DSN v BLACKPOOL FOOTBALL CLUB [2021] EWCA Civ 1352
FACTS:-
In June 1987, whilst on a footballing tour for young boys to New Zealand, the Claimant was sexually abused by Mr Roper, who was in charge of the tour and was the only adult leading the trip. Mr Roper was a convicted sex offender, having convictions for indecent assaults on males contrary to s. 15 of the Sexual Offences Act 1956 recorded in 1960, 1961, 1965 and 1984.
The Claimant was 13 years old when he was abused by Mr Roper. The proceedings were issued in January 2018, over thirty years later. At first instance, the trial judge held that the applicable primary limitation period should be disapplied and the action be permitted to proceed pursuant to Section 33 of the Limitation Act 1980. He also held that the Defendant, Blackpool Football Club Ltd ["Blackpool FC"], was vicariously liable for the acts of Mr Roper when he abused the Claimant.
The Defendant appealed on the issues of limitation and vicarious liability.
JUDGEMENT:-
Lord Justice Stuart-Smith said that he would deal with the issue of vicarious liability first of all. He considered the history and structure of Blackpool FC. Frank Roper clearly played a key role in the recruitment of players. He had and ran a sports clothing shop as well as acting as an unpaid "scout" for Blackpool FC. He also ran his own youth football teams. There were two of these, and the second was "informally associated" with Blackpool FC, insofar as it was widely regarded as a "feeder" team for Blackpool FC but boys could join other clubs.
The Claimant was born in 1974. In 1985, he was registered with Blackpool FC's School of Excellence for the 1985-86 season.
The 1987 trip on which the Claimant went was not the first that Mr Roper had organised but was the first on which the Claimant had gone. The 1987 trip was not billed as a Blackpool FC trip although according to the Claimant they were known as a Blackpool representative side from England and that was how they referred to themselves. Although it was the Claimant's evidence that Mr Roper organised the trip for the boys playing in the Blackpool School of Excellence, apart from the Claimant, only one or possibly two of the boys who went had been at the Blackpool School of Excellence. Four Blackpool FC apprentices went on the trip to help Mr Roper, but it was out of season for them. Subject to a financial contribution of £500 from Blackpool FC, Mr Roper carried the entire cost of the tour, estimated to be in the region of £25,000 or rather more. There was no evidence that Blackpool FC as such had any involvement in the planning, running, administration or financing of the trip other than the contribution of £500. Whilst on the trip, Mr Roper would also purchase a sportswear to bring back to the UK to sell.
The primary limitation period expired in 1995, three years after the Claimant achieved the age of 18.
Mr Roper died on 13 September 2005. The Claimant instructed solicitors in April 2017 and proceedings were brought in January 2018.
It was alleged by the Claimant that Mr Roper worked for the Defendant as a scout "and was, at all times, acting in the course of his duties for the Defendant." If he was not a paid employee then it was alleged that the Defendant's "relationship with Mr Roper was akin to employment because the Defendant caused or permitted Mr Roper to hold himself out as being a representative of the Defendant club and derived benefit from that relationship by using Mr Roper as a source of young footballing talent for the club.
Stuart-Smith LJ considered the judgement of the first instance judge, who had found for the Claimant on the issue of vicarious liability. Roper’s attachment to Blackpool FC counted for a great deal. One witness said that the involvement and support provided by Blackpool Football Club made the trip legitimate.
Stuart-Smith LJ considered the submissions of each party. He would start by reminding himself that the mere giving of an opportunity to commit abuse was not sufficient and that the critical question was whether the features of the relationship between Mr Roper and Blackpool FC were to be regarded as akin to employment as opposed to Mr Roper carrying on business (broadly construed) on his own account.
The existence and operation of two teams run by Mr Roper did not evidence the nature of the relationship. There is no evidence that Blackpool FC had any say in the existence or operation of those teams at all. It would be accurate to say that Mr Roper's scouting activities conferred benefits upon Blackpool FC that were important for the development and survival of its business. The fact that Blackpool FC gave free rein and full access to its premises, including the desirable areas such as the directors' box and the players' areas, suggested close involvement between Mr Roper and the club; but on closer examination, even the giving of those privileges provided limited evidence about the real nature of the relationship save to suggest, in a very general sense, that Mr Roper could be described as being "embedded" in Blackpool's business.
Stuart-Smith LJ had reached the clear conclusion that the evidence as identified and found by the Judge did not justify a finding that the relationship between Blackpool FC and Mr Roper was one that could properly be treated as akin to employment. Whilst what Mr Roper did as a scout conferred important benefits upon Blackpool FC in the conduct of its business and that he was afforded deference and welcome by the club in recognition of his having produced good players in the past and in hope that he would continue to do so, none of the normal incidents of a relationship of employment were otherwise present.
There was no evidence of any control or direction of what he should do. The fact that he was an unpaid volunteer who had a full-time job running his own sportswear business was not determinative; but it was indicative of a person who was in a position to act independently to support a club that was in dire financial straits.
The evidence about what persuaded parents to entrust their children to Mr Roper's tour was provided by two witnesses. However what was conspicuously lacking was any endorsement of the trip by Blackpool FC as such. Even allowing, for the sake of argument, that the parents as reasonable observers would have considered Mr Roper to be acting in the capacity of a representative of Blackpool FC when leading the trip and committing the tort, that was not an acceptable test for the imposition of vicarious liability.
Consequently, Stuart-Smith LJ would allow the Defendant’s appeal on the issue of vicarious liability.
The next issue was that of limitation. Stuart-Smith LJ considered the applicable principles under section 33 of the Limitation Act 1980 and the caselaw. He then went over the judge’s judgement on the issue.
Blackpool FC submitted that there were multiple factual findings that required to be made in order to enable to court to determine which side of the vicarious liability line the case fell. There were also two missing witnesses including Mr Roper. Blackpool FC also submitted that the trial Judge pre-empted the decision on vicarious liability and contravened the precautionary point of principle established by caselaw by "putting the cart before the horse".
Stuart-Smith LJ would not accept these submissions. It was a notable feature of the Judge's approach that he expressly reminded himself of the pitfalls that he should avoid and the precautionary approach that he should adopt. It is clear that he started his assessment with the potential risk of significant prejudice well in mind.
In relation to Mr Roper’s absence from the trial, Stuart-Smith LJ did not share Blackpool FC's confidence that he would have taken an active part or would have given evidence even if he had been alive. Blackpool FC identified particular points where it was said that missing documentary or witness evidence might have provided clarity. Stuart-Smith LJ did not find the peripheral examples cited by Blackpool FC to be persuasive.
The Judge had the inestimable advantage of having heard the numerous witnesses who did give evidence. He was therefore best placed to assess the potency of that evidence and whether contrary evidence from witnesses or documents could have led to the partial or wholesale rejection of the evidence he had heard. A similar approach should be adopted to the loss of documentation.
There was no substance in the submission that the Judge put the cart before the horse.
Therefore Stuart-Smith LJ would dismiss the appeal on limitation.
Sir Stephen Richards and Macur LJ would agree.
FACTS:-
In June 1987, whilst on a footballing tour for young boys to New Zealand, the Claimant was sexually abused by Mr Roper, who was in charge of the tour and was the only adult leading the trip. Mr Roper was a convicted sex offender, having convictions for indecent assaults on males contrary to s. 15 of the Sexual Offences Act 1956 recorded in 1960, 1961, 1965 and 1984.
The Claimant was 13 years old when he was abused by Mr Roper. The proceedings were issued in January 2018, over thirty years later. At first instance, the trial judge held that the applicable primary limitation period should be disapplied and the action be permitted to proceed pursuant to Section 33 of the Limitation Act 1980. He also held that the Defendant, Blackpool Football Club Ltd ["Blackpool FC"], was vicariously liable for the acts of Mr Roper when he abused the Claimant.
The Defendant appealed on the issues of limitation and vicarious liability.
JUDGEMENT:-
Lord Justice Stuart-Smith said that he would deal with the issue of vicarious liability first of all. He considered the history and structure of Blackpool FC. Frank Roper clearly played a key role in the recruitment of players. He had and ran a sports clothing shop as well as acting as an unpaid "scout" for Blackpool FC. He also ran his own youth football teams. There were two of these, and the second was "informally associated" with Blackpool FC, insofar as it was widely regarded as a "feeder" team for Blackpool FC but boys could join other clubs.
The Claimant was born in 1974. In 1985, he was registered with Blackpool FC's School of Excellence for the 1985-86 season.
The 1987 trip on which the Claimant went was not the first that Mr Roper had organised but was the first on which the Claimant had gone. The 1987 trip was not billed as a Blackpool FC trip although according to the Claimant they were known as a Blackpool representative side from England and that was how they referred to themselves. Although it was the Claimant's evidence that Mr Roper organised the trip for the boys playing in the Blackpool School of Excellence, apart from the Claimant, only one or possibly two of the boys who went had been at the Blackpool School of Excellence. Four Blackpool FC apprentices went on the trip to help Mr Roper, but it was out of season for them. Subject to a financial contribution of £500 from Blackpool FC, Mr Roper carried the entire cost of the tour, estimated to be in the region of £25,000 or rather more. There was no evidence that Blackpool FC as such had any involvement in the planning, running, administration or financing of the trip other than the contribution of £500. Whilst on the trip, Mr Roper would also purchase a sportswear to bring back to the UK to sell.
The primary limitation period expired in 1995, three years after the Claimant achieved the age of 18.
Mr Roper died on 13 September 2005. The Claimant instructed solicitors in April 2017 and proceedings were brought in January 2018.
It was alleged by the Claimant that Mr Roper worked for the Defendant as a scout "and was, at all times, acting in the course of his duties for the Defendant." If he was not a paid employee then it was alleged that the Defendant's "relationship with Mr Roper was akin to employment because the Defendant caused or permitted Mr Roper to hold himself out as being a representative of the Defendant club and derived benefit from that relationship by using Mr Roper as a source of young footballing talent for the club.
Stuart-Smith LJ considered the judgement of the first instance judge, who had found for the Claimant on the issue of vicarious liability. Roper’s attachment to Blackpool FC counted for a great deal. One witness said that the involvement and support provided by Blackpool Football Club made the trip legitimate.
Stuart-Smith LJ considered the submissions of each party. He would start by reminding himself that the mere giving of an opportunity to commit abuse was not sufficient and that the critical question was whether the features of the relationship between Mr Roper and Blackpool FC were to be regarded as akin to employment as opposed to Mr Roper carrying on business (broadly construed) on his own account.
The existence and operation of two teams run by Mr Roper did not evidence the nature of the relationship. There is no evidence that Blackpool FC had any say in the existence or operation of those teams at all. It would be accurate to say that Mr Roper's scouting activities conferred benefits upon Blackpool FC that were important for the development and survival of its business. The fact that Blackpool FC gave free rein and full access to its premises, including the desirable areas such as the directors' box and the players' areas, suggested close involvement between Mr Roper and the club; but on closer examination, even the giving of those privileges provided limited evidence about the real nature of the relationship save to suggest, in a very general sense, that Mr Roper could be described as being "embedded" in Blackpool's business.
Stuart-Smith LJ had reached the clear conclusion that the evidence as identified and found by the Judge did not justify a finding that the relationship between Blackpool FC and Mr Roper was one that could properly be treated as akin to employment. Whilst what Mr Roper did as a scout conferred important benefits upon Blackpool FC in the conduct of its business and that he was afforded deference and welcome by the club in recognition of his having produced good players in the past and in hope that he would continue to do so, none of the normal incidents of a relationship of employment were otherwise present.
There was no evidence of any control or direction of what he should do. The fact that he was an unpaid volunteer who had a full-time job running his own sportswear business was not determinative; but it was indicative of a person who was in a position to act independently to support a club that was in dire financial straits.
The evidence about what persuaded parents to entrust their children to Mr Roper's tour was provided by two witnesses. However what was conspicuously lacking was any endorsement of the trip by Blackpool FC as such. Even allowing, for the sake of argument, that the parents as reasonable observers would have considered Mr Roper to be acting in the capacity of a representative of Blackpool FC when leading the trip and committing the tort, that was not an acceptable test for the imposition of vicarious liability.
Consequently, Stuart-Smith LJ would allow the Defendant’s appeal on the issue of vicarious liability.
The next issue was that of limitation. Stuart-Smith LJ considered the applicable principles under section 33 of the Limitation Act 1980 and the caselaw. He then went over the judge’s judgement on the issue.
Blackpool FC submitted that there were multiple factual findings that required to be made in order to enable to court to determine which side of the vicarious liability line the case fell. There were also two missing witnesses including Mr Roper. Blackpool FC also submitted that the trial Judge pre-empted the decision on vicarious liability and contravened the precautionary point of principle established by caselaw by "putting the cart before the horse".
Stuart-Smith LJ would not accept these submissions. It was a notable feature of the Judge's approach that he expressly reminded himself of the pitfalls that he should avoid and the precautionary approach that he should adopt. It is clear that he started his assessment with the potential risk of significant prejudice well in mind.
In relation to Mr Roper’s absence from the trial, Stuart-Smith LJ did not share Blackpool FC's confidence that he would have taken an active part or would have given evidence even if he had been alive. Blackpool FC identified particular points where it was said that missing documentary or witness evidence might have provided clarity. Stuart-Smith LJ did not find the peripheral examples cited by Blackpool FC to be persuasive.
The Judge had the inestimable advantage of having heard the numerous witnesses who did give evidence. He was therefore best placed to assess the potency of that evidence and whether contrary evidence from witnesses or documents could have led to the partial or wholesale rejection of the evidence he had heard. A similar approach should be adopted to the loss of documentation.
There was no substance in the submission that the Judge put the cart before the horse.
Therefore Stuart-Smith LJ would dismiss the appeal on limitation.
Sir Stephen Richards and Macur LJ would agree.