SECTION 33 CONSIDERED IN THE COURT OF APPEAL: TRIAL JUDGE WAS CORRECT TO EXERCISE THEIR DISCRETION

In Blackpool Football Club Ltd v DSN [2021] EWCA Civ 1352 the Court of Appeal considered, and upheld, a decision on Section 33 where the discretion was exercised in favour of the claimant.  This was in the context, however, of overturning  a finding that the defendant was vicariously liable to the claimant.

THE CASE

The claimant had been sexually abused by a volunteer coach on a football tour abroad.  The volunteer coach had organised the tour and paid for most of it.  The Court of Appeal overturned the trial judge’s decision that the club was vicariously liable.  The Court also considered the defendant’s argument that the judge should not have made an order under Section 33 in the claimant’s favour.

THE JUDGMENT ON COSTS

The Court of Appeal held that they would not allow the defendant’s appeal in relation to the limitation issue. The decision reached was one open to the judge.

Limitation: the applicable principles

1. 1. The law relating to the disapplication of primary limitation periods pursuant to s. 33 of the Limitation Act 1980 is considerably more settled than the law relating to the imposition of vicarious liability for the acts of non-employees. S. 33, so far as relevant, provides:

Discretionary exclusion of time limit for actions in respect of personal injuries or death

(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which—

(a) the provisions of section 11 … of this Act prejudice the plaintiff or any person whom he represents; and

(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;

the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.

…

(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to—

(a) the length of, and the reasons for, the delay on the part of the plaintiff;

(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 …;

(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;

(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.

1. 1. It is well established that the section gives the Court an unfettered discretion, though the burden rests on a claimant to establish that the discretion should be exercised in their favour. The statutory test is clear: the discretion arises if, having regard to the matters identified in s. 33(1)(a) and (b) and all the circumstances of the case it appears to the Court that it would be equitable to allow an action to proceed. The reference to “all the circumstances of the case and in particular …” demonstrates that the circumstances identified in s. 33(3)(a)-(f) are not an exhaustive list of matters to be taken into account. Thus for example, though not mentioned in s. 33(1)(a) and (b) or s. 33(3)(a)-(f), the fact that a claim has become stale during the primary limitation period may be relied upon after its expiry: see Donovan v Gwentoys [1990] 1 WLR 472, 479H-480A per Lord Oliver of Aylmerton.

1. 1. In Cain v Francis [2008] EWCA Civ 1451, [2009] QB 754 Janet Smith LJ rephrased the test at [73], saying that “in the exercise of the discretion, the basic question to be asked is whether it is fair and just in all the circumstances to expect the defendant to meet this claim on the merits, notwithstanding the delay in commencement.” This is a convenient paraphrase of the exercise that will be undertaken and indicates the balancing act that is likely to be required.

1. 1. More recently, Sir Terence Etherton MR provided a general summary of relevant principles in Carroll v Chief Constable of Greater Manchester Police [2017] EWCA Civ 1992, [2018] 4 WLR 42 at [42] (with supporting citations omitted), which I respectfully adopt:

“1.  Section 33 is not confined to a “residual class of cases”. It is unfettered and requires the judge to look at the matter broadly: …

2.  The matters specified in section 33(3) are not intended to place a fetter on the discretion given by section 33(1), as is made plain by the opening words “the court shall have regard to all the circumstances of the case”, but to focus the attention of the court on matters which past experience has shown are likely to call for evaluation in the exercise of the discretion and must be taken into a consideration by the judge: Donovan’s case, pp 477H–478A.

3.  The essence of the proper exercise of the judicial discretion under section 33 is that the test is a balance of prejudice and the burden is on the claimant to show that his or her prejudice would outweigh that to the defendant: …. Refusing to exercise the discretion in favour of a claimant who brings the claim outside the primary limitation period will necessarily prejudice the claimant, who thereby loses the chance of establishing the claim.

4.  The burden on the claimant under section 33 is not necessarily a heavy one. How heavy or easy it is for the claimant to discharge the burden will depend on the facts of the particular case: ….

5.  Furthermore, while the ultimate burden is on a claimant to show that it would be inequitable^[1] to disapply the statute, the evidential burden of showing that the evidence adduced, or likely to be adduced, by the defendant is, or is likely to be, less cogent because of the delay is on the defendant:…. If relevant or potentially relevant documentation has been destroyed or lost by the defendant irresponsibly, that is a factor which may weigh against the defendant: ….

6.  The prospects of a fair trial are important: …. The Limitation Acts are designed to protect defendants from the injustice of having to fight stale claims, especially when any witnesses the defendant might have been able to rely on are not available or have no recollection and there are no documents to assist the court in deciding what was done or not done and why: …. It is, therefore, particularly relevant whether, and to what extent, the defendant’s ability to defend the claim has been prejudiced by the lapse of time because of the absence of relevant witnesses and documents: ….

7.  Subject to considerations of proportionality (as outlined in para 11 below), the defendant only deserves to have the obligation to pay due damages removed if the passage of time has significantly diminished the opportunity to defend the claim on liability or amount: ….

8.  It is the period after the expiry of the limitation period which is referred to in sub-subsections 33(3)(a) and (b) and carries particular weight: … . The court may also, however, have regard to the period of delay from the time at which section 14(2) was satisfied until the claim was first notified: … . The disappearance of evidence and the loss of cogency of evidence even before the limitation clock starts to tick is also relevant, although to a lesser degree: … .

9.  The reason for delay is relevant and may affect the balancing exercise. If it has arisen for an excusable reason, it may be fair and just that the action should proceed despite some unfairness to the defendant due to the delay. If, on the other hand, the reasons for the delay or its length are not good ones, that may tip the balance in the other direction: … . I consider that the latter may be better expressed by saying that, if there are no good reasons for the delay or its length, there is nothing to qualify or temper the prejudice which has been caused to the defendant by the effect of the delay on the defendant’s ability to defend the claim.

10.  Delay caused by the conduct of the claimant’s advisers rather than by the claimant may be excusable in this context: … .

11.  In the context of reasons for delay, it is relevant to consider under subsection 33(3)(a) whether knowledge or information was reasonably suppressed by the claimant which, if not suppressed, would have led to the proceedings being issued earlier, even though the explanation is irrelevant for meeting the objective standard or test in section 14(2) and (3) and so insufficient to prevent the commencement of the limitation period: … .

12.  Proportionality is material to the exercise of the discretion: … . In that context, it may be relevant that the claim has only a thin prospect of success … , that the claim is modest in financial terms so as to give rise to disproportionate legal costs … ; that the claimant would have a clear case against his or her solicitors … , and, in a personal injury case, the extent and degree of damage to the claimant’s health, enjoyment of life and employability… .

13.  An appeal court will only interfere with the exercise of the judge’s discretion under section 33, as in other cases of judicial discretion, where the judge has made an error of principle, such as taking into account irrelevant matters or failing to take into account relevant matters, or has made a decision which is wrong, that is to say the judge has exceeded the generous ambit within which a reasonable disagreement is possible: … .”

1. 1. In their submissions to us, Counsel for the opposing parties inevitably placed weight on particular aspects of these principles. The Claimant concentrated upon the significance of a claimant having good reason for their delay, citing the balance of [73] of Cain v Francis where Janet Smith LJ said:

“The length of the delay will be important, not so much for itself as to the effect it has had. To what extent has the defendant been disadvantaged in his investigation of the claim and/or the assembly of evidence, in respect of the issues of both liability and quantum? But it will also be important to consider the reasons for the delay. Thus, there may be some unfairness to the defendant due to the delay in issue but the delay may have arisen for so excusable a reason, that, looking at the matter in the round, on balance, it is fair and just that the action should proceed. On the other hand, the balance may go in the opposite direction, partly because the delay has caused procedural disadvantage and unfairness to the defendant and partly because the reasons for the delay (or its length) are not good ones.”

1. 1. Conversely, the Appellant concentrated heavily upon dicta tending to suggest that the existence of prejudice to a defendant has primacy. Thus, for example, in CD v Catholic Child Welfare Society and Others [2018] EWCA Civ 2342, at [35], Lewison LJ (with whom Rafferty LJ agreed) said:

“35.  It follows that the disapplication of the limitation period is an exception to the general rule. For that reason the burden of persuasion lies on the claimant. Delay of itself may not preclude disapplication of the limitation period. What is of importance is what prejudice the defendant has suffered by the delay: see [Cain v Francis] at [73]. Indeed, in AS v Poor Sisters of Nazareth [2008] UKHL 32, 2008 SC (HL) 146, a case about the Scottish equivalent of section, Lord Hope (with whom the other law lords agreed) said at [25]:

“The issue on which the court must concentrate is whether the defender can show that, in defending the action, there will be the real possibility of significant prejudice. As McHugh J pointed out in Brisbane South Regional Health Authority v Taylor (p 255) it seems more in accord with the legislative policy that the pursuer’s lost right should not be revived than that the defender should have a spent liability reimposed on him. The burden rests on the party who seeks to obtain the benefit of the remedy. The court must, of course, give full weight to his explanation for the delay and the equitable considerations that it gives rise to. But proof that the defender will be exposed to the real possibility of significant prejudice will usually determine the issue in his favour.”

1. 1. I would hesitate before endorsing any suggestion that particular features should be given primacy when the court is conducting its balancing act, for two main reasons. First, in RE v GE [2015] EWCA Civ 287 McCombe LJ (with whom Pitchford and Lewison LJJ agreed) said that “no factor … can be given a priori importance.” Second, given the infinite variety of factual situations in which a claimant may come to the court asking for it to disapply the primary limitation period, it seems to me to be impossible to predict which features will hold sway, always bearing in mind that it is for the claimant who makes the application to satisfy the Court that it would be equitable in all the circumstances to allow the action to proceed and that the court should exercise its discretion in their favour. Furthermore, although the policy reasons that have caused Parliament to establish limitation periods are well known, so too are those that caused Parliament to temper the harshness of fixed-point cut-offs by a series of statutory provisions from 1963 onwards, including s. 33. Thus, for example, a finding that a claimant could not have brought an action before they did is likely to attract significant weight, particularly if that inability is attributable to the tort that is to be the subject of the action. Precisely how much weight is to be attributed to different features of a case is quintessentially a matter for the Judge in the exercise of their discretion, applying the established principles summarised in [42] of Carroll that I have set out above.

1. 1. For these reasons I would not accept the Appellant’s headline submission that “the central question for the Judge under section 33 was whether and to what extent the Defendant was prejudiced in meeting this claim as a consequence of the lengthy delay in commencing proceedings”. Although that was a question which the Judge had to determine, the central question for the Judge was that posed by the statute, applying the principles that I have summarised above.

1. 1. A separate point of principle is not in dispute, though the parties disagree about whether the Judge complied with it. In KR v Bryn Alyn Community (Holdings) Ltd [2003] QB 1441 CA at [74(vii)] Auld LJ expressed the point as follows:

“Where a judge determines the section 33 issue along with the substantive issues in the case, he should take care not to determine the substantive issues, including liability, causation and quantum, before determining the issue of limitation and, in particular, the effect of delay on the cogency of the evidence. Much of such evidence, by reason of the lapse of time, may have been incapable of being adequately tested or contradicted before him. To rely on his findings on those issues to assess the cogency of the evidence for the purpose of the limitation exercise would put the cart before the horse. Put another way, it would effectively require a defendant to prove a negative, namely, that the judge could not have found against him on one or more of the substantive issues if he had tried the matter earlier and without the evidential disadvantages resulting from delay.”

1. 1. The same point was made by Burnett LJ (as he then was) in Archbishop Bowen & The Scout Association v JL [2017] EWCA Civ 82 at [26]:

“The logical fallacy which Lord Clarke MR was concerned with in paragraph 21 of the Nugent Care Society case and Auld LJ in paragraph 74(vii) of the Bryn Alyn case was proceeding from a finding on the (necessarily partial) evidence heard that the claimant should succeed on the merits to the conclusion that it would be equitable to disapply the limitation period. That would be to overlook the possibility that, had the defendant been in a position to deploy evidence now lost to him, the outcome might have been different.”

1. 1. That said, one of the tasks for a Judge when asked to exercise their discretion under s. 33 will almost always involve making an assessment of the extent to which the existence or cogency of the evidence has been affected by the delay since, without such an assessment, no view can be formed of the evidential prejudice that may have been suffered by the defendant. The principle derived from the KR and Archbishop Bowen cases is not in doubt; but it may require something of a tight-rope intellectual exercise.

The Appeal: Grounds 2 and 4

Ground 2: the decision that section 11 of the Limitation Act 1980 should not apply to this action was founded on a perverse conclusion that there was no real possibility of significant prejudice to the Defendant from the delay.

Ground 4: the learned judge misdirected himself as to the significance of the evidence said to be consistent in supporting the Claimant’s case on vicarious liability.

1. 1. The Judge dealt with limitation at [23]-[68] of the judgment. At [23]-[28] he provided a concise review of the authorities to which he had been appropriately referred. He recognised that consideration of the whole period since the accrual of the cause of action was required in order to assess “all the circumstances of the case”. Having done so he summarised the approach he was required to adopt at [29]:

“it is clear that I must weigh many factors and approach them in a principled fashion, notwithstanding the breadth of the question posed at the beginning of section 33 of the Limitation Act as to whether it appears to me that it would be “equitable” to allow the action to proceed after a long delay. I must and will bear in mind the prejudice to the Claimant if the primary limitation period is not extended, the prejudice to the Defendant if it is, and “all the circumstances of the case” under sections 33(1)(a) and (b), and (3), including but not limited to the statutory factors in section 33(3)(a)-(f). Of these, I regard factors (a) and (b) of particular importance in this case: namely, the length of the delay, the reasons given for the delay by DSN, and “the extent to which, having regard to the delay, the evidence adduced or likely to be adduced [by the Claimant or the Defendant] is or is likely to be less cogent” than if the action had been brought within the primary limitation period. Although not part of the statutory language, a number of the authorities confirm that the question of whether there is a “real possibility of significant prejudice” by reason of the delay is of critical importance, as is whether it is possible to have a fair trial.”

1. 1. With one qualification, this summary is unimpeachable. It is evident that the Judge had well in mind the principles which I have attempted to summarise at greater length above. The one qualification I would make is that I would not say that the real possibility of significant prejudice by reason of the delay “is of critical importance”. I think that the degree of certainty implied by saying that it “is” of “critical” importance overstates the position, for the reasons I have given at [154]-[156] above.

1. 1. The Judge first considered the reasons for the delay, finding that (a) there was a clear barrier to the Claimant making a disclosure, (b) he did not know that Mr Roper had died when, in 2012, publicity about the Jimmy Savile scandal broke, and (c) it was for practical purposes impossible for the Claimant to disclose the abuse before he did, or to raise a legal claim before he did. Then, recognising that the delay was “very long indeed”, he addressed the specific point that Blackpool FC was no longer able to obtain records and papers from 1987 which might bear on the role played by Mr Roper, with particular regard to the issue of vicarious liability. However, he noted that Mr Roper was not an employee and that, even for employees, documentation was limited. He appears to have accepted Blackpool’s evidence that the destruction of records probably took place in the early 1990s, before the expiry of the primary limitation period.

1. 1. The Judge then reminded himself (at [45]) that “particularly important in this case … is “the extent to which, having regard to the delay, the evidence to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11” … and … whether there is a “real possibility of significant prejudice” to Blackpool FC by reason of the delay. He also reminded himself (citing Bowen v Scout Association [2017] EWCA Civ 82) that he should not fall into the error of forgetting that evidence which seemed cogent to him on the evidence now available might have seemed substantially less cogent if other evidence had been available, which, because of the delay, he had not seen or heard. At [47] he reminded himself of “the basic question” by reference to [73] of Cain v Francis; and he cautioned himself by reference to the dictum of Lord Brown in A v Hoare [2008] UKHL 6 emphasising the difficulties that may be faced by a Defendant when a complaint of sexual abuse “comes out of the blue with no apparent support for it” such that a fair trial (which includes a fair opportunity for the Defendant to investigate the allegations) may be simply impossible.

1. 1. The Judge correctly identified that the two issues potentially most affected by the long delay were the allegation of abuse itself and the dispute over Mr Roper’s relationship with the club and whether the club should be vicariously liable for anything he did on the New Zealand trip. In relation to the first issue, the Judge said that he found the evidence of the Claimant cogent and compelling quite apart from Mr Roper’s record as a convicted paedophile and the evidence of five other witnesses of similar or worse sexual abuse committed in similar circumstances and using similar tactics. While recognising that Mr Roper might have denied the allegations, the Judge assessed the evidence against him as cogent and compelling and concluded at [49] that “having heard [the Claimant] give evidence, and being cross-examined, I am confident that [an accusation by Mr Roper that the Claimant was lying] would have had no prospect of succeeding, whatever [Mr] Roper might have said.”

1. 1. The Judge dealt with the impact of delay on the issue of vicarious liability at greater length. Having identified that the deaths of Mr Roper and Mr Chapman might be assumed to pose a greater risk to a fair trial, the Judge stated his conclusion at [50] that:

“… a remarkable number of witnesses, both youths and adults at the material time, gave a great deal of evidence on this question which proved to be strikingly consistent and cogent, and I do not think that [Mr] Roper and [Mr] Chapman, even if they had contradicted this evidence (which, of course, they might not have done) would have been able to prevail as lone voices against it.”

1. 1. The Judge explained this conclusion by referring to the large number of witnesses from whom he had heard (and whose evidence I have summarised earlier in this judgment). He noted that other witnesses would have been available of the same sort as the various players who had been called, and that such witnesses could have given evidence about the apparent connection between Mr Roper and the club (or the lack of it). The evidence of Blackpool FC’s solicitor was that the club had chosen not to attempt to approach such people. The Judge concluded at [56] that:

“… given the number of such witnesses I did hear from, and given the consistency of the picture they painted, I am confident that earlier proceedings would not have had access to relevant witnesses who would have altered the effect of this evidence.”

1. 1. Turning to the evidence that he had heard from the witnesses who had been adults in 1987, the Judge expressed the view (with reasons) that Mr Sharp’s evidence had been “no less cogent and complete than it would have been had it been given 20 years ago.” He said that Mr Ellis was “a confident and solid witness, who did not appear to be handicapped in his ability to recall and give evidence by the passage of time.” He said at [59] that, apart from Mr Roper and Mr Chapman (whose significance he said he did not underestimate) it did not appear that any witness had become unavailable because of the passage of time; and that there were potentially large numbers of witnesses who might have been called but who were not. He restated his overall conclusion at [60] that:

“because of the cogency and abundance of the evidence that was put before me on both sides, and the nature of the issues in this case, and the narrow scope of factual dispute, at least so far as primary facts are concerned, no real risk of substantial prejudice has been caused by the delay in the defendant receiving notice of the claimant’s claim, or in the issue of proceedings so long after the primary limitation period.”

1. 1. The Judge then addressed a separate submission, based upon the judgment of Sir Murray Stuart-Smith in Robinson v St Helen’s MBC [2003] PIQR P128, that it would not be proportionate to disapply the limitation period as any award was likely to be modest. The Judge held that the cited observations had less force when determination of the issue of limitation occurred at the trial of the main action and rejected the submission. I agree with his reasoning and conclusion. Permission to appeal on this point was refused by Simler LJ and I need say no more about it.

1. 1. The Judge concluded his section on limitation by saying at [68] of the judgment:

“In my judgment, paying careful regard to the considerations in the authorities cited to me, and applying the criteria in section 33 of the Limitation Act which I have set out, it is equitable to allow the action to proceed.”

Submissions on Ground 2: Blackpool FC

1. 1. Blackpool FC emphasises the length of the delay, which required it to investigate events more than 30 years before it was notified of a possible claim and to investigate its relationship with Mr Roper over a number of years before and including 1987. It points to the deaths of Mr Roper in 2005 and Mr Chapman in 2012 and the destruction of any relevant club records in the 1990s.

1. 1. The first point made by Blackpool FC can be disposed of shortly. It submits that the Judge applied the wrong test in [60] when he concluded that there was “no real risk of substantial prejudice.” The proper test, submits Blackpool FC, is whether there is a real risk of significant prejudice. There is nothing in this point, for two reasons. First, there is no material difference between “substantial” and “significant” prejudice in this context. Their normal meanings, as defined in (for example) the Shorter Oxford Dictionary, are substantially the same and without significant difference: the definition of “significant” includes “important, notable, consequential”, while the definition of “substantial” includes “of real significance”. These definitions coincide with my understanding of the normal meaning of the words. Second, it is clear from the judgment that the Judge had in mind the “significant prejudice” test and was treating the words “significant” and “substantial” as interchangeable: see [160] and [163] above.

1. 1. More substantially, Blackpool FC submits 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. It submits that Mr Roper and Mr Chapman were not merely crucial witnesses on those factual issues, they were the only people who could have provided the detail necessary to resolve them. In addition, it submits that there would have been other sources of evidence had the case been brought earlier, including the Claimant’s parents who could have assisted on whether it was Mr Roper or Mr Chapman who had recruited the Claimant to the Blackpool School of Excellence. It is submitted that both Mr Roper and Mr Chapman would have had potentially relevant documents, including documents relating to the New Zealand trip and correspondence with parents. It places weight upon the destruction of the club’s contemporaneous records which, by way of example, may have shed light on whether the £500 payment made by the club was to support the 1987 trip or another of Mr Roper’s trips and why the contribution was made.

1. 1. Blackpool FC challenges the Judge’s description of the available evidence being abundant, pointing to the impressionistic nature of some of the evidence and the absence of anything expressly said by or on behalf of the club that amounted to an acknowledgment that Mr Roper was part of their formal scouting set-up. It submits that, had the case come on for trial shortly after the events complained of, Mr Chapman would have been called and Mr Roper would have been a party either as defendant or as a Third Party at the instance of the club. Mr Chapman’s importance would have lain in the fact that he was directly responsible for the youth set up in a way that none of the other adult witnesses were. It seeks to challenge the Judge’s assessment of Mr Hurst’s evidence as deficient because of lack of involvement in the youth set up. And it submits that the absence of Mr Chapman of itself gives rise to a risk of significant prejudice.

1. 1. Blackpool FC make two subsidiary points. First, it says that the absence of Mr Chapman meant that it could not deal with the (unpleaded) allegation that CFS had told Mr Chapman that Mr Chapman had sexually abused him and other boys in 1984 and 1985, with the Judge rejecting Mr Johnson’s statement that, had he done so, it would have been taken extremely seriously and forming an adverse view of Mr Johnson as a witness. Second, it submits that the Judge downplayed the significance of the missing witnesses because of what he regarded as a failure to follow up further lines of enquiry: see [166] above. It submits that, while the club was under an evidential burden to raise a case of potential prejudice, it had discharged that burden by reference to the deaths of Mr Roper and Mr Chapman and the destruction of relevant documents long before a claim was intimated: it was not required to go further and show that no stone had been left unturned.

Submissions on Ground 4: Blackpool FC

1. 1. Blackpool FC submits that the Judge pre-empted the decision on vicarious liability by the passage at [50] of the judgment that I have set out at [165] above and that this contravened the precautionary point of principle established by Bryn Alyn by “putting the cart before the horse”: see [157] above. It submits that he erred in concluding that, because of the evidence he had heard, it would have been, in effect, unnecessary to hear from Mr Roper or Mr Chapman had they been available despite the impressionistic nature of the evidence called for the Claimant and the Judge’s conclusion that those called on behalf of the club were not in a position to speak directly about Mr Chapman’s activities including how he ran the junior set up. It submits that a central question in relation to stage 1 of the test for vicarious liability was whether what Mr Roper did was as an independent volunteer or whether he was in some way constrained to scout for the club and no other. In relation to that central question it submits that it was “simply unknown” whether Mr Roper and/or Mr Chapman “would have been able to prevail as lone voices” against the evidence that was called. It relies upon the observations of Nicol J in Murray v Devenish [2018] EWHC 1895 where he said:

“102.  But, and it is a major qualification, with Riddle’s death, the Defendant has been undeniably disadvantaged. Ms O’Rourke asked, perhaps rhetorically, ‘What could Riddle have said?’ He was unlikely to have admitted what would have been a crime and could not have been compelled to incriminate himself. And, she argued, how could he have denied the allegations in the face of such strong evidence?

103.  I do not accept this line of argument. I have agreed that there would have been a case for Riddle to answer; it may even be said that it would have been a strong case to answer, but on each occasion when the alleged abuse took place, there were only two people present: Riddle and the Claimant. When Ms O’Rourke asked her question, I was reminded of what Vice Chancellor Megarry said in John v Rees [1970] Ch 345 at 402,

‘It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. “When something is obvious,” they may say, “why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.” Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.’

104.  Because Mr Norris could not take instructions from Riddle, he was inhibited in how he could cross-examine the Claimant (or Father X or Christopher Speight). Absent instructions or other evidence to contradict their accounts of abuse, it would have been professionally improper for Mr Norris to suggest that they were not telling the truth. Where (in the case of the Claimant) there was such evidence, he could and did so, but I accept this meant that the nature of the cross-examination was limited.”

1. 1. In support of this Ground of Appeal, Blackpool FC applies to rely upon the series of anonymised and heavily redacted police witness statements to which the Judge said that he attached no weight: see [27] above. The Judge’s decision to attach no weight formed the basis for one of the discrete Grounds on which permission to appeal was refused by Simler LJ. In the present context, Blackpool FC wishes to rely upon them in support of its submission that differences of recollection will inevitably exist about significant facts so many years after the events in question. The Court agreed to read them de bene esse. I deal with them below.

Submissions on Grounds 2 and 4: Claimant

1. 1. The Claimant submits that the Judge identified the applicable principles of law accurately and exercised his discretion correctly. He evaluated the Section 33 issues carefully and there is nothing wrong with his analysis. He balanced the prejudice to the Claimant if the limitation period were not disapplied against the risk of significant prejudice to the Defendant if it were. The flaw in Blackpool FC’s argument is said to be that it focuses wrongly and solely upon the potential prejudice to Blackpool FC if it were required to defend the claim rather than on the need to balance the potential for prejudice to each side in reaching a conclusion whether it is equitable to allow the action to proceed. There is no question of the Judge “putting the cart before the horse”; and his decision was well within the “generous ambit” of his discretion.

Reasons and conclusion on Grounds 2 and 4

1. 1. The Judge identified the correct principles to be applied, asked himself the right questions, analysed the evidence upon which the parties relied, formed an assessment based upon that analysis of the potential prejudice to Blackpool FC, and then conducted the requisite balancing exercise that led him to conclude that it was equitable to allow the action to proceed. In the course of doing so he expressly considered the impact of the loss of documentation and the deaths of Mr Roper and Mr Chapman, which form the bedrock of Blackpool FC’s submissions on these Grounds. Although the burden rested on the Claimant in the Court below to satisfy the Judge that the limitation period should be disapplied, before this Court it is for Blackpool FC to satisfy the Court that the conclusion the Judge reached was perverse in the sense of being outside the generous ambit of a proper exercise of the Judge’s discretion.

1. 1. It is 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. Not content with identifying the correct principles and main questions to be asked more than once – see for example [29], [45] and [47] of the judgment to which I have referred above – he was expressly conscious of (a) the danger that evidence that seemed cogent to him might have seemed less cogent if other evidence had been available, (b) the difficulties faced by a Defendant when a complaint of sexual abuse comes out of the blue many years later, (c) the very long period of delay in this case, (d) the significance of a Defendant being able (or not) to investigate the allegations, and (e) the danger of putting the cart before the horse. It is another notable feature that he started his consideration of the impact of the deaths of Mr Roper and Mr Chapman with the assumption that the risk to a fair trial and the possible effect on the cogency of the Defendant’s case might be greater in relation to vicarious liability than in relation to the primary allegation about the happening of the abuse. It is clear that he at least started his assessment with the potential risk of significant prejudice well in mind. In my judgment there is no sign that the Judge lost sight of these features in the course of his concise section on limitation.

1. 1. By concentrating exclusively on the question of potential prejudice to the club, Blackpool FC’s submissions fail to reflect the balancing exercise that was required of the Judge. That said, the existence and extent of any risk of significant prejudice necessarily falls to be weighed in the balance and, as the Judge evidently recognised, requires close attention. It is obvious, and the Judge recognised, that Mr Roper and Mr Chapman would have been witnesses having direct knowledge of facts relevant to vicarious liability and (in Mr Roper’s case) to the primary allegation of abuse. In relation to each issue, the Judge explained why he considered that the absence of these witnesses did not cause a risk of significant prejudice: see [164]-[167] above.

1. 1. Part of the criticism of the Judge’s reasoning is based upon the anonymised statements upon which Blackpool FC relied. There are five of them. They cover much of the same ground as was covered by the live witnesses who had been youth footballers. They include some points that contradict findings made by the Judge (e.g. one witness describes Mr Roper as a scout for Blackpool, Stockport and Manchester City, another that he was a scout for Blackpool and Coventry City, and another that, at least in the early 1970s, Mr Roper had no influence at Blackpool); in other respects the statements support his conclusions. However, the starting point for present purposes is that the Judge decided to attach no weight to them. Simler LJ refused permission to appeal against the decision to attach no weight to them because “the matters addressed in the documents were dealt with by witnesses during the course of the hearing, many of whom were cross-examined, and the Judge was best placed to determine what weight, if any, to afford to the different forms of evidence of evidence available. In particular, he was amply entitled to regard the identified witnesses, who gave evidence and were tested in cross-examination as more reliable and to prefer their evidence accordingly.” I respectfully agree. The Judge’s decision to attach no weight to those statements cannot now be challenged and means that the contents of the statements should simply be left out of account. Nor can they be reintroduced, as Blackpool FC now attempts to do, by saying that they “demonstrate the differences of recollection about significant facts that inevitably exist so many years after the events in question.” It cannot sensibly be suggested that the Judge was unaware that recollections could differ, not least because his judgment set out numerous such differences, between which he had to (and did) choose.

1. 1. I return therefore to the question whether the Judge was entitled to reach the decision he did about the unavailability of Mr Roper and Mr Chapman. Dealing first with Mr Roper, I do 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. However, I see no reason to criticise the Judge’s conclusion that, even if he had been called and had denied the abuse, Mr Roper’s evidence would have been rejected, for the reasons the Judge gave. Turning to the issue of vicarious liability, the Judge’s assessment was based upon what he described as a “remarkable number of witnesses both youths and adults at the material time, gave a great deal of evidence on this question which proved to be strikingly consistent and cogent.” Blackpool FC devoted significant time at the hearing of the appeal to trying to shake this assessment; but, in my judgment, the attempt failed. Certainly there were differences between individual witnesses, but the overall effect could reasonably bear the description given by the Judge. The question whether the effect of that body of evidence could have been shaken by contrary evidence from Mr Roper or Mr Chapman (or both) was a paradigm example of a decision to be taken by the trial Judge after balancing the relative weight of the arguments.

1. 1. Blackpool FC identifies particular points where it is said that missing documentary or witness evidence may have provided clarity. In general, there is no reason to suppose that the Judge was not conscious of these points. In particular, I do not find the peripheral examples cited by Blackpool FC to be persuasive: it makes no real difference to the important issues in the case whether the Claimant was first recruited to Blackpool by Mr Roper or Mr Chapman or whether Blackpool’s modest contribution of £500 was for the 1987 trip or another one.

1. 1. 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. It was permissible for him to take into account that evidence from other witnesses would have been available and could have been called, though there is no sign that this was a determinative feature in the Judge’s reasoning. In my judgment, the analysis and assessment which he conducted was open to him and his reasons were cogent. It would be wrong in principle for this court to substitute a different view in such circumstances even if it would or might have reached a different conclusion from that reached the Judge which, speaking for myself, I would not.

1. 1. A similar approach should be adopted to the loss of documentation. The Judge considered the point. His assessment was that such documentation was likely to be limited in scope and effect. That was an assessment that was open to him and was one with which this court should not interfere.

1. 1. Viewed overall, the Judge was entitled to conclude that, at least so far as the primary facts were concerned, no real risk of substantial (or significant) prejudice had been caused by the delay in the Defendant receiving notice of the Claimant’s claim, or in the issue of proceedings so long after the primary limitation period. That conclusion was not perverse. There is no reason to suppose that the Judge simply ignored or failed to appreciate the significance of the absence of witnesses or documents when conducting the balancing exercise that led to his conclusion that it was equitable to disapply the limitation period and it is clear that he did not do so. He was entitled and right to give weight to his finding that the Claimant was for practical purposes disabled from commencing proceedings before he did. There was ample material on the basis of which he could reasonably exercise his discretion in favour of disapplying the limitation period.

1. 1. Turning to Ground 4, there is no substance in the submission that the Judge put the cart before the horse. First, he expressly identified the danger and was astute to the need to avoid it. Second, what he was doing in [50] was to carry out the necessary exercise of assessing whether the absence of Mr Roper and Mr Chapman was or might be material and whether it gave rise to a risk of significant prejudice. That exercise was unavoidable.

1. 1. Before leaving Ground 4, it is worth setting out the passage immediately following the citation from Murray on which Blackpool FC relies. At [105] Nicol J continued:

“Ms O’Rourke submitted that there had been other cases of historic sex abuse where the alleged abuser had died, but the court nonetheless decided to disapply the primary limitation period. I viewed such a submission with caution. Earlier decisions can give valuable guidance on the proper principles, but the application of those principles to the individual facts of the case are necessarily dependent on the whole corpus of facts and, inevitably those will vary from one case to another.”

On the individual facts of this case, I would uphold the reasoning and conclusion of the Judge.

1. I would dismiss the appeal on Grounds 2 and 4.