A PERSON GIVING EVIDENCE AS TO EARNINGS AND PENSION MAY (OR MAY NOT) BE AN EXPERT: COURT CONSIDERS THE ISSUES

Returning to the judgment of Mr Justice Cavangh in  TVZ & Ors v Manchester City Football Club Ltd [2021] EWHC 1179 (QB) the judge considered, but did not decide, whether statements from third parties as to earnings and pensions were admissible.

THE CASE

The claimants bring actions for damages following sexual abuse they suffered from a football coach.  Part of their case in damages is that they lost the chance of becoming professional footballers. They served two statements from third parties which dealt with the likely earnings of footballers and their pension scheme.  The defendant had indicated that they would object to these statements being relied on as they were expert reports and not witness statements. The claimants sought an order that the statements were admissible.

THE JUDGE’S JUDGMENT ON THIS ISSUE

It is important to note that Mr Justice Cavangh did not decide this issue, it was one held over to the trial judge. He did, however, give his own view.

1. 1. The Claimants seek an order that “The evidence provided by Keith Carter and Nick Harris on behalf of the Claimants is factual evidence and is to take the form of the witness statements already served.”

1. 1. In all but one case, the Claimants contend that the abuse they suffered at the hands of Bennell meant that they lost the chance of becoming a professional footballer. The statement of Mr Harris deals with the earnings that these Claimants might have expected to earn if they had become professional footballers. The statement of Mr Carter deals with the pension schemes that were available to professional footballers at the relevant period. The Claimants have filed these statements on the basis that they are statements of fact, rather than experts’ reports. Accordingly, they have not obtained the Court’s leave under CPR 35 to rely upon these statements as expert evidence.

1. 1. Mr Harris is a sportswriter, researcher and analyst, specialising in the business and finance of sport, particularly football. He worked for many years as a sports journalist on national newspapers. In his statement, dated 4 November 2020, Mr Harris refers to the sources of information about player salaries in the relevant period, and refers in particular, to two documents. The first is a document (“FL AVG”) that was produced by the Football League in association with the Professional Footballers’ Association, providing division by division average “basic” wages for footballers in the various divisions, season by season from 1984-85. The second is Deloitte’s Annual Review of Football Finance (“ARFF”) for the relevant period. The ARFF was based on the collective financial statements which were filed each year with Companies House by football clubs. As well as setting out the figures that can be found in these documents, Mr Harris made comments on them, and in particular about their limitations, such as the fact that FL AVG does not take account of bonus payments, and the fact that the documents deal with averages figures and so cover the range from players at the height of their career, to reserve-team players and those whose careers are winding down. Also, the ARFF figures include all employees of the football club, not just professional footballers. Mr Harris also described a survey conducted by the PFA and by the Independent newspaper in 2000, in which he was involved. Once again, he described the features, and limitations, of the survey. At the end of the statement, at paragraph 58, he said,

“I hope at the very least I have demonstrated that the numbers in Table 4 [a table produced by Deloitte in the ARFF] for these years are about as close as one might reasonably get to “reality” using the raw data available – and certainly fall within the expected ranges for “inclusive” figures set against the matter of fact FL AVG basic numbers.”

1. 1. Mr Carter’s statement, dated 8 October 2020, is considerably shorter. He is an employment consultant. He provided information about the two pension schemes that existed in the relevant period for professional footballers. There were specialist schemes for professional footballers because they retire so much earlier than the general population, and this was reflected by different Inland Revenue rules about taxation of pensions.

1. 1. The Claimants have made this application because the Defendant has made clear that it will object to this evidence on the basis that it is really expert evidence. The Defendant resists the application. The Defendant’s primary submission before me was that consideration of the Claimants’ application can wait for the PTR. This is what the Claimants’ own solicitors had suggested in a letter to the Defendant’s solicitors on 7 January 2021.

1. 1. The Defendant submitted that, if the matter were to be dealt with by me, I should refuse leave to permit the Claimants to rely upon these two statements. The Defendant submitted that the statements were, in reality, experts’ reports, and, as such, they cannot be relied upon by the Claimants as leave has not been sought to adduce this evidence as expert evidence. The Defendant pointed out that the witnesses hold themselves out as having special expertise in football finance and employment matters. They are being paid for their evidence. The Defendant also pointed out that in otherwise very similar statements filed in other proceedings, these witnesses used language which was much more apt for an expert’s report. For example, Mr Harris referred to his statement as a “report” and referred to his “professional opinion”. The Defendant suggested that these statements had been “tidied up” for the purposes of these proceedings so that they looked more like statements of fact, and so that they could avoid the need to seek leave to rely upon them as expert reports.

Discussion

1. 1. In my judgment, the question whether these statements are admissible and can be relied upon by the Claimants as statements of fact is one that should be finally determined by Lambert J at the PTR. She is in the best position as the trial judge to evaluate this issue. It does not seem to me that there is such great urgency over this issue that it needs to be determined at this stage.

1. 1. I should add, however, that if it had been necessary finally to determine the issue today, I would not have made an order which had the effect of preventing the Claimants from relying on these statements at trial. The starting point is that, if the Claimants succeed in their claims and succeed in establishing that they lost the chance of becoming a professional footballer, the judge will need to have some information about pay and pensions for professional footballers in the relevant period in order to assess damages. The material contained in the Harris and Carter statements is potentially very useful. In my judgment, for what it is worth, Mr Carter’s statement is not an expert report. It is simply a means of identifying the specialist pension schemes that were available for professional footballers at the relevant time, and a peg upon which to hang the inclusion in the trial bundle of documentation relating to these specialist pension schemes. The vast majority of Mr Harris’s statement is also factual, simply identifying and summarising the surveys which provide some information about footballers’ salaries. It makes some observations about the surveys, but most of these observations are ones which do not require specialist expertise. Rather, they are apparent on the face of the documents themselves. If and in so far as the statement sometimes strays into inappropriate expert comment, the judge will be well able to disregard such comment, if she considers it appropriate to do so.

1. However, I emphasise that it is ultimately a matter for the trial judge to decide at the PTR whether any parts of these statements are inadmissible, if the parties wish to raise the matters once again before her.