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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.
In The Trustees of the Barry Congregation of Jehovah’s Witnesses v BXB[2021] EWCA Civ 356, the Court of Appeal has offered further guidance on vicarious liability following Supreme Court decisions last year in VM Morrison Supermarkets PLC v Various Claimants [2020] UKSC 12 and Barclays Bank v Various Claimants [2020] UKSC 13.
As set out in these posts by Robert Kellar QC and Anna Williams, the ‘law of vicarious liability is on the move’ (in the words of Lord Phillips). This case, however, illustrates certain settled principles emerging. In this case, the decision that Barry Congregation was vicariously liable for the rape of Mrs B by Mark Sewell, an elder of the Congregation, in 1990, was upheld.
Facts
Mark Sewell was convicted of the rape (amongst other offences) of Mrs B in 2014. Mrs B suffered episodes of depression and post-traumatic disorder. She brought a claim against, amongst others, the Trustees of the Barry Congregation for the injuries suffered as a result of the rape claiming they were vicariously liable. There was a second limb to the claim related to the investigation and ‘judicial process’ undertaken by the congregation when Mrs B reported the rape to elders in 1991. However, because the High Court found that the Barry Congregation was vicariously liable, the second limb was not considered.
Voting in local elections in Haringey, London. Image: The Guardian
The Government’s announcement that eleven local authorities across England would be taking part in voter ID pilots for the 2019 local elections was controversial. There is a heated debate as to whether citizens should have to provide photo identification before receiving their ballot at elections. For some, it is a straight-forward measure to avoid the risk of fraud. For others, it is a policy that, by design or inadvertently, leads to the disenfranchisement of certain groups.
This debate was not considered by the courts in the challenge to the legality of the pilot schemes brought by Mr Neil Coughlan, a former district councillor from Witham Essex. But the consequences of the decision of the Court of Appeal in R (Coughlan) v Minister for the Cabinet Office [2020] EWCA Civ 723 could be profound for our electoral law.
If, as a cause of the negligence of the Defendant, a Claimant is unable to have children of her own, should the cost of commercial surrogacy from California be recoverable in damages? This was the issue before the Court of Appeal recently in XX v Whittington Hospital NHS Trust [2018] EWCA Civ 2832.
The Claimant (“Ms X”) was diagnosed as suffering from cervical cancer aged 29. The Defendant accepted that it had been negligent in failing to diagnose the Claimant much earlier, when she was aged 25. The Defendant had carried out defective smear tests and failed to diagnose the cancer from biopsies performed. As a result of the delay, Ms X required chemo-radiotherapy treatment, which in turn led to infertility, as well as other severe consequences (i.e. premature menopause, problems with bladder and bowels). Ms X had a strong desire to have a family and bring up four children.
On 7th June 2018, the Supreme Court handed down judgment in the case of regarding the controversial issue of the legal framework regulating abortion in Northern Ireland.
The judgment could not have come at a more heated moment in the debate between pro-choice and pro-life campaigners in Northern Ireland. Only two days earlier, MPs at Westminster debated potential decriminalisation of abortion in Northern Ireland through repeal of sections 58 and 59 of the Offences Against the Person Act 1861. Considering the recent result in the Irish referendum on abortion, where the abortion ban was overturned by a clear majority, the issue of abortion is prominent in our political conversation.
In a lengthy judgment, the court dismissed the appeal by the Northern Ireland Human Rights Commission (NIHRC), on the basis that, in the view of the 4-3 majority, it did not have standing to bring the proceedings.
Nevertheless, the justices went on to express the views that they would have come to in the event that the NIHRC had been found to have standing, with a differently constituted 4-3 majority considering that the general prohibition on abortion was incompatible with the right to private and family life under Article 8 ECHR.
The Background
The Offences Against the Persons Act and the Criminal Justice Act (NI 1945) criminalise abortion in Northern Ireland. In conjunction, these Acts (of the UK and Northern Irish legislatures respectively) imposes an obligation upon a pregnant woman that, unless there is a risk to her life or of serious long-term or permanent injury to her physical or mental health, she must carry the pregnancy to term.
These proceedings were brought by the Northern Ireland Human Rights Commission (“NIHRC”) challenging the compatibility of the law in the following respect:
The prohibition of abortion in cases of
Serious malformation of the foetus;
Pregnancy as a result of rape; and/or
Pregnancy as a result of incest
was argued to be incompatible with
Article 3 (the prohibition of torture and of inhuman or degrading treatment);
Article 8 (the right of everyone to respect for their private and family life); and/or
Article 14 (the prohibition of discrimination)
In the High Court, it was held that the law was incompatible with Article 8 insofar as it criminalised abortion in the the following circumscribed cases:
Fatal foetal abnormality
Rape up to the date when the foetus is capable of being born alive
Incest up to the date when the foetus is capable of being born alive
The Court of Appeal in Northern Ireland, however, concluded that the general prohibition on abortion gave rise to no incompatibility with any of the articles of the ECHR.
The NIHRC appealed to the Supreme Court in London.
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In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland) [2018] UKSC 27
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