Although Pep Guardiola and Manchester City (the Club) are sweeping all before them on the pitch, they have also been successful in the courtroom too. The High Court in TVZ & Ors v Manchester City Football Club, recently ruled that the Club cannot be held responsible for the abuse perpetrated by Barry Bennell between 1979 and 1984 against boys aged between 10 and 14 at the time. Sadly though, this victory is not necessarily one that will be savoured for years to come, as it is an outcome that leaves us with no real winners.
Barry Bennell was a football coach who sexually abused a number of boys in the 1980s. He is serving 34 years in prison and, at 68 years old, is likely to die in jail. The Claimants are 8 men who played for football teams coached by Bennell between 1979 and 1984. Mr Justice Cavanagh described each as ‘remarkable’ men, courageously giving evidence and some waived their right to anonymity to do everything they could to encourage others to come forward and ensure Bennell was brought to justice.
The Claimants alleged that Bennell was working for Manchester City as a scout and coach while they were abused and that the Club, as Bennell’s employer was liable for Bennell’s conduct.
The issue, in this case, was not the truthfulness of their account – the judge openly stated they were believed, and the Club did not dispute the Claimant’s accounts of their abuse at the hands of Bennell. The dispute was whether the Club were liable for the abuse committed by Bennell. There were two fundamental questions before the court: limitation and vicarious liability.
This means whether the claim was brought within time limits set out in law and whether there was an employment relationship between Bennell and the Club which would allow the Claimants to make a claim against the Club for Bennell’s abuse.
Background
Bennell was a youth team football coach in the 1970s and 80s in the Greater Manchester region. His precise role is unclear: Bennell says he was engaged by the Club as a scout between 1975 and 1979. However, it was common ground that Bennell was not, at any stage, formally an employee of the Club. After that, he managed a number of youth teams, which were variously described as ‘feeder teams’, ‘junior teams’ and ‘nursery teams’ to the Club, all of which were classed as informal arrangements.
From 1979 onwards, Bennell, it was said, still acted as a ‘scout’ to Manchester City, but there was an informal and ad hoc nature to the relationship. Bennell was linked to the Club for two separate time periods, with a gap of 18 months between November 1979 and July 1981 during which the Club’s investigation identified that Bennell was not involved with football. The judge stated:
It appears that the term ‘scout could be applied to anybody who might be in a position to identify footballing talent and make an introduction to the Club. This might include PE teachers in local schools. [27]
The Claimants alleged that the Club engaged Bennell as a scout and coach and in the course of those duties he ran feeder teams for the Club which provided a source of talent identification and recruitment. During the course of these duties, the Claimants were abused by Bennell. The Claimants’ case was that the Defendant was vicariously liable for Bennell’s abuse.
The Club, whilst denying liability for the abuse committed, had set up a Compensation Scheme (MCFC Survivors Scheme), which was a method of settling claims for abuse perpetrated by Bennell. The Scheme was set up in March 2019 after the Club commissioned Jane Mulcahy QC to investigate allegations of child sexual abuse in respect of three individuals with historic connections to the Club – Barry Bennell, John Broome, and Bill Toner. Their offences spanned the 1960s through to the early 1990s, though they were not connected to or associated with each other. The full Report can be found here. The Scheme closed for applications on 31st August 2021. The club described the scheme as such from the Scheme Rules:
1. Why is MCFC paying compensation?
Since November 2016, MCFC has been the subject of a number of civil claims arising out of allegations of abuse conducted by Bennell and Broome. The Club offered to pay compensation to eligible survivors under the Scheme Rules as an alternative to survivors pursuing their claims through the courts. The Club considers that, considering the context of the allegations made, paying compensation under the Scheme Rules is the right thing to do to bring a sense of closure to the victims as quickly as possible.
2. Does this mean MCFC is liable for the actions of Bennell and Broome?
The Scheme operates as an alternative to litigation and does not seek to determine the Club’s liability for abuse suffered by any survivor making a claim under the Scheme. Instead, it is the Club’s intention that eligibility for the Scheme will be determined on an inquisitorial (i.e., by gathering and analysing all information submitted by both sides) rather than adversarial basis (as often happens in court) – this aims to avoid the costs, emotional distress, and complexity of a trial. The upshot is that any payments under the Scheme do not amount to an admission of or a finding of liability against the Club.
Limitation
This relates to how long someone has to bring a claim as set out by the Limitation Act 1980 (the 1980 Act). The 1980 Act acts to provide an element of procedural fairness by putting in place so that potential disputes for things like negligence or breach of contract can be dealt with without the threat of litigation hanging over defendants in perpetuity. Limitation had expired when the Claimants issued their claims. Under Section 2, a claimant has six years to bring a claim in tort (i.e., negligence, nuisance, common law assault and battery among others). However, the abuse took place between 32 and 36 years ago, and when the claimants brought their claims, this fact was not in dispute. Each claimant argued that the court should disapply the time limit pursuant to S33(1) of the Limitation Act 1980.
The Claimants’ case was that it was equitable to disapply limitation as permitted under S33(1) of the 1980 Act because there was good reason for the delay and the trial could be fairly determined. The Club argued that the long delays in bringing the actions caused it to suffer ‘irremediable evidential prejudice’ and it would not be equitable to disapply the time limit.
The Club provided details of eight deceased individuals who could have provided evidence if proceedings had been brought within the time limit. These included the person most responsible for the Club’s scouts and the person responsible for youth policy and development, who would have been a “crucial witness”.
The Judge found that the abuse and the effect of the abuse were good and persuasive explanations for the delay in bringing proceedings. In respect of evidence as to the extent of the harm caused (the evidence as to whether the abuse had happened was not challenged), the evidence had, in one sense, improved over time.
Mr Justice Cavanagh accepted joint evidence that each Claimant could have brought a claim within time as each knew by the expiry of limitation that they had been abused and this was wrong. However, none of the Claimants had “consciously or capriciously delayed the issue of proceedings.”
It was found that the criminal proceedings did not help with the question of liability. There was also now no clear documentary record of the relationship between the Club and Bennell at the time the abuse took place. Mr Justice Cavanagh concluded that the primary remaining evidence came from the witnesses themselves. Bennell himself was found to not be a credible witness; the judge described his evidence as worthless. However, if the claim had been brought in time the judge stated that “it is likely that clear confident and reliable conclusions could be reached about the relationship” between Bennell and the Club. The 32-to-36-year delay and consequential impact on available evidence had “badly compromised” this.
Although there was a similar delay in Blackpool FC v DSN a very similar case where the limitation period was disapplied, the delay was not as long; the manager, chairman and company secretary were able to give evidence on the nature of the relationship between Blackpool FC and the abuser; and there was only one boys’ team that was being considered whereas in this case there were six youth teams involved. There were sufficient people available to provide evidence on important aspects of the relationship between the abuser and club to mean that it was equitable to disapply the limitation period in DSN, to differentiate that case to the Bennell case.
Mr Justice Cavanagh concluded that due to the “length of the delay and the way in which the delay has affected the available evidence” it was not fair to expect the Defendant to meet any of the claims and it was not “equitable to disapply the time limit.” It was especially pertinent in regard to the availability of documentary evidence to show the relationship between the Club and Bennell which the judge considered to be “fragmentary, incomplete, and of limited assistance”, and that if a claim had been brought earlier, then the likelihood of such evidence existing would be considerably higher. It is also important to note that judge does not consider that the Club deliberately buried or destroyed evidence to avoid liability. At para 205 of the judgment it says:
“The net result is that if the claims had been brought in time it is likely that clear confident and reliable conclusions could be reached about the relationship between Bennell and MCFC. The ability now to do so has been badly compromised by the 27- year delay and the consequential impact on the available evidence….”
Vicarious liability
He went on to consider vicarious liability in the event that he was incorrect about not disapplying the limitation period. Vicarious liability is the legal principle that another party will be liable in law for the actions of another. Commonly, this is seen through the lens of the employer-employee relationship, where the employer will be held liable for the actions of the employee if the employee’s acts causing liability is closely connected to the performance of their duties. This definition has expanded in recent times to cover acts such as sexual assault thanks to the House of Lords decision in Lister v Hesley Hall Ltd in 2001, a case involving the sexual assault of young boys at a care home. To be liable, a claimant must demonstrate two things:
That there was an employment relationship, or a relationship akin to employment.
It must also be shown the acts must be closely connected to the performance of the employee’s work and undertaken during the course of that employment.
The Claimants submitted that the evidence demonstrated that Bennell’s relationship with the Defendant was akin to employment and that the abuse was perpetrated in the course of that employment. The Defendant countered that there was no relationship akin to employment because the Defendant had no control over Bennell.
In DSN, and the decisions in Barclays and Morrisons stated that the correct approach to determining whether the Defendant was vicariously liable for the abuse was:
Undertake a factual examination of the relationship
Determine if Bennell was an employee or an independent contractor
If (2) does not resolve the first stage of the vicarious liability test then determine whether there is a relationship “akin to employment” between Bennell and the Defendant
If the answer to (3) is not clear then consider using Lord Phillips’ criteria in Various Claimants v Catholic Welfare Society [2013] as an aid to determining whether there is a relationship akin to employment. First, that employer would more likely have the means to compensate a victim; the act was committed during activity undertaken on the employer’s behalf; the employer would have created the risk of the employee’s acts; that the employer would have some control over the employee.
Undertake a factual examination of the circumstances in which the Claimants were abused and the degree of connection between those circumstances and Bennell’s relationship with the Defendant
Determine whether the degree of connection between the circumstances of the abuse and Bennell’s relationship with the Defendant is sufficient to give rise to vicarious liability
In Barclays, a Doctor contracted by Barclays to perform medicals on staff who was accused of sexually assaulting 126 of those he examined, some as young as 16. The court found that he was an independent contractor as he was not exclusively contracted to Barclays and was free to conduct business in his own right and that Barclays exercised very little control over how he performed the examinations.
In Morrisons, an IT contractor employed by Morrisons downloaded sensitive employee payroll data to his personal computer. He had been granted special access to that data as part of his job role with Morrisons. He later released the information to third parties. The Supreme Court held that his actions were not sufficiently connected to the performance of his employment as they were not carried out in pursuing the business of his employer. Therefore, there was no sufficiently close connection between the employee's position and his act, even though his position allowed him the opportunity to commit the wrongful act.
Both cases were heard in 2020, so represent a modern interpretation of the law relating to vicarious liability.
The relationship - first stage
The judge concluded that Bennell was not in a relationship with the Club that was akin to employment. He had a full-time paid job away from his football commitments, and the footballing activities were voluntary and undertaken in his spare time. Whilst this was “far from determinative” it is “indicative of his independence”. His coaching activities also had a “distinct existence” independent of the Club and there was “very little evidence of [the Defendant] exercising control over Bennell’s activities”. Thus the judge found that it was “sufficiently clear: Bennell was carrying on his own independent enterprise and was not in a relationship with [the Club] that is akin to employment.”
As a result, the Claimants failed the first stage of the test for establishing vicarious liability.
The connection - second stage
The judge went on to consider the second stage in case he was incorrect that there was not a relationship akin to employment. He found that there is no clear evidence that the Club was able to tell Bennell how to perform his coaching duties, or what he should and should not do. Bennell was used by the Club to organise teams during trials, but this was not enough to show that it exercised a degree of control in respect of his day-to-day coaching duties.
Even if he was wrong and the relationship was one akin to employment, the abuse of the Claimants “did not take place in the course of that employment” as it did in the Lister v Hesley Hall case. The work Bennell did for the Club did not require him to have children stay at his home overnight, which is where much of the abuse took place.
As a result, the Judge found that the connection between the abuse and Bennell’s relationship with the Defendant is “insufficient to give rise to vicarious liability”; although the relationship gave Bennell the opportunity to commit the abuse, the Defendant had not entrusted the welfare of the Claimants to Bennell.
Whilst the outcome will be disappointing for the Claimants Mr Justice Cavanagh has ruled that their claims failed on both limitation and vicarious liability. The decision, and Mr Justice Cavanagh’s outline of the correct approach, reiterates Lord Justice Stuart-Smith’s comment in DSN that “stages 1 and 2 are not susceptible to a “tick-box” approach.”
The solicitor acting for the Claimants has said there will be an appeal.
Conclusion
In analysing this decision, it is important to separate out the abusive acts from the issue at hand in determining whether there was an employment relationship between the Club and Bennell that would make the Club liable for Bennell’s act. Although the case suggests that the Club won technicalities, the decision highlights important issues for consideration. On limitation, the judge felt that the absence of eight key witnesses who had died some years previously and could have provided important factual evidence on the relationship between Bennell and the Club meant that it may have been unfair towards the Club to allow a trial to proceed. The facts presented show that the Club had very little control over how Bennell performed his duties running the various youth teams, and as a result, did not fall within an employment relationship.
It is clear that no one can dispute the shocking and horrific abuse the Claimants suffered at the hands of Bennell, someone they should have been able to trust with their physical and emotional welfare. The fact that the Claimants lost does not exonerate Bennell. This case is one of those sad examples of where there are no winners.