[2021] EWCA Civ 1352
The Claimant was abused by one Frank Roper, a football scout in June1987, whilst on a footballing tour for young boys to New Zealand, for which he was later convicted. The proceedings were issued some thirty years after the event. The trial judge disapplied limitation and held that Blackpool FC was vicariously liable for the acts of Mr Roper when he abused the Claimant.
Lord Justice Stuart-Smith giving the joint decision of the Court of Appeal found that there was no vicarious liability. Frank Roper clearly played a key role in the recruitment of players for Blackpool FC. However, the football trip on which the Claimant went, was not authorised by Blackpool FC, although they had made a small contribution to the cost. Stuart-Smith LJ reached the conclusion that the evidence as identified and found by the Judge did not justify a finding that the relationship between Blackpool FC and Mr Roper was one that could properly be treated as akin to employment. Whilst what Mr Roper did as a scout conferred important benefits upon Blackpool FC in the conduct of its business and that he was afforded deference
and welcome by the club in recognition of his having produced good players in the past and in hope that he would continue to do so, none of the normal incidents of a relationship of employment were otherwise present. There was no evidence of any control or direction of what he should do.
In relation to limitation, Stuart-Smith LJ upheld the trial judge’s decision. This was despite the fact that Frank Roper had died. In relation to Mr Roper’s absence from the trial, Stuart-Smith LJ did 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. Blackpool FC identified particular points where it was said that missing documentary or witness evidence might have provided clarity. Stuart-Smith LJ did not find the peripheral examples cited by Blackpool FC to be persuasive. 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. A similar approach should be adopted to the loss of documentation.
For a fuller discussion of this cases see Malcolm Johnson’s comments in the December 2021 Newsletter.
To read the actual High Court Judgment see BAILLII – https://www.bailii.org/ew/cases/EWCA/Civ/2021/1352.html