Vicarious liability: Barry Bennell abuse claims against Manchester City unsuccessful

The High Court has ruled that Manchester City cannot be held responsible for abuse perpetrated by Barry Bennell. It was concluded that Bennell was carrying on his own independent enterprise and was not in a relationship with the football club that was akin to employment. Manchester City was therefore not vicariously liable to the Claimants.

TVZ & Ors v Manchester City Football Club [2022] EWHC 7 (QB)

The High Court has ruled that Manchester City cannot be held responsible for the abuse perpetrated by Barry Bennell. The Claimants were aged between 10 and 14 and playing for football teams coached by Bennell. The Claimants alleged that Bennell was working for the Defendant as a scout and coach when the abuse occurred and that the Defendant was vicariously liable for Bennell’s conduct.

It was accepted by all parties that abuse had taken place. It was also accepted that Bennell had never been an employee of the Defendant, however, the Claimants argued that there was a relationship akin to employment between Bennell and the football club. Mr Justice Johnson disagreed, holding that Bennell’s coaching activities had a “distinct existence” independent of the Defendant and there was “very little evidence of [the Defendant] exercising control over Bennell’s activities”. He concluded that Bennell was carrying on his own independent enterprise and was not in a relationship with the Defendant that was akin to employment. The Defendant was therefore not vicariously liable to the Claimants.

Background

The Claimants alleged that the Defendant engaged Bennell as a scout and coach and in the course of those duties he ran feeder teams for the Defendant which provided a source of future 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.

Limitation

Limitation had expired when the Claimants issued their claims. The time between expiry of the limitation period and the commencement of the claims was around 27 years. The Claimants’ case was that it was equitable to disapply limitation because there was good reason for the delay and the trial could be fairly determined. The Defendant contended that due to the long delays it had suffered irremediable evidential prejudice and it would not be equitable to disapply the time limit.

The Defendant provided details of eight (deceased) individuals who might have been able to provide evidence if proceedings had been brought within the time limit. These included the person primarily responsible for the Defendant’s use of scouts and the person responsible for youth policy and development, who would have been a “crucial witness”.

Mr Justice Johnson 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 vicariously liability. There was also now no clear contemporaneous documentary record of the relationship between the Defendant and Bennell. Mr Justice Johnson concluded that the primary remaining evidence came from the witnesses. Bennell himself was found to not be a credible witness; his evidence described by the judge 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 Defendant. The 27-year delay and consequential impact on the available evidence had “badly compromised” this.

Mr Justice Johnson 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 and just to expect the Defendant to meet any of the claims and it was not “equitable to disapply the time limit.”

Vicarious liability

He went on to consider vicarious liability in the event that he was incorrect about not disapplying the limitation period.

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.

Mr Justice Johnson referred to previous case law including the recent case of DSN, and the decisions in Barclays and Morrisons and stated that the correct approach to determine whether the Defendant was vicariously liable for the abuse was:

1. Undertake a factual examination of the relationship
2. Determine if Bennell was an employee or an independent contractor
3. 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
4. If the answer to (3) is not clear then consider using Lord Phillips’ five incidents as an aid to determining whether there is a relationship akin to employment
5. 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
6. 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

The relationship - first stage

The judge concluded that Bennell was not in a relationship with the Defendant that was akin to employment. He had a full-time paid job 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 Defendant 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 Defendant] that is akin to employment.”

The Claimants had therefore not established the first stage of the test for 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 Defendant] was able to tell Bennell how to carry out his duties, or what he should and should not do.” Bennell was used by the Defendant to organise teams in the course of trials but this was “not sufficient to show that it exercised even a vestigial 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”. The work Bennell did for the Defendant did “not require him to have children stay at his home overnight”. Mr Justice Johnson determined 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 Johnson has ruled that their claims failed on both limitation and vicarious liability. The decision, and Mr Justice Johnson’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.

What can we learn?

• It was acknowledged that whether limitation should be disapplied was applicable to each Claimant individually and that it was possible limitation could have disapplied for some Claimants and not others. This was because s33 “involves a highly fact sensitive judgement, and because the facts of the individual cases differ.”
• The judge drew distinctions between this case and the case of DSN (involving Blackpool FC) where the limitation period was disapplied. The differences included that: in DSN 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.
• In order to determine stage 1 of the test for vicarious liability Mr Justice Johnson noted the importance of analysing previous authorities which show the importance of the employee/contractor distinction and “how it is necessary to focus on that distinction when deciding whether the relationship is akin to employment.”
• Mr Justice Johnson emphasised the importance of control when considering stage 2. There was no clear evidence that the Defendant was able to tell Bennell how to carry out his duties, or what he should and should not do. Mr Justice Johnson held that the finding in DSN that “Blackpool FC did not have even a “vestigial” degree of control over Roper also applies to this case”.  The residual power to terminate the relationship did not amount to the type of vestigial control that is contemplated in Cox and Barclays.