24th Jan 2022

Manchester City found not liable in the High Court for Barry Bennell's wrongdoings from the 1980's

Barry Bennell is a well-known paedophile. He has been convicted of numerous historic sexual offences against youngsters and is currently serving a long custodial sentence.

There will be many survivors who were sexually abused by Bennell. It follows they should be entitled to compensation for their ordeal.  However, Bennell is now unlikely to have any money left and therefore not worth suing.  The dilemma for survivors who wish to make a claim for compensation is who to sue.

At various times Bennell has been associated with Manchester City Football Club, amongst others. Bennell was also associated with youth teams and there were times when Bennell worked as an independent youth scout. 

In January 2022 the High Court in London heard a claim brought by eight survivors who each alleged they had been sexually abused by Bennell in the early 1980's when they were aged between 10 and 14 years old and playing for football teams coached by Bennell.

There was no question the claimants had been sexually abused as alleged and indeed to its credit, Manchester City did not try to undermine their testimonies of the abuse, or to allege the abuse had not happened in the way they described or at all.  However, the fact that abuse has taken place is of itself not enough.  The question for the court was twofold:-

• Was Manchester City legally liable to pay compensation for the sexual abuse perpetrated by Bennell.  This is known as vicarious liability.
• Did the delay in bringing their claims mean that Manchester City had been unfairly prejudiced to such an extent that a fair trial was not possible.  This is known as the limitation defence.

Vicarious Liability

There is a principle in English law called vicarious liability.  It means that an organisation that employs or is sufficiently associated with a perpetrator may be liable to pay compensation to his victims despite the fact the organisation has itself done nothing wrong.

Limitation

There is also a principle in English law that requires a claimant to bring a claim for compensation in the example of childhood sexual abuse, by the later of their 21st birthday, or when they first understand the connection between their sexual abuse and their mental health problems.  Any claim brought after this date can be defended on the grounds of limitation.  It is a technical defence, but a perfectly proper defence and is often relied upon by organisations to avoid legal liability to compensate a victim.

The Facts

The eight claimants were all abused as youngsters and therefore should all have brought their claims by their 21st birthdays in the early 1990's. The litigation was started in 2017 and 2018 and hence there was a delay of some 27 or 28 years. Manchester City said the delay had caused it prejudice in being able to properly defend the claim.  

Bennell had been convicted of sexual offences and there was no doubt in the mind of the Judge the eight claimants were telling the truth.  Indeed, Manchester City had never denied the abuse happened, but rather had said that the delay in bringing legal proceedings had meant it was now impossible to fairly investigate whether Bennell was sufficiently connected with Manchester City when he abused the eight claimants to make Manchester City financially liable to compensate them.  The question for the Court was whether the delay meant that it was possible to investigate and discover the extent to which Bennell was connected to the club.

In the early 80’s Manchester City had a youth development officer, a youth coach and a scout who were all employed by Manchester City.  Other scouts were not employees at Manchester City. They were not paid a salary although some were given expenses. Manchester City acknowledged that Bennell had been a scout for the club from about 1975.  Bennell's youth teams were known to be very good, not least because Bennell had a habit of poaching talented youngsters from other local clubs, so it was easy to envisage that Manchester City would be happy to be associated with Bennell.  However, Bennell gave evidence that he stopped scouting for Manchester City in 1978 or 1979 as this coincided with him moving home and taking up employment as a residential child support worker.

The Claimants argued that Bennell was not just a scout and a coach of junior teams, but that he had a central role in coaching for Manchester City’s youth teams.  Bennell's ability to attract talented young footballers was central to Manchester City's youth strategy and ultimately to the success of the club.  Boys were told that if they wished to join Manchester City, they would have to do so on an exclusive arrangement so that Manchester City always had the pick of the bunch.  It was also suggested that Manchester City exercised significant control over the way in which Bennell operated his scouting business.  The claimants argued there was a sufficient connection between Bennell's relationship with Manchester City and the manner in which he used his position and power to gain access to and abuse his victims. It was stated the Claimants would not have met Bennell nor been abused by him had it not been for Bennell’s connection to Manchester City.

Manchester City argued that it was not enough just to show that by lending its name to Bennell's activities the club should be liable to compensate the victims.  Manchester City did not entrust any activities to Bennell that gave rise to the risk that he would sexually abuse the claimants, and in particular Manchester City did not assign the care and welfare of the youngsters to Bennell.

Therefore, the Judge had to undertake a factual examination of the relationship between Manchester City and Bennell at the time of the abuse. He firstly had to decide whether Bennell was an employee of Manchester City. If so, then Manchester City would be liable to compensate the claimants. If not, then the court would have to go on to consider whether Bennell's relationship with Manchester City was “akin to employment”.

Ironically Bennell was best placed to give evidence about his relationship with Manchester City.  When the police initially investigated Bennell he said that he had been a scout for Manchester City in the early 1980s. Subsequently, Bennell said that was not true and that he had severed his ties with Manchester City when he became a residential child support worker at the care home.  Interestingly, the Court in 2022 recognised that of the eight claimants, six had given evidence at Bennell's criminal trial which had resulted in his conviction. Bennell had shown hostility towards these claimants and at various times during the criminal investigation had lied to the police and other parties. The court decided that Bennell had no motive to tell the truth and that his evidence was worthless. This meant the court had to rely upon the recollection of other witnesses about matters from many years ago.  These testimonies were, in the main, less reliable than fresh witness recollections.  The passage of time also meant there were fewer documents that could shed any light upon Bennell’s relationship with Manchester City.  This point brought into play the limitation defence.  Manchester City argued the passage of time and the delay in bringing Court proceedings meant the evidence before the court as to the employment relationship between Bennell and Manchester City could not be properly investigated, and it was impossible to have a fair trial.

Medical evidence was obtained for each of the claimants.  It was accepted there was no reason medically why they could not have brought a claim within the specified time.  Each claimant knew that he had been abused and they all knew this was wrong. However, each of the claimants was able to put forward a medical reason to explain the delay in bringing Court proceedings. The claimants had for many years told nobody about the abuse because to a greater or lesser extent they had compartmentalised the abuse and pushed it to the back of their mind. They also felt they would not be believed.

The legal authorities have for many years recognised there are particular features of sexual abuse claims which make it more difficult for a claimant to bring proceedings compared, for example, to routine personal injury claims or clinical negligence claims. The law recognises that the nature of sexual abuse is itself inhibitory and tends to result in a victim being too embarrassed or shameful or distressed to talk openly about it

The judge said that he considered each of the claimants had a good and reasonable explanation for the delay in bringing legal proceedings. The judge also went out of his way to record that he accepted to a large extent the oral testimony of the witnesses’ given decades after the sexual abuse.  However, he noted that memory is not infallible and is especially unreliable when it comes to recalling past beliefs.  A strong belief in the recollection of an event does not mean the event is more likely to have occurred.  It is also understood that memories of past beliefs are constantly being revised by the brain to make them more consistent with present beliefs.  For example, where a particular outcome is desirable, such as winning the claim, memories tend to favour a recall of facts that support that outcome. 

Despite the recognised short comings of the memory, the Court accepted each claimant was able to accurately and truthfully confirm the nature and extent of his sexual abuse.

However, the Court found there was no clear contemporaneous documentary record of the relationship between Manchester City and Bennell. At the time of the Claimant’s 21st birthday when the limitation period expired Bennell had not worked with Manchester City for only six years.  Employment records would have been available, and witnesses would have been able to say with some degree of certainty with Bennell was employed by Manchester City.

The Judge therefore decided that if the claims had been brought in time it is likely that “clear confident and reliable conclusions could have been reached about the employment relationship between Bennell and Manchester City”. The ability to do so in 2022 had been badly compromised by the 27 year delay and the consequential impact upon the available evidence

The Court dismissed the claims as it was impossible to conclude whether Bennell was or was not an employee or quasi employee of Manchester City and a fair trial was not possible.

The lessons to be learned from this litigation is that it is not enough for a claimant simply to be able to show with medical evidence that he or she has a good reason for a delay in bringing in claim.  A claimant that delays a claim for too long faces the additional legal hurdle that the defendant will be able to successfully allege the delay has resulted in the loss of crucial witness and documentary evidence, such that a fair trial is not possible.

Had the claimants been able to sue Bennell in person then the question of his employment relationship with Manchester City would have been irrelevant and in these circumstances, almost certainly the court would have allowed the claims to proceed, and judgement would have been obtained.

These salutary reminders are particularly important when suing an organisation for the actions of its employees and hence the limitation argument will be intimately bound up with the legal issues in determining vicarious liability.

It is therefore imperative that if you are a victim of historic sexual abuse that you seek specialist legal advice at the earliest stage.  Our solicitors at Robsonshaw have been representing survivors of historic sexual abuse for over 20 years.  We have a wide range of expertise in this complex area of law.  Please contact us at any time, our solicitors are always on hand to support you through your claim.  We pride ourselves on providing a personal service to our clients.  If you or a family member wish to speak to us on a free, no obligation basis please call us anytime on 01392 345333, or email us at enquiries@robsonshaw.uk

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