Barry Bennell abuse claim falls on limitation and vicarious liability

19 January 2022 by

Barry Bennell in Manchester City kit in 1983. Image: The Guardian

TVZ and Ors v Manchester City Football Club Ltd [2022] EWHC 7 (QB)

Barry Bennell was a football coach who sexually abused a number of boys in the 1980s. He is serving a sentence of 34 years imprisonment and, at the age of 68, is likely to die in jail. The Claimants in this case were his victims. Mr Justice Johnson described each as a ‘remarkable’ men, courageously giving evidence and some waiving their rights to anonymity determined to do everything they could to encourage others to come forward and ensure Bennell was prosecuted and, ultimately, convicted.

The issue in this case was not the veracity of their account – the judge made is explicitly clear they were believed and the Defendant did not question the fact the abuse had occurred. The dispute was whether civil liability attached to Manchester City football club for the abuse committed by Bennell. There were two fundamental hurdles for the Claimants: limitation and vicarious liability. On the particular facts, the court found that they failed to overcome both.

Background

Bennell was a youth team football coach in the 1970s and 80s in the Greater Manchester region. His precise role was in dispute: Bennell says he was a formal scout for the club between 1975 and around 1979. However, it was common ground that Bennell was not, at any stage, an employee. After that, he managed a number of youth teams, which were variously described as ‘feeder teams’, ‘junior teams’ and ‘nursery teams’, none of which were formally defined. From 1979 onwards, Bennell, it was said, still acted as a ‘scout’ to Manchester City, but there was, it was found, a degree of informality in the relationship. The judge stated:

It appears that the term ‘scout could be applied to anybody who might be in a position to identify footballing talent and make an introduction to MCFC. This might include PE teachers in local schools. [27]

Manchester City, whilst denying liability for the abuse committed, had set up Compensation Scheme (MCFC Survivors Scheme), which was an ADR method of settling claims for abuse perpetrated by Bennell. The club described the scheme as such (in their FAQs):

2. Why is MCFC paying compensation?

Since November 2016, MCFC has been the subject of a number of civil claims arising out of allegations of abuse conducted by Barry Bennell and John Broome. The Club is offering to pay compensation to eligible survivors under the Scheme Rules as an alternative to those survivors pursuing their claims through the civil courts. The Club considers that, in the context of the allegations made by survivors, paying compensation under the Scheme Rules is the right thing to do in order to give eligible survivors a level of closure as fast as possible.

3. Does this mean MCFC is liable for the actions of Barry Bennell and John Broome?

The Scheme is intended to operate as an alternative dispute resolution methodology, and as such it does not seek to determine MCFC’s liability for the abuse suffered by any of the survivors that make a claim under the Scheme. Instead, it is MCFC’s intention that eligibility for the Scheme will be determined on an inquisitorial (i.e. by gathering and analysing all information submitted to the Scheme without costly submissions by both sides) rather than adversarial basis – this is intended to avoid the costs, emotional distress and complexity of a trial within an alternative dispute resolution process. The upshot is that payments under the Scheme do not amount to an admission of liability by MCFC, or a finding of liability against the Club.

….

6. Why is Barry Bennell referred to twice in section 1.1 of the Scheme Rules?

Barry Bennell was linked to MCFC for two separate time periods, with a gap of 18 months separating the two. During this gap (between November 1979 and July 1981), MCFC’s investigation identified that Barry Bennell was not involved with football. He is therefore referred to twice in order that the claims are allocated to the correct time period. Both sets of claims will be treated, and damages awarded, in exactly the same way.

Limitation

It was not in dispute that each of the claims was out of time with regard to primary limitation. Each claimant sought for the court to disapply the time limit pursuant to S33(1) of the Limitation Act 1980. The court had regard to s33(3) of the 1980 Act, and the factors therein.

The Judge found that the abuse and the effect of the abuse were good and cogent explanations for the delay in bringing proceedings. In respect of evidence as to quantum (the evidence as to whether the abuse had happened was not challenged), the evidence had, in one sense, improved over time.

However, the court was troubled by the evidence as to vicarious liability. This required a detailed assessment of the nature of the relationship between Bennell and the Defendant. This relied on witness evidence, as there was a distinct lack of documentary evidence on the issue. The judge identified Bennell as the only witness on the issue, with many others now deceased. He found Bennell’s evidence as lacking any credibility and, to a great extent, worthless. The Judge stated that the evidence of Ken Barnes, who was Chief Scout, to be critical but he had died in 2010. The ability to undertake an assessment was badly compromised by the passing of time.

The Judge distinguished the facts in this case (another abuse case) to those in Blackpool Football Club Limited v DSN [2021] EWCA 1359, where limitation was disapplied. The delay was long, and the factual circumstances around the issue of vicarious liability was more defined and the assessment easier for the court.

Accordingly, the court concluded that it was not equitable to disapply the limitation period. The claims were dismissed.

Vicarious Liability

The court proceeded to consider the issue of vicarious liability nonetheless. There is a useful summary and review of all the relevant authorities to the issue.

The judgment cites Lady Hale in Barclays Bank plc v Various Claimants [2020] UKSC 13 [2020] AC 973 (discussed on the blog here):

[stage 1] 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.

Stage 2 of the test was set out by Lord Nicholls in Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48 [2003] 2 AC 366:

the wrongful conduct must be so closely connected with acts the partner or employee was authorised to do that, for the purpose of the liability of the firm or the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the partner while acting in the ordinary course of the firm’s business or the employee’s employment.

The Judge found that Bennell’s relationship with the Defendant was not ‘akin to employment’, for seven reasons (set out at [313] to [319]:

First, Bennell was in full-time paid employment (for at least part of the relevant period) working in the children’s home at Taxal Edge. His footballing activities were voluntary and undertaken in his spare time.

Second, Bennell had a portfolio of footballing activities, some of which had nothing to do with Manchester City, such that his activities as a football coach had a distinct existence, independent of the club, both pre-dating and post-dating his time there.

Third, Bennell took the financial risk of the footballing activities that he arranged and was not even reimbursed expenses.

Fourth, there was very little evidence of Manchester City exercising control over Bennell’s activities. Rather, Bennell had complete autonomy over the planning, running, administration and financing of the teams, save that the club had some involvement in appointing the team manager and, after Bennell left, it merged two of the teams.

Fifth,

an employment relationship involves an implied obligation to comply with an employer’s lawful and reasonable instructions. In relationships that are akin to employment, something similar can be identified. Thus, in the cases of religious organisations, it has been observed that the “ties of loyalty and obedience [are] even tighter than those imposed by a contract of employment” – see DSN at [54] and Christian Brothers at [8]. Police officers and members of the armed services are subject to disciplinary procedures as part of their conditions of appointment. Here, there is no evidence that Bennell was under any obligation to comply with instructions given by MCFC. He agreed to organise the teams at some trial games, but there was no evidence that he was under any obligation to do that.

Sixth, consistent with the lack of any control by Manchester City over how Bennell ran his teams, there was no evidence that he was subject to any form of disciplinary code.

Seventh, Bennell’s involvement with the club was not part of its core business of running a successful first division team and was not part of the work it did to support its core business. The running of teams for boys aged 11-13 from which boys might (or might not) be asked to attend trials to see whether they would be suitable for recruitment as associated schoolboys at age 14 was too far removed from this.

As to stage 2, the Judge concluded that there was no evidence to suggest that it was ever contemplated by the Defendant that children would stay with Bennell at his home (where the abuse occurred). The Judge said:

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.

Conclusion

The Claimants have stated, through their solicitor, that they will be appealing. The judgment at first instance reinforces the rules on limitation, strengthening the time limit for abuse claims after Blackpool. It offers further guidance, in a lengthy and thorough analysis of the case law, as to the principles applied to vicarious liability. Any appeal will be watched carefully by claimant and defendant lawyers alike.

Jake Richards is a barrister at 9 Gough ChamJake Richards is a barrister at 9 Gough Chambers. He tweets @JakeBenRichards

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