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Michael Kent KC successful in defending Manchester City Football Club

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

The High Court (Johnson J) handed down a judgment on 10 January 2022 after a seven-week trial of eight claims against Manchester City Football Club (‘MCFC’) arising out of serious sexual abuse by a junior football coach, Barry Bennell, in the early 1980s. Michael Kent KC (leading Nicholas Fewtrell) acted for the Defendant Club and its insurers on the instructions of Keogh’s LLP (Ian Carroll). The issue was whether the Club were vicariously liable for Bennell’s assaults. It was alleged that during the relevant period Bennell was employed by, or in a relationship akin to employment with, the Club as a “scout” and junior coach. There was also a question whether the claimants should be allowed to proceed out of time under section 33 of the Limitation Act 1980. The judge held in favour of the defendant on all those issues.  He refused permission under section 33 in all eight cases. He concluded that the defendant would be significantly prejudiced on the issues of vicarious liability given the delay of some 27 years in bringing the claims, and it would not be fair and just to expect MCFC to meet them even though each of the claimants had a good explanation for the delay in issuing proceedings. In this respect he noted the agreement of psychiatric expert witnesses that such delay creates real problems of “reattribution” and “confirmation bias”.

Johnson J also held that, on the evidence that was available and adduced before him, in any event the claims failed: that evidence did not establish that Bennell was ever employed by MCFC or that, during the relevant period, he was in a role “akin to employment” (so as to engage the extended “stage 1” test for vicarious liability); further he concluded that in any event the abuse (most of which took place in Bennell’s own home or on trips organised by him) could not be regarded as satisfying the second stage of the test of vicarious liability- he held that the assaults took place in circumstances not closely connected to the duties or functions which, on the claimants’ case, the relationship gave rise to.

The judge therefore applied the principles now clarified in two Supreme Court cases from 2020: Barclays Bank plc v Various Claimants [2020] UKSC 13; [2020] AC 973 and Wm Morrison Supermarkets plc v Various Claimants [2020] UKSC 12; [2020] AC 989 which had already been applied to a similar case of a football scout/youth coach in DSN v Blackpool FC [2021] EWCA Civ 1352 (in which Michael Kent KC also acted for the Defendant who succeeded on appeal). The “akin to employment” extension satisfying stage I of the test still requires a relationship which closely matches that of the conventional employment relationship and it is not enough that such relationship gave rise to the opportunity to commit assaults which would not otherwise have been possible– the “employer” must still have entrusted the claimant to the care of the “employee” in circumstances which gave rise to the risk of such assaults being committed: the ordinary duties of a football scout or coach did not involve providing  accommodation for the players.

Michael Kent KC, leading Nicholas Fewtrell, acted for the successful Defendant, instructed by Ian Carroll, Keoghs LLP.

The judgment can be found here.

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