children.
The courts are very busy and many claims are subject to significant delay. It is not unusual for a claim against a trafficker to take well over one year.
A claim may be brought either in the High Court (generally if this is worth more than £100,000) or in the county court. If a claim is brought in the county court it may be brought at a more local hearing centre as opposed to a High Court in a large city.
While there is a good track record of victims obtaining compensation from their traffickers in the employment tribunal, this is not yet the case in the courts. Therefore, these claims are to some extent less predictable.
Claims which may be brought in the courts
The following are some claims that are available in the courts to victims:
- Personal injury
If a victim has suffered injury – whether it is physical of psychological -they may recover compensation. This will usually involve seeing a medical expert to discuss their history.
- Protection from Harassment Act 1997
‘Harassment’ is very widely defined. A victim can bring a claim for eg physical abuse, verbal abuse, sexual abuse, failure to pay.
- The national minimum wage
A court will consider a failure to pay the national minimum wage going back six years from the date the claim is brought. National minimum wage claims have historically formed the bulk of compensation paid to victims of trafficking. To illustrate, a victim who worked twelve hours a day six days a week for the past six years would be entitled to approximately £170,000 in national minimum wage back pay.
- False imprisonment/trespass to the person/assault
These claims are available in cases of physical abuse.
- Restitutionary claims
These are claims which permit a victim to recover compensation even if there is no contract between them and the victim; these can help victims in less clear cut situations.
Obtaining a residents permit
A victim may apply for a residents permit to remain in the United Kingdom and work while they are involved in a civil compensation claim against a trafficker. This is the case even where they have no other right to remain. It should be remembered that this resident’s permit will only last as long as the proceedings.
Supporting a client through court proceedings
Victims usually need considerable support during the court process. Bringing a claim requires no little tenacity and courage. Victims are likely to need support with the following:
- Obtaining and maintaining their legal aid entitlement.
- Attending appointments with lawyers, medical experts and the like.
- Emotional and physiological support following medical evidence; sometimes a victim’s trauma only comes out when they see a good medical expert.
- Attending court and mediation proceedings.