The Bennell claims: vicarious liability in football clubs

TVZ & others v Manchester City Football Club [2022] EWHC 7 (QB)

A more restrictive approach to vicarious liability has been adopted since the two Supreme Court decisions in 2020 (Barclays Bank and Morrison 2) and the Court of Appeal judgment in 2021 (Blackpool FC Ltd v DSN [2021] EWCA Civ 1352. My previous blog on this can be found here. These decisions are now percolating to the courts at first instance.  In TVZ & others v Manchester City Football Club [2022] EWHC 7 (QB) the High Court considered whether Manchester City was vicariously liable for the abuse perpetrated by Barry Bennell on 8 claimants. Mr Justice Johnson rejected the existence of vicarious liability.

Barry Bennell was a prolific predatory paedophile.  He abused boys at his home, in summer camps, on tour and in children’s homes. His offending first came to light in 1994 in Florida. He was charged in the UK and tried in 1998, 2014, 2018 and 2020. He has been convicted of 90 separate offences, all against young boys, ranging from indecent assault to what is now rape.  Most likely he will die in jail.

He was also a successful boys’ coach and football scout. He was closely associated with Manchester City but was never employed by them. He ran various feeder teams, sometimes concealing the extent of his involvement because he was a disruptive figure. He was also a scout for Manchester City from 1975 to 1979, and from 1981 to 1985: he identified talented players, introduced them to the club and tried to make sure they stayed loyal to the club until they could be signed up. At the time Manchester City’s head scout was Ken Barnes. Barnes had regular meetings with scouts in his office. He was quite closely involved with the various feeder clubs. The club would pay for occasional expenses, as well as the cost of pitches. They sometimes provided kits to the teams. Scouts like Bennell had a scout card which gave them access to some of the club premises, to team members, and to free tickets as well.

However, Bennell did not receive payments from Manchester City. Instead he received fees from the parents – who also funded tours or attendance at tournaments – and received income from his other activities (selling clothing, working in children’s homes). He chose which youth matches to see and whether to make an approach to a boy or his parents. He bore the financial risk of tours.

Mr Justice Johnson looked at the two parts of the test for vicarious liability: stage 1 (is the relationship between tortfeaser and defendant ‘akin to employment’) and stage 2 (is the tort closely connected to that relationship?) and how they articulated. 

Turning to stage 1 Bennell was neither an employee nor an independent contractor. One had to look at the nature of the relationship between Bennell and the club to decide if it was ‘akin to employment’. The judge found that it was not ‘akin to employment’ for the following reasons:

  1. Bennell’s activities were truly voluntary (he was employed full-time by a different employer.)
  2. Bennell had a portfolio of footballing activities, some of which unrelated to the club.
  3. Bennell bore the financial risk
  4. There is very little evidence of Manchester City exercising control over Bennell
  5. Bennell was under no obligation to comply with instructions from the club
  6. Bennell was not subject to any disciplinary code
  7. Bennell’s involvement with the club was not part of the club’s core business of running a successful first division team

As to stage 2, the judge found that Bennell abused boys by persuading their parents that the boys should stay in his home overnight, or in residential facilities during tours. He groomed and persuaded the parents and the boys that it was in some way part of his role as a scout.  That was simply not true.  There was no evidence that anyone at Manchester City ever contemplated that Bennell would be required to accommodate children in the course of his duties as coach or scout.  The judge distinguished between a residential carer (who is responsible for the welfare of children on a 24/7 basis) and Bennell.  This mean there was no close connection between the tort (the sexual abuse) and the relationship between Bennell and the club.

The judge concluded that the case could not be distinguished from DSN – which meant the claims had to fail.


Written by Geneviève Rich at BLM (geneviève.rich@blmlaw.com)

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