Sports Law Update: TVZ v Manchester City Football Club [2022] EWHC 7 (QB) (Part 2 of 2)

Articles, News

14/02/2023

Limitation and Quantum

This judgment is essential reading for practitioners specialising in abuse claims. It is also of considerable importance to those who practise in personal injury more broadly. With respect to limitation, it provides guidance on:

  1. The role of ‘compartmentalisation’ in abuse cases when assessing the reasons for delay, and
  2. The proper approach to analysing the cogency of evidence under S. 33(3) of the Limitation Act 1980 (“the Limitation Act”)

Introduction

In the late 1970s and early 1980s, Mr. Barry Bennell was involved in the running and coaching of a number of boys’ football teams in Manchester. He was tasked by Manchester City Football Club (“the club”) as a ‘scout’ to identify promising young footballers who could later be signed by the club as a professional player. It is now known that he was a prolific predatory paedophile.

In TVZ v Manchester City Football Club [2022] EWHC 7 (QB), eight survivors of child sexual abuse issued a claim against the club. They asserted that Mr. Bennell ran feeder teams for the club, that each of the Claimants played for one or more of those teams, and that in the course of his duties for the club Mr. Bennell abused each of the Claimants. Therefore, the club was vicariously liable for Mr. Bennell’s conduct.

The Club did not challenge the Claimants’ account of what Mr. Bennell did to them. The issues in the case were:

  1. Whether the claim should be dismissed on grounds of limitation,
  2. If not, whether the Club was vicariously responsible for the abuse, and
  3. If so, the sum that should be paid by the Club to each Claimant.

Mr. Justice Johnson dismissed the claim. He held that it was not equitable to disapply the time limit, and that the Club was not vicariously responsible for the abuse. Given the complexity of this dispute, this case will be analysed over three posts. Each post will discuss a different issue in the hearing. This post will discuss the issue of limitation.

Disapplying Limitation in Personal Injury Claims

Each Claimant recognised that their claim had not been started within the required time limit (which expired on their 21st birthdays). They asserted that it was nonetheless equitable to disapply the time limit because they had a good reason for the delay and the trial could be fairly determined. The delay after the expiry of the limitation period for the Claimants ranged between 25 – 29 years.

S. 33(1) of the Limitation Act provides that the three-year limitation period for personal injury claims may be disapplied if the court deems it ‘equitable’. The court is required to have regard, in particular, to the factors set out in S. 33(3) of the Act. In this case, the following factors were of importance:

  1. The length of the delay (S. 33(3)(a))
  2. The reasons for the delay (S. 33(3)(a)), and
  3. The cogency of the evidence (S. 33(3)(b)).

The leading authority on S. 33(1) is Carroll v Chief Constable of Greater Manchester Police [2017] EWCA Civ 1992 at [42]. There are two important points to note from this judgment:

  1. The essence of the proper exercise of judicial discretion is a balance of prejudice. Ultimately, the Claimant must show that their prejudice would outweigh that of the Defendant.
  2. When assessing cogency of evidence, the evidential burden is on the Defendant to show that the evidence is less cogent because of the delay.

In his judgment, Mr. Justice Johnson framed S. 33(3)(b) as a comparative exercise. A court must assess the available evidence compared to that which would have been available if the claim has been brought in time. Further information on the previous jurisprudence on S. 33 can be found in Deka Chambers’ ‘Back to Basics’ Webinar on Limitation.

Judgment

The length of the delay

Mr. Justice Johnson accepted that the period of delay was long. Nevertheless, this did not create any additional presumption against the disapplication of the limitation period. There have been cases of very long delays in which the limitation period has been disapplied (Jeffrey v Bolton Textile Mill Co plc [1990] CLY 2944; McHarlen v Harland and Wolff Ltd [1991] SLT 85), and other shorter periods where limitation has not been disapplied.

The reasons for the delay

Both parties instructed medical experts; Dr. Mogg for the Claimants and Professor Maden for the Defendant. Both experts agreed that none of the Claimants lacked mental capacity to complain or instruct legal representatives, and that none had been psychiatrically disabled from making a complaint. This was accepted by Mr. Justice Johnson. It was further accepted by him that none of them suffered from dissociative amnesia, and that there was no ‘date of knowledge’ argument under S. 14 of the Limitation Act.

However, it is recognised in the jurisprudence that there are particular features of abuse cases which make it more difficult for a claimant to bring proceedings and which may provide a good reason for delay. Indeed, in B v Nugent Care Society [2009] EWHC 481(QB), Mr. Justice Irwin, as he then was, noted that “the tort inflicted by the abuser…has itself the tendency to inhibit the victim from complaining, reporting or suing, even when the consequences do not include frank psychological or psychiatric injury”. This phenomenon, known as compartmentalisation, was accepted by Professor Maden.

The court assessed that the present cases were instances of the tort inhibiting complaint. It was true that the Claimants had been able to disclose the abuse to family and friends prior to the issue of proceedings. However, the court noted that there was a “world of difference” between disclosure in confidence to a partner, and making disclosure to a stranger for the purpose of seeking legal advice. Further, one of the Claimants was afraid that disclosure would prejudice his professional footballing career. In this light, the court found that each of the Claimants had a good and cogent explanation for his delay in bringing proceedings.

The cogency of the evidence

Mr. Justice Johnson assessed the impact of delay by reference to three issues in the cases. Namely, whether the abuse had occurred, vicarious liability and quantum.

The Fact of Abuse. It was not suggested that delay had impacted the assessment. There was no scope for mistake, misunderstanding and little scope for fallibility of memory, as to whether abuse had occurred. There was no suggestion of dishonesty. Further, the Club’s decision not to challenge the Claimants’ account of abuse and not to adduce evidence from Mr. Bennell on this issue, was not in any way due to the passage of time. Further, the previous criminal proceedings indicated that issues relating to abuse could be fairly determined to the criminal standard of proof several decades later. In summary, the period of delay had had no impact on the cogency of the evidence.

Quantum. Both experts agreed that delay had complicated the work of the expert because of the deterioration in the cogency of the evidence, relating to quantum. The Court accepted that there was some impact on the cogency of evidence relating to quantum as a result of the delay. For example, one of the Claimant’s school reports were no longer available. This might have provided a contemporaneous account of his change in character during the period of abuse. However, this was deemed relatively marginal. There remained a significant body of evidence to assist the Court on quantum, including medical records, expert evidence and employment records.

Notably, the court averred that the delay improved the evidence in relation to quantum. There was a much greater retrospective component to the assessment. It was now possible to look back over 35 years of lived experience to see how the abuse had had an impact rather than rely on evidence as to prognosis.

Vicarious Liability. This proved to be the principal obstacle for the court in disapplying the time limit. Having had regard to the impact of the delay on the evidence, Mr. Justice Johnson held that it was not equitable to disapply the time limit.

Mr. Bennell was not employed by the Club as a scout; he was not paid a salary. At the relevant time, the Club’s head scout was Mr. Ken Barnes. He was employed by the Club and had an office at its Maine Road Stadium.

The resolution of vicarious liability required a detailed assessment of the nature of the relationship between Mr. Bennell and the Club. This was not of relevance in the criminal proceedings, and there was no contemporaneous documentation of the relationship between the Club and Mr. Bennell. Most of the witnesses were observing the relationship between Mr. Bennell and the Club from a distance, and in circumstances where Mr. Bennell was overstating his relationship with the Club for his own purposes. Whilst Mr. Bennell did give evidence, Mr. Justice Johnson concluded that his evidence was worthless in light of his dishonesty.

 For the Court, there was limited or no documentary evidence on matters such as:

  1. The appointment of Mr. Ted Davies as youth development officer for the Club, and the reasons why Mr. Bennell was not appointed to that role.
  2. The extent and purpose of contact between Mr. Bennell and Mr. Barnes, and the matters that were discussed by them.
  3. Whether Mr. Barnes communicated anything to Mr. Bennell when he took up the coaching position.
  4. Whether the Club:
    1. Had any role in Mr. Bennell coaching various youth football teams.
    1. Provided funding, kit, training facilities and tickets for Mr. Bennell’s games.
    1. Had any say over the players selected for Mr. Bennell’s teams, the tournaments in which the teams were entered or any recourse if Mr. Bennell had introduced players to rival clubs.
    1. Maintained public indemnity insurance in respect of the activities of its scouts.
  5. The extent and purpose of contact between Mr. Bennell and Mr. Barnes.

Had the claim been brought in time, it is likely that there would have been at least some documentary evidence of these matters. Further, Mr, Barnes would have been an important witness. He would be well placed to give credible and reliable evidence on this issue; however, he had passed away in 2010. The net result was that, had the claim been brought in time, clear, confident and reliable conclusions could have been reached about the relationship between Mr. Bennell and the Club.

Other Factors. Mr. Justice Johnson did not consider any other factors to be of considerable weight. This included the remaining factors in S. 33(3), and all the circumstances of the case. Nevertheless, there are three points which are of interest to all those practising in this area.

First, the relevance of changes in the legal framework since the cause of action accrued was mooted. However, it is established that this is not a relevant factor when assessing whether limitation should be disapplied (Catholic Child Welfare Society v CD [2018] EWCA Civ 2342, [75]).

Second, the Claimants submitted that the ultimate issue was whether a fair trial was possible. The court noted that this ought to be treated ‘with a little care’. The true question is whether it is fair to expect the defendant to meet the claim after so many years have passed.

Third, Mr. Justice Johnson noted that in DSN v Blackpool Football Club [2020] EWHC 596 (QB), Mr. Justice Griffiths had disapplied limitation. This was of note given that the facts of DSN bore similarity to the present litigation. However, Mr. Justice Johnson noted two points. First, the S. 33 decision in that case did not mandate any particular answer to the S. 33 decision in this case. Second, there were important differences:

  1. The delay in TVZ was longer.
  2. In DSN, there was evidence from the manager, chairman and company secretary. They were able to assist the court on the relationship between the abuser and the Blackpool Football Club.
  3. There was only one boys’ team under consideration and the way in which the team operated was clear.
  4. There were few factual differences, and the two witnesses who had died would not have been capable of making a difference to the court’s assessment.
  5. Mr. Justice Griffiths considered the evidential impact by reference to the test for vicarious liability set out by the Supreme Court in 2016, before further guidance by that same court in 2020.

Commentary

The exercise of discretion under S. 33 of the Limitation Act is a fact-sensitive exercise. Nevertheless, there are two points of general application which can be drawn from TVZ.

First, this judgment emphasises the importance of ‘compartmentalisation’ when assessing the reasons for delay in abuses cases. It is recognised that the very nature of the tort can inhibit complaint, report or suit. Further, Mr. Justice Johnson drew a distinction between a Claimant disclosing their abuse in confidence to a partner or confidant, and making that disclosure to a stranger for the purpose of seeking legal advice. Such a reason can be powerful enough to justify a long period of delay.

Second, at its core, an assessment of the cogency of the evidence is a comparative exercise and issue-specific. A court will assess the evidence which would have been made available had the claim been brought in time, and the available evidence. They will then assess the impact of that delay on the evidence by reference to the issues in the case. This is the thought process which abuse practitioners must carry out to assess the impact of delay on the cogency of the evidence.

Quantum

In light of Mr. Justice Johnson’s conclusions on limitation and vicarious liability, the claims were dismissed. Nevertheless, he still assessed damages for each Claimant, on the assumption that the claims had succeeded. I will focus on two aspects of the court’s analysis on quantum. Namely, the role of damages for assault/battery, and the approach to ‘loss of chance’ damages.

General Damages

The Claimants would have been entitled to general damages for PSLA with respect to psychiatric injuries. However, they would also have been compensated for the assaults and batteries themselves which constituted the abuse, and the psychological impact of the abuse at the time it was perpetuated. Indeed, the Judicial College Guidelines notes that awards should not only take into account the psychiatric effects of abuse but also “the immediate effects of the abuse at the time that it was perpetrated, including feelings of degradation. Aggravated damages may be appropriate”.

In each case, Mr. Justice Johnson made a single award to cover all incidents of abuse. In particular, he took account of the following factors when assessing awards for the very fact of abuse should be calculated. This included:

  1. Comparative awards of aggravated damages in the cases of Marriott v Parrington [1988] CLY 1509 and G v Williams [1995] CLY 1830.
  2. The guideline awards in Vento v Chief Constable of West Yorkshire [2002] EWCA Civ 1871 for discrimination.
  3. Awards in personal injury litigation, which provide a helpful cross-check (noted in John v MGN [1997] QB 586).
  4. Guideline awards for non-monetary loss for false imprisonment and malicious prosecution (Thompson v Commissioner of Police of the Metropolis [1998] QB 498).

There was no punitive element to these awards. Mr. Justice Johnson affirmed that, for each case, he had not made a separate award for aggravated damages. Rather, he had included, within the award of general damages for abuse, “an element which might otherwise be awarded as aggravated damages”.

Loss of Promotion

In six of the claims, damages were sought for loss of earnings and pension as a professional footballer. The Claimants pleaded their claim on the basis that they lost the chance of securing such earnings. In each case, they say that they lost a 25% chance of a professional career in a second-tier club (now known as the Championship).

The parties in TVZ agreed that the relevant principles were summarised by the authors of ‘Personal Injury Schedules: Calculating Damages (4th Edition) at paragraphs H192 – H193:

  • If the Claimant’s loss depends on the hypothetical actions of an independent third party, the Claimant must show that they had a chance of reaching a specific goal.
  • The ‘substantial’ chance need not be as high as 50%. It must be more than merely ‘speculative’.

Mr. Justice Johnson held that there were two aspects to assessing a loss of chance claim. Namely, the court should assess:

  • Whether the abuse prevented the Claimants from becoming professional football players.
  • The pre-existing chance that has been lost, and whether it was a ‘real and substantial’.

In each of the six claimants who advanced such a claim, Mr. Justice Johnson was satisfied that the abuse did preclude any chance they otherwise would have had of a professional career. The abuse diminished the enjoyment of and commitment to the game.

The second criterion was more difficult to fulfil. Any assessment of the lost chance involved a large number of contingencies. The trajectory that the Claimants were aiming for was to progress from a local league team to a professional contract with regular appearances in the club’s first team squad. Having analysed the overall statistical prospects of progress, Mr. Justice Johnson found that for most of the Claimants, the prospect of a regular first team appearance was highly speculative. It could not be said that there was a real and substantial prospect of success. There were too many contingencies.

However, the court made an exception for two of the Claimants (DDG and LDX). Both Claimants had progressed substantially further than the feeder teams they played in at age 13. In light of this, the court accepted that they had lost a real and substantial chance of a career as a professional footballer.

Commentary

There are two points practitioners can draw from the analysis of Mr. Justice Johnson with respect to quantum:

First, the judgment emphasises the proper approach to assess damages purely in respect of the abuse. The guidance given by Mr. Justice Johnson is particularly helpful to ascertaining how such a head of damage can be quantified. Yet, it is important to recognise that these are no punitive damages. Even with respect to aggravated damages, practitioners should be alive to the prospect of over-compensation and ensure that double-counting is avoided.

Second, the limits of the doctrine of ‘claimant’s benevolence’ were made apparent in Mr. Justice Johnson’s assessment of the loss of chance. The Claimants alleged that the court should ‘err in favour of the Claimant where it is the Defendant’s negligence, which deprives of the court of the best evidence’. However, as Mr. Justice Johnson noted, applying proper ‘claimant’s benevolence’ should not involve reversing the burden of proof. While allowances can be made, it is still necessary to identify some evidential basis for assessing the chance that has been lost.

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