Lessons in limitation and vicarious liability 

Barry Bennell, former football coach and Manchester City Football Club (MCFC) scout, is currently serving a 34-year prison sentence at HMP Littlehey, Cambridgeshire, after being convicted of sexual offences against boys on five separate occasions.

A seven-week trial for the case of TVC & Ors v Manchester City Football Club [2022] EWHC 7 (QB) began  on 25 October 2021, concerning  claims raised by eight men against MCFC considered the sexual assaults that the claimants suffered by premier club scout, Barry Bennell. It considered if MCFC had any liability for Bennell’s actions.

The abuse allegedly took place when the men were playing for local junior ‘feeder’ teams for MCFC between 1979 to 1985. In some cases, the claimants alleged they were also convinced to stay at Bennell’s home. The parties agreed the abuse took place – in dispute was MCFC’s liability for Bennell’s actions.

The eight claimants brought claims for damages for long term psychiatric injuries which impacted their football careers. During the trial, the facts were likened to the similar case of Blackpool Football Club Ltd v DSN [2021] EWCA Civ 1352 whereby Blackpool Football Club was found not to be vicariously liable for the sexual abuse of an aspiring footballer by an unpaid scout who would refer talented players to the football club.

The claimants’ legal team argued MCFC engaged Bennell to run feeder teams so young talent could be spotted in advance. The defendant’s legal team argued Bennell was a local MCFC scout in the mid-1970s but not between the time period alleged by the claimants. They also stated Bennell never had a formal contract of employment, raising issues as to whether MCFC could be found vicariously liable for his actions.

Limitation

The claimants brought their claim 27 years outside of the primary limitation period. Justice Johnson dealt with limitation first, considering whether the court should disapply the usual 3-year limitation period, pursuant to s. 33 Limitation Act 1980.

The claimant argued it was equitable to disapply limitation because there was a good reason for the delay and that the trial could be fairly determined on the evidence available.

The defendant disputed this and explained “irremediable evidential prejudice” had been suffered and it would not be equitable to disapply the time limit. Had the claim been brought within the limitation period then as many as eight deceased individuals could have given evidence, one of whom was labelled as a crucial witness for the defence.

Johnson J accepted each of the claimants had a good explanation for the delay in issuing proceedings. He also accepted the delays only had a marginal impact upon the quality of the evidence required in respect of quantum. However, Johnson J considered the evidence available was far less cogent than it would have been had the claims been brought in time.

The primary remaining evidence was from Bennell himself, who wasn’t held to be a credible witness, with Johnson J describing his evidence as “worthless” and him as a “manipulative liar”. Johnson J said if the claim had been brought in time it is likely that clear, confident and reliable conclusions could have been reached about the relationship between Bennell and the defendant.

It was concluded that the delay in bringing the claim had “badly compromised” the court in being able to adequately assess the claim and stated, for this reason, the case failed on the issue of limitation.

Vicarious liability

Johnson J applied the 2-stage test established in Various Claimants v Catholic Child Welfare Society and others [2012] UKSC 56; [2013] 2 AC 1, and considered:

1.      Whether the relationship between MCFC and Bennell was akin to employment and/or was capable of giving rise to vicarious liability; and

2.      If Bennell’s assaults were so closely connected with acts that he was authorised to do that they may properly be regarded as done by him while acting in the ordinary course of MCFC’s business.

The claimants’ legal team argued MCFC was vicariously liable for Bennell’s abuse as there was a relationship akin to employment between Bennell and the club. They explained Bennell was a scout and coach for MCFC and he ran feeder teams for MCFC which provided future recruitment and benefit to the club, and was central to their enterprise. It was during these duties the claimants were abused.

The defendant’s legal team argued any relationship between the defendant and Bennell was not akin to employment as the defendant had no control over Bennell, and nor did they entrust or assign and activities to Bennell which gave rise to the risk of the torts being committed.

Johnson J looked at the first stage of the test above and concluded Bennell wasn’t in a relationship with the defendant akin to employment. Bennell had a full-time job and his footballing activities were voluntary and undertaken in his spare time. Johnson J relied on LJ Stuart-Smiths comments in DSN, namely ”while ‘far from determinative’, this was ‘indicative of his independence’”.

Johnson J further found Bennell’s coaching activities were independent from the defendant in that he coached and merged numerous teams beyond MCFC’s remit. Bennell bore the financial risk of footballing activities arranged and wasn’t reimbursed for expenses. Johnson J went on to add an employment relationship also involved an implied obligation to comply with an employer’s lawful and reasonable instructions and here there was no evidence Bennell was under any obligation to comply with instructions given by MCFC. It was held the claimants failed to establish the first stage of the test for vicarious liability.

Johnson J also considered the second stage of the test above in the event the first stage was held to have been applied incorrectly. He stated there was no clear evidence the defendant was able to tell Bennell how to carry out his duties or what he should and shouldn’t do. Bennell was used by the defendant to organise teams in the course of trials but this was not sufficient to show it exercised “even a vestigial degree of control in respect of his day-to-day coaching duties”.

Johnson J determined the connection between the abuse and Bennell’s relationship with defendant is insufficient to give rise to vicarious liability and, although the relationship gave him the opportunity to commit the abuse, the defendant had not entrusted the welfare of the claimants to Bennell.

Johnson J was keen to distinguish this case from other instances where employers have been held vicariously liable for the sexual abuse committed by those in a position akin to employment (e.g. teachers and priests), placing emphasis on the fact, in his determination, there was no inherent or positive duty on a football coach in Bennell’s position to be responsible for the claimants’ welfare, care or accommodation.

Thus, Johnson J held MCFC was therefore not vicariously liable to the claimants for Bennell’s abuse.

Judgment

The judgment, handed down on 10 January 2022, held the claim failed on both points of limitation and vicarious liability. The claimants’ legal team reported they are ”appalled”, “shocked” and “dismayed” at the Judge’s decision and will appeal.

The defendant’s spokesperson stated MCFC set up a Manchester City Survivors Scheme in 2019 designed as an alternative route to civil action, offering payments to victims of non-recent child abuse by Bennell. MCFC have confirmed the fund has been used by many survivors but none of the eight claimants in this case have accessed the fund. The claimants responded to this by explaining their cases had been running for two years before this fund was set up and the compensation amount wouldn’t have been enough to cover their legal costs.

Following the ruling, one of the claimants who has remained anonymous stated he is in a “very vulnerable state” and he has been trying to support other claimants who have turned up on his doorstep distressed after watching him on the stand. He added the claim “isn’t about money, it is about getting some acceptance and acknowledgement of what happened to us”.

Luke Daniels is partner and Richard Sweetman and Georgie Woolmer are solicitors at Irwin Mitchell irwinmitchell.com

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