The Bennell claims – an extension of the limitation period was not applied where the key evidence on the issue of vicarious liability had been lost as a result of the delay

The eight claimants sought compensation for sexual abuse perpetrated by Barry Bennell (“Bennell”) in the early 1980s when they were aged between 10 and 14 and playing for football teams coached by Bennell.  They argued that Bennell was working on behalf of the defendant Manchester City Football Club Ltd (“MCFC”) and that it was liable for his conduct.  Please see our blog of 10 January for a summary of the case. Today we focus on Mr Justice Johnson’s decision in relation to limitation. 

The background to the issues on limitation  

There was agreement between the parties that the primary limitation periods had expired many years earlier and that the claims had been brought out of time. However, the claimants sought the discretion of the court to disapply the limitation periods. The defendant argued that due to the claimants’ delay it had suffered significant prejudice, particularly due to the death of its Chief Scout Ken Barnes in 2010, which they said would make it inequitable to disapply the limitation periods. 

In coming to a decision, the judge considered the following issues:

Reasons for delay The medical experts agreed that the claimants had never lacked the mental capacity to complain or to instruct legal representatives and that they had never been psychologically disabled from making a complaint. The judge found that each claimant could have brought a claim within time, however, he said that none of the claimants consciously or capriciously delayed the issue of proceedings and that the abuse and its consequences were significant factors in each of the claimant’s delay.  The judge considered that each of the claimants provided a good and cogent explanation for the delay (including a fear of the potential impact that disclosure would have).  He said that if there was no significant impact on the cogency of the evidence, it would have been fair to exercise discretion to disapply the time limit.

Cogency of evidence The judge considered three issues when assessing the impact of delay on the cogency of the evidence: whether the abuse occurred; quantum; and whether the defendant was vicariously liable for the abuse.

Whether the abuse occurred – The claimants’ accounts of the abuse were not challenged and there was little scope for fallibility of memory on the fundamental question of whether the abuse occurred.

Quantum – In respect of quantum the judge recognised that there was considerable scope for reattribution and confirmation bias.  He said that the abuse was a hugely significant event in the claimants’ lives and it would be surprising if they did not naturally attribute subsequent life events to the abuse.  With regards to documents, he noted there was a considerable body of documentary evidence including medical and employment records.  There was some missing documentary evidence including school records.  However, the judge concluded that the impact on the evidence relating to quantum due to the delay was relatively marginal.  Furthermore, the judge said that in one sense the delay had improved the evidence in relation to quantum because there was no need for the experts to forecast how the abuse would impact upon the claimants’ future lives.

Taking the above two issues together and leaving aside the question of the issue of vicarious liability dealt with below the judge concluded that he would have exercised his discretion to disapply the time limits.

Whether the defendant was vicariously liable for the abuse – This was the key issue.  The judge stated that the issue of vicarious liability is highly fact sensitive and that its resolution was not entirely straightforward.  He said vicarious liability depended on a detailed assessment of the nature of the relationship between Bennell and MCFC.  There were no clear contemporaneous documentary records of the relationship between the defendant and Bennell. 

Therefore, the primary remaining evidence came from the witnesses.  The judge commented that most of the witnesses were observing the relationship between Bennell and MCFC from a distance and in circumstances where Bennell was overstating his relationship with MCFC for his own purposes.  Further the judge said the evidence stemmed from the recollection of witnesses going back over three decades and that the witnesses had no reason to commit to long-term memory the details about the relationship between Bennell and MCFC from that time. The only remaining witness who was able to give direct first-hand evidence about the relationship was Bennell. However, the judge found his evidence to be worthless as he was not a credible witness. 

The judge stated that Ken Barnes, the Chief Scout, who died in 2010 would have likely been the most important witness on the issues of vicarious liability and that he would have been much better placed to give credible and reliable evidence on the relationship between Bennell and MCFC. The judge concluded that the net result was that if the claims had been brought in time it is likely that clear, confident and reliable conclusions could have been reached about the relationship between Bennell and MCFC.  The ability to do so now had been badly compromised by the 27 year delay and the consequential impact on the available evidence.

The judge acknowledged that the facts in these claims beared some similarities to the facts in the Court of Appeal case of Blackpool Football Club Limited v DSN [2021] EWCA 1359 where the limitation period was disapplied. However, he said there were also relevant differences.  In particular: the delay was longer here; in DSN there was evidence from a number of senior staff members who were able to assist on the relationship between the abuser and Blackpool FC; there was only one boys’ football team (“feeder team”) that was under consideration whereas the claimants’ here concerned six youth teams; and the basic way in which the feeder team operated in DSN was clear, whereas the evidence relating to how the teams operated here was limited.  

Decision on limitation Even though the judge found that each of the claimants had a good explanation for the delay in issuing proceedings he concluded that having regard to the length of the delay and the way in which the delay had affected the available evidence (in particular on the fact sensitive issue of vicarious liability) he did not consider it equitable to disapply the time limits.  The claims were dismissed on the grounds of limitation. 

Comment

The substantial body of recent case law (including at appellate level) on limitation in these cases highlight that each and every one is fact specific.  The distinct issue in this case was that the most important witness on the issue of vicarious liability had died in 2010.  The only other person who could provide significant detail about the relationship between Bennell and MCFC was Bennell himself.  However, the judge found he could not rely on any of Bennell’s evidence because he is a manipulative lair and not a credible witness.  Had the claims been brought in time the judge concluded that confident and reliable conclusions could have been reached about the relationship between Bennell and MCFC.  Therefore, it was not fair to reach a binding detrmintation on MCFC’s responsibility for the abuse based on the partial evidence still available.

We will shortly publish further blogs on the findings in relation to vicarious liability and quantum in these claims.


Catherine Davey at BLM (catherine.davey@blmlaw.com)

Sexual abuse in football – an update

In August 2018, former Celtic football club youth coach and kit man, Jim McCafferty, was sentenced to three years and nine months in prison after admitting eight counts of sexual assault. These offences took place between December 2012 and December 2015 and his victim was aged between 14 and 16.

Continue reading

FA Inquiry – an update

The independent Inquiry commissioned by the Football Association to investigate child sex abuse in football between 1970 and 2005 has this week advised that it will delay its findings.  The inquiry was due to publish its final report towards the end of this year.  Continue reading

Media reporting and abuse investigation

The decision to award Sir Cliff Richard a significant sum for a breach of his right to privacy comes at a moment when issues of false allegations and the way sexual assault cases are to be investigated and prosecuted is to the fore in any event.  Continue reading

Sports abuse – an update

There have been a number of developments this month in respect of alleged abuse within sport. Continue reading