The High Court has today handed down its judgment in eight non-recent sexual abuse claims in which Keoghs acted for the defendant. The matters related to the liability of the defendant for abuse committed by a former football scout and coach, Barry Bennell. Dismissing each of the claims, the court determined that it would not be equitable to disapply the limitation periods and found that the defendant was not vicariously liable for the abuse committed by Bennell.
Keoghs Partner Ian Carroll who acted on behalf of the defendant and its insurers, considers the decision and its potential implications.
Between approximately 1980 and 1985 the claimants alleged that the defendant had engaged Barry Bennell (‘Bennell’) as a local scout and coach and that in the course of those duties he also ran many different local junior ‘feeder teams’ for the defendant. Each of the claimants played for one or more of these feeder teams and in the course of Bennell’s duties for the defendant he sexually abused each of the claimants on numerous occasions.
In 2017/2018 the claimants each commenced separate civil claims for compensation against the defendant alleging that it was vicariously liable for the abuse committed by Bennell. The defendant did not at trial challenge the claimants’ accounts that they were abused by Bennell. Whilst the defendant accepted that Bennell held himself out as a representative of the club, the defendant’s position was that Bennell stopped being a local scout for it in 1979 when Bennell went to work at a children’s home in Derbyshire, and that the teams Bennell ran thereafter had no connection whatsoever with the club and that it was not in any event vicariously liable for Bennell’s abuse upon the claimants.
It was agreed that the primary limitation periods expired many years earlier and that the claims had been brought ‘out of time’. However, the claimants sought the necessary discretion of the court to disapply the limitation periods. However, the defendant contended that due to claimants’ delay it had suffered significant prejudice in having to meet the claims, particularly given the death of its Chief Scout Ken Barnes in 2010, meaning that it would not be equitable to disapply the limitation periods.
All eight matters proceeded to trial and were heard together at the Royal Courts of Justice on 25 October 2021 and lasted for seven weeks.
Even though the judge found that each of the claimants had a good explanation for the delay in issuing proceedings, having regard to the length of the delay and the way in which the delay had affected the available evidence (particularly on the fact sensitive issue of vicarious liability) the judge did not consider that it was fair and just to expect the defendant to meet any of the claims and did not, therefore, consider that it was equitable to disapply the limitation periods.
Reasons for delay
The medical experts were in agreement that each claimant had never lacked the mental capacity to complain or to instruct his legal representatives and that they have never been psychiatrically disabled from making a complaint. However, none of the claimants consciously or capriciously delayed the issue of proceedings and the abuse and its consequences were significant factors in each of the claimant’s delay. As such, the judge considered that each of the claimants had a good and cogent explanation for the delay in bringing proceedings to the extent that if there was no significant impact on the cogency of the evidence, it would have been fair for the defendant to face these claims.
Cogency of evidence
In considering the impact of delay on the cogency of the evidence, the judge focused on three issues: (1) whether the abuse occurred; (2) whether the defendant was vicariously liable for that abuse; and (3) quantum.
Regarding the first issue, the claimants’ accounts of abuse was not challenged and there was very little scope for fallibility of memory on the fundamental question of whether the abuse occurred. In respect of the third issue, the judge recognised that there is considerable scope for reattribution and confirmation bias as the abuse was a hugely significant event. However, the judge considered that in one sense the delay had improved the evidence in relation to quantum as there was no requirement for the experts to engage in a forecasting exercise in respect of how the abuse would impact upon the claimants’ future lives. Taking all of this together (and leaving aside the question of the second issue of vicarious liability below), the judge concluded that he would have exercised his discretion to disapply the time limits.
However, regarding the issue of vicarious liability, the judge acknowledged that this is highly fact sensitive and that its resolution was not entirely straightforward: it depended on a detailed assessment of the nature of the relationship between Bennell and the defendant. There was no clear documentary record of the relationship between the defendant and Bennell meaning that greater reliance was to be placed on witness testimony, most of whom the judge said were observing the relationship from a distance and in circumstances where Bennell was overstating his relationship with the defendant for his own purposes.
The judge said that the only remaining witness who was able to give direct first-hand evidence about the relationship was Bennell himself. However, after hearing his evidence the judge found him to be lacking any credibility and thus his evidence was worthless. Accordingly, the judge recognised that the evidence on the key matters relevant to the issue of vicarious liability only stemmed from the recollection of witnesses going back over three decades and related to points of detail which those witnesses had no reason to commit to long-term memory. The judge felt in particular that the evidence of Ken Barnes, who was the Chief Scout, would have been critical and he would have been much better placed to give credible and reliable evidence on the relationship between Bennell and the defendant than any of the witnesses who were alive and able to give evidence; however, Barnes died in 2010. The net result was that if the claims had been brought in time, it is likely that clear, confident and reliable conclusions could be reached about the relationship between Bennell and the defendant. The ability to do so now had been badly compromised by the 27-year delay and the consequential impact on the available evidence.
There were also factors present in these cases that distinguished them from the circumstances in a similar case that was recently heard before the Court of Appeal, namely Blackpool Football Club Limited v DSN [2021] EWCA 1359 (‘DSN’), where the limitation period was disapplied. In particular, the delay was longer in these cases; in DSN there was evidence from a number of adult staff members who were all able to assist on the relationship between the abuser and Blackpool FC; there was only one ‘feeder team’ that was under consideration, whereas the claimants’ cases here directly concerned six youth teams, and the basic way in which the single feeder team operated in DSN was tolerably clear, whereas the evidence relating to how the teams operated here was limited.
As such, the judge concluded that it was not equitable to disapply the limitation periods and the claims were dismissed.
Despite his decision in respect of limitation, the judge proceeded to consider the issue of vicarious liability and whether the defendant would have been vicariously liable for the abuse by Bennell. In doing so, he conducted a comprehensive and thorough review of the relevant authorities, including DSN and the Supreme Court’s decisions in Barclays Bank and WM Morrison Supermarkets plc, which emphasised the importance of the employee/independent contractor distinction and how it is necessary to focus on that distinction when deciding whether the relationship is akin to employment in order to determine stage one of the established vicarious liability test.
Stage One
The judge acknowledged the ‘corrective guidance’ provided by Lady Hale at [28] in Barclays Bank in identifying that the key test is as follows:
“The question therefore is, as it has always been, whether the tortfeasor is carrying on business on his own account or whether he is in a relationship akin to employment with the defendant.”
Taking his lead from Stuart-Smith LJ in DSN, the judge proceeded to conduct an extensive examination of the factual relationship between Bennell and the defendant. In doing so, he outright rejected Bennell’s evidence on the grounds that he has no credibility, instead focusing on the evidence of others. He concluded that on the evidence, Bennell was engaged by the defendant as a scout from approximately 1974/75 until 1979. However, during the course of 1980, Bennell became involved with a number of junior teams so that his role between 1981 and 1985 was much as it had been during the earlier period, i.e. he was coaching teams in which the defendant took a close interest and some of which were feeder teams for the defendant. However, Bennell’s involvement in these teams was not at the instigation of the defendant and was entirely of Bennell’s own initiative: the defendant did nothing to associate itself with Bennell’s teams and to the extent that boys playing for these teams thought they were playing for a Manchester City junior team, that was a result of Bennell’s deception and not because of any actual connection between the defendant and these teams.
The relationship did not involve payment or any legal obligation from Bennell to the defendant, or vice versa. It was an entirely voluntary arrangement. There was no exclusivity. The defendant was free to use other scouts (and did). There was nothing to stop Bennell from doing other work (and he was employed full time for much of the period). There was nothing to stop Bennell from doing other work in relation to football coaching (and he did – for example his work at Butlins). Accordingly, for the following reasons, the judge determined that the claimants had failed to establish ‘the essential ingredient of their case’, namely that Bennell was in a relationship with the defendant “akin to employment”:
For the above reasons, the judge concluded at that:
“Bennell was not in a relationship with MCFC that is akin to employment. His relationship was that of a volunteer football coach who ran a number of junior teams (including teams with a connection to MCFC) and who, in that context, acted as a volunteer unpaid scout … That was his enterprise, undertaken at his own risk, which MCFC did not control, but was a relationship of mutual benefit to MCFC and Bennell.”
“On the available evidence, the answer to the question of whether the relationship is akin to employment is sufficiently clear: Bennell was carrying on his own independent enterprise and was not in a relationship with MCFC that is akin to employment.”
In reaching this conclusion, the judge recognised (per Lady Hale in Barclays Bank) that it was not necessary in circumstances where the nature of the relationship was clear to further consider the five incidents set out by Lord Phillips in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 [2013] 2 AC 1. However, he replicated the approach taken by Stuart-Smith LJ in DSN and having considered the application of each of Lord Phillips’ five incidents to the circumstances of these cases, the judge did not consider that they indicated that the relationship between Bennell and the defendant was akin to employment.
Stage Two
Although the judge had already concluded that there was no vicarious liability (on account of stage one having not been satisfied), he proceeded to consider the second stage as to whether the abuse occurred closely connected to Bennell’s duties on behalf of the defendant. This was on the assumption that Bennell was in fact employed or in a position akin to employment as a scout, a coach of feeder teams that included the claimants and as someone who would help organise teams at trial games.
The judge pointed out that the abuse generally occurred either at Bennell’s homes or at residential premises occupied by Bennell during a football tour or a holiday. The claimants were staying at Bennell’s home because he was their football coach and they and their parents had been persuaded by Bennell that it was sensible and convenient for them to stay with Bennell before or after matches. There was, therefore, a connection between Bennell’s role as their coach and the boys staying at his home. Nevertheless, the judge concluded that nothing in the evidence suggested that it was ever contemplated by anyone at the defendant that children would stay with Bennell, far less that he was required to accommodate the children in the course of his ordinary duties as a football scout or coach. The judge concluded by saying at that:
“There is nothing to suggest that MCFC either had or assumed responsibility for the boys staying with Bennell, or that it entrusted them to his care, or that the abuse of the children was the abnegation of any positive duty allocated to him by MCFC. The fact that the children, and their parents, had been groomed into believing that it was in some way part of Bennell’s role as scout to have boys stay with him at his home does not mean that that was the case.”
Accordingly, the claimants failed to establish that the abuse occurred in circumstances that were closely connected to any duties Bennell may have been required to carry out as a scout, coach or organiser of trial games sufficient to satisfy the second stage of the vicarious liability test.
This judgment represents positive reinforcement that the issue of limitation in these cases remains fact specific. As the court acknowledged, after the death of Ken Barnes, who would have been the critical witness on the issue of vicarious liability, the court was simply left with the evidence of Bennell as the person in the best position to know about the detail of his relationship with the defendant. However, given the court could place no reliance upon Bennell’s evidence, this only accentuated the prejudice the defendant faced in having to meet the claims which in all of the circumstances was not considered just or equitable.
As the judge also rightly noted, each of the claimants were severely abused by Bennell and helped ensure that he was brought to justice which has meant that others have been protected from abuse and shone a light on what was going on in youth football. However, the judge also noted that in these cases it is not open to a court to impose vicarious liability on an organisation: “… on the basis of an intuitive feeling for where the justice of a case lies. Rather, it [is] necessary to apply the tightly controlled legal tests as set down in the authorities.” Accordingly, this is what the court has now done and the judgment represents a clear endorsement of the recent Court of Appeal analysis in DSN.
Finally, in relation to stage two of vicarious liability, this judgment also goes one further than DSN in that it considers the vicarious liability for abuse that occurred outside the scope of the activities expected of a junior football coach or scout. There will, therefore, no doubt be far-reaching implications in respect of claims brought by other claimants for abuse said to have occurred outside of the context of duties an individual would be expected to perform.
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