DSN v Blackpool Football Club  EWHC 596 QB
News And Events25/03/2020
The High Court (Mr Justice Griffiths) has recently handed down judgment for the claimant in a sexual abuse claim. The claimant was awarded £17,000 for abuse by a former football scout, Frank Roper, for whose actions the defendant football club was held vicariously liable.
Christopher Wilson, Associate, and his assistant Matthew O’Neill, who acted on behalf of the club and its insurers, consider the decision and its potential implications.
The claimant claimed damages for one incident of sexual abuse during a football trip (organised by Mr Roper) to New Zealand in June 1987. Mr Roper ran a junior football team called Nova Juniors. The claimant contended that Mr Roper was also a scout for Blackpool FC and that Nova Juniors was a feeder team for Blackpool. The claimant did not play for Nova Juniors, but he did attend coaching sessions at Blackpool’s School of Excellence from about 1985 to 1987 (when aged 11-13). The claimant said that it was Roper who invited him to train at the School of Excellence.
The New Zealand trip was arranged for a representative side from the Blackpool area and consisted of players from Nova Juniors and other local sides plus players from Blackpool’s School of Excellence. The cost of the trip was estimated to be around £25,000 and it was funded by Mr Roper himself (although the Court found as a fact that the Club had made a contribution of £500).
The defendant raised a limitation defence on the grounds that the material events occurred over 30 years ago and the delay had caused substantial prejudice to its ability to investigate the claim. Not only was Roper deceased, but so also was Jack Chapman, the Club’s then Head of Youth Development. The defendant also denied vicarious liability for the actions of Roper on the basis that he was an independent football scout who was not an employee or sufficiently closely connected to the Club for it to be held vicariously liable; further, that the trip in question was not a Blackpool trip but a tour organised and paid for by Roper himself.
Limitation – should the court exercise its discretion under s33 Limitation Act 1980 to disapply the limitation period in favour of the claimant?
Of the factors set out in s33(3) that should be taken into account, the court considered that the two most relevant to this case were:
(a) The length of, and the reasons for, the delay;
(b) The extent to which the evidence adduced or likely to be adduced is less cogent than it would have been had the claim been brought in time.
With respect to (a), the court was satisfied that there was a clear barrier to the claimant disclosing the abuse in that such a disclosure would have required him to unearth buried, toxic, memories. The Court accepted that the delay was justified by the claimant’s feelings of shame, the change in the climate of opinion about the credibility of allegations of sexual abuse and his mental health deterioration when he disclosed the abuse to his wife in 2012.
Turning to (b), the Court considered the claimant’s evidence to be convincing. It was supported by other witnesses who spoke of suffering similar sexual abuse at Roper’s hands. Although Roper was deceased, witness evidence as to Roper’s actions was so compelling that whatever Roper might have said had he been alive would not have carried sufficient weight to disturb this finding. The Court also thought that the evidence on vicarious liability was sufficiently cogent, and that he had heard clear recollections about Roper’s role. The Court also played down the significance of Chapman’s absence on the basis that even if he had been alive and able to give contrary evidence that would not have been sufficient to prevail as a lone voice against ‘strikingly cogent and consistent evidence’. Accordingly, the Court concluded that no real risk of substantial prejudice had been caused by the delay and it was equitable to allow the action to proceed.
Did the alleged abuse occur?
The court considered the claimant to be an honest witness, and accepted his account of the abuse without qualification. In Roper’s absence, there was no witness who could counter his allegation.
Is the defendant vicariously liable?
Following the established two-stage test, the Court firstly considered whether the relationship between Blackpool and Roper was one that was capable of giving rise to vicarious liability. The Court noted the importance of youth player recruitment to a club like Blackpool, who were in a dire financial position at the time and forced to rely upon volunteers to spot players. Identifying, recruiting and retaining players was part of the club’s core business. The Court found that Roper was a scout for Blackpool with a particular role in spotting promising players below the age of 14, particularly through Nova Juniors, then encouraging them to try out at Blackpool. Although there was evidence from some witnesses that, despite playing for Nova Juniors, they turned down Blackpool and opted instead to sign for other teams, the Court did not consider this to be of importance, citing those boys as exceptions. In contrast, Nova Juniors was held to be a feeder club with the sole purpose of taking boys into a closed environment in which Blackpool had a better chance than any other club of signing them. Accordingly, Roper was considered so much a part of the business and organisation of the club that it was just to make Blackpool liable for his torts.
Turning to stage two, the court had to assess whether the abuse occurred in a context sufficiently close to Roper’s relationship with Blackpool. The court considered that a key factor in the parents deciding to let their sons go on the trip was that the son of the then Blackpool first team manager was also going, and that the manager had addressed parents at a meeting to say it was a good opportunity. Ultimately the court ruled that although it was not an official Blackpool trip (as Blackpool could never have afforded it), it was so close to an official trip that it made no difference. It was a tour that was part of Roper’s operation to build allegiance to Blackpool and recruit players for Nova Juniors, which the Court had already identified as a Blackpool feeder team.
What is the causation of DSN’s psychiatric diagnoses?
The abuse consisted of one occasion of touching over clothing, it occurred at a time and in a context when the claimant was vulnerable. His inability to disclose the abuse led to a long period during which the effects of the abuse were undiagnosed and untreated. Experts agreed (and the court accepted) that prior to late 2016, when the football abuse scandal broke in the media, the claimant’s anxiety was mild and did not significantly affect his daily life, but since 2016 he had suffered increased anxiety and the abuse had been a significant factor.
The court assessed general damages (including aggravated damages) at £17,000, which is at the high end of the “moderate” category of the applicable Judicial College Guidelines bracket. Special damages were agreed at £2,071.
This is the first time the Court has considered the issue of whether a football club could be held vicariously liable for the actions of a scout who was not an employee. The implications of this judgment could be far-reaching in light of many similar claims against Blackpool and other football clubs. Indeed, the Court accepted in this case that the practice of using feeder teams run by scouts to recruit young talent was adopted by many other clubs at that time.
Looking at the various issues upon which the court ruled, it is interesting to note some of the factors that the court relied upon in reaching its conclusions, some of which may be open to further debate:
- The claimant was found to be for practical purposes, disabled from bringing his claim earlier. This was despite expert evidence that, after an initial six month period of anxiety following the abuse, he did not suffer significant mental health problems and his daily life was not affected.
- The Court decided that Nova Juniors’ sole purpose was to supply young players to Blackpool, in essence affording it the status of a feeder club. The Court was not persuaded by evidence from witnesses who said that while playing for Nova they chose to sign for other clubs (some without any pressure from Roper) and evidence from one witness in particular who said Roper facilitated his training with another professional club whilst the witness was still playing for Nova.
- The deaths of Roper and Chapman were not sufficient to create a real risk of substantial prejudice. It was the defendant’s case that Chapman was Roper’s link to the Club, and only Chapman and Roper truly knew the relationship between Roper and the Club. However, the Court found the evidence of the claimant and his witnesses as to their perception of Roper’s connection with the Club to be so compelling and consistent that whatever Roper and Chapman might have said about the actual relationship would not have made a difference. Commentators will be considering in particular whether this finding follows a correct approach to assessing prejudice in the context of determining the issue of limitation.
Blackpool and its insurers are reviewing the judgment in detail and considering their options.
For further information, contact Chris Wilson