Based on my own dealings with Cooper Legal I obviously don’t have a lot of respect for the firm. This said, and to be absolutely fair, if it weren’t for Cooper Legal the Historic Abuse Claims, in many cases, would have remained buried and hidden from public view and as a result the MSD (Ministry of Social Development), ‘Care, Claims and Resolution’ process would likely never have been instituted, allowing plaintiffs/complainants to settle claims outside of the courts.
Additionally, it was always going to be a tough dynamic for Cooper Legal; taking on a government that was determined to fight against what was just and right – a “moral obligation” as that same government now likes to put it, but only after being out of pocket to the tune of millions fighting (how did they put it?) their “moral obligation” through the courts (one case alone costing the NZ taxpayer $740,696 in legal aid). This, no doubt, acted as powerful stimulus for the NZ Government to find cheaper alternatives to fighting cases through the courts.
Among other things, Cooper Legal’s work has been responsible for:
- 60 Minutes and other media coverage of abuse that occurred in NZ State run institutions – leaving the NZ Government red faced and ducking for cover. At least two of the men who appeared in the 60 Minutes coverage were quickly offered token settlements (I believe one settlement of $10,000 NZD and another of $12,000 NZD) which of course the Government went public with as quickly as possible (a cynic might conclude for reasons of damage control).
- A landmark case where Cooper Legal represented two brothers for abuse they suffered while in the “care” of the State. In this case, the judge’s factual findings favoured the claimants, but the Crown “escaped” liability on a technical legal issue – the Limitation Act (literally, their legal rights had timed out). This said, it cost the New Zealand Government $740,696 in Legal Aid alone to fight these two cases through the courts. Factoring in other costs (one case taking six years and another case eight years) this likely means the cases cost the NZ Government (the NZ taxpayer) in excess of (estimate only) 1.2 – 1.5 million dollars when factoring in court and defence costs. As of 2010-11 Cooper Legal made a statement to the effect that after exhausting all legal avenues in the NZ Courts they were looking at taking the brothers cases to the United Nations. (Chief Human Rights Commissioner Rosslyn Noonan has strongly criticised the NZ Government, regarding the statute of limitations they have invoked to escape legal accountability through the courts, with:“ The Government should not hide behind a statutory limitation barring most claimants from seeking redress through the courts for actions that occurred more than six years ago. The Crown is not obliged to invoke it. It has chosen to do so.”)
- Maintaining pressure on the Government and the Crown to settle the claims out of court, particularly through providing the Human Rights Commission with input into its review of the government’s response to “Historic Abuse Claims.”* (footnote 1)
- Submitting information to the UN Committee Against Torture surrounding the NZ State’s handling of historic abuse claims.
- Lodging a formal complaint (“Complaint regarding the Legal Services Regulations 2011 (SR2011/144)”) in parliament about the handling of legal aid in the “Historic Abuse Claims”. In this complaint it was outlined that, 1) cases could drag on for years and the existing LSA system was inadequate for these types of cases, 2) the paperwork required for LSA lodgement was extremely time consuming and that Cooper Legal had been forced to hire a new staff member to keep records etc to meet LSA requirements, 3) that many of Cooper Legal’s clients were unable to adequately fill out forms or meet LSA demands/standards due to reasons such as illiteracy, homelessness, alcohol and drug problems, mental illness etc. As Sonja Cooper notes in this complaint: “… why should the lawyer be penalised? I don’t know if you’ve seen a legal aid form lately, but they’re incredibly complex. They require a lot of information. Most of our clients struggle with literacy, and they’ve got alcohol and drug abuse problems, literacy problems, mentally ill. To complete a legal aid form, it’s hard enough, I think, for a lawyer, let alone a client, to complete… Often, too, we might wait for 3 months before Legal Aid comes back to us and says: “This form’s incomplete because you haven’t provided that information.” Why should we be penalised?” (A good point; however, given the situation, one could perhaps also ask why a system wasn’t implemented by the firm to guide plaintiffs through the LSA process/guidelines, and/or to check forms to ensure they were filled out correctly before lodgement with LSA?), and 4) outlining that too many of their clients were losing their legal aid, and/or not being granted legal aid on questionable grounds. This being noted on Cooper Legals website with: “Although we are making progress with your claims, legal aid problems continue. The Legal Services Agency is still trying to withdraw legal aid from as many of you as possible. The Legal Services Agency will use almost any reason to withdraw your legal aid. That means if you do not keep in contact with us, or you do not cooperate with us in terms of the work we need to do on your behalf, then the Legal Services Agency will use that as a ground for withdrawing your legal aid.” (Download parliamentary records of complaint)
- Being instrumental in creating an alternative way to handle the Historic Abuse Claims outside of the courts. As noted on Cooper Legal’s site under the heading “Out of court process” Cooper Legal note (2nd quarter of 2011): “ We have had two meetings with Crown Law and MSD officials to discuss how we might speed up the progress in terms of resolution of your claims. We have been advised that MSD is hoping to resolve, as a matter of priority, the claims of as many clients as possible who were in institutional/residential care. That will cover most of the clients of this firm. We have been given no timeframe, as yet, by MSD or Crown Law.”* (footnote 2)
With this in mind, it would be too easy to call Cooper Legal/Sonja Cooper an ambulance chaser who has grandstanded in the press raising her firms brand awareness, which was, just by coincidence, the second highest receiver of legal aid funding in New Zealand in 2010 – 2011 as a result of representing over 700 plaintiffs in the Historic Abuse cases.
This said, I must also reconcile with the fact that without the efforts of Cooper Legal many New Zealanders, like myself (albeit I left New Zealand many years ago and now am an Australian citizen), who were abused in state care wouldn’t have had recourse to any form of justice outside of the New Zealand ACC process which has been described as “demeaning, humiliating and flawed” – a process which, just by coincidence, was scrapped by NZ Government in 2010 as many of the Historic Abuse Claims were being settled with damning evidence to support said claims. Given this, it could be said that Cooper Legal championed a just cause in an unjust system. It’s really that simple…
Re Human Rights Commission Review of the Handling of the Historic Abuse Claims
Long promised but yet to see the light of day, the human rights report on the New Zealand Government’s handling of the historic abuse claims has been promised for quite some time. I.e. the Human Rights Commission, among other things, noting in a July 2010 Report (Report to APF15 – Significant Activities): 1) A review of the extent to which the New Zealand State’s response to historic claims of abuse while in State ‘care’, whether as children or as psychiatric or other patients, meets international human rights standards – to be published in September 2010. (Well not quite – as of November 2012, 2 years later than promised the report remains unpublished with no new concrete deadline)
The Ministry of Social Development ‘Care, Claims and Resolution Team’ (CCRT) (link = http://www.msd.govt.nz/about-msd-and-our-work/contact-us/complaints/cyf-historic-claims.html) was established several years ago to investigate and resolve historic abuse claims. They claim:
“If you are seeking some resolution and possibly a financial payment, we will investigate your case and if appropriate offer you a fair and reasonable payment.
You do not need a lawyer to work directly with the Ministry of Social Development to resolve your complaint or claim. However, you always have the option of obtaining legal advice, if you wish.” http://www.msd.govt.nz/about-msd-and-our-work/contact-us/complaints/cyf-historic-claims.html
And in a PR spin aimed at responding to 60 Minutes coverage of historic abuse in NZ institutions:
“Ministry of Social Development responds to 60 Minutes story on the handling of claims about historic abuse and maltreatment in State care.
The Ministry of Social Development says its process for dealing with claims of abuse and maltreatment in State care has been working well for some people.
Garth Young, who heads the Care, Claims and Resolution Team says “The Ministry is owning its mistakes and doing whatever it can to put things right. When we have got it wrong, we acknowledge that and apologise and if there is good reason to offer a financial settlement then we do that too.”
In the past 18 months the Ministry has made 13 settlement offers to people who have been abused or maltreated while in State care. Most of these offers have included a financial component and acknowledgement of the wrongdoing and/or an apology.”Source: http://www.msd.govt.nz/about-msd-and-our-work/newsroom/media-releases/2009/pr-2009-07-24.html
However, Chief Human Rights Commissioner, Rosslyn Noonan has stated:
“That (the MSD process) has undoubtedly got some positive features to it but it’s still within the ministry. So there is understandable concern, no matter how carefully people deal with it, it’s still not independent of government.”
While Cooper Legal points out:
“As we have stated in our recent memorandum and in our earlier newsletters, the offers for clients are at a reasonably modest level, in other words often just enough to be acceptable. We repeat that offers at the lower end have been under $10,000. There have been offers made that are considerably higher than that, but that has only been in cases where there has been very strong evidence on the file itself of wrongdoing on the part of MSD, and/or where the case has been close to trial and we have been able to provide strong supporting evidence.” http://www.sonjacooperlaw.co.nz/social-welfare-claims/