Sports Law Update: TVZ V Manchester City Football Club [2022] EWHC 7 (QB) (Part 2 Of 2)

• Jurisdiction: European Union
• Law Firm: Deka Chambers
• Subject Matter: Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, Trials & Appeals & Compensation, Personal Injury, Sport
• Author: Anirudh Mandagere
• Published date: 17 February 2023

Limitation and Quantum

This judgment is essential reading for practitioners specialising in abuse claims. It is also of considerable importance to those who practise in personal injury more broadly. With respect to limitation, it provides guidance on:

1. The role of 'compartmentalisation' in abuse cases when assessing the reasons for delay, and
2. The proper approach to analysing the cogency of evidence under S. 33(3) of the Limitation Act 1980 ("the Limitation Act")

Introduction

In the late 1970s and early 1980s, Mr. Barry Bennell was involved in the running and coaching of a number of boys' football teams in Manchester. He was tasked by Manchester City Football Club ("the club") as a 'scout' to identify promising young footballers who could later be signed by the club as a professional player. It is now known that he was a prolific predatory paedophile.

In TVZ v Manchester City Football Club [2022] EWHC 7 (QB), eight survivors of child sexual abuse issued a claim against the club. They asserted that Mr. Bennell ran feeder teams for the club, that each of the Claimants played for one or more of those teams, and that in the course of his duties for the club Mr. Bennell abused each of the Claimants. Therefore, the club was vicariously liable for Mr. Bennell's conduct.

The Club did not challenge the Claimants' account of what Mr. Bennell did to them. The issues in the case were:

1. Whether the claim should be dismissed on grounds of limitation,
2. If not, whether the Club was vicariously responsible for the abuse, and
3. If so, the sum that should be paid by the Club to each Claimant.

Mr. Justice Johnson dismissed the claim. He held that it was not equitable to disapply the time limit, and that the Club was not vicariously responsible for the abuse. Given the complexity of this dispute, this case will be analysed over three posts. Each post will discuss a different issue in the hearing. This post will discuss the issue of limitation.

Disapplying Limitation in Personal Injury Claims

Each Claimant recognised that their claim had not been started within the required time limit (which expired on their 21^st birthdays). They asserted that it was nonetheless equitable to disapply the time limit because they had a good reason for the delay and the trial could be fairly determined. The delay after the expiry of the limitation period for the Claimants ranged between 25 - 29 years.

S. 33(1) of the Limitation Act provides that the three-year limitation period for personal injury claims may be disapplied if the court deems it 'equitable'. The court is required to have regard, in particular, to the factors set out in S. 33(3) of the Act. In this case, the following factors were of importance:

1. The length of the delay (S. 33(3)(a))
2. The reasons for the delay (S. 33(3)(a)), and
3. The cogency of the evidence (S. 33(3)(b)).

The leading authority on S. 33(1) is Carroll v Chief Constable of Greater Manchester Police [2017] EWCA Civ 1992 at [42]. There are two important points to note from this judgment:

1. The essence of the proper exercise of judicial discretion is a balance of prejudice. Ultimately, the Claimant must show that their prejudice would outweigh that of the Defendant.
2. When assessing cogency of evidence, the evidential burden is on the Defendant to show that the evidence is less cogent because of the delay.

In his judgment, Mr. Justice Johnson framed S. 33(3)(b) as a comparative exercise. A court must assess the available evidence compared to that which would have been available if the claim has been brought in time. Further information on the previous jurisprudence on S. 33 can be found in Deka Chambers' 'Back to Basics' Webinar on Limitation.

Judgment

The length of the delay

Mr. Justice Johnson accepted that the period of delay was long. Nevertheless, this did not create any additional presumption against the disapplication of the limitation period. There have been cases of very long delays in which the limitation period has been disapplied (Jeffrey v Bolton Textile Mill Co plc [1990] CLY 2944; McHarlen v Harland and Wolff Ltd [1991] SLT 85), and other shorter periods where...