Abuse in football: High Court offers clarity on evidence to be considered

The High Court recently handed down judgment on several evidential issues in ongoing claims relating to sexual abuse in football. The decision will have relevance to both abuse in football claims and more generally across all types of sports claims; including the relevance of voluntary redress schemes involving documents disclosed within the course of the schemes and relevance of findings of independent reviews undertaken.

TVZ & Ors v Manchester City Football Club Ltd [2021] EWHC 1179 (QB)

The findings of Lord Justice Cavanagh will be of great interest to those considering the admissibility of evidence in relation to compensatory redress schemes arising out of the same tort considered in the proceedings.

In this instance, the redress scheme established by Manchester City was not privileged nor deemed to be without prejudice. The scheme was well-publicised and did not hold itself out to be privileged or to act as a bar on civil proceedings. In addition, contemporaneous documents sent by claimants to the administrator of the redress scheme were capable of disclosure.

It is inevitable that there will be future claims involving the matter of governance/independent reviews in relation to abuse. Following TVZ practitioners handling these claims will be mindful that these issues are for trial judges to consider. In addition, TVZ highlights how trial judges retain a significant amount of discretion on the admissibility of documents; the judge dealing with the application hearing deferred the admissibility of certain evidence to the trial judge.

Background

The claimants comprise eight individuals who were sexually and emotionally abused by Barry Bennell. The claimants were between 8 and 16 years old at the relevant time in the 1980s. The claimants seek damages for long-term psychiatric injuries and consequential damages including the loss of opportunity to pursue a career as a professional footballer.

The claimants allege the relationship between Mr Bennell and the defendant was akin to employment, with the defendant having caused or permitted Mr Bennell to hold himself as a representative of the defendant, enabling the abuse of the claimants. In response, the defendant has submitted that Mr Bennell was never employed or contracted by them. Similarly, any involvement of his in the coaching of young boys did not relate to scouting for the defendant.

At trial, the Court will be asked to consider whether the defendant is vicariously liable for the actions of Mr Bennell, whether the discretion available to it under section 33 of the Limitation Act should be exercised, followed by causation and quantum.

The eight claims are listed for trial commencing on 25 October 2021. Mrs Justice Lambert will be the trial judge. Several applications were made in the proceedings by both the claimants and defendant in respect of the following issues. Mrs Justice Lambert did not hear all the applications as some of the applications referred to matters that the defendant sought to prevent being discussed at trial:

1. Admissibility of the Manchester City Survivors' Scheme ("the Scheme"), a voluntary redress mechanism for those victims of Bennell, who may have a civil claim against the defendant, to apply for compensation from the club.
2. Admissibility of the Mulcahy Review, a report commissioned by the defendant, and the Sheldon Report, a wider report known as the Independent Review into Child Sexual Abuse in Football 1970-1985.
3. Disclosure of contemporaneous documents obtained via the Mulcahy review.
4. Disclosure of documents obtained via the administration of the Scheme.
5. Statements of third parties dealing with “the pay and the pensions that the claimants might have expected to receive if they had enjoyed careers as professional footballers.”

Judgment

Taking each of the above in turn, Mr Justice Cavanagh held as follows:

1. Admissibility of the Scheme

The defendant submitted that knowledge of the Scheme would have the effect of prejudicing the trial judge as it would be apparent that the defendant had sought to settle similar claims to those presented by the claimants. Mr Justice Cavanagh found that the Scheme and documentation were not protected by without prejudice privilege. There was nothing in the Scheme rules or the FAQs to suggest nature and terms of the Scheme were intended to be privileged or without prejudice.

Furthermore, “the defendant took steps itself to make the existence of the Scheme public,” with announcements on its own website and statements to the press. In those circumstances it was “impossible” to know whether Mrs Justice Lambert could be aware of the Scheme already. The defendant’s application to withhold the terms and FAQs of the Scheme from the trial judge was rejected.

2. Admissibility of the Mulcahy Review and Sheldon Report

The question to be addressed was whether the claimants are entitled to rely upon the conclusions set out within the Mulcahy Review and Sheldon Report in support of their arguments on the issue of vicarious liability. It was noted that “a judge who has been given the responsibility for finding facts in one set of proceedings should not abdicate her responsibility by deferring to the conclusions reached by another judge or tribunal or investigating body, even if they were addressing the same factual issues”.

Mr Justice Cavanagh stated that he did not have to reach a conclusion on this issue and was not prepared to bind Mrs Justice Lambert. Nonetheless, his preliminary view that it would not be appropriate for the trial judge to rely upon the conclusions reached in the two reports. However, “this does not mean that the documents need to be redacted before they are placed before Lambert J. In the final analysis it is for her to decide whether the findings of fact and conclusions are admissible”.

3. Disclosure of contemporaneous documents from the Mulcahy Review

An agreement had been reached by the claimants’ and defendant’s solicitors that the defendant would “disclose the relevant contemporaneous documents that had been provided to them in the course of their investigations [for the Mulcahy Review]”. The term ‘contemporaneous documents’ was considered to encompass those original documents supplied to the solicitors assisting with the Mulcahy Review, subject to appropriate consent and redactions.

The claimants expressed concerns that full disclosure on those terms had not been made. The defendant stated all relevant documents had been disclosed. Rather than making an order for specific disclosure, Mr Justice Cavanagh held that “the most appropriate order [would require] the defendant's solicitor to serve a witness statement”, to the effect that documents covered by the agreement had been disclosed.

4. Disclosure of documents obtained via the administration of the Scheme

The claimants sought two categories of documents relating to the Scheme:

1. Original or contemporaneous documents supplied to the defendant or the administrators of the Redress Scheme suggesting a relationship between the defendant and Bennell.
2. Original or contemporaneous documents supplied to the defendant and administrator by claimants to the Scheme in support of their applications for redress offers.

Considering issues of possession, confidentiality and privilege, Mr Justice Cavanagh found that the documents in category 2 were capable of disclosure, but not category 1. The documents in category 2 were “not privileged when they came into existence, and they did not become privileged simply because they were forwarded to the defendant's solicitors in support of without prejudice negotiations with the defendant”.

5. Statements of third parties

The claimants sought an order to rely on statements which refer to the earnings and pensions the claimants may have had if they had become professional footballers. These statements were identified as factual evidence and not expert reports. The defendant argued that the statements were expert opinions, and leave had not been sought to adduce this as expert evidence.

On a similar note to issue 2, it was found “the question whether these statements are admissible… as statements of fact is one that should be finally determined by Lambert J at the PTR [pre-trial review]”. However, had the issue required a conclusive determination, Mr Justice Cavanagh would not have made an order preventing the claimants relying on the statements. The content was identified as largely factual, and where it strayed into inappropriate expert comments, Mrs Justice Lambert would retain her discretion to disregard the comments.

Impact on claims in future

As stated in the summary of the start of the article, the judgments handed down, whilst not in a trial setting, will have relevance to both abuse in football claims and more generally across all types of abuse in sports claims.

Those defendants who contemplate the establishment of a similar voluntary redress scheme in future, will need to be acutely aware of the findings made here. The issue of prejudice and confidentiality of documentation disclosed within the course of a voluntary redress scheme will have to be considered in the event of civil litigation arising from claims which may have fallen into such a scheme, albeit limits were placed on what could be disclosed here.

In addition, Mr Justice Cavanagh was clear that the unfettered discretion of Trial judges should be protected. Firstly, when considering the admissibility and significance of Inquiry/Public Investigation outcomes as part of similar civil actions, defendants are unlikely to succeed in preventing the presentation to Trial judges of reports addressing organisational failings forming the same background as the claims for damages. Nonetheless, Trial judges will still be expected to examine the evidence in full and draw their own decisions, without deferring to the conclusions in those reports.

Secondly, whilst offering his opinion on the same, Mr Justice Cavanagh declined to rule on the admissibility of disputed factual/expert witness statements, stating again this was an issue for determination by the Trial judge at a PTR.