LIMITATION, SEXUAL ABUSE AND THE SECTION 33 DISCRETION: A FAIR TRIAL WAS NOT POSSIBLE AND CLAIMANTS’ ACTION DISMISSED

The previous post looked at the decision in TVZ & Ors v Manchester City Football Club [2022] EWHC 7 (QB) in relation to the issue of vicarious liability.  However it is important to note that the claimants did not succeed in their applications under Section 33 of the Limitation Act 1980. The judgment contains a detailed consideration of the Section 33 criteria.

 

 

“The claimants’ formulation that the ultimate issue is whether a fair trial is possible needs to be treated with a little care. It derives from the observation of Auld LJ in Bryn Alyn which was a deliberately pithy encapsulation of the test after “stripping away legal niceties.” The s33 issue is whether it is fair (“equitable”) to disapply the time-limit. The question of fairness needs to take account of all the circumstances. It is not simply a question, in the abstract, of deciding whether a fair trial is possible. It is whether, having regard to all the circumstances of the case, it is fair to expect the defendant to meet the claim after so many years have passed …”

LIMITATION AND SECTION 33

This case is looked at in some detail in a webinar “Avoiding problems with limitation and making a Section 33 application” which is being broadcast on the 13th February 2022. Booking details are available here.

THE CASE

The claimants each brought actions for damages for sexual abuse that had taken place by a football coach in the early 1980s when the claimants were young teenagers.  The primary issue in the case was whether the defendant was vicariously liable for the acts of the coach in question who, at the time of the abuse, was not employed by the club.   This issue was highly relevant to the judge’s decision under Section 33.

THE JUDGMENT ON THE SECTION 33 ISSUE

The judge considered the Section 33 criteria in detail.  He held that if it were not for the difficulty the delay had caused in relation to the vicarious liability issue, he would have exercised the discretion under Section 33. However the difficulties the delay had caused with this one issue meant that the discretion would not be exercised in the claimants’
173. Length of delay: In each case, the 3-year time limit expired on a date between 1989 and 1993, but the claim was not started until 2017 or 2018 (see the table at paragraph 11 above). The period of time between the expiry of the limitation period and the commencement of the claims is, in each case, around 27 years. This is the period of time that falls to be considered under s33(3)(a), rather than the full period since the causes of action accrued – see Thompson v Brown Construction (Ebbw Vale) Ltd [1981] 1 WLR 744. I do not consider that the difference in the length of delay in individual cases is significant. So, in relation to the length of the delay, it is not necessary to distinguish between the individual cases.
174 This is a long period of delay both in absolute terms, and compared to the length of the limitation period, and compared to the periods of delay that have been considered in the many authorities that address the application of s33 of the 1980 Act. Long delay does not create any additional presumption against the disapplication of the limitation period (see Bryn Alyn per Auld LJ at [79]). It is just one of the factors to which the court must have regard when deciding what is equitable in the particular circumstances of an individual case. The authorities show that even in cases of very long delays the limitation period can be disapplied (see eg Jeffery v Bolton Textile Mill Co plc [1990] CLY 2944, McLaren v Harland and Wolff Ltd [1991] SLT 85). In DSN the judge’s decision to disapply the limitation period was upheld where the delay was 22 years and the perpetrator of the abuse had died. Conversely, as Mr Kent points out, there are other cases where the period of delay was shorter and the time limit was not disapplied.
175. Although the length of the delay is identified as a factor, it is not free-standing. What is important is not just the length of the delay in isolation, but the length of the delay when considered alongside the reason for the delay and the impact that the delay has had on the cogency of the evidenceCain per Smith LJ at [73]. The longer the period of delay the more likely it is that prejudice will be caused to the defendant – Bryn Alyn per Auld LJ at [74(iii)].
176. Reasons for delay: In each case, Dr Mogg and Professor Maden have considered whether there was anything to prevent the claimant from bringing a claim within the limitation period. In each case they agree that the claimant has never lacked the mental capacity to complain or to instruct his legal representatives and that he has never been psychiatrically disabled from making a complaint. They add the following in respect of each of the claimants:
TVZ:
We agree that confronting the memory of his past abuse has caused him anxiety and that there was a deterioration in his mental health in the late 1990s when he did that for the first time and that there was a further deterioration when he did it again after 2016. We agree however that nevertheless he was able to see a consultant psychiatrist Dr Rosen for a report on the effects of the abuse in 1999 in the context of a claim to the Criminal Injuries Compensation Authority. We agree that… there cannot have been any psychiatric barrier to pursuing a claim after that date.
JVF:
We agree that at the time the abuse occurred it is likely that JVF felt he would not be believed if he spoke about what had happened to him, as it was his word against that of Bennell, who was in a position of authority to him.
We note that his friend… says JVF told him about the abuse at the age of 19 years on a lads’ trip to Ibiza and that JVF and his wife agree that he told her about it in 1992. We agree that after the 2016 media publicity surrounding another victim, JVF was able to come forward without any untoward delay.
DDG:
We agree that it is to DDG’s credit that for entirely altruistic reasons he had the courage to come forward and report the abuse in the 1990s. We agree that contacting the police in 1997 was very difficult because of his feelings of shame, which is an almost universal aspect of severe abuse of this nature. We agree however that from a psychiatric viewpoint there was then no reason why he could not also have made a civil claim since he had already told his wife, he was then able to tell his family, in 2002 he told his treating psychologist, and he was able to make a CICB claim.
FTS:
We agree that he told a girlfriend about the abuse when he was about 20 years old and he told his partner about the abuse at an early stage in their relationship. We agree that he was able to come forward without any delay when he saw media publicity about abuse in football. We agree that he has probably never been psychiatrically disabled from complaining or making a claim.
LDX:
We agree that at the time the abuse occurred it is likely that LDX felt he would not be believed if he spoke about what had happened to him. Over subsequent years LDX was extremely reluctant to come forwards about the abuse due to embarrassment and a sense of shame. We agree that his involvement in the… church was probably also a deterrent to earlier disclosure.
Dr Mogg’s opinion is that additionally avoidance symptoms, characteristic of PTSD, have resulted in LDX trying to bury the abuse rather than discuss it with people close to him. Professor Maden believes that LDX compartmentalised his memories of the abuse, which is the usual and adaptive way in which people deal with abuse and other unpleasant events, and that this compartmentalisation protected him from the earlier development of mental health problems but made disclosure more difficult.
EJP:
We agree that at the time of the abuse it is likely that EJP thought he would not be believed if he disclosed the abuse.
HFT:
[His ability to make a complaint is] illustrated by the rapidity with which he disclosed widely within a few days of seeing [another footballer publicly disclose that he had been abused].
We also agree that HFT over many years has coped with memories of the abuse by pushing them to the back of the mind and avoiding thinking about what happened. We agree that this would have been a deterrent to disclosure as the latter would have carried the risk of a breakdown and did in fact play a major role in his 2019 breakdown.
KHT:
We agree that the disclosure of childhood sexual abuse is often delayed for many years, for a variety of reasons including shame, embarrassment, a fear of not being believed, and a potential perceived adverse effect on one’s career.
We note that KHT describes in his police interview the thought processes he went through in 1998 when deciding not to reveal details of the abuse at that time. We agree that there is nothing in that account to suggest that KHT’s reasoning was affected by any mental health problem. We agree that in those circumstances it is a matter for the Court to decide why KHT did not disclose the abuse when approached by the police in 1998.
We agree that as soon as KHT saw the publicity in November 2016, he was able to disclose the abuse to his wife and daughter, to issue a public statement and to report the abuse to the police without any apparent delay, which suggests there was no psychiatric barrier to earlier disclosure.
177. I accept the joint evidence that each claimant could have brought a claim within time. Each claimant knew that he had been abused. They all knew (by the time of the expiry of the time limit) that this was wrong. None of them suffered from dissociative amnesia. There is no “date of knowledge” argument under s14 of the 1980 Act.
178. However, none of the claimants consciously or capriciously delayed the issue of proceedings. The abuse and its consequences are, themselves, significant factors in the claimants’ delay in bringing proceedings. In each of the cases the claimant had for many years either told nobody about the abuse or had only told a tiny number of people who he trusted. In some cases, the claimant did not think he would be believed. In all cases I consider, on the evidence, that the claimant had, to a greater or lesser extent, “compartmentalised” the abuse – pushed it to the back of his mind. This process was explained by Professor Maden in the context of JVF’s case. He said that compartmentalisation is a combination of conscious and unconscious processes. It is a normal and natural protective process “to enable us to live our lives”. It is part of the explanation for why some people who have been exposed to severe abuse or trauma do not develop any psychiatric disorders, and why others may not develop as severe a disorder as might be expected. Professor Maden therefore readily accepted that it is entirely understandable that a person who has been abused may not come forward and disclose it or even mention it to loved ones, let alone “go public.” He also accepted that a person who has disclosed the abuse, might then “re-compartmentalise” it.
179. The authorities recognise that there are particular features of sexual abuse cases which make it more difficult for a claimant to bring proceedings (when compared, for example, to a case of clinical negligence), and which may provide a good reason for the delay. In B v Nugent Care Society [2009] EWHC 481 (QB) Irwin J observed, at [39]:
“It does seem clear in the speeches in Hoare, that some real significance has been attached to the specific factor arising in sex abuse cases, namely, that the tort inflicted by the abuser and for which the defendants are now vicariously liable, has itself the tendency to inhibit the victim from complaining, reporting or suing…”, even when the consequences do not include frank psychological and psychiatric injury.”
The present cases are, as I have explained, instances of the tort inhibiting complaint, report, or suit.
180/ MCFC points out that some claimants were able to disclose the abuse well before they issued proceedings, suggesting that they exercised a free choice to delay the issue of proceedings. MCFC is right that there had been earlier disclosure in some cases (see paragraph 171 above). There is, however, a world of difference between disclosure in confidence to a partner or other close confidante and making disclosure to a stranger for the purpose of seeking legal advice. The evidence shows that in many instances the claimants went to great lengths not to disclose what happened to them, even to their own doctors.
181. TVZ showed great bravery and fortitude in making a public disclosure in 1996/97. Not surprisingly, he found this “really traumatic” and “incredibly stressful” and “awful”. His “head was a mess” and he was “worried about people judging [him] and thinking [he] was lying.” He says that “somehow I felt worse after the criminal case and felt used and confused…everything was numb and… I now had more issues than I had started with.” In this context he explained that he was “not in a proper mental state to go through any further legal proceedings, such as a civil case. The criminal cases had completely broken me and… I could not function mentally.”
182. In KHT’s case, as the experts noted, he positively decided not to tell the police about the abuse when he was interviewed in 1998. KHT explained, and I accept, that he had tried to push the abuse to the back of his mind, and he was afraid that disclosure would prejudice his professional footballing career or that it might result in an adverse reaction from his team-mates and fans.
183. I consider that each of the claimants has a good and cogent explanation for the delay in bringing proceedings. LDX perhaps has the strongest explanation for delay. He was (and remains) terrified of the potential impact that disclosure would have. Having heard him give evidence, I am satisfied that he was close to being “for practical purposes disabled” (to use the phrase of Lord Hoffmann in A v Hoare [2008] UKHL 6 [2008] 1 AC 844 at [49]) from issuing proceedings. TVZ’s case may be at the other end of the spectrum of these claims because he had been able to make a public disclosure at a much earlier stage, but he too has a good explanation for the delay.
184. I also consider that, subject to the impact on the cogency of the evidence, the reasons for the delay in each of the cases are sufficiently powerful to justify the long period of delay. If there was no significant impact on the cogency of the evidence, it would be fair to MCFC to face these claims, and I would, in each case, exercise the power under s33 in the claimant’s favour to disapply the time limit.
185. Cogency of evidence: Each case depends, to a large extent, on the oral testimony of witnesses given decades after the events in question. The reliability of such testimony requires careful assessment, even where the witness is clearly honest and doing their best to give an accurate account. Human memory is inherently unreliable. MCFC rely on the observations of Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Limited and others [2013] EWHC 3560 (Comm) [2020] 1 CLC 428 at [16]-[22]:
“16. While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people’s memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.
  1. Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called ‘flashbulb’ memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description ‘flashbulb’ memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness’s memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory).
  2. Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.
  3. The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party’s lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.
  4. Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness’s memory has been “refreshed” by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness’s memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.
  5. It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth.
      1. In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”                                                                                                          186. This was said in the context of a commercial case, but the underlying points are of general application. In the present cases, the features to which Leggatt LJ draws attention at [20] become even more complex because of the criminal proceedings, the press reporting, the Mulcahy review and the report of Clive Sheldon QC.                                                                                                             187. The observations of Leggatt LJ were strongly supported by Professor Maden, and in all material respects Dr Mogg agreed with Professor Maden on this issue. They both said that human memory was just not reliable over this period of time, and that there might well be problems with reattribution and confirmation bias.                                                                                   189. The impact of delay on the evidence can conveniently be considered by reference to the three issues in each of the cases – whether the abuse occurred, whether MCFC is vicariously liable for that abuse, and quantum.
    1. 189. So far as the question of whether the abuse occurred, all the primary witnesses have given evidence: the claimants, and Bennell. It has not been suggested that any other evidence would have been available if the claims had been brought earlier. The passage of time has had an impact on the quality of the evidence, but the issue is not one which depends on fine details of individual recollection. There is no scope for mistake or misunderstanding, and very little scope for fallibility of memory, on the fundamental question of whether the abuse occurred. In all cases there is some contemporaneous documentation (for example, photographs) to support the claimants’ case to the extent of showing that they were coached by Bennell. It was not suggested that any of the claimants is dishonest. MCFC does not seek to adduce a positive case from Bennell on this issue. Insofar as he denied the commission of some offences, that was in the course of cross-examination that was designed to test his credit rather than the question of whether the abuse occurred. Anyway, his evidence is not credible (see paragraphs 280 – 281 below). Nor is it suggested that MCFC’s decision not to challenge the claimants’ accounts of the abuse, and not to adduce evidence from Bennell on this issue, is in any way due to the passage of time. Moreover, the proceedings in the Crown Court at Liverpool show that the issues relating to the abuse can be fairly determined to the criminal standard of proof even after all this time. In these circumstances, I do not consider that the passage of time has caused any real risk of prejudice to MCFC on this issue. Having not challenged the claimants’ accounts, it is not open to MCFC now to suggest the abuse did not occur, and it would not have been open to it to do so if the claims had been brought in time. It is for these reasons that I was able to make a finding at the outset of this judgment, irrespective of the question of limitation, that I accept the evidence given by each claimant on this issue.
    1.  190. So far as the consequences of the abuse are concerned, each claimant has given evidence as to the impact of the abuse on him. Each claimant has adduced evidence from additional witnesses (parents, spouses, children, teachers, and friends) as to the impact that the abuse has had. The claimants are unable to recollect some details and there are some inconsistencies between their recollections and the contemporaneous records. There is considerable scope for reattribution and confirmation bias. The abuse was a hugely significant event in the lives of each claimant. It would be surprising if they did not naturally attribute subsequent life events to the abuse. But, whether or not there is a history of abuse, some relationships do break up, some people do use illicit drugs and misuse alcohol, and some people do not manage to hold down long-term employment. It is therefore necessary to treat oral recollections of events, and the more so oral evidence as to the cause of events, with considerable caution. That said, it is possible to be satisfied, on the balance of probabilities, that a number of individual pieces of evidence are reliable. This is in part due to the very nature of post-traumatic stress disorder (“PTSD”). So, where a claimant describes recurring nightmares over many years, they are not recounting a single isolated event from many years ago, but something that is a recurrent and ongoing theme in their lives. Where the nightmare itself relates to the abuse, and where the medical literature supports a link between abuse and recurrent nightmares, it is not difficult, on the balance of probabilities, to ascribe a cause (and both medical experts agree with this point). Evidence as to certain avoidance behaviours (taking a long detour to avoid driving past Bennell’s house; not going to Kentucky Fried Chicken outlets) is in the same category. So too is evidence of particular triggering events (the smell of Shake’n’Vac carpet cleaner, or a particular type of aftershave, the sound of certain music, or certain forms of intimate contact).
    1. 191.There is a considerable body of documentary evidence, particularly medical and employment records. In each case, the two medical experts, Dr Mogg and Professor Maden, have provided lengthy and detailed expert reports and a joint statement identifying the areas on which they agree and disagree. In all cases Dr Mogg and Professor Maden have, jointly, pointed out that they are reliant on the information that they are given. Some of that information is contemporaneous documentary reporting of, for example, difficulties that the claimants reported to their doctors. However, much of the information provided to the experts was based on the history given by the claimants when the experts interviewed them. That history was being given more than 35 years after the abuse started. The experts say:
“We agree there are bound to be greater difficulties in this respect when dealing with allegations that relate to events some 30 years ago because memory is often not reliable over such long periods of time and there may be problems with reattribution and confirmation bias. …[A] psychiatric expert’s concern is … with the recall of symptoms, behaviour and motivations over such long periods of time.”
    1. 192. In each case, Dr Mogg and Professor Maden agree that the delay “has complicated the work of the expert because of a deterioration in the cogency of the evidence as a result of the passage of time.” They add the following in relation to each claimant:
TVZ:
…there are important missing records, including educational records and Dr Rosen’s report, but on the other hand the experts are greatly assisted by the records from Halliwick Centre.
JVF:
We agree that a comprehensive assessment of his academic achievements would require sight of his full educational records. We agree that it would have been easier to assess this claim had it been brought within the time limits.
DDG:
We agree that whilst the psychology records from 2002/3 are helpful, there are still potential problems of inconsistency, retrospective reattribution and confirmation bias which Professor Maden has set out in his report. We agree that since he rarely consulted doctors about his mental health, there are few records referring to his mental health in the period from 2003 to 2016. We agree that it would have been easier to assess this claim had it been bought within the time limits.
FTS:
We agree that whilst the psychology records from 2002/3 are helpful, there are still potential problems of inconsistency, retrospective reattribution and confirmation bias which Professor Maden has set out in his report. We agree that since he rarely consulted doctors about his mental health, there are few records referring to his mental health in the period from 2003 to 2016. We agree that it would have been easier to assess this claim had it been bought within the time limits.
LDX:
We agree there are important missing documents including education records and contemporaneous records relating to the accident that seems to have ended his semi-professional football career. We agree that in view of the way LDX now describes his football career, it would also be helpful to see employment records relating to his time in football. We agree that it would have been easier to assess this claim had it been brought within the time limits.
EJP:
We agree that the assessment of historic abuse in this case has been further complicated by the inconsistencies in the evidence. We agree that it would be helpful to see full educational and unredacted social care records as well as full employment records, especially in relation to the problems he had in the prison service and as a landscaper, which EJP has previously said caused PTSD. We note also that there are references to counselling at various times and we agree it would be important to see the records. We agree that it would have been easier to assess this claim had it been brought within the time limits.
HFT:
Professor Maden has drawn attention to his reasons for believing HFT has come to see the effects of the abuse as more pervasive with time and he believes it would have been easier to address matters such as the reason for his vasectomy had the issue been considered at an earlier date.
KHT:
We agree that the absence of any contemporaneous evidence of mental health problems means the experts are left with only [KHT’s] retrospective self-report in the context of a claim for compensation. We agree that it would have been much easier to assess this claim had it been brought within the time limits.
    1. 193. There is some missing documentary evidence that may have been available if the claims had been brought in time. For example, TVZ’s school reports are no longer available. They may have provided a contemporaneous account of his teachers’ perception of a change to his character. They may therefore have corroborated (or otherwise) the accounts given by two of his teachers that they detected a marked change in TVZ during the period when (it is now known) he was being abused by Bennell, and that this pre-dated the tragic death of his brother (and so could not be related to that).
    1. 194. Accordingly, there has, in each of the claims, been some impact on the cogency of the evidence relating to quantum as a result of the delay. But this is relatively marginal. In all cases there remains a significant body of evidence, including the evidence of the claimants, and the medical records, and the evidence of the medical experts. MCFC has not identified any additional witness who would have been able to give evidence on quantum that might have made a substantial difference. So far as some records are not available, one can never know for certain, but it is unlikely that they would have made a great deal of difference.
    1. 195. In one sense the delay has improved the evidence in relation to quantum. If these claims had been brought in time, then it would have been necessary to make a prognosis, forecasting how the abuse would impact on the claimants’ future lives. A consequence of the delay is that there is a much greater retrospective component to the assessment – it is possible to look back over 35 years of lived experiences (with, in some cases, documentary support) to see how, in fact, the abuse had an impact. The claimants have shown remarkable levels of fortitude and resilience. In a number of the cases, it might have been expected that the abuse would have had an even greater impact. The delay has, in that sense, resulted in a clearer evidential picture, and this is, to some extent, to MCFC’s benefit (in that the value of the claims that it is facing is less than might have been expected).
    1. 196. Accordingly, leaving aside the question of vicarious liability, the extensive period of time which has passed since the time limits expired has not had a very significant impact on the cogency of the evidence. Leaving aside the question of vicarious liability, but taking account of all other matters, including in particular the length of the delay and the reasons for the delay and the impact on evidential cogency, I consider that it would be equitable to disapply the time limits. It is a long period of delay but there is a reasonable explanation and the impact on the evidence is manageable. It follows that if this were a claim against Bennell, or if it was accepted or clear that MCFC was responsible in law for Bennell’s conduct, then I would disapply the time limit in each case.
    1. 197. That leaves over the issue of vicarious liability. That issue is highly fact sensitive, and its resolution is not entirely straightforward (as the different outcomes in DSN at first instance and in the Court of Appeal show, and as is also shown by the four recent decisions in the Supreme Court, and as is also shown by the narrow distinctions that are sometimes determinative). It depends, in part, on a detailed assessment of the nature of the relationship between Bennell and MCFC. This was not of any real relevance in the criminal proceedings. The claimants at one stage suggested otherwise. They sought to rely on observations made by the Recorder of Liverpool (in relation to Bennell’s connection with MCFC) when sentencing Bennell, but I ruled that would be inconsistent with the rule in Hollington v Hewthorn [1943] 1 KB 587 (and see Re Winch [2021] EWHC 3284 (QB) per Warby LJ at [27]), and that it would be necessary to rely on the underlying material which led to those observations. The point was not pressed further. Save for the limited assistance that can be gleaned from some of the police interviews, the criminal proceedings do not therefore help on the question of vicarious liability.
    1. 198. There is now no clear contemporaneous documentary record of the relationship between MCFC and Bennell. So far as documents exist (for example matchday programmes that refer to Bennell, and the video of the trial game), they are fragmentary, incomplete, and of limited assistance. So far as documents have been destroyed or mislaid, I do not consider that is due to any irresponsibility on the part of MCFC. At the time the limitation period expired in each of these cases, Bennell had not worked for MCFC for around 6 years and there was nothing to indicate that MCFC might be exposed to liability as a result of his conduct. It is not possible to determine precisely when documentation was destroyed, save that it is likely to have been before 2003.
    1. 199. The primary remaining evidence comes from the witnesses. Most of the witnesses were observing the relationship between Bennell and MCFC from a distance, and in circumstances where Bennell was overstating his relationship with MCFC for his own purposes. The only remaining witness who is able to give direct first-hand evidence about the relationship is Bennell. His evidence is worthless (see paragraphs 280 – 281 below). He is not a credible witness.
    1. 200. The net result is that there is little or no documentary evidence on matters such as:
(1)   How it came about that Ted Davies was appointed to the role of youth development officer and why Bennell was not appointed to that role. The reaction of Bennell to the appointment of Ted Davies. What communications took place between Ken Barnes and Bennell when (a) Bennell took up the job at Taxal Edge in late 1979, and (b) Bennell resumed coaching for Ray Hinett’s team in around 1981.
(2)   Whether MCFC had any say in Bennell taking on teams like Glossop Juniors, White Knowl, New Mills Juniors and North West Derbyshire.
(3)   What became of Whitehill after Bennell moved to Taxal Edge.
(4)   What, if any, funding MCFC provided to Bennell’s teams.
(5)   The extent to which MCFC provided kit, training facilities and tickets for games.
(6)   What, if any, say MCFC had over the players that Bennell selected for his teams, the criteria used for selection and his methodology of coaching.
(7)   Whether MCFC had any say over the tournaments in which Bennell’s teams were entered, the leagues in which they played or the tours they undertook.
(8)   What, if any, recourse MCFC had if Bennell introduced players to rival clubs.
(9)   The extent and purpose of contact between Bennell and Ken Barnes, and the matters that were discussed by them.
(10) Whether MCFC maintained public indemnity insurance in respect of the activities of its scouts.
    1. 201 The evidence on these matters, such as it is, stems from the recollection of witnesses going back over three decades. They are points of detail which those witnesses had no reason to commit to long term memory.
    1. 202. If the claim had been brought in time, then it is likely that there would have been a much more extensive matrix of evidence on these matters. This includes documentary evidence (for example, documents relating to Ted Davies’ appointment as youth development officer, any application from Bennell for that job, the reasons why Bennell was not appointed, receipts for payments made in respect of boys’ teams, written records of communications between Bennell and MCFC, internal MCFC communications on matters relating to youth development, records of complaints made about Bennell and what was done in response, documents relating to the individual teams, correspondence in relation to attendance by club employees at presentation evenings and the like). Although it is not possible to tell when any individual document was destroyed, it is likely that at least some documentation would have been available on some of these issues if proceedings had been brought by, say, 1993 (ie the latest date on which one of these claims could be brought in time, which was still 10 years before MCFC moved to its new stadium). Even if some documentation had been destroyed before the expiry of the limitation period, that may be taken into account when considering all the circumstance of the case under s33 (even though it is not, strictly, relevant to the issue that arises under s33(3)(b)) – see CD per Lewison LJ at [36] and Donovan v Gwentoys Ltd [1990] 1 WLR 472 per Lord Oliver at 479.
    1. 203. Ken Barnes would have been an important witness, likely the most important witness on this issue. He would have been much better placed to give credible and reliable evidence on the relationship between Bennell and MCFC than any of the witnesses who have given evidence. There are a number of other witnesses who would also probably have been able to give some evidence about the nature of the relationship between Bennell and MCFC, particularly Chris Muir, Ted Davies, Peter Swales, Bernard Halford, Len Davies, George Woodcock and Pete Warhurst.
    1. 204. For present purposes I do not take account of the possibility that Tony Book, Steve Fleet, Mike Grimsley and Roy Bailey would have been able to give evidence if the claim had been brought in time. In respect of Mike Grimsley and Roy Bailey it is unlikely that their evidence would have made a significant difference – they coached the associated schoolboy teams but there is nothing to suggest that they had much contact with Bennell. In relation to Tony Book, the evidence as to whether he is now able to assist is unsatisfactory and any assessment of whether the delay has had an impact on the quality of the evidence that he might give is speculative. In relation to Steve Fleet, it would have been open to either party to issue a witness summons. There is no way of knowing what evidence he might now, decades later, be able to give.
    1. 205. The net result is that if the claims had been brought in time it is likely that clear confident and reliable conclusions could be reached about the relationship between Bennell and MCFC. The ability now to do so has been badly compromised by the 27-year delay and the consequential impact on the available evidence. I agree with the submission of Mr Counsell QC that a loss of evidence does not necessarily just prejudice a defendant – it might also prejudice a claimant. Axiomatically, it is almost impossible to know which party is more disadvantaged by a loss of evidence – that depends on what the evidence would have shown. The point is that a loss of evidence is relevant to the question of whether it is fair to require the defendant to face the claim after such a long delay even if it is not known for certain whether the lost evidence would have assisted the defendant’s case.
    1. 206/ The length of the delay, the reasons for the delay and the impact on the cogency of the evidence are all significant factors that must be considered under s33(3). It is also necessary to take account of the other factors identified by s33(3), but I do not consider that any of them carry significant weight in comparison:
(1)   Conduct of MCFC after the cause of action arose: there are some minor complaints about disclosure (specifically the late disclosure of documentation), but it is not ultimately suggested that MCFC has retained any disclosable document (and complaints of late disclosure are also made in the opposite direction).
(2)   The duration of any disability of the claimant after the date of the accrual of the cause of action: it is not suggested that any of the claimants were ever under a disability after achieving their majority.
(3)   The extent to which the claimant 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, and
(4)   The steps taken by the claimant to obtain medical, legal, or other expert advice and the nature of any such advice he may have received: the claimants knew from the outset that Bennell was responsible for the abuse, and they knew from the outset that Bennell was linked with MCFC. If they had sought legal advice in the 1980s or 1990s then it may well have been less favourable because of the then state of the law (before Lister v Hesley Hall [2002] 1 AC 215). Once they felt able to bring civil claims it appears that they sought legal advice relatively quickly and proceedings were issued without significant delay.
    1. 207. Other factors: Beyond the specific factors identified in s33(3)(a)-(f) it is also necessary to take account of all the circumstances of the case.
    1. 208. The claimants and MCFC each rely on the Mulcahy review and the resulting compensation scheme. There may be circumstances where this type of factor is significant. It is to MCFC’s credit that it set up an investigation into what had occurred and set up a no-fault compensation scheme, but I do not give particular weight to this factor, and I appreciate that the claimants regard it as a piece of cynical reputation management and an attempt to pressurise them not to bring civil claims. By the time the compensation scheme was set up, these proceedings were already underway. The claimants contend that the terms of the scheme (and the limited provision for costs) were such that any compensation paid under the scheme would have been consumed by legal costs. I do not consider that the fact that the claimants could have applied for compensation under the scheme is a factor that weighs against them, or in MCFC’s favour, in determining whether the time-limit should be disapplied.
    1. 209. There was good reason for the Mulcahy review to be structured as it was, with witnesses being guaranteed anonymity. MCFC are entitled to maintain privilege over the statements that were obtained, and it would be an abrogation of that privilege for the claim to privilege to be held against MCFC when deciding whether to disapply the time limit. The structure of the Mulcahy review is not therefore a factor that weighs in the claimants’ favour, or against MCFC, when determining whether the time limit should be disapplied.
    1. 210. MCFC suggests that it is significant that it is an “innocent party” that is said to be responsible for the abuse on a “no fault” basis and only through the prism of vicarious liability. It is not necessary to express a view on whether that could ever be a relevant factor. In the present case, I do not consider it is a factor to which any weight should be attached. I have already attached significant weight to the degradation of the evidence that relates to vicarious liability. If account were taken of this further factor, suggested by MCFC, that would amount to double counting.
    1. 211 I do not accept MCFC’s submission that it would be disproportionate to disapply the limitation period in KHT’s case, because the abuse was “comparatively minor and of short duration” and “any award is likely to be relatively modest.” This is a significant factor in some cases, particularly where the issue of limitation is determined as a preliminary issue – see Robinson v St Helens Metropolitan Borough Council [2002] EWCA Civ 1099 [2003] PIQR P128 per Sir Murray Stuart-Smith at [32]-[33] and Adams v Bracknell Forest Borough Council [2004] UKHL 29 [2005] 1 AC 76 per Lord Hoffmann at [54]-[55]. Here, KHT was the victim of substantial and serious sexual assaults. Even though they were not as horrendous as some of the offending against other claimants, they were still, in their own right, serious infringements of KHT’s rights to bodily integrity, personal autonomy, and his rights as a child. I have assessed the value of the claim at over £45,000 (see paragraphs 561 – 567 below). The issue of limitation is being determined at trial. That in itself makes a material difference to the question of proportionality (see DSN at [168], and the first instance judgment of Griffiths J at [62]). The costs have already been incurred. A refusal to disapply the time limit will not save costs. KHT’s case does not stand alone. It is being tried with seven other claims. The costs in determining the central issue of vicarious liability have been incurred in any event. So far as I can tell, MCFC has not disclosed a single document solely in relation to KHT’s case. Nor has it exchanged evidence from any lay witness solely in relation to KHT’s case. The additional costs that can be attributed to KHT’s case are the costs of the pleaded defence and amended defence (which largely follow the equivalent documents in the other claims), and the costs of the expert evidence in relation to KHT. These are likely to be modest by comparison to the overall costs of the claims. I do not therefore consider that it is (on these grounds) disproportionate to disapply the time limit in KHT’s claim.
    1. 212 The merit of the underlying claim is a factor that is sometimes considered, particularly where the court decides whether to disapply the time limit as a preliminary issue. Here, it is not a factor to which I attach any weight. If the claimants, on the available evidence, do not succeed in the claims then the time limit makes no difference to the outcome. In those circumstances it is incapable of impacting on the balance of prejudice that is inherent in s33 and is not therefore a relevant factor to consider. If the claimants would, on the available evidence, succeed in the claims then the application of the time limit would cause overwhelming prejudice to them, but it would also cause overwhelming prejudice to the defendant to disapply the time limit if evidence that might have made a difference to the outcome has been lost. This lies at the heart of s33(3)(b) and has therefore already been addressed.
    1. 213 Other factors that were mooted include the availability of an award under the criminal injuries compensation scheme, and the change in the legal framework (particularly in relation to vicarious liability) since the causes of action accrued. It was not, however, suggested that either factor should be taken into account. As to the latter, Mr Fewtrell fairly and helpfully drew my attention to CD per Lewison LJ at [75] (and Murray v Devenish [2018] EWHC 1895 (QB) per Nicol J at [68]-[70]) where it is shown why this is not a relevant factor.
    1. 214.Accordingly, I do not consider that there are any other circumstances, beyond those set out in section 33(3)(a) and (b), that carry significant comparative weight. Those factors that do carry weight point in different directions. The claimants’ reasons for the delay militate in favour of allowing the application. The impact on the cogency of the evidence, points in the other direction. The opposing factors are incommensurable. Neither has primacy. Even if there is “some unfairness to the defendant due to the delay” it may be fair and just that the action should proceed if the delay has arisen for an excusable reason – see Cain at [73].
    1. 215. The claimants’ formulation that the ultimate issue is whether a fair trial is possible needs to be treated with a little care. It derives from the observation of Auld LJ in Bryn Alyn which was a deliberately pithy encapsulation of the test after “stripping away legal niceties.” The s33 issue is whether it is fair (“equitable”) to disapply the time-limit. The question of fairness needs to take account of all the circumstances. It is not simply a question, in the abstract, of deciding whether a fair trial is possible. It is whether, having regard to all the circumstances of the case, it is fair to expect the defendant to meet the claim after so many years have passed – see A v Hoare [2008] UKHL 6 [2008] 1 AC 844 per Lord Brown at [86]:
“Whether or not it will be possible for defendants to investigate these sufficiently for there to be a reasonable prospect of a fair trial will depend upon a number of factors, not least when the complaint was first made and with what effect. If a complaint has been made and recorded, and more obviously still if the accused has been convicted of the abuse complained of, that will be one thing: if, however, a complaint comes out of the blue with no apparent support for it (other perhaps than that the alleged abuser has been accused or even convicted of similar abuse in the past), that would be quite another thing. By no means everyone who brings a late claim for damages for sexual abuse, however genuine his complaint may in fact be, can reasonably expect the court to exercise the section 33 discretion in his favour. On the contrary, a fair trial (which must surely include a fair opportunity for the defendant to investigate the allegations – see section 33(3)(b)) is in many cases likely to be found quite simply impossible after a long delay.”
    1. 216. In Cain Smith LJ sat at [73]:
“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.”
    1. 217. In DSN Griffiths J disapplied the limitation period. This decision was upheld by the Court of Appeal. Although the facts of DSN bear some similarities to the present cases, the s33 decision in that case does not mandate any particular answer to the s33 question in these cases. Moreover, there are relevant differences. The delay, here, is longer. In DSN there was evidence from Sam Ellis, Kenneth Chadwick, and David Johnson (respectively the manager, chairman and company secretary) who were all able to assist on the relationship between Frank Roper (the abuser in that case) and Blackpool FC. There was only one boys’ team that was under consideration (Nova Juniors) and the basic way in which that single team operated was tolerably clear. Here, the claimants’ cases directly concern six youth teams (and there are further teams to be considered besides). The evidence relating to how they operated is limited, particularly in relation to those with which Ray Hinett and AJM were not directly involved. Griffiths J referred to the “narrow scope of factual dispute” and the “cogency and abundance of the [remaining available] evidence”, and he assessed that the testimony of two witnesses who had since died would not have been capable of making a difference. Accordingly, he concluded that the delay had caused “no real risk of substantial prejudice”. I reach the opposite conclusions on the different facts of the present cases. Further, Griffiths J was considering the evidential impact by reference to the test for vicarious liability set out in Supreme Court decisions from 2016, before further guidance was given by the Supreme Court in 2020.
    1. 218. Here, having regard to the length of the delay and the way in which the delay has affected the available evidence, I do not consider that it is fair and just to expect MCFC to meet any of the claims, even though each of the claimants has a good explanation for the delay in issuing proceedings. I do not therefore consider that it is equitable to disapply the time limit. I decline to do so. It follows that the claims will be dismissed.