HXA and YXA: Cases not overturned on appeal

The appeal of the cases of HXA v Surrey County Council and YXA v Wolverhampton City Council has been handed down. The appeals were heard jointly on 7 July 2021 and were handed down on 8 November 2021. The High Court did not overturn the first instance decisions so both cases remain good law: claims for failure to remove can be struck out without the need for a full trial.  This decision will be welcomed by defendants.

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Scottish multi-party action being raised against Celtic Football Club

Multi-party, or group, litigation is being issued in Scotland against Celtic FC in respect of the non-recent abuse of children at Celtic Boys Club. This litigation is likely to bring into sharp focus the question of whether there was a sufficient institutional connection between the main football club and the boys club for liability for the actions of certain adults at the boys club to attach to the main club. In law and as expressed by Lady Hale in the United Kingdom Supreme Court case of Barclays Bank plc v Various Claimants, 1 April 2020, one of the key questions will be whether there was a relationship between main club and the abusers at the boys club “which makes it proper for the law to make one pay for the fault of the other.” Traditionally the law confined such relationships to those of employer and employee but the law has developed to also now allow liability to attach under the doctrine of vicarious liability where the relationship is one sufficiently akin to employment. Though decided in the English Court of Appeal, the recent judgment in Blackpool FC Ltd v DSN [2021] EWCA Civ 1352 is likely to be considered in the current Celtic litigation. In the Blackpool case, the Court of Appeal held that the relationship between the football club and a man who ran an unofficial feeder club was insufficient for vicarious liability, in part because the football club did not exert control over the man’s activities. The Blackpool case is more fully analysed is our blog here.  

Group litigation – sometimes known as collective redress, multi-party or class actions – has been enabled in Scotland from 31 July 2020. Scottish group proceedings are only competent at the Court of Session and may proceed only with the permission of a judge on an application by a “representative party”. Under the opt-in model used for Scottish group proceedings, the court’s decision in a particular collective case will extend only to those individuals who have subscribed to the group proceedings action. A positive outcome for a representative party in a group action will not be able to be relied upon by anyone who did not opt-in. Non-subscribers will not be bound to accept a settlement from the defender and could raise their own claim.

Those representing the claimants in these proceedings have indicated that more than 20 claimants are presently involved though a public notice is being issued which may increase this number.

David Milton, Partner and Fiona McEwan, Associate at BLM

(david.milton@blmlaw.com / fiona.mcewan@blmlaw.com)

Vicarious liability: applying the brakes?

During the last 20 years, claims arising from non-recent sexual abuse have generated numerous judicial decisions. These claims often explore the concepts of limitation and vicarious liability and – on occasion – have almost redefined these concepts. The latest case is Blackpool FC Ltd v DSN [2021] EWCA Civ 1352, in which Lord Justice Stuart-Smith reviewed the authorities afresh.

DSN was 13 years old in 1987 when – along with a group of young teenage boys – he went on a footballing tour of New Zealand under the supervision of Frank Roper.  He was sexually abused by Frank Roper, a ‘terrifying experience with lasting consequences’ according to the judge at first instance.  Roper was not employed by Blackpool FC but he was closely associated with it: running an unofficial feeder club and directing promising teenagers towards Blackpool FC.  This was important to Blackpool FC whose dire financial situation was dependent on attracting and later selling valuable young players.

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Court of Appeal overturns ‘same roof’ rule in claims to the CICA

The Court of Appeal have unanimously declared the ‘same roof’ rule incompatible with article 14 of the European Convention on Human Rights (“the Convention”) and opened the way to compensation claims from victims of abuse perpetrated by family members living together before October 1979. Continue reading

Impact of the Abolition and Amendment of the Law of Limitation in relation to non-recent child abuse – comparative experiences

Western Australia is the latest state to introduce laws which will enhance the prospects of success for claimants’ bringing claims for damages arising out of non-recent sexual abuse. Following the lead of all other states, apart from South Australia, legislation has just been enacted that will abolish the 6 year limitation period.   The recently concluded Royal Commission found that on average an individual waited 22 years to disclose their abusive experiences   The changes being introduced also provide a legal basis for suing institutions in the name of their current office holders and include provisions designed to overcome difficulties survivors may face in identifying a correct defendant.  Continue reading