When ‘We can’t lose!’ becomes you just did…
- By James Ferguson
No defence however strong, by itself justified a failure to engage in any type of alternative dispute resolution
The Claimant (DSN) was sexually abused by an individual associated with the Defendant Football Club on a youth trip to New Zealand in 1987. DSN was 13 years old at the time. His abuser, ‘a well-known football scout’, died in 2005.
By virtue of the statute of limitations, DSN’s claim would have become statute barred in 1995. Proceedings were not commenced until 2018. The Court considered it to be equitable to exercise a statutory discretion and disapply the primary limitation period.
No real risk of substantial prejudice [was] caused by the delay in the defendant receiving notice of the claimant’s claim.
At Trial, the court heard evidence from 18 witnesses. The judge, Mr Justice Griffiths, noted that DSN ‘…was not cross examined on the basis that anything he said about the abuse was untrue’ before accepting his ‘…account without qualification or reservation’.
The Defendant denied liability on the basis that DSN’s abuser was not their employee. The court was satisfied, on the evidence, that the abuse perpetrated on the trip was so ‘closely connected’ to the abuser’s relationship with the Defendant to hold it vicariously liable for his actions.
…although it was a crime which was not, of course, authorised or condoned by [the Defendant] and although it took place off the club premises and outside the football season. [The abuser] used and misused his position with [the Defendant] to get DSN into a position where [he] could and did sexually abuse him. [The Defendant] is vicariously liable for that abuse.
The judge considered the Defendant’s ‘…conduct since being notified of the claim, up to and including the trial itself, has made things worse than they might have been.’
By never accepting any responsibility and never even accepting that the abuse had taken place at all, [the Defendant] maximised the suffering caused to DSN. Although the allegation of abuse was overwhelmingly plausible given what is now known about [his abuser], [the Defendant] has at no time admitted that DSN was abused by [his abuser].
The court awarded DSN general damages of £17k with a further £2k to pay for cognitive behavioral therapy.
This was the subject of a distinct judgement by Mr Justice Griffiths in which he pulled no punches in his criticism of the Defendant’s conduct of proceedings. The Defendant was so sure of itself that it refused to even contemplate mediation – with two settlement offers ignored and a third rejected. In any event, the general damages awarded to DSN exceeded the rejected offer.
An interim costs order against the Defendant of £200k vastly exceeded the general damages awarded.
Although the Supreme Court has since restated the position on vicarious liability, the main takeaway here is the imperative to meaningfully engage with alternative forms of dispute resolution – even when you are convinced you cannot lose.
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