| A review of DSN v Blackpool FC (long read) 22:45 - Apr 21 with 151 views | ROTTWEILERS |
A review of DSN v Blackpool FC and its implications for sexual abuse claims in English football
Published 14 April 2020 By: James Counsell QC
Judgment has recently been handed down in the High Court in London in a claim for compensation for injuries caused by sexual abuse occurring many years ago. It is the first of many such claims currently going through the English courts against professional football clubs and other sporting organisations. This was a claim for damages brought against Blackpool Football Club by a claimant who was sexually abused by a scout working for it in the 1980s. If this case is a measure of the progress being made in these football claims, many may well be resolved before the outcome of The FA Inquiry into Sexual Abuse[1].
This article reviews the judgment (available here[2]) and asks what lessons can be learned from it and what its implications are for other similar cases. The case (which had a separate costs hearing[3]) is also a salutary lesson to defence lawyers about the need to be aware of the dangers of being so confident in the strength of one’s own defence as to rebuff all attempts to settle. Specifically, it examines:
-What the claim was about
-The legal issues for the Judge
-The Judgment
-Limitation
-Vicarious liability
-Causation
-What the implications are for other cases
-Lessons arising out of the way the case was defended.
By way of disclosure, the author represented the claimant in the case (and is lead counsel on many similar claims).
What was the claim about?
In June 1987, at the age of 13, the Claimant, anonymised as DSN[4], was sexually assaulted whilst on a boys’ football tour of New Zealand by a man called Frank Roper who was working as a scout for Blackpool, then a third division football league club. Mr Roper was aged 50 at the time and later died in 2005. Unknown to the club at the time he worked for it, Mr Roper had four separate criminal convictions for indecent assaults on young males, the most recent being only three years prior to the abuse. The Court heard that Mr Roper abused many other young footballers during his time working for the club, some of whom gave evidence at this trial.
As a result of that abuse, DSN suffered from psychiatric injury and psychological problems, made worse when he finally had the courage, prompted by others doing the same, to report the abuse to the police much later in 2016.
The legal issues for the Judge
To succeed in a claim like this, a claimant usually needs to overcome three hurdles:
1. to persuade the Court that the claim should be allowed -to proceed out of time (22 years had gone by since the ordinary time limits for bringing a claim in England (in the case of a child, by his/her 21st birthday[5])),
2. to establish ‘vicarious liability’, namely that the connection between the club and Mr Roper, its scout, was sufficiently close to justify the imposition of liability upon a defendant otherwise innocent of any wrongdoing (namely Blackpool FC); and
3. to show that his psychiatric injuries and other losses, such as loss of earnings or the cost of psychiatric treatment, were the result of the abuse which he had suffered in his early teens.
The Judgment
The Court (Griffiths J) found for the claimant on all three issues:
Limitation period
On limitation, he concluded that DSN had good reason for not bringing the claim earlier: he was 13 at the time of the abuse and quite unable to tell his parents what Roper had done to him whilst on tour, fearful that he would not be believed and that it would spell the end of a promising football future. As is so often the case, he kept his feelings of disgust, shame and self-guilt to himself for very many years and it was only when the Jimmy Savile scandal broke that he came to realise that others had suffered as he had and that he would be believed if he revealed what had happened. In finding that he was “for practical purposes disabled” from bring a claim, the Judge found that it was not necessary for the Claimant to be suffering from a psychiatric condition which prevented him from disclosing the abuse although that could be a factor, as it was in the leading case of A v Hoare[6]. He concluded:
“….it was for practical purposes impossible for the Claimant to disclose the abuse before he did, or to raise a legal claim before he did, particularly having regard to the effect of the abuse on him, the shame he felt, the steps taken by Roper to keep him quiet, his concern about what his mother might feel (such as, whether she would blame herself for allowing him to travel alone with a stranger) before she died in 2010, his coping strategy of ignoring what had happened, the change in the climate of opinion about the credibility of allegations of sexual abuse against vulnerable children which is relatively recent, and the increased difficulty of acting caused by the severe distress and mental health deterioration he suffered after bringing the memory back to the surface upon disclosure to his wife. I am satisfied that….he was for practical purposes disabled from commencing proceedings, initially by the trauma of what he had suffered and his reaction to it, and then by the mental health challenges he faced when disclosing even to his wife and no-one else.” (Para 42)
Whilst the club contended that the delay had caused prejudice, having heard the evidence, the Judge concluded that there was no “real possibility of significant prejudice” (para 29), the established test[7], to the football club if he allowed the claim to proceed. Although witnesses had died, including Roper himself as well as the club’s youth coach, the Judge was satisfied that they would not have contradicted the evidence that he had heard. He described DSN as being a “transparently sincere and honest witness” (para. 69) and he heard from a large number of witnesses involved with the club at the time, including the manager, Sam Ellis, the chairman and club secretary, as well as many others who had either been abused or had been young players who had escaped Roper’s attentions.
Vicarious liability
As for vicarious liability, the judge had to deal with two issues: was the relationship between the club and the scout so close that it was capable of giving rise to vicarious liability and was the connection between that relationship and the abuse close enough to impose liability on the football club[8]? Griffiths J answered both questions yes.
As to the first limb, the Court heard that, whilst Roper was not on the books as an employee of the club, he ran a young team, called Nova Juniors in the South Manchester area which was an important source of recruitment of boys with the talent to go on up through the age-group ranks to play at adult level. Two of those players, Paul Stewart and David Bardsley, were subsequently sold by the club for six figure sums. Indeed, the sale of Stewart in 1987, very shortly before the abuse, saved the club from financial extinction. Griffiths J summarised the evidence like this:
“I am satisfied that the relationship between Roper and the Club was one capable of giving rise to vicarious liability…Roper was an unpaid volunteer, but the Club’s dire financial state meant that almost all the non-playing staff were in the same position, Ellis (the manager) and Chapman (the youth manager) being the exceptions. Chapman could not and did not do his job alone. He depended on people like Roper and Hurst to help him, and in doing what he did, Roper was very much doing the work of the Club. There was no more important task for the Club than spotting and capturing young players and bringing them into a position when they were willing to Register for a lower division side with limited resources. This is the task that Roper did better than anyone else, and everyone knew that he was doing it. He was a Blackpool scout, and his Nova Juniors side was a Blackpool feeder team. Its sole purpose was to take boys, so far as possible, into a closed environment in which Blackpool had a better chance than any other club of securing their signatures when they were old enough to sign (if not before).” (Para 159)
As to the second limb - the connection between the Club/Roper relationship and the abuse - the Court heard that the tour to New Zealand was arranged after a meeting at the club’s social club at which all parents attended and at which the club manager had spoken in support of the tour. In New Zealand, Roper was the only adult on the tour, along with some Blackpool apprentice players who came along to help out. One evening after training, he took the opportunity to abuse DSN, the last boy to be dropped off from the minibus driven by Roper, by telling him that he would have to spend the night at his accommodation rather than being driven back to his host family. The Judge stated:
“…. I am satisfied that Roper’s abuse of DSN on the New Zealand tour, and the New Zealand tour itself, were so closely connected with Roper’s relationship with Blackpool FC that it is just to hold Blackpool FC vicariously liable for it. Blackpool FC, given its inadequate resources, was never going to be able to run this as an official trip, but it was as close to an official trip as made no difference. It was a football tour that was part of Roper’s operation in building the allegiance of promising young footballers to Blackpool FC. …..” (Para 175)
Causation
As for causation, Griffiths J went on to find that DSN had indeed suffered psychiatric injury and other losses as a result of the abuse and awarded him damages.
What are the implications for other cases?
This case is important not least because there are many other claims currently heading for trial with very similar issues. By way of example, Manchester City and Crewe Alexandra football clubs face a series of claims arising out of the abuse committed over decades ago by the youth football coach, Barry Bennell, currently serving 31 years’ imprisonment for offences committed on young boys playing for those clubs.
The issues are very similar in each of those cases — limitation, vicarious liability and causation and, although every case is, of course, different, DSN is a useful illustration of how the Court might deal with such issues. Much can be learned from the judgment.
As to limitation, it will not necessarily be enough for a defendant simply to point to the very long delay and the death or loss of potential witnesses. The extent to which the cogency of the evidence may have been affected by the delay is a difficult one for the judge but, if, as DSN’s case demonstrates, the evidence which is available is cogent and extensive, the Court will not shy away from finding that the lack of some witnesses would not have made any difference, particularly where there could be no issue but that the abuse took place[9].
The exercise that the Court has to conduct when deciding the limitation issue is to hear the evidence first and then to decide whether there is a “real possibility of significant prejudice” as a result of the delay. This is not “putting the cart before the horse”[10]. Credibility and cogency, therefore, are critically important factors. In DSN, the judge came to this view:
“I have therefore concluded that, because of the cogency and abundance of the evidence that was put before me on both sides, and the nature of the issues in this case, and the narrow scope of factual dispute, at least so far as primary facts are concerned, no real risk of substantial prejudice has been caused by the delay in the defendant receiving notice of the claimant’s claim, or in the issue of proceedings so long after the primary limitation period.” (Para 60)
If, as here, the evidence which the Judge hears is so cogent and mutually consistent that he feels able to be satisfied that none of the evidence not available at trial would have changed his mind then, if the claimant can explain why he delayed, he is likely to allow the case to proceed.
So far as vicarious liability is concerned, DSN is another example of how much the law has moved on from the days when vicarious liability was only on employers for the acts of employees acting in the course of their duties, the test with which many of us grew up. Many of the early cases involved examining the potential liability of religious organisations such as the Roman Catholic Church[11] and, more recently, the Jehovah’s Witnesses[12] where there was strictly no employment relationship, but the relationship was akin to employment.
DSN demonstrates that liability may extend to wrongdoing committed by unpaid volunteers whose role provides a significant benefit to the defendant club but whose work for the club enhances the risk that abuse might occur.
The decision in DSN was handed down three weeks[13] before the Supreme Court judgments in Barclays Bank plc v Various Claimants[14] and WM Morrison Supermarkets plc v Various Claimants[15] but the Judge’s reasoning on vicarious liability appears to be very much in line with the approach taken in both of those two new judgments. Although the potential implications of the two SC decisions are yet to be analysed in detail, there does not appear to be much in the judgments of Lady Hale and Lord Reed, respectively, to encourage defendants into thinking the courts will adopt a more helpful stance. Indeed, in Morrisons, Lord Reed reiterates a point made by Lord Phillips in the Catholic Child Welfare Society case (see above) that the courts should be willing to take a more tailored approach to the second limb (the ‘close connection’ test) than in other cases where vicarious liability is being considered (by, for example, focussing on the ‘employer’s’ conferral of authority). This is because the sexual abuse of children is likely never to be something which can sensibly be said to be done whilst acting in the ordinary course of ‘employment’ (see paras 23 and 36 of Lord Reed’s judgment).
Lessons arising out of the way the case was defended
Those who represent defendants to these claims may need to take on board some of the critical comments which the judge made about the way in which this case was defended, both in his main judgment[16] and in his costs judgment[17] handed down on 20 March 2020 and reported at [2020] EWHC 670 (QB).
First, what stance should the defence team take in a case where it does not have evidence to refute the account of the abuse being given by the claimant (and, in this case, by others)? Roper was dead and hardly likely to have been called as a witness even if he had been alive. But the Defence had declined to make any admissions about the abuse itself, preferring to “put the Claimant to proof” and seeking to justify this stance by arguing that it was because the claim was so old that the club was unable to put forward a positive case. The club’s lawyers had ignored a request made by DSN’s lawyers in the run-up to trial to make its position clear so that witnesses could be reassured that their account was not to be challenged. The Judge was highly critical of this stance:
“…. no indication was given to DSN or any of the witnesses who bravely gave evidence to me of abuse by Roper …. that they would not be cross examined on that aspect until I asked for clarification myself. I was told that Blackpool FC had not responded to previous enquiries about that in correspondence…. It is well known that for many witnesses the anticipation of the ordeal of having to attend court and be cross examined on painful matters can be greater than the ordeal of cross examination itself. DSN was not spared that ordeal of anticipation. In his evidence in chief, he said:-
“I am shocked by the approach taken by Blackpool Football Club. When I came forward, I expected the club to want to engage and to understand what had happened. The main reason I came forward was because it felt the right thing to do, but also, so that the football club could learn from its historical failings. I want to do this so children like my own wouldn’t have to suffer in similar situations, and I have felt let down by the lack of empathy, engagement and humanity shown by Blackpool. Many people have commented on how brave I have been, but I do not feel brave in this process, just frightened, and at times like the vulnerable 12/13 year old boy I was.”
To the extent that (as the experts agree) the period of the litigation has been worse for DSN than the 25 years after the assault, Blackpool FC share a responsibility for that. They conceded nothing at all at any point and made no effort to sympathise or to reach out in ways that might have mitigated the difficulties faced by DSN in the years since disclosure.” (Para 188-189)
In view of those comments, Defence lawyers will need to be alert to the risk that they will be criticised as well if they take what is currently a common stance. In a case where the Judge is almost inevitably to find that abuse did take place, they would probably be well-advised to make an early admission about this and to focus on the real issues.
Secondly, the Judge was critical of the stance adopted by the club in relation to settlement of the case. DSN had made a number of offers to settle the claim prior to trial and the last of those was for an amount which turned out to be well below the amount that the judge awarded. An indemnity costs order[18] was, therefore, made from the date when that offer ought to have been accepted[19].
However, the judge made an indemnity costs order from a much earlier date because of the way that the defence had failed to engage at all in settlement negotiations. The judge’s judgment makes clear, yet again[20], that any defendant who simply refuses to engage in alternative dispute resolution, on the ground that it is confident that it will win, risks costs sanctions:
“The reasons given for refusing to engage in mediation were inadequate. They were, simply, and repeatedly, that the Defendant “continues to believe that it has a strong defence”. No defence, however strong, by itself justifies a failure to engage in any kind of alternative dispute resolution.
….
As to admission of liability, a settlement can include admissions or statements which fall short of accepting legal liability, which may still be of value to the party bringing a claim. In the present case, for example, I have already in my previous judgment commented on the opportunity missed by the Defendant at the very least to acknowledge and accept that the Claimant was sexually abused by Roper (it having no positive case to the contrary, and no evidence to support a case to the contrary). [The] Claimant’s witness statement…shows that the Claimant was not primarily motivated by money (and the low figure of his final Part 36 offer confirmed that). He “expected the club to want to engage and to understand what had happened”. The club could have engaged with him (having received his statement, which was dated as long ago as 28 May 2019) without prejudice to what it presented at trial as its strongest defences: namely, that the claim was outside the limitation period and that the club was not vicariously liable for Roper’s sexual abuse of the Claimant, even if that abuse were to be admitted. It did not engage at all.” (Para 28 — costs judgment)
Conclusion
There is much to learn from this first judgment in what may turn out to be many against clubs both within football and further afield. Each case is, of course, different with its own particular facts, but the way in which the Court approached the critical issues of limitation and vicarious liability is instructive for every other case.
These claims are often not of high value (the award here was for just under £20,000) but the legal costs (here the Court ordered an interim payment on account of costs of £200,000) and the potential damage to reputations make it imperative that all lawyers involved in this fast-moving area of law should read this judgment carefully.
References
[1] An inquiry set up by the Football Association in December 2016 under the chairmanship of Clive Sheldon QC (terms of reference at https://www.thefa.com/news/2016/dec/05/fa-statement-terms-of-reference-061216) to inquire into allegations of sexual abuse committed by Manchester City and Crewe Alexandra coach, Barry Bennell. Many of the ongoing court cases relate to those clubs’ alleged liability for abuse committed by Bennell and the first trials are due to be heard in the summer of 2020.
[2] DSN v Blackpool Football Club Limited, [2020] EWHC 670 (QB),
https://www.bailii.org/ew/cases/EWHC/QB/2020/595.html
[3] DSN v Blackpool Football Club Limited, [2020] EWHC 595 (QB); [2020] EWHC 670 (QB) (Costs) https://www.bailii.org/ew/cases/EWHC/QB/2020/670.html
[4] In a case where the claimant’s name and sometimes those of other witnesses have been anonymised, at trial, the lawyers, witnesses and the Judge either use the anonymised name in court or a variation (e.g. “Mr N”) or, as here, the real names are used and the Judge reminds all those present, orally and by a notice on the court door, that publication of any information which could lead to identification is prohibited.
[5] A claimant in a personal injury claim usually has three years to bring a claim from the date when proceedings start to run or, in the case of a child, three years from his majority i.e 18th birthday. Section 11 Limitation Act 1980
[6] [2008] 1 AC 844 HL at [49] https://publications.parliament.uk/pa/ld200708/ldjudgmt/jd080130/hoare.pdf
[7] Child Catholic Welfare Society v CD [2018] EWCA Civ 2342 https://www.bailii.org/ew/cases/EWCA/Civ/2018/2342.html
[8] The seminal two-stage test set out in Various Claimants v Catholic Child Welfare Society and Others [2013] 2 AC 1 https://www.supremecourt.uk/cases/docs/uksc-2010-0230-judgment.pdf
[9] See also B v Nugent Care Society [2010] 1 WLR 516
[10] KR v Bryn Alyn Community (Holdings) Ltd [2003] EWCA Civ 85 [Auth/4/33]; B v Nugent Care Society [2009] EWCA Civ 827 [Auth/8/212; FZO v Adams and London Borough of Haringey [2018] EWHC 3584 [16] [Auth/15/492]
[11] See, for example, Maga v Archbishop of Birmingham and another [2010] 1 W.L.R. 144; EL v Children’s Society [2012] EWHC 365 (QB); E v English Province of Our Lady of Charity and another [2013] Q.B. 722; Various Claimants v Catholic Child Welfare Society and others [2013] 2 A.C. 1
[12] A v the Trustees of the Watchtower Bible and Tract Society of Britain and Others [2015] EWHC 1722 (QB) https://www.bailii.org/ew/cases/EWHC/QB/2015/1722.html
[13] Although the Judge was aware that the two Supreme Court decisions were imminent, he was not asked to defer giving judgment after they were handed down.
[14] [2020] UKSC 13; https://www.bailii.org/uk/cases/UKSC/2020/13.html
[15] [2020] UKSC 12; https://www.bailii.org/uk/cases/UKSC/2020/12.html
[16] DSN v Blackpool Football Club Limited [2020] EWHC 595 (QB); [2020] EWHC 595 (QB) https://www.bailii.org/ew/cases/EWHC/QB/2020/595.html
[17] DSN v Blackpool Football Club Limited [2020] EWHC 595 (QB); [2020] EWHC 670 (QB) (Costs) https://www.bailii.org/ew/cases/EWHC/QB/2020/670.html
[18] An indemnity costs, as opposed to a standard costs order, is one where the burden of proving that the reasonableness of any particular item of cost and its amount is reversed so that, unlike the standard order, it will be for the paying party to demonstrate the unreasonableness of any part of the other party’s claimed legal costs. This leads to a far higher recovery of costs for the successful party. CPR 44.3 (3) provides: “[w]here the amount of costs is to be assessed on the indemnity basis, the court will resolve any doubt which it may have as to whether costs were reasonably incurred or were reasonable in amount in favour of the receiving party.”
[19] The usual order where a party “does better” than an offer it had previously made CPR 36.17 (4)
[20] See the line of cases including Dunnett v Railtrack plc [2002] 1 WLR 2434; [2002] EWCA Civ 303 https://www.casemine.com/judgement/uk/5a8ff70c60d03e7f57ea6b56
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Author
James Counsell QC
Barrister, Outer Temple
James is a widely experienced Queen’s Counsel with a Sports Law practice focusing, in particular, on civil actions arising from failures of safeguarding in football and other sports.
He is currently acting for many claimants in historical and more recent sex abuse claims against football clubs and other sporting bodies, together with religious organisations, schools, the scouts and against. He acted for the successful claimant in the first successful historic sex abuse case against the Jehovah’s Witness organisation in 2015 (A v Watchtower Bible and Tract Society [2015] EWHC 1722 (QB; [2015] All ER (D) 249 (Jun)) and is currently representing the survivors of abuse committed by Barry Bennell in multiple claims against Manchester City and Crewe Alexandra and by Frank Roper against Blackpool Football Club. He also has cases against Chelsea FC involving high profile allegations of racist abuse against two former employees, a youth coach and its youth manager. Apart from the case of DSN referred to here, he has recently successfully acted for the Claimant in a second trial against the Jehovah’s Witnesses BXB v Watchtower Bible and Tract Society of Pennsylvania and another [2020] 4 WLR 42 — judgment handed down on 30 January.
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