GB v Stoke City Football Club Ltd & Anor [2015] EWHC 2862 (QB)

Case No 1PR03779

[2015] EWHC 2862 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

Date 30 th October 2015

PRESTON DISTRICT REGISTRY

The Law Courts

Preston PR1 2LL

Before

HIS HONOUR JUDGE BUTLER

(Designated Civil Judge for Cumbria & Lancashire)

sitting as a judge of the High Court

Between

g bClaimant

STOKE CITY FOOTBALL CLUB LIMITEDDefendant

PETER DAVID FOXDefendant

Ms A. Weereratne QC (instructed by Smith Partnership) for Claimant

Mr N. Fewtrell (instructed by Hill Dickinson) for First Defendant

Mr J. Mulderig (instructed by Farleys) for Second Defendant

Hearing Hearing dates: 6, 7, 8, 9, 10, 13, 16 & 17 July, 21, 22, 23, 24 & 25 September 2015

Judgment

His Honour Judge Butler:

INTRODUCTION

[1]The claimant, GB, was during the two football seasons of 1986/87 and 1987/88 a youth trainee (apprentice footballer) with the first defendant, Stoke City Football Club Limited (hereinafter called simply “the club”). During those seasons (and indeed between 1978 and 1992) the second defendant, Peter David Fox, was employed as a professional footballer by the club and was the regular first team goalkeeper.

[2]A trial of the preliminary issue of limitation (“the limitation trial”) in this case took place over four days between 4th and 11th December 2013 and I delivered a reserved judgment on 31st January 2014. It will be appropriate occasionally to quote from that previous judgment, but I hope to avoid unnecessary repetition and the terms of that judgment should be regarded as being fully incorporated by reference into this judgment. Counsel for all three parties were in agreement that the earlier trial, at which some oral evidence was given by claimant and two witnesses (one also gave evidence at the substantive trial and the other was made the subject of a hearsay notice at that trial), should be regarded as being part of the whole trial process, the procedure adopted having been that sanctioned by the Court of Appeal in B v Nugent Care Society

[2009] EWCA Civ 827

[3]The primary limitation period had expired on 25th July 1991 but I granted the claimant’s application under section 33 of the Limitation Act 1980 by exercising my discretion to direct that section 11 of the Act should not apply to his present claims against both defendants. I considered that a fair trial would still be possible. He was accordingly enabled to bring these claims notwithstanding that the relevant allegations go back nearly thirty years in time. These claims are based on his allegations that on two occasions, once in 1986 and once in 1987, the second defendant was guilty of trespass to his person (assault by battery). As against the second defendant the claimant claims damages for injury and loss allegedly caused by those tortious acts. As against the club he claims damages on the basis of its vicarious liability for the tortious acts of the second defendant as its employee.

[4]As originally issued and pleaded, the claimant’s case included a further claim in the nature of a “direct negligence” claim against the club on the basis that it was in direct breach (by its officers, directors or managers) of a duty of care to take reasonable care for the safety of apprentices and in particular to prevent assaults of any kind being committed upon them by professional players. The additional claim no longer proceeds because I refused to exercise my discretion under section 33 of the 1980 Act to disapply the primary limitation period applicable to that claim. Unlike the statute-barred “direct” claim against the club, the “vicarious” claim against it does not depend upon the club, by its officers, directors or managers, being shown to have been at fault independently of the alleged acts of the second defendant.

Background

[5]The general background facts of the matter and the chronology of relevant events remain relatively uncontroversial. The claimant was born on 25th July 1970 in Northern Ireland. In early July 1986, shortly before his sixteenth birthday, he moved to England to take up a position as an apprentice with the club, then based at the Victoria Football Ground, Stoke-on-Trent, Staffordshire. During the two seasons in question, the club was positioned in League Division Two and during both those seasons the second defendant was its regular first team goalkeeper. He made 477 appearances for the club during his fifteen years’ tenure, whereafter he moved on to coaching or managerial work at other football league clubs. At the substantive trial, the claimant told me that it had been his dream to become a professional footballer and, as at the previous hearing, I have had no difficulty whatever in accepting the truth of that statement. In common with other apprentices at that time, he was enrolled as a youth trainee on the youth training scheme (YTS) provided by the government of the day and although much of his time and theirs was spent in training under the general direction of the youth development leader (youth coach) Mr Tony Lacey, he also attended at a local college one full day a week. I remain of the view previously expressed (see paragraph 12 of my judgment dated 31st January 2014) that the most appropriate description of him at that time would be that he was a “young person”, not a “child”. He had left school. He attained the age of 16 on 25th July 1986. No copy of his training contract has survived, but it was accepted that it probably bore the same date as those of others, which have survived, that is to say 7th July 1986. On his own evidence he would have been 16 years old at the time of the first alleged assault and would have been 17 years old by the time of the second alleged assault, although as will be seen the evidence of other witnesses at the substantive trial gave rise to some uncertainty as to whether his recollection of the timing of that second assault (if it happened at all) is correct. Certainly, if he is correct, no apprentice who had already embarked upon his second year of apprenticeship in the season 1986/87 could have witnessed the second assault which he described.

[6]There is one correction and one addition to make to the recital of facts in my earlier judgment. The correction is that at the time of the limitation trial I understood that he had remained at the club until July 1988 (a full two calendar years). However, it now appears from the evidence given at the substantive trial that he probably left at the end of the football season, in about late May 1988, by which time he had been informed by Mr Mills, the first team manager, that he was not to be retained either on a short professional contract or on a non-contract basis. The addition is that I now find as an uncontroversial fact that he remained in Stoke-on-Trent until his return home to Northern Ireland in January 1989 living at his then-girlfriend Catherine’s home. Her parents (in fact her mother and stepfather) also lived there.

Representation

[7]At the outset of this judgment, I should express my thanks to all three counsel involved in the case, Ms Aswini Weereratne QC for the claimant, Mr Nicholas Fewtrell for the club and Mr Joseph Mulderig for the second defendant. (Mr John McNeill, who represented the second defendant at the trial of the preliminary issue has, as I understand it, since retired from professional practice). All three trial counsel produced detailed written skeleton opening arguments and made clear, thorough and persuasive oral closing submissions. I am grateful to all of them for their industry and for the generally courteous spirit in which the case was conducted between them, notwithstanding that it was necessary for each of them on instructions to put allegations of the most serious and unpleasant nature to the opposing parties and witnesses.

Procedure

[8]The trial bundle consisted of four full lever arch files, supplemented by a bundle of authorities and by copies of the official transcripts of the evidence of the claimant and the two witnesses whose evidence was called before me orally in December 2013. Those transcripts were (belatedly) obtained because of the agreement that their evidence given at the limitation trial constituted evidence in the substantive trial. It had initially been hoped that the availability of those transcripts might substantially shorten the cross-examination of those witnesses (in particular the claimant) although of course the defendants might also have hoped to make capital out of any differences between what had been said in December 2013 and what would be said in July 2015. As matters turned out, it was not possible for the official transcribers to provide the transcript of the claimant’s earlier evidence until after his cross-examination had concluded and so unfortunately it was not possible for that cross-examination to be shortened. The fact of a change of counsel also meant that I considered it to be important not to restrict the ability of Mr Mulderig to challenge the claimant’s account comprehensively by cross-examination. The transcripts of the evidence of the two witnesses were available before the former gave evidence at the substantive trial.

[9]As to the specified causes of action which, notwithstanding the delay, I allowed to proceed on the basis that the ability of both defendants to defend had not been materially affected and that a fair trial would be possible, it is important to note that I was not called upon to make any findings of fact at the limitation trial. I am satisfied, from the way in which the substantive trial was conducted and the amount of oral and documentary evidence capable of being adduced, that a ‘fair trial’ was indeed possible. I do however record the fact that two of the claimant’s witnesses, one of whom became potentially his most important witness, had not given statements at the time of the limitation trial so that, when considering the cogency of evidence, I did not have their evidence before me. Had I been aware at that time that the claimant would be relying at trial so heavily on(a) similar fact evidence of events in 1985 and

(b) the evidence of recollection of something heard in a radio broadcast (of which no recording survives) on an unspecified date between 1986 and 1988 I might have found it more difficult to disapply the limitation period because of the obvious additional difficulty for a defendant having to answer such evidence. However, on balance I am satisfied that this belated evidence did not tip the balance against either of the defendants to such a degree that it rendered the trial unfair by preventing them from deploying their defences fully.

[10]I reserved my judgment having regard to the nature of the case, the length of the trial (13 days), the number of witnesses, the amount of documentation and the considerable public interest shown in the case (as demonstrated by the attendance in the court each day of representatives of media and football organisations). A draft of this judgment was circulated to all three counsel for editorial corrections before handing down.

[11]Volume and page references in parenthesis (for example ‘1, C1’ standing for ‘volume 1, page C1’) in this judgment refer to the trial bundles, unless otherwise indicated.

THE CLAIM

[12]I have already indicated briefly what this claim is about. More specifically it is whether:(a) the claimant was physically assaulted by the second defendant on either or both of the alleged occasions;

(b) if so whether the club as the second defendant’s employer at the time is vicariously liable for his tortious act or acts; and

(c) whether (and to what extent) the claimant has suffered personal injury and/or pecuniary loss as a consequence thereof. It is in my judgment, having regard to the public interest in this case, also important to state expressly what this claim is not about. Firstly, it is not about alleged systemic or institutional neglect or abuse of apprentices at this club during the 1980s or at any time. Secondly, it is not about any lack of care for and/or abuse of apprentices at any other football club at that time or at all. Thirdly, it is not about the rights or wrongs, legal or moral, of any ‘initiation rituals’ which might in the past have been or may even now still be a feature of life as a football player at any level. Suggestions made in evidence and in submissions of a culture of bullying and/or punishment rituals at this or other clubs in the past may be matters to be considered or determined in other proceedings involving other claimants against this or other clubs in other courts.

[13]Ms Weereratne QC suggested on more than one occasion that it was well known that misbehaviour of various kinds was a feature of football league dressing rooms, to which both defendants’ counsel objected that no admissible evidence to support that suggestion had been adduced in this case. The defendants’ counsel were correct and in any event the alleged notoriety of the matters suggested was, as I publicly said, unknown to me. Insofar as such allegations were raised as against this club, the effect of my refusal to disapply the primary limitation period in respect of a “direct” claim against the club prevents the claimant from pursuing such allegations which were, in my judgment, in any event not relevant to the questions of whether(a) in fact he was assaulted as alleged or

(b) the club should be held vicariously liable for such assaults as he might prove.

[14]For the avoidance of doubt, to the extent that there was reference to an alleged ritual (whether of initiation or punishment) described as “blacking”, that is to say application of boot polish to the genitals of male apprentices or players, the claimant does not allege that any such practice was ever applied to him. It is accordingly not relevant to consider whether as a matter of fact it occurred at this club at any time or to consider any argument that such physical contact would have been considered generally acceptable in the ordinary conduct of everyday life in workplaces generally or in particular in male sports workplaces during the 1980s or more recently.

[15]It was no part of the second defendant’s defence that the punishment actually alleged by the claimant, known as “gloving” or “the glove” (as described in paragraph 20 of my previous judgment), could have been justified by any such argument. The second defendant denies not only that any such practice was applied by him to the claimant in 1986/7 but also that it was ever applied by him to anyone before or since. The club denies that any of its officials were aware of any such practice and did not seek to raise any argument by way of justification of such a practice (which was denied) on the basis that times had changed. Mr Fewtrell, for the club, urged me not to risk any confusion between civil wrongs and criminal offences, but as I understood it, he accepted that if the claimant did indeed suffer “the glove”, then an offence or offences of indecent assault contrary to Section 15(1) of the Sexual Offences Act 1956 was or were probably committed by the perpetrator. However, I am not called upon to consider whether any criminal offence was committed but rather whether any tort was committed, as to which the claimant bears the burden of proof.

Burden and standard of proof

[16]The burden of proof is not, of course, the starting point but the end point of a case such as this because it is first necessary for the court, if it can, to find the facts. No judge likes to decide cases on the burden of proof if he or she can legitimately avoid having to do so. A judge should only resort to the burden of proof where he or she is unable to resolve an issue of fact or facts after having unsuccessfully attempted to do so by examination and evaluation of the evidence: see Verlanderv Devon Waste Management Limited

[2007] EWCA Civ 835

at [19]. Those cases where resort to the burden of proof is necessary to decide the case are sometimes described as being “exceptional”: see Verlander at [24] explaining the earlier case of Stephens v Cannon

[2005] EWCA Civ 222

. If the available evidence is so conflicting or uncertain or falls so short of proof that there is nothing left but to conclude that the party bearing the burden of proof has not proved his case so that the court is unable to find the facts on the balance of probabilities, it must then ask where the burden of proof lies and apply the burden against the relevant party (that is to say to give the benefit of doubt to the other party). In this case, on all issues, the party bearing the burden of proof is the claimant. It follows that my duty is to examine and evaluate the evidence and in doing so to assess the credibility or reliability of the witnesses and to try to resolve all disputes of fact on the balance of probabilities, but to the extent that I cannot do so, the burden must be applied against the claimant and consequently the benefit of any doubt must be given to the second defendant.

[17]The standard of proof is the balance of probabilities. It may be unnecessary to say more than that but I will do so simply because there appeared to be a conflict or at least a difference of emphasis between the submissions of Ms Weereratne QC and Mr Mulderig in their respective skeleton openings. Mr Mulderig, referring to Re H

[1996] AC 563

, cited part of Lord Nicholls’ opinion at page 586 where he said that “the more serious the allegation the less likely it is that the event occurred and hence the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability” and went on to say that “deliberate physical injury is usually less likely than accidental physical injury” and “that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether on balance the event occurred”.

[18]Ms Weereratne QC made clear that she relied on the more recent case of Re B

[2009] 1 AC 11

and submitted that there is no heightened standard of proof in such a case as this. In my judgment, the submissions of Ms Weereratne QC are correct and I think it fair to say that Mr Mulderig did on reflection concede the point. For the avoidance of doubt, there is in my judgment a single civil standard of proof on the balance of probabilities, that is to say proof that the facts in issue more probably occurred than not. It is the simple balance of probabilities, neither more nor less, and the inherent probabilities are simply something to be taken into account where relevant in deciding where the truth lies. There is no sliding scale requiring stronger evidence the more serious the allegation or the more serious the consequences. Those points were clarified by the House of Lords in Re B, when explaining the earlier decision in Re H. It follows that “serious cases” do not require a different standard of proof, a heightened standard of proof or a specially cogent standard of evidence. The court must of course give appropriately careful consideration to the evidence before being satisfied of the matter which has to be established and must look with care at accusations which potentially give rise to serious consequences but nevertheless, in determining whether or not they occurred, the court must apply a single unvarying standard, that is to say the balance of probabilities.

The nature of the alleged assaults

[19]I have considered how the alleged assaults should be described for the purposes of this judgment (and indeed in any media publication). The claimant’s own evidence is that he regarded them as “physical” assaults until he attended the child protection course in 2008, twenty years after the events, whereupon it seems he considered that they might be “sexual” assaults. It is undoubtedly the case that between the late 20th century and the early 21st century there has been a reconsideration and to some extent redefinition of acts which might then not have been, but are now, properly described as “sexual” acts, whatever the motivation of the perpetrator might be: see for example section 3 of the Sexual Offences Act 2003 (the new offence of assault by penetration). At the relevant time (1986/87) the acts described by the claimant, if proved to the full extent alleged, would probably in my judgment have constituted an indecent assault for the purposes of the criminal law then in force: see section 15 of the Sexual Offences Act 1956. However, it was not (to my recollection of practice at that time) conventional in those days to use the criminal terminology for the purpose of civil proceedings. In a case such as this it is more likely that the more general terms “trespass to the person” or “assault by battery” would have been used. It is I think very important to say at the outset that this is not a case of historic sexual abuse of the kind exemplified by a number of the cases cited to me both at the limitation trial and at the substantive trial. That is to say, it is not a case of assaults being committed in secret by an adult male or males against a teenage boy targeted for the purpose but a case, according to the claimant, of what was in effect an “accepted practice”, perhaps carried on behind closed doors but not shielded from the eyes of witnesses in the shape of whichever professional players or apprentices might happen to have been in the home team dressing room at the relevant time. It would not in my view be appropriate to substitute 21st century criminal terminology for the criminal (or civil) usage of the relevant time. Nevertheless, simply to describe what the claimant alleges as “assaults” would not really do justice to the seriousness of what is alleged.

[20]In that context, it is important to note that this claim is not presented and was never pleaded as a claim for “sexual” abuse, in the sense that there is no allegation or even suggestion of a sexual motivation on the part of the second defendant (or his three alleged accomplices). Nor is it suggested that the claimant was targeted for assault or abuse in isolation or secret. Quite the contrary, his case is that he was one of a number of apprentices who were so assaulted, albeit on only one or two occasions over a two year period. In her skeleton opening argument Ms Weereratne QC specifically stated that “these are not sexually motivated assaults”. She categorised them as “intimate physical assaults”. I propose essentially to adopt her suggested formulation and to describe the alleged assaults as serious intimate physical assaults. In my view, that is how they should be described in any wider reporting of this case.

The law relating to proof of trespass to the person

[21]As a matter of law, an assault may be defined as an act by which one person intentionally or recklessly causes another person to apprehend immediate unlawful personal violence or to sustain unlawful personal violence and assault by battery may be defined as the intentional or reckless application of unlawful force by one person to another. In the criminal context, there must be a “hostile intent” on the part of the first person and an absence of consent on the part of the victim, but proof of the criminal offence of common assault does not depend upon whether any bodily harm has been suffered. In tort, the particular conduct alleged (in this case the application of “the glove”) must be intended by the first person but his motive, that is to say the reason why he acted as he allegedly did, is irrelevant to liability. The basic general principle is that a person is entitled to be free from unauthorised physical contacts. A claimant must establish that a defendant intentionally or recklessly subjected him to a contact to which he did not consent but no “hostile intent” in the sense of malice or ill-will is required. It was a particular feature of this present case that the claimant and some of his witnesses made clear that they did not believe that there was any “malice” on the part of the second defendant. Indeed, perhaps surprisingly, if what he described was accurate, the claimant’s witness Mr Lomas said that he retained respect for the second defendant even after he had himself (allegedly) received the glove and further that he remained grateful to the club and in particular the youth development officer Mr Lacey for making him the (apparently successful) man he had become.

[22]Thus there is at common law no need for the claimant to prove that the second defendant intended to cause him injury, whether physical or psychological. What he must prove is that the second defendant intended the conductnot that he intended any harm by it: see Clerk and Lindsell, 21st Edition, paragraphs 1-61 and 1-62. That textbook does however suggest that the intention to impose the contact (that is to say the intention to act as alleged) should be “coupled with an understanding that the contact exceeds what is acceptable”. This appears to be based upon the combined effect of the decisions of the Divisional Court in Collins v Wilcock

[1984] 1 WLR 1172

and the Court of Appeal in Wilson v Pringle

[1987] QB 237

, both of which coincidentally were decided just before the alleged occurrence of the conduct of which the claimant complains. Collins was not a civil case. It was an appeal by case stated from a magistrates’ court to the High Court, but in the course of his judgment Robert Goff LJ considered the principles underlying the common law at pages 1177 to 1178. That section of his judgment was quoted in full in, and approved by, the judgment of the Court of Appeal in Wilson at pages 250 to 252. It is a long quotation. The principles set out in it are authoritative and binding upon me. I have had regard to the full quotation as set out in Wilson and it is I think only necessary for the purpose of this judgment to quote a small portion of it, as follows:- “We are here concerned primarily with battery. The fundamental principle, plain and incontestable, is that every person’s body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery … the effect is that everybody is protected not only against physical injury but against any form of physical molestation. [S]o widely drawn a principle must inevitably be subject to exception … but, apart from these special instances where the control or constraint is lawful, a broader exception has been created to allow for the exigencies of everyday life. Generally speaking consent is a defence to battery and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact … [A]lthough such cases are regarded as examples of implied consent, it is more common nowadays to treat them as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life”.

[23]These cases are authority for the proposition that a defendant will not be held liable in damages for the tort of assault by battery if his intended conduct does not go beyond generally acceptable standards of conduct.

[24]At one stage early in the substantive trial it seemed that the argument might be advanced (as it seemed to have been at the limitation trial – see paragraph 37 of my previous judgment) that even if the practice of “gloving” occurred and I were to find as a fact that it was applied to the claimant by the second defendant, there should be no liability for that conduct because times had changed and at the relevant time, nearly thirty years ago, it was conduct which would have been generally acceptable if not in all sectors of ordinary life then at least in the context of a workplace which was a male sporting environment. However, it is important to record that no such submission was made by Mr Mulderig in his closing submissions and that Mr Fewtrell in his closing submissions expressly disavowed any intention to raise such an argument. Indeed the second defendant, in addition to denying that he applied “the glove” to the claimant (or anyone else), made it clear that it was not a practice that he would have found acceptable and none of the witnesses called on behalf of either defendant said that they would have regarded that practice (the occurrence of which they all denied or said they were unaware of) as being acceptable whether to themselves personally or to other sportsmen or to the public generally during the 1980s. This was not a case in which any witness for either defendant admitted that such practices went on, or might have gone on, but sought to defend or justify them on the basis that they were acceptable at the time. Paradoxically, it was the claimant’s witness PL who described it as being “just what happened” or “the accepted punishment” which the apprentices “normalised” and his witness BD who described it as “just what happened in those days” and as “part and parcel of getting a contract”.

[25]At the conclusion of the evidence it was clear that there remains a stark conflict and that there is no basis for any middle way. Either the claimant was assaulted in the manner he alleges (including digital anal penetration) or he was not or, perhaps more accurately, either he can prove on the balance of probabilities that he was so assaulted or he cannot. In my judgment, it is plain that if the claimant does prove that what he alleges did occur then such conduct not only went beyond the standard of conduct that would be generally acceptable now but also that which would have been generally acceptable thirty years ago.

THE ISSUES

[26]In his application to the Criminal Injuries Compensation Authority on 24th April 2009 (2, B25), in relation to each of the two occasions alleged, the claimant described “digital penetration of the anus by Peter Fox whilst I was being held down by others during a training session with Stoke City Football Club, Ralgex was involved”. Although the specific proprietary description of the rubbing ointment or gel in question has varied (being also described as “Deep Heat”) the essence of the allegation is that before insertion of a finger into the claimant’s anus, the second defendant put on a football/goalkeeper’s glove, smeared it or at least a finger (the middle finger) with a hot rubbing ointment or gel and then applied his gloved hand to the claimant’s bare backside, not simply running the finger over or between the buttocks but inserting it into the anus and holding it for a few seconds. The claimant has never been able to be specific as to the precise dates on which either of the assaults occurred, but he has been relatively consistent (since first revealing the alleged occurrence of these events in about 2009) in saying that the first assault occurred within four to eight weeks of beginning as an apprentice in the 1986-87 and that the second assault occurred between twelve to fifteen months later during the 1987-88 season. If correct, that would mean that the first occurred during the month of August 1986 and the second at some time between August and November 1987.

[27]In opening, Ms Weereratne QC confirmed that the claimant did not allege that the second defendant was personally responsible for other alleged discrete assaults particularly associated with the second incident (slapping of his backside and the placing of a hot teapot on it). If these occurred they were perpetrated by other players of whose identity he was not sure but in so far as he suspected individuals he had not joined them as defendants. They would have caused only minimal or at worst minor temporary injury in the form of pain and discomfort but in any event he did not seek to recover damages for this against the second defendant.

[28]The issues arising for determination are as follows:-(1) Did the first assault, as described by the claimant as having been perpetrated upon him by the second defendant, in fact occur?

(2) Did the second assault, as described by the claimant as having been perpetrated upon him by the second defendant, in fact occur?

(3) If either or both of the alleged assaults occurred, is the first defendant (the club) vicariously liable for those assaults?

(4) Did the claimant suffer any and if so what injury or loss? In particular:- (a) did he suffer psychiatric/psychological injury in addition to any admittedly short-lived pain and physical symptoms; (b) did he suffer any long-term psychiatric/psychological symptoms in and after 2008 when reliving the events for the purposes of the police investigation, criminal injuries compensation claim and civil proceedings; (c) did he suffer pecuniary loss in the particular form of loss of the chance of earnings as a professional footballer greater than the earnings in fact achieved in his other employments to date?

[29]In relation to issue (3) it is agreed between counsel for the claimant and counsel for the club that when considering vicarious liability a two- stage test must be applied, namely:-(1) Is the relationship between the club and the second defendant capable of giving rise to vicarious liability?

(2) What is the connection that links (a) the relationship between the club and the second defendant, and (b) the act or omission of the second defendant? The club concedes that the first stage of the two-stage test is satisfied in that the relationship of employer and employee between the club and the second defendant is capable of giving rise to vicarious liability. However, the question of vicarious liability on the part of the club only arises if the claimant proves that he was assaulted by the second defendant on either or both of the alleged occasions. EVIDENCE Witnesses of fact

EVIDENCE

[30]I heard oral evidence in support of the claimant’s case from the claimant himself and from seven witnesses. Four of them had been apprentices at the club at or about the same time as the claimant, whether during the same two-year period or overlapping from a previous apprenticeship cycle, namely BD, IG, Philip Howard, and NP (the latter of whom had also given oral evidence at the trial of the preliminary issue). I heard oral evidence from PL, who had not been an apprentice during any part of the claimant’s two-year period at the club but who had been an apprentice just prior thereto and who gave what was in effect similar fact evidence. I heard oral evidence from John Washington, whose witness statements were served belatedly during the trial. He was not an apprentice at the relevant or any time. He is a long-term supporter of the club. He was the subject of an application for permission to rely on his late evidence, which I granted. I heard evidence from Dennis Hill, who had known the claimant after his return to Northern Ireland, who had no connection with the club and whose evidence did not relate to the occurrence or otherwise of the alleged assaults but to matters relevant to causation or quantum of damages. The evidence of a further witness who had been an apprentice at the same time as the claimant, namely JE, was admitted under the provisions of the Civil Evidence Act 1995 because, although he had attended to give evidence at the trial of the preliminary issue, he was unfit to do so at the substantive trial.

[31]Neither the second defendant nor any other witness for either defendant had given oral evidence at the trial of the preliminary issue. At the substantive trial I heard oral evidence from the second defendant and from five witnesses in his support. The first three were George Berry, Steve Parkin and Carl Saunders. The other two witnesses, whose evidence was obtained in response to Mr Washington’s evidence, were Nigel Johnson and Ivan Gaskell. In support of the club I heard the oral evidence of Michael Mills and Anthony Lacey and the evidence of the club’s third witness Cyril Chung was admitted under the Civil Evidence Act 1995 because he too was unfit for medical reasons to attend the trial to give oral evidence.

[32]Where possible and appropriate I will identify evidential conflicts and indicate findings of fact in the course of my review of the evidence. When doing so, I will probably not refer to every single point of evidence to which my attention was drawn and I will probably not specifically deal with each and every submission made but I will endeavour to make findings, if possible, on the essential issues addressed in closing submissions.

Anonymity of witnesses if judgment published

[33]Before dealing with the evidence in detail I should refer to the fact that during the trial the question arose as to whether any or all parties or witnesses should be anonymised for the purpose of any publication relating to the trial, including this judgment. Although, as I have already noted, it is not and never has been the claimant’s case that the alleged assaults were “sexual” and it has never been his case that they were sexually motivated, it is his case that they were “serious and intimate assaults including digital anal penetration with the finger of a goalkeeping glove … intimate physical assaults with severely aggravating features”. As already noted, counsel appeared to agree that any such assaults would have constituted not only a tort but also the ‘old’ criminal offence of indecent assault.

(l) Section 1(1) of that Act provides that:

“Where an allegation has been made that an offence to which this Act applies has been committed against a person no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the person against whom the offence is alleged to have been committed.”

[34]Although the Act is described as one which makes “provision with respect to anonymity in connection with allegations of and criminal proceedings related to certain sexual offences” it was submitted by Ms Weereratne QC, with whom counsel for both defendants agreed, that it applied even where the relevant “allegation” was made outside criminal proceedings, as for example by a claimant or witnesses in a civil case such as the present case. I do not find it necessary to decide definitively whether that submission is correct or not. The Act provides no power for the court to make any order restricting publication of a complainant’s name, although if section 1 is contravened a criminal prosecution may follow.

[35]I was told by counsel that the claim, the limitation trial and the substantive trial had attracted attention in both traditional and online media. Indeed that fact featured in the evidence of several witnesses and was particularly pertinent to the evidence of PL and Mr Washington. The effect of the legislative provision appears to be that it is for those responsible for publication (such as reporters and editors) to ensure that the provisions which protect the public identification of a complainant in a “sexual case” are obeyed, not because enjoined to do so by judicial order but because that is a statutory requirement: see R (on the application of the Press Association) v Cambridge Crown Court

[2012] EWCA Crim 2434

. In the present case the only witness who was an apprentice at the time but who makes no personal complaint appears to be Mr Howard. The claimant’s other witnesses Mr Dennis Hill and Mr John Washington were never apprentices and so are of course not within this category at all. It may or may not be that that those who have identified themselves by name or allowed photographs to be published have waived anonymity but I need not say more than that for the purpose of this judgment but if the Act applies it seems to me to cover the publication of court judgments whether in a formal law report or other media. It follows that if this judgment were to be so published the claimant and all other witnesses to whom the 1992 Act applies should from abundance of caution be identified by their initials (for example ‘GB’ for the claimant) but they were all referred to throughout the public trial by their proper names and so for the purposes of the handed-down judgment I have referred to them by those names.

[36]I should add that in JE’s case a further specific reason for anonymity would be that he was involved in criminal proceedings (not involving any allegation against the second defendant) in which he had already been afforded permanent anonymity as a complainant by operation of law, even though those criminal proceedings have now concluded, there having been a “not guilty” verdict entered on 1st September 2015 by direction of a judge following the offering of no evidence by the Crown (a fact which it was agreed was admissible but not relevant to the issues to be determined).

Adverse inferences from absence of potential witnesses

[37]Mr Fewtrell cited the case of Wisniewski v Central Manchester Health Authority

[1998] Lloyd’s Rep 223

(CA) for the principles enunciated by Brooke LJ at p. 240. He submitted that an adverse inference should be drawn against the claimant arising from his failure to disclose any witness statements from and call as witnesses a number of people whose names were mentioned in evidence as being people who knew or might be expected to know of the use of “the glove” (one Mr Shaw or others who may have had contact with the press) or of his alcohol misuse and its effects (his mother, his ex-wife and his eldest two daughters) or to whom he said that he had complained of the assaults at least in general terms within a year or two after they had occurred (a friend called Mr Millen). No explanation was given in evidence for their absence (although counsel suggested that a desire to keep the length and cost of the litigation or simple privileged legal advice might be factors). Ms Weereratne QC made the same point in relation to the fact that the defendants (in particular the first defendant) had not called, for example, any other first team players or former apprentices from the mid-1980s named in the contemporaneous documents. No explanation was given in evidence for their absence either (although counsel suggested that the long delay and again possibly privileged legal advice might be factors). It is surprising that at the very least the court did not hear from Mr Millen, who might be thought to have been a good witness (if not necessarily “his best” as I suggested in my judgment on limitation). The claimant said in December 2013 that he was or was able to be in touch with his old friend and he had permission to file and serve statements of further witnesses before the substantive trial, which permission he used to disclose a statement from PL but not from Mr Millen.

[38]I find that the mere absence of such potential witnesses for the claimant is not of itself sufficient to allow to me to draw the specific inferences either that they have been approached but refused to perjure themselves or that the claimant has instructed his solicitors not to approach them because he knows that they will not support him (because what he has claimed is untrue) if brought to court and examined on oath or affirmation. Equally, the mere absence of such potential witnesses for either defendant is not of itself sufficient to allow me to draw the specific inference that there are others who know of the alleged “gloving” practice and will not perjure themselves or that the defendants are not willing to take the risk of what they might say if brought to court and examined on oath or affirmation. This is not a case in which it would be fair or just to any of the parties to decide the case on mere inference, adverse or otherwise, and I do not propose to do so. THE CLAIMANT’S WITNESSES GB

THE CLAIMANT’S WITNESSES

[39]I will not repeat my assessment of the claimant’s evidence given at the limitation trial, for which reference may be made to my previous judgment. It is however necessary to deal with his evidence at the substantive trial in some detail because his reliability and credibility are very much in issue.

[40]He again verified his first witness statement (1, C1) made on 3rd January 2013 and he also verified his supplementary statement (1, C11A) made on 30th April 2014 and his statement to the police (3, EB1) made on 8th April 2009. By way of correction or amplification he said that whilst he still could not recall the precise date of the first incident, he now believed it to have occurred within the first six to eight weeks after starting in early July 1986. He said that it was certainly within the first couple of months. This located the incident in late August or just possibly September 1986. In relation to the second incident, he again confirmed his memory that this had occurred twelve to fifteen months later, following a training match. He explained that a “training match” was to be distinguished from a “reserve match”. Reserve matches were played in a minor league called the Central League against other clubs, usually on Wednesday nights, whereas training matches were internal games, played at the Victoria Ground or elsewhere with teams comprising a mixture of professionals and apprentices. He also produced by way of late disclosure an additional bundle of 35 pages for insertion into volume 3 containing programmes and extracts from statistical data demonstrating that even professional players, such as the second defendant, would occasionally play in the Central League reserve matches. He was taken through a list of about a dozen matches during the 1987/88 season to demonstrate that on most occasions the reserve team did include a small number of first team players. This was not challenged. It is contemporaneous evidence which contradicts the apparent assertion made in the statements of the second defendant’s witnesses to the effect that the professionals and apprentices did not mix but were essentially kept separate. In oral evidence this was not their position. On the other hand, perhaps not intended by the claimant, it is also contemporaneous evidence of his performance as a player. During the 1986-87 season, the claimant played in six reserve team games in Central League Division Two (3, additional p.34) and the second defendant played in two such games. I am unable to find that they played in the same match or matches game insofar as that might be relevant. During the 1987-88 season, the claimant played in nineteen such games and the second defendant again played in two (3, additional p.9).

[41]The claimant confirmed that he had never played for the Northern Ireland youth team although he had been invited to attend practice sessions for the under-18s in his first year of apprenticeship. His evidence about this was rather unimpressive. When the invitations were adduced (vol. 3, additional pp. 11 and 14) he was asked if he had travelled and/or played. At first he claimed that he could not remember, which I thought very odd because one might expect that to be the sort of thing a keen young player would not forget. When pressed, he agreed that he had not played. In his closing speech, Mr Mulderig laid stress on these answers as being indicative of a tendency on the claimant’s part to try to conceal facts that he might not think helpful to his claim. In my judgment, that was a fair criticism.

[42]The claimant claimed to feel “destroyed as a person” by the assaults. He said that he had found it very difficult to deal with over the years. He said that he was taking antidepressant medication, had found therapy helpful and did intend to undergo further counselling in the future. He claimed to have(a) experienced deterioration in his performance as an apprentice footballer,

(b) taken to gross over-indulgence in alcohol throughout his apprenticeship and beyond, and

(c) suffered relationship problems, including a slow start in relationships with women and impotence once relationships began. When asked what he hoped to achieve by this claim, he said not that he sought compensation but that he wanted “them” (by which he plainly meant not only the second defendant but also Mr Saunders, Mr Parkin and Mr Berry) to be “held accountable”.

[43]The claimant was comprehensively cross-examined firstly by Mr Mulderig and then by Mr Fewtrell. The second defendant’s case was that the assaults had not happened and that his evidence of deterioration, alcohol dependence, relationship problems and impotence were inconsistent with disclosed records of various kinds, unsupported by any witnesses or documentary records and incredible. I was invited to disbelieve them or at least to find that the claimant had not come close (as Mr Mulderig put it in his closing speech) to discharging the burden of proof. It is impossible to do justice to the detail of the cross-examination of the claimant without effectively setting out a transcript which would be wholly inappropriate and disproportionate. What follows is a summary of what I consider to have been most relevant.

[44](1) Press interest. The claimant denied having spoken to any of his witnesses (JE, NP, BD, PL, IG or Mr Howard) personally before the trial of the preliminary issue but admitted that he had been approached by the press and, with his solicitors’ involvement, had agreed to speak to them. I was struck by the fact that he did not appear to become visibly upset until the end of Mr Mulderig’s cross-examination, when he was being asked about his contacts with the press. It was put to him that BD had contacted his solicitors, apparently out of the blue, on 3rd October 2013 and appeared already to know the details of the claimant’s allegations. The claimant denied having spoken to BD about his allegations before that time. He said that he had met a reporter from the Sun newspaper at the Europa Hotel, Belfast, and that the reporter had told him that he (the reporter) had spoken to four people, including IG. He was at pains to stress that the reporter had approached him and not the other way round and that money was not discussed on that occasion although subsequently, with his solicitors’ involvement, it was agreed that £2,000 would be paid. However, this money was not to be received by the claimant. He said that he had asked that it be shared between the counselling organisation Nexus and the Irish Football Association (each to receive £1,000) although he could not say whether the money had in fact been paid. He confirmed that he had met the reporter in October 2013, having first been contacted by him in September 2013 but that apart from one telephone call he had had no further meeting with the press since the trial of the preliminary issue. It appears however that he had given a statement to the press which is referred to in an attendance note dated 30th October 2013 written by his solicitor after a conversation with external solicitors for the Sun newspaper (3, C171).

[45]The involvement of the press, not only with the claimant but also with some of his witnesses before they contacted his solicitors to offer their evidence is problematic. When BD had contacted the claimant’s solicitors on 8th October 2013 he gave them the names of six people who had spoken to the Sun and said that he had given a statement to a sports reporter, namely Mr Rob Beesley (4, C173). Indeed it appears to have been Mr Beesley who identified potential witnesses including NP to the claimant’s solicitors when he spoke to them on 11th October 2013 (4, C170). The document recording that conversation contains the information that BD passed on IG’s telephone number and that “I told him nothing about G’s case nor about G speaking to the paper but he seemed to know all of this and said that G is meeting Rob tonight?” which was probably the meeting at the Europa Hotel. The defendants understandably suggest that those witnesses have an agenda of their own to pursue and a financial interest in the outcome of this claim (whether in terms of damages claims or the sale of their stories to the press or both) and that there has been collusion between them, if not between them and the claimant, such that their evidence should be discounted as being unreliable.

[46](2) Alcohol. It was forcefully pointed out (as is the fact) that there is no indication in the weekly logs or quarterly reports (2, A8ff) or in any medical record of the alleged descent into alcoholic dependency of which the claimant complained, saying as he did that he had begun to drink heavily after the first assault, painting a graphic picture of having purchased bottles of spirits (such as vodka) from local shops, having gone from his digs after his evening meal on a regular, if not daily, basis to sit on a bench in a local cemetery drinking “to forget” the abuse he had suffered. He claimed to have been drunk up to five nights a week on a bottle of spirits a night as well as beer on some nights. If true, this would have occurred at a time when he was aged 16 and 17 years and was required to turn up at the club each weekday morning (except Thursdays when he went to college) to engage in a rigorous training programme controlled by Mr Lacey who was, according to all witnesses who were asked, a hard taskmaster.

[47]There is no contemporaneous record of the claimant ever having been seen or reported to have been the worse for wear by reason of drunkenness on any such morning. No witnesses were called by the claimant to speak of having seen him in a drunken condition on his return to the digs at night or in the morning.

[48]The claimant accepted that whenever questions as to alcohol intake had been asked of him in other contexts, he had failed to reveal any alcohol abuse. He said that he had continued drinking heavily for twenty years as a result of the assaults and had not stopped until about 2004, following a road accident after which he was breathalysed (but not found to be over the limit) whereupon he says that the risks of drink-driving nevertheless came home to him and he was also conscious of the effects his heavy drinking was having on his family. Sadly he is now divorced. For whatever reason, no evidence was adduced from his mother, his ex-wife or from any of his children (his eldest two daughters being now adults) all of whom according to his evidence are aware of this claim and were aware of or affected by his past alcohol consumption, to support his case that he was a heavy drinker. Nor, as already noted, had his friend Mr Millen, the friend to whom he had allegedly revealed the fact of the assaults soon after his return to Northern Ireland whilst drinking together, been asked make a statement or attend to give evidence. Their evidence might have assisted him in terms of credibility. However, I repeat that I do not consider that any adverse inference should be drawn from their absence alone.

[49]As to the period after he left Stoke, he claimed that excessive alcohol consumption continued until at least 2004, but the defendants placed heavy reliance on the fact that he had told his GP at the time of a Health Assessment on 13th June 1996 that his alcohol consumption was in the “trivial” category of less than one unit a week, the fact that he had certified to Legal & General in relation to a mortgage on 20th September 1996 that his average weekly consumption was “1 pint beer” and the fact that he had told the police doctor, Dr Hall, in December 2009 that he had no history of alcohol abuse.

[50]These matters deserve detailed consideration because, in my judgment, they are of substantial importance when assessing the claimant’s credibility. On 20th September 1996, when applying to Legal & General for life insurance in connection with a mortgage, he signed a declaration (4, C125) to the effect that he drank only one pint of beer a week. He said that he was trying to hide the fact of his alcohol abuse and simply lied, but he would not admit that he had lied for financial gain. He accepted that when his general practitioner had enquired as to his alcohol usage on 13th June 1996, he had said that it was in the “trivial” category on a ‘Health Promotion’ assessment form (less than one unit a week) and admitted that he had “lied” because he did not want to tell the GP the truth. He admitted that he had not reported excessive alcohol consumption until 2009. He could not so easily or adequately explain why, when giving the history to the medical expert, Dr Janet Hall, who had been asked to examine him in the course of the police investigation, he had not told her the truth. She took a history and her report dated 22nd January 2010 (3, B77) expressly states that there was “no history of alcohol abuse”.

[51]The claimant sought to explain this by saying that the question she had asked him was whether he was drinking “now” or alternatively that he had misunderstood it as a question about his current (2009) consumption. He was reminded that at the trial of the preliminary issue when this point had been raised in cross-examination he had admitted that he had hidden the fact from her. He thereupon modified his evidence again to say that, whilst he still asserted that she had asked him about his present not his past alcohol consumption, he had also concealed the past consumption from her. In short, having apparently to his credit admitted in evidence on oath at the trial of preliminary issue in December 2013 that he had “lied” to her, because of shame, he subsequently to his discredit gave contradictory evidence on oath at the substantive trial in July 2015, saying that he had misunderstood and had thought that she had been asking about his current (2009) consumption. These conflicting statements cannot both be true. In my assessment, his answer on the first occasion, which was given straightforwardly, was the truth and I find that his answer on the second occasion, which appeared contrived, was untrue. I formed the impression at the very point in time that he gave the second account (long before the closing speeches) that he had decided to change his evidence for a self-serving purpose. I simply do not believe that he would have failed to tell Dr Hall about the past alcohol abuse if it had actually occurred, given the context in which he was being examined and interviewed by her. I find that his evidence on the second occasion was false and this goes a considerable way to undermining his credibility and dissuading me from making any findings of fact based on his evidence, unless it is unsupported by other reliable oral or documentary evidence.

[52]Accordingly, in relation to the evidence about alcohol abuse from 1986 to 2004, I find the claimant’s evidence not to be reliable or truthful. His omission to tell Dr Hall about his alleged resort to excessive alcohol consumption as consequence of the assaults, taken together with the information given to the GP, the declaration to the mortgage company, the absence of any witnesses called to describe his drunkenness on any occasion, and the fact that there is no contemporaneous evidence of his having failed to perform his training duties by reason of being inebriated or suffering the after effects of inebriation, leads me to the firm conclusion that the claimant did not resort to excessive consumption of alcohol to “forget” the alleged assaults at all. Whether he now honestly but falsely believes his account, whether it is fabricated because of a belief that it bolsters his claim as being the sort of symptom that abused victims do suffer (as the agreed medical evidence in this case indicates), or whether it is a simple exaggeration or embellishment I am unable to find. I do however find that he has failed to satisfy me on the balance of probabilities that his claim to have indulged in excessive alcohol consumption as a consequence of being assaulted by the second defendant is true. I find as a fact that he did not consume alcohol to the extent he now alleges or to any extent. I further find that to the extent that he did consume alcohol it was probably no greater than the consumption of his fellow apprentices at the time and it was not consumed “to forget” any alleged assaults.

[53](3) Personal relationships. The true picture about his personal relationships is, I find, also at variance with his accounts to the psychiatric experts and in his evidence. In December 2010 he told his own expert, Professor Maden, that he was slow to get started on relationships with girls and had had only a couple of relationships but neither lasted more than a week and there was no sexual activity (1, D17). In March 2013 he told Dr Mumford that he had had a couple of “casual relationships with girlfriends in Stoke but nothing serious” and had lived with the family of a “friend”. I find these statements to the experts to have been untrue at least in terms of the nature of the relationship and its longevity because it is now accepted by him that he had a girlfriend, Catherine, for about a year between early 1988 and his return to Northern Ireland in January 1989. On the balance of probabilities I find that he was economical with the truth because the revelation of a long-lasting relationship in the year immediately following the alleged second assault would not assist his case. In fact, for some months after the end of his apprenticeship and before returning to Northern Ireland, he lived at his girlfriend’s parents’ home. When pressed, he confirmed in evidence that his relationship with her was not casual but serious. He had remained on friendly terms with her parents and had been in contact with them over recent years. There had been no conflict between the claimant and his girlfriend’s parents during the time he lived with them such as might, by inference, have been expected had he been regularly drunk in their or their daughter’s presence at home. However, no direct evidence was adduced by any party from his girlfriend or her parents. I do not on balance consider that such an inference is strong enough to be of more than peripheral relevance (if relevant at all) to the issue of alcohol misuse and I have excluded it from my consideration of that issue. However, it is in my judgment relevant to the credibility of the claimant’s claims made to the psychiatric experts about his relationship problems, which claims I reject.

[54]I should add that I am unable to find whether his complaint of impotence is true and, if so, what the cause may have been. There is no independent contemporaneous medical evidence in support. Neither have his wife (with whom he has four children), any pre-marital girlfriend nor his post-divorce female friend or partner been called to give evidence about what would, of course, be a sensitive topic for them whatever the truth of the matter. The claimant has singularly failed to prove his claim to any attributable impotence.

[55]In paragraph 4 of their first agreed statement dated 11th June 2013 (1, D1) the three psychiatric experts expressed a conditional opinion about the effects of the alleged assaults, opining that “if” the court should accept the claimant’s evidence about the assaults then they could have given rise to such symptoms of post-traumatic stress reaction as excessive drinking. In paragraph 10 of the same joint statement (1, D2) they noted the absence of corroborative evidence for any of his complaints of reaction, impotence or alcohol misuse and the differences in the accounts given to them. In a further joint statement consisting of answers to questions dated 17th September 2015 (1, D9) they confirmed that the inconsistencies in his history were not minor and plainly indicated serious doubts as to his veracity. In no way can the opinion of the experts be said to support the proposition that the assaults probably occurred. At best they support the proposition that if (the court finds that) they did occur the symptoms alleged, if themselves accepted (by the court) to have been suffered would be consistent with a post-traumatic stress reaction. Having rejected, as I do, the claimant’s account of those symptoms the medical opinions provide no support for the claimant on the issue of liability. Further, having rejected his account of those symptoms, there is no support for the proposition that he suffered any psychiatric injury in the form of post-traumatic stress reaction during or in the years immediately after his apprenticeship. There is of course a separate issue as to whether he nevertheless did suffer a psychiatric injury in the form of depressive disorder after disclosure of the alleged assaults in 2008. He has been diagnosed as suffering from a depressive disorder which the experts agree, in paragraph 6 of their first joint statement, developed from or after that time (1, D2). The question remains whether it is on the balance of probabilities attributable to the disclosure of ‘abuse’ that actually occurred or (whether or not ‘abuse’ in fact occurred) to some other unrelated cause, such as the emotional consequences of his marital breakdown and the resulting child contact dispute. In my judgment the mere fact of a diagnosis of depression after he made his allegations cannot of itself prove that those allegations are true but if they are found to be true the opinion of the experts gives strong support for a finding favourable to him on causation.

[56](4) Football performance. Mr Mulderig explored more deeply those issues that had been explored at the trial of the preliminary issue with a view to demonstrating, by reference to contemporaneous records (weekly logs and quarterly reports), that the claimant’s performance as a footballer had improved rather than deteriorated throughout his period at the club and that nothing in the logs approximately contemporaneous with the times at which he alleged he was assaulted gave any indication of any deterioration in his performance.

[57]I am quite satisfied having heard the claimant’s evidence, assessed the manner in which he gave it and compared what he now says with the contemporaneous records and uncontroversial fact of absence of contemporaneous complaints, that there is no support whatever for his assertion that his performance as a footballer deteriorated following the alleged assaults. The fact is that the football logs compiled by Mr Lacey and signed by the claimant on most occasions actually demonstrate an overall improvement in his performance over the whole period of his apprenticeship and speak positively of his presentation and attitude. His performance was variable in the first year but at the time Mr Lacey, the youth team coach, put it down to the claimant, then aged only 16 years, having difficulty settling away from home. The claimant had made no complaint to Mr Lacey to justify any other explanation and I find that the contemporaneous explanation is at least as likely if not indeed more likely than that now alleged, especially in the context of the clear and consistent improvement during the second year with no indication of any deterioration at or after the time of the alleged second assault. The fact that the claimant’s performance improved (and I repeat that I do find as a fact that it did steadily improve throughout his apprenticeship) is in part relevant to the question of whether the assaults occurred but perhaps more important to the general credibility of the claimant who, in the words of Mr Fewtrell, is in my judgment guilty at the very least of “retrospective attribution”, that is to say attributing his failure to obtain a contract at the end of his apprenticeship or to obtain any contract anywhere playing professional or semi-professional football (other than for a very short period with Ards FC in Northern Ireland) must be attributable not to his own lack of ability but to some extraneous cause.

[58]The weekly logs for the first year (2, A8 ff) show that having received assessments of either “average” or “poor” in his first eight weeks at the club, he achieved his first “good” assessment on week 9 and the number of achievements recorded as being “good” continued to improve thereafter (compare week 9 with two “good”, eight “average” and two “poor” with week 12 when there were five “good” and six “average”). In week 13 he went home to Northern Ireland. His evidence was that he did not mention the alleged first “gloving” incident to his parents. In my judgment it is clear that in what would, on his evidence, have been the four or five weeks after that alleged assault, his performance was not only recorded as being better than it had been before, but continued to improve.

[59]Moving to the second year of the apprenticeship and bearing in mind that the claimant cannot be specific as to whether the alleged second assault occurred in August, September, October or November 1987, there is a quarterly report dated 9th October 1987 (2, A140) which contains the comment by Mr Lacey that “he is playing his best football” and the assessments are either “good” or “very good”. By this time his weekly logs had begun to include “excellent” assessments. It is possible that the quarterly report could be regarded as having pre-dated the second assault but the quarterly report dated February 1988 must on any view of his evidence have post-dated it. By that time yet further improvement is recorded (eleven “very good” and three “good” in February 1988 as compared to ten “very good” and four “good” in October 1987). Further, in week 74, which would have been in about late November/early December 1987, and on the claimant’s account therefore after the second time on which he had received the “glove”, his weekly logs contain no fewer than three “excellent” grades, together with eight “good” and one “average”. Further, during the 1987-88 season the claimant was selected by Mr Lacey to play for the reserve team in Central league matches on no less than 20 occasions out of 31 matches up to 23rd April 1988, nineteen times to play from the outset and once as a substitute (vol. 3, additional p. 9).

[60]In his parting reference in May 1988 Mr Lacey described him as having a “regular place” in that team (2, A250). I am satisfied, having heard Mr Lacey give evidence, that this reference was a fair and accurate assessment by him of the claimant at that time. All witnesses who spoke of Mr Lacey described him as a hard but fair taskmaster. I am satisfied that the claimant would not have been selected for two-thirds of the matches in 1987-88 if his performance had been other than very good, as Mr Lacey said in evidence it was. The records summarised in paragraphs 46 and 47 above were made at a time when according to the claimant’s evidence he was drinking heavily on three to five nights a week, getting drunk about three times a week and drinking up to three-quarters to a full bottle of spirits daily. His oral evidence on oath to the effect that the assaults “knocked the desire” for football out of him is simply not supported but rather is contradicted by the contemporaneous records. His belief, however honestly it may conceivably now be held by him, that he could have done even better is not proof that he could have done so. His only explanation for the achievement of such good assessments was that he was still trying his best to make it as a professional footballer. The obvious contradiction between that explanation and his evidence that the assaults had “knocked the desire out of me to succeed” was apparently lost on him.

[61]In my judgment, the contemporaneous evidence is supportive of the conclusion that the claimant continued to possess the desire to succeed throughout the second year of his apprenticeship, playing more games for the reserve team in the Central League than he had done in his first year and improving both in his performance of the playing of football and in his overall attitude as demonstrated by the weekly assessment logs. His evidence was that he had been called in at the end of his apprenticeship and told that he was too short (at five feet four and a half inches) to be a professional footballer not that he was a poor player. I am unable on the totality of the evidence, after such a lapse of time, to find whether this was or was not said at the time, but it is the case that the claimant was the shortest player at the club and Mr Lacey’s evidence was that a player of such stature would have had to be “exceptional” to be a successful midfielder and the claimant was not that. At all events he was not kept on. One or possibly two other apprentices were kept on but there was no evidence before me to demonstrate how they had subsequently performed whether at the club or elsewhere. I find, as Mr Lacey and Mr Mills said, that he was good but not good enough and that he was released because of their honest assessment to that effect (not, for the sake of completeness, to cover up any abuse). In fact, I find that neither of those men was, at the time, aware of any abuse. If it had happened, it played no part in their assessments.

[62]In finding that the claimant has not proved this aspect of his claim, I leave aside the apparent agreed psychiatric opinion in paragraph 16 of the first joint statement (and confirmed in the second) that even if the assaults occurred they would not have impaired “his long term footballing abilities or potential” (1, D3). Quite apart from the point made by Miss Weereratne QC that they fail to draw a distinction between the basic ability to kick a ball about a pitch and the acquisition of the skills necessary to make kicking a ball into a career I am far from satisfied that this is a matter which they were qualified to address at all. In her own report (1, D79) Dr Reveley had said that she was “not in a position to give an opinion” as to whether the alleged abuse had an impact on the claimant’s footballing career, adding that his “proficiency” would properly be the subject of “other expert opinion”. Of course the claimant has singularly failed to adduce the evidence of any such other expert, despite having been given permission to do so after the limitation trial, but that makes no difference to the medical experts’ lack of expertise on which to base any such opinion. I reject the submission by both defendants’ counsel that the agreed psychiatric evidence is “conclusive” against the claimant on this aspect of his claim, either on liability or causation. On the other hand, he has adduced no expert evidence to support it and the factual evidence does not support it and in my judgment it is this which is conclusive. PL

[63]PL was the first and, at first blush, the most impressive of the claimant’s witnesses. He did not make his witness statement (1, C100) until after the limitation trial. He was not a contemporary of the claimant. He had been an apprentice during the 1984-85 and 1985-86 seasons and his evidence was that he did not know the claimant, had never met him when at the club or otherwise and that the first time he had seen him was when he came to court on 6th July 2015. Further he said he did not know NP, IG, JE, BD or Mr Howard. He told me that he had suffered a knee injury in April or May 1985, at the end of the first year of his apprenticeship. Notwithstanding treatment, for which he gave generous tribute to the club, and a temporary return to the club between October and December 1985, he had been unable to return to playing football thereafter because his knee had finally “given out” on Boxing Day 1985. Unlike the claimant’s contemporaries, who may harbour some resentment at not having become professional footballers, whether sufficiently talented or otherwise, PL appeared to accept his fate as a consequence of his injury and he has apparently made a success of his life in the business sphere. He now holds a responsible position for an international corporation. On the face of it, he had no axe to grind. He is not, so far as his evidence is concerned, a claimant or potential claimant. No letter of claim has been written by him or on his behalf. He said that he has not instructed solicitors or spoken to the press. He said that he had no present intention of doing those things.

[64]PL’s evidence cannot and does not directly support the claimant’s case about the two alleged assaults because he did not witness them. If they happened at all, they happened long after he had left the club. It is in the nature of ‘similar fact’ evidence of allegedly ‘strikingly similar’ occurrences in the years before the claimant’s time at the club, but no court, criminal or civil, has found that the events he described did occur, so it is not evidence which carries the inherent weight of a previous admission by or conviction of a defendant in related criminal proceedings, as for example in EB v Haughton

[2011] EWHC 279 (QB)

[65]He described “the glove” as common practice during his apprenticeship years and as a “kickback”, that is to say an accepted punishment meted out to apprentices by professionals if the apprentices had “prodded them too far”. He said that it was regarded as commonplace and that he had received “the glove” from the second defendant on one occasion. His evidence was that it had never affected him in a big way. The pretext for his punishment was that he had worn without permission the training shoes of Philip Heath, one of the professional players. His evidence was that he had been noisily dragged from the away team dressing room, along the corridor to the home team dressing room on a date between October and December 1985. It was, he said, not earlier because, after his injury, he had not been at the ground for some months before October. It could not have been later than 26th December 1985 because his knee finally gave way on that date and his apprenticeship effectively ended. He did not implicate Mr Parkin or Mr Saunders in this event at all. He implicated only the second defendant and Mr Berry, who both denied the incident when they gave their evidence.

[66]He said that “the glove” was covered in white liquid, that he was slapped by someone (to stop him clenching his buttocks) and that the second defendant’s gloved finger “went inside”. Remarkably he said that he retained respect for the second defendant and for Mr Berry. The latter had assisted him in obtaining compensation (my understanding was that this related to his injury whilst an apprentice). His evidence was that there was no malice in the application of “the glove”. His explanation for his delay in giving this evidence (his witness statement is dated 15th April 2014) was that friends had drawn the reports of the preliminary trial to his attention and he had seen something on television about it. He said that he had never concealed his experience and his friends knew of it, that he sat down with his wife and that she told him he should “tell the truth”, whereupon he contacted the claimant’s solicitors. He confirmed that it was the second defendant who had inserted the glove and that Mr Berry was the person or one of the persons who had smacked him.

[67]He said that he had seen “the glove” applied by the second defendant to other apprentices on a dozen occasions and that it was no secret. He also said that Mr Lacey and Mr Mills were never present and he could not say that they knew of the practice from having witnessed it but that it was in his view simply the accepted reality that the first team punished apprentices in this way and that he “believed” that “everyone” knew about it. By implication this included Mr Lacey and Mr Mills, who both firmly denied any such knowledge when they gave their oral evidence.

[68]He was searchingly cross-examined by Mr Mulderig and it was put to him forcefully that his evidence was simply not true, but he did not flinch from his account. He was asked whether it was possible that if a glove had been used at all, it had merely been passed over the buttocks, whereupon he said that “it went a lot further inside”. He was not cross-examined by Mr Fewtrell. When answering a question of mine, intended to clarify when his alleged incident occurred, he said not only that it occurred between October 1985 and December 1985 but went on to volunteer that it had not bothered him, that he accepted there was no malice, that it was just “what happened”, that he had not talked to the press, that he had not brought a claim and that he had no interest in such things. His evidence was that he and the other apprentices “normalised” what had happened and it was “the acceptedpunishment”. Most extraordinarily, perhaps, he said, “I told my parents”. What precisely he told them was unclear, but in any event, if this was objectively correct and not just an honest but mistaken memory, his parents did nothing about it.

[69]Apart from the reference to his parents’ indifference (which was difficult to believe) PL’s evidence was apparently credible. It is difficult to understand why he should lie, given his present employment status and (expressed) disinterest in compensation, if such lack of interest is genuine. There would be no basis for a positive finding that he was lying other than that he is in direct conflict with the second defendant and Mr Berry and they cannot all be telling the truth. I cannot find that he was deliberately committing perjury. It follows that the only alternatives would appear to be that his evidence is true (and that of the second defendant and Mr Berry is false) or that it represents an honest but false memory. Whilst, if true, it would not directly prove the claimant’s case because his experiences occurred before the claimant began his apprenticeship and he was no longer at the club when the first assault on the claimant allegedly occurred, nevertheless it would be damaging to the second defendant’s case. It would support the allegation that there was an established practice of the use of “the glove” essentially in the manner alleged by the claimant prior to August 1986, that the practice was specifically known to the second defendant and Mr Berry and that it was the second defendant who carried out the punishment. The second defendant’s defence is not simply that he did not assault the claimant as alleged but that he had never assaulted anybody in that manner, that the punishment ritual known as “the glove” did not exist. As it is put in Mr Mulderig’s written skeleton opening (paragraph 4), he “vehemently denies the pleaded allegations”.

[70]Could such a practice in fact have been carried on so regularly and (by necessary inference) noisily as PL claims to remember without Mr Lacey (as caretaker manager from January to June 1985) and Mr Mills (as player/manager from June 1985), who both occupied offices on the corridor, in fact knowing about it? Having heard from Mr Lacey and Mr Mills (after hearing from PL) I have no hesitation in finding on the balance of probabilities that they did not know of any such practice (see further paragraphs 125 and 127 below). It follows that logically I must either find that PL’s asserted belief that everyone at the club in fact knew about is wrong or at least that I cannot be satisfied on the balance of probabilities that it is correct.

[71]It is possible for a judge to decide that the evidence of apparently equally credible but contradictory witnesses cannot be reconciled and to find that it is not possible to decide between them, but this should in my judgment only be done if there is no feature of their evidence, however slender, that tips the balance one way or the other. Thus, it is my duty to consider whether there are any such features and to enable me to decide between them before concluding, if there are none, that I cannot. In performing that duty, I consider that there are two such features. First, there was a distinct false note in PL’s evidence, that is to say the evidence that he told his parents what had happened to him but they did nothing about it. I do not believe that this is an accurate recollection after thirty years. I find, on balance of probabilities, that it was an embellishment or a false memory and that at the very least he did not tell them the full details of what he told the court (because no reasonable parent would have done nothing about it if he had). I find that either he did not tell them anything (because nothing happened) or he told them something other than he recalls (because he was concealing the full truth from them or because what he was telling them about was an experience less serious than he now says). Second, his evidence that everyone at the club knew about “gloving” is founded upon his belief that this was so but Mr Lacey’s evidence and Mr Mills’ evidence is of the fact that they did not know. It follows that he may be wrong but honestly so. By contrast, they cannot be wrong unless dishonest. I have no reason to believe and no basis for finding that he was being consciously untruthful and I do not so find but I am able to find that he is honestly wrong. Other than his evidence I would have no basis for finding that they were being consciously untruthful and I do not so find. It follows that I am able to decide between PL on the one hand and Mr Mills and Mr Lacey on the other in relation to the issue of general knowledge or notoriety of “gloving”, rather than being in the unsatisfactory position of simply being unable to do so. In short, I accept the evidence of Mr Mills and Mr Lacey.

[72]The fact (as I find) that Mr Mills and Mr Lacey did not know of any such practice also undermines to some extent the reliability of PL’s account of the noisy and public manner in which he was allegedly assaulted. It does not, of itself, justify findings of fact that no assault took place (it is at least possible that, for some unknown reason, they were not in their offices at the time and were out of earshot) or that the second defendant and Mr Berry were not involved, but if the accuracy and reliability of the description of the manner in which that alleged assault was carried out has been undermined it has to be considered whether it has a consequential effect on the reliability of his recollection of the identities of those involved. This in turn affects the principal dispute between the claimant on the one hand and the second defendant and Mr Berry on the other where credibility is also in issue. I have to consider whether the features already identified in PL’s evidence tip the scales in deciding whether to prefer him to them or vice versa and how that affects the claimant’s credibility. JE

[73]JE did not give oral evidence and the weight to be given to what he says in his witness statement (1, C55) is diminished to the extent that Mr Mulderig was unable further to cross-examine. It is right to say that he had given evidence at the limitation trial and was cross-examined by Mr McNeill, but there have been significant changes to the claimant’s version of events, particularly relating to the second assault in relation to which JE could not be cross-examined about contentious matters. In particular, the claimant’s most recent account of being dragged along the corridor, which is on the face of it inconsistent with what JE said he saw, could not be put in December 2013 because it had not then been raised. In his statement (1, C59. para 16) he had said that he had seen the second assault, having been with the claimant “in the first team dressing room when … some of the professionals (I cannot remember who) grabbed (him)” and in his oral evidence at the limitation trial he had said that he “was in the doorway to the dressing room”. Nor could he be cross-examined about his location (viewing events in the home team dressing room from a position at the door, looking in) which is inconsistent with BD’s account of the door being closed and guarded by a first-team player, which account had not been given at the limitation hearing. Nor could he be cross-examined about the more detailed account he had given to the Football Association investigators on interview in April 2014 because that did not happen until after the limitation hearing. Finally, he could not be further cross-examined by either defendant about his evidence to the effect that Mr Mills knew of the practice of “gloving” because of something allegedly said to him by Mr Mills (who denied any such knowledge and denied JE’s account of the conversation).

[74]JE was the only witness who suggested actual knowledge on Mr Mills’ part. He said in his witness statement in January 2013 (1, C59, para 14 & C60, para 16) that he “certainly” knew and that after a game in which he had acted as a linesman and given a disputed goal decision Mr Mills had said to him words to the effect “be careful about the glove, Eddy”. He had not mentioned this to the police when interviewed in 2009. It is however to be noted that, when cross-examined at the limitation trial by Mr Fewtrell he modified his evidence, saying that there had perhaps been “someconfusion” and that “somebody else” made the comment that he would “end up getting the glove”. He did not in fact, he said, get it on this occasion. He claimed already to have done so (but in a version without anal penetration) on an earlier occasion. He agreed that this was not a comment by Mr Mills and that he had not mentioned Mr Mills to the police. It was not necessary to make any finding on this point at the limitation trial but, even at that stage, there was considerable doubt as to the accuracy of recollection by JE of what, if said at all, was a passing comment made about twenty-five years before he first recalled it. A finding is now necessary. Balancing the confused and uncertain recollection of both what was said and by whom it was said against the firm and unshaken evidence of Mr Mills that he said nothing of the sort to JE or anyone else because he did not know of any practice called “the glove” I am unable to find that I can or should prefer the evidence of JE to that of Mr Mills. I go further and, on this specific matter of fact at least, I prefer and accept the evidence of Mr Mills (see further paragraph 125 below). I find that Mr Mills made no such comment or comments and there is accordingly no evidence upon which the claimant can rely to justify a finding of fact that he knew about “the glove” or from which an inference that he knew about it could be drawn. If the remark was made it must have been made by someone else who has not been identified, but on the basis of his oral evidence at the limitation trial in the absence of the opportunity for Mr Fewtrell to explore the point further by cross-examination of JE at the substantive trial, I cannot determine positively if it was said at all or, if it was, when or by whom it was said.

[75]My assessment at the limitation trial was that JE gave his evidence in a convincing manner which supported, for the limited purposes of that trial and on the incomplete evidential picture then available, the cogency of the claim. I had criticisms of him but these related not to the way in which he gave evidence before me but to his failure to be fully frank with the police officer who had interviewed him. It now appears that there may have been other unrelated issues affecting him which perhaps go some way to explaining, if not excusing, his belated revelations in the evidence he gave. If I had known of the unrelated matters of which I have now been informed in relation to him it may be that I would have expressed less severe criticism, if any at all, of his professional conduct.

[76]At the risk of oversimplification (nothing I say here is intended to modify or qualify my previous judgment) the significance of his evidence at the limitation trial was that, unlike the claimant taken in isolation or even in combination with NP, his evidence gave support for the proposition that the claimant’s claim was cogent, not because it directly proved the occurrence of either of the two alleged assaults, but because it supported the proposition that there was a form of punishment ritual involving a goalkeeping glove in use at the club at the relevant time (a proposition denied the defendants). It was material to my decision at the limitation trial that JE said that he had not made a claim in relation to his own alleged (non-penetrative) experience of “the glove” and that he had no present intention of claiming damages against the defendants. He was also apparently untainted by any approach to the press or contact with other witnesses. It has since emerged that he has now instructed solicitors who have sent a letter of claim to the first and second defendant. He has also been mentioned in the evidence of other witnesses (such as Mr Howard) as having been one of those who had met to discuss a claim and as having (possibly) met NP and Mr Graham Shaw when playing in a charity football match before the limitation trial. Although that evidence, particularly that of Mr Howard, is not independently verifiable and I am unable to make any relevant finding of fact that he was or was not so involved, it does raise doubts about the disinterestedness, credibility and reliability of JE which might have been assuaged had he been able to attend trial for further cross-examination but which, as it is, remain. BD

[77]BD’s witness statement (1, C82) is dated 13th November 2013 but he did not give evidence at the trial of the preliminary issue. As to that, medical evidence was put before me at the substantive trial to show that BD suffers, among other things, from medicated but poorly controlled epilepsy. He told me in evidence that he suffers PTSD as a consequence of his experiences in the armed forces. Having no reason to doubt such evidence, I make it clear that there is no adverse inference to be drawn from the fact that he did not attend the earlier hearing to give evidence in accordance with his witness statement. Given that in fact he did not give evidence at the last hearing I was unable to make and did not make any findings about the cogency of his evidence but I did comment in my previous judgment (paragraph 65) that he was to some extent tainted by the fact that he appeared to have approached the press directly or through solicitors before offering assistance to the claimant. The only relevance of making that comment at that time was that I did not rely on his witness statement when deciding to exercise my discretion in favour of the claimant to allow these claims to proceed.

[78]The first point made in cross-examination of BD by Mr Mulderig was that he could not have witnessed the second alleged assault because it occurred in late 1987, whereas his two-year apprenticeship had ended at the end of the 1986-87 season. BD said that the claimant’s recollection of the time at which the assault occurred must be wrong. In reality, perhaps it was the only thing he could say in answer, but he was not the only one of the claimant’s supporting witnesses who saw fit to contradict the claimant’s own evidence about the timing of the second assault (see later). In the course of giving his evidence he displayed a certain degree of bitterness towards the club and in particular Mr Mills (gratuitously calling him a “lying rat”). The personal reasons for such bitterness were not explored further. However, he said that he had an uncle who had played for the club in the past and that he had first witnessed “the glove” when he was as young as 12 years old, walking into the dressing room on an occasion of visiting his uncle, a remarkable piece of evidence if true. He said that his uncle was a friend of the second defendant but that he had not told his uncle until 2013 that the second defendant had used “the glove” on him. Like PL, he said that the practice did not affect his ability to play football and that he and others just got on with their apprenticeship because they were there to play football. Unlike PL he harboured deep resentment about what he called “gang bullying” which had made him unwilling to go to work.

[79]He was also cross-examined about his contact with the press. He agreed that he had attended a meeting, apparently arranged by one Graham Shaw. I was told in evidence that Mr Shaw had been an apprentice and later become a solicitor but he did not give evidence before me. It was clear from the way in which BD (and more particularly IG) spoke of him that Mr Shaw was not much liked. BD said that the meeting was attended by a number of people, including IG and that through Mr Shaw contact had been made with a firm of solicitors (but not the firm now acting for the claimant). He said that it was agreed that a solicitor would be asked to write a letter to the club to ask for a specific sum of money and that this was Mr Shaw’s idea. It was put to him that this was in effect blackmail in that the letter would not be a proper letter of claim in advance of civil proceedings but rather in effect an offer to accept a specific sum of money in return for keeping quiet. Some such letter was written and reference was made to it in cross-examination but I was told by Mr Fewtrell that the letter could not be shown to me because those who had written it had declined to waive privilege. Be that as it may, the club refused to pay whereupon it appears that BD, IG and others (including Mr Howard) did not immediately commence civil proceedings or indeed go to the police but rather, through Mr Shaw, approached the press. As a consequence of that approach, BD was then approached by a reporter to whom he told his story, allegedly saying that he did not want to receive any money. When asked whether he had reached any agreement with a specific national newspaper, he said that he could not remember (which I did not find to be a credible answer).

[80]He gave evidence of an occasion on which he received “the glove” in about September 1986, naming the second defendant, Mr Berry, Mr Parkin, Mr Saunders and also one Steve Bould (not implicated specifically by the claimant) as being involved. He said that he accepted that there was “no malice” in the second defendant’s behaviour. Indeed, he said that the second defendant, as a friend of his uncle’s, would occasionally drive him home. He said that “gloving” was “just what happened in those days” and “part and parcel of getting a contract”. He claimed to have seen the claimant receive “the glove” on two occasions, being two of only three occasions on which he had ever seen it administered at all (not counting the assault upon himself). However, his account of the two incidents was very confused. In his interview with the Football Association (4, C253) he described the first assault as having occurred after the bad line call. Under cross-examination he said that that was simply “my mistake”. Having corrected his “mistake” and saying that the first incident followed the complaint of lukewarm tea, his account of the incident was somewhat different to that of the claimant, but in my judgment the most important point to note is that the claimant did not refer to any other apprentice being present during that assault and indeed the timing of that assault was, on the claimant’s account, when he had been deployed to provide the refreshments so that he had come off training with the other apprentices before they had finished their training match. There was accordingly no reason for any other apprentices to be in the home team dressing room. Pressed by Mr Mulderig to accept that he did not see and could not have seen digital penetration, he said that “I saw it occur in my mind” (my emphasis). In relation to his alleged witnessing of the second incident, there were again significant discrepancies between his account and that of the claimant. He said that the teapot had been placed on the claimant before the gloving and that he had been slapped by a number of people before being gloved such that his buttocks became “red raw”. The claimant was quite clear both at the preliminary trial and at the substantive trial that the teapot was applied to him after the gloving and he did not refer to any slapping. It was put to BD forcefully that this account was either invented, misremembered or the product of discussion with others such as IG, which he denied.

[81]Ms Weereratne QC attempted to salvage the situation in her closing submissions by referring to what, as she submitted, were the different ways in which memories might be laid down. She submitted that the claimant might not have noticed another apprentice if he was focussed on what was happening with the glove and that BD equally might have been focussing on the gloving and not the order of surrounding events which may have been less memorable. The first difficulty with that argument is that the use of a teapot would not be a lesser event but if anything (“the glove” being allegedly normalised but the teapot being an unusual feature) a more memorable event. The second difficulty is that the claimant does not simply fail to mention BD. He fails to mention any other apprentices yet, as will be seen, both IG and Mr Howard also say that they were present at the assault involving a teapot.

[82]Ultimately I did not find BD’s evidence to be credible or reliable. IG

[83]IG verified his witness statement dated 23rd November 2013 (1, C96). He was blithe about the meeting with Mr Shaw and about the decision to go to the press. He agreed that there was an approach to the club, that if money had been paid he would have received an equal share and that he had spoken to the press after a reporter had approached him (arranged by Mr Shaw). Although he said that his purposes were both exposure of what had happened and the gaining of money, he agreed that it was correct that the primary intention was the money not the exposure. He had signed a confidentiality agreement with a newspaper and had had his photograph taken with a view to future publication. It was clear from his evidence that he understood that the newspapers were waiting for the outcome of this trial before deciding to run the story. He said that he had been told by Mr Shaw that a reporter had said that no-one would get rich but that there “might be £5,000 to £10,000 in it” for those who told their story. He had instructed solicitors (not those instructed by the claimant) who had written a letter of claim in March 2015. He said that he had witnessed the assault on the claimant involving the teapot. However, his account of the incident was different to that of the claimant because he regarded the pretext as having been the provision of lukewarm tea. His description both in his witness statement (1, C98) and in his evidence on oath appeared to be a conflation of the two allegations made by the claimant. When it was put to him in cross-examination that his account of a single assault in fact contained part of the first assault and part of the second assault as described by the claimant, his answer was that he “thought it happened at the same time”. Nevertheless, he stuck to his account that the teapot had been used on the claimant at the time he was punished for having produced lukewarm tea and this remained his version of events. It was of course contrary to what the claimant had said.

[84]I found IG to be a thoroughly unreliable witness. His primary motivation having been the obtaining of money from the club, he had attended a meeting and had then spoken to the press. I am quite satisfied that the account given by him to the claimant’s solicitors and before me was an account based on his understanding (or rather misunderstanding) of the claimant’s claim, possibly arising from the meetings or discussions with other witnesses (although I have no basis for finding that the claimant was directly or personally involved) and that his evidence was not credible. At times during cross-examination his attitude was glib or argumentative. I am quite satisfied that his primary motivation for supporting the claimant is the belief that if the claimant’s claim were to succeed then his own claim, motivated purely by the desire for money, may have a better prospect of success. I reject his evidence in its entirety.

Mr Howard

[85]I also reject in its entirety the evidence of Mr Howard but in his case I go further than simply saying that his evidence was not credible and provides no support for the claimant’s case. In my view, at least on the balance of probabilities, he came to court to lie and persisted in his lies even when they were quite obviously demonstrated in cross-examination. In his police statement dated 12th January 2010 (4, B22C) which begins with the usual declaration as to the consequences of giving a false account, he is recorded as having told the interviewing officer that he had never seen “gloving” happen. Despite the fact that he had read and signed the statement in three places, he said that this was wrong, that the police officer had wrongly recorded what he had said and that what he had said was that he had not received the glove. Although there was no mention of a teapot being used in the police statement, he said that he had told the officer about it and had seen that incident involving the claimant. The police statement also records that he said that he had “never heard that Peter Fox was responsible”, but he said that this was also wrong and that the officer had misunderstood. The foregoing brief account cannot convey his patent lack of candour and the unimpressive demeanour as he gave such evidence. I considered it appropriate to warn him of the consequences of giving false evidence and, in particular, given that his evidence before me was to the effect that he had not told the police officers the truth, that he might therefore be liable if only theoretically to prosecution. Therefore I advised him of his right to decline to answer any question on the ground that it might incriminate him.

[86]Mr Mulderig proceeded to cross-examine by taking each sentence of the police statement in order to see whether he agreed that it was correctly recorded or not. The statement contains seventeen sentences, fifteen of which he accepted were correctly recorded and represented his evidence. However in relation to two crucial sentences he declined to answer the question whether what was stated was true and had been accurately recorded. In particular, he declined to answer whether the sentence “I had never seen this happen during my time at Stoke City” was correct or had been accurately recorded. If accurately recorded, it was of course directly contrary to the evidence he was seeking to give on oath before me. He then said that he had told the interviewing police officer that he had seen the second defendant assault the claimant but he agreed that this had not been recorded. He said that he had specifically told the officer “he got him down on the treatment table, removed his slip and shorts, smeared his finger with Deep Heat and inserted it into his anus”. He agreed that this had not been written down. He agreed that he had not queried why it had not been written down before signing. In my assessment, his assertion that he had told the officer specifically about the second defendant smearing a finger in ‘Deep Heat’ and inserting it into the claimant’s anus was not only false but represented a deliberate untruth.

[87]He was further cross-examined about an approach he had made to the Professional Footballers’ Association (PFA) in 2004 seeking financial assistance from its benevolent fund to help him pay off a loan made by his stepfather. He said that he had told the chief executive of the PFA about “the glove” being used at the club and that he intended to go to the papers about it. He said that by saying this he was hoping to get money from the PFA. He alleged that the chief executive’s tune then changed, money was offered and that he received £2,000. The plain and blatant allegation was that money had been paid to him by the PFA to prevent him going to the press. Exploration of the documents disclosed in this case demonstrated to my satisfaction that his evidence on this point was also false. The relevant documents (4, C221 to C224) make clear that the true facts are as follows. He made a written application for funding on 27th April 2004. He did so after speaking to one Mr Richard Jobson (not the chief executive). Having spoken to Mr Jobson he wrote a letter to Mr Gordon Taylor (the chief executive) to which Mr Taylor replied on 20th April 2004 inviting him to make his application. The PFA response was a request on 11th May 2004 for proof of the debt to which he responded by a letter dated 20th May 2004 enclosing a letter from his stepfather (not in fact revealing that he was his stepfather). There followed on 8th June 2004 a cheque number 900605 from the PFA in his favour in the sum of £1,000. I am quite satisfied on the balance of probabilities and find as a fact that his claim to have reported the practice of “gloving” at the club to the PFA in 2004 is false and that no such report occurred.

[88]In short, I found him to be a thoroughly unimpressive and obviously dishonest witness. It is impossible to find in the case of such a witness which, if any, of the statements he has ever made are true. If anything was true, it is in my judgment most likely to have been the police statement in which he said that he had never seen “the glove” applied and by necessary implication had never seen it used on the claimant. I reject his evidence in its entirety and accordingly he provides no support whatever for the claimant’s claim. At the conclusion of his evidence I directed that a transcript of it should be provided at the public expense and, subject to any further submissions that any counsel may see fit to make, I propose to consider after the handing down of judgment whether proceedings for contempt of court should be brought against him on the basis that he has made a false statement in a document verified by a statement of truth without an honest belief in its truth (that is to say his witness statement in these proceedings dated 15th April 2014) contrary to CPR 32.14, whether by direction that the matter be referred to the Attorney-General under CPR 81.18(5) or otherwise as appropriate.

[89]I should add that even if the evidence of IG had not already been rejected, he would have been irrevocably tainted by the evidence given by Mr Howard. Mr Howard is a long time friend of IG, whom he described familiarly by nickname. I noted that he also described BD familiarly by nickname. On the balance of probabilities I am satisfied that at the very least Mr Howard and IG have colluded to obtain compensation for themselves by jumping on the bandwagon of the claimant’s claim, the merits or otherwise of which were probably a matter of complete indifference to them. NP

[90]I formed an unfavourable impression of NP at the limitation trial, as to which reference may be made to my previous judgment (paragraph 66(b)). Having heard him give evidence again, I find no reason to change my previous assessment. His evidence at the substantive trial was that insofar as there were differences between his account given in his police statement on 26th February 2010 (3, B11) and his witness statement for these proceedings dated 22nd November 2013 (1, C91) he had simply recollected more facts. He added yet more alleged facts in his oral evidence, the most important of which being that he now claimed, nineteen months after the limitation trial and thirty years after the event, to recollect that at the beginning of his first year as an apprentice the second defendant, whilst brandishing his goalkeeping glove, had specifically said to him in the company of two or three other unidentified apprentices that if they were to “mess up” they would “get this”. He described “the glove” as being white in colour with the proprietary name ‘Reusch’ upon it. He had given that description to the police in February 2010 (3, B20) but never before, neither then, nor in his witness statement, nor in his oral evidence in December 2013, had he mentioned this alleged incident.

[91]Contrary to his assertion to the police at the time of interview that he had witnessed “the glove” being applied to others, he confirmed on oath before me that the glove had not been administered to him and that he had never seen it administered to anyone else. All he claimed to recall of what may or may not have been the occasion of the claimant’s second alleged assault was hearing a voice which “sounded like” Mr Berry’s voice making a threatening remark and then, a little later, hearing and seeing the claimant return to the away team (apprentices’) dressing room. He even purported now to remember that he had himself been the person who had kicked the ball off the line on the occasion of the claimant’s alleged “bad” line call and that he had gone to the away team showers in order to keep out of the way to avoid any punishment coming his way. However, his account of what the claimant did when he came into the dressing room was contrary to the claimant’s own recollection. The claimant had said that he had run in and locked himself in a toilet cubicle but NP specifically said that the claimant had not done so.

[92]Mr Fewtrell’s cross-examination was essentially limited to the part of his statement to the effect that on one occasion when he had been receiving a different and lesser form of punishment ritual (“blacking”) the process had been interrupted and stopped by Mr Lacey who had quite clearly physically and verbally disapproved of what was going on. NP agreed that “blacking” would be much less severe than “gloving” and that his “blacking” was stopped by Mr Lacey. Although not directly on the point, this evidence did seem to cast considerable doubt on the suggestion that Mr Lacey was aware of “gloving” or, if he had been aware of it, that he would have failed to intervene to prevent it. Curiously, Mr Lacey told me that he could not remember stopping any “blacking” incident and indeed denied knowledge of that term at the time. In passing, I should note that Mr Berry said that he had been aware of the term since the 1970s but that it had never happened at the club during his time there. I was left with the uncomfortable feeling that this incident, as described by NP seeming to be favourable to Mr Lacey, may not in fact have happened but added to add verisimilitude to his evidence critical of the second defendant or alternatively wrongly remembered after such a lapse of time and in fact stopped by someone other than Mr Lacey. I find myself unable to find as a fact whether such an incident happened or who the persons involved may have been, but my inability to place reliance on NP even in relation to unrelated events involving himself gives me no confidence in accepting his reliability when it comes to events involving the claimant.

[93]In a final inconsistency, NP also contradicted the claimant by failing to confirm the timing of the alleged second assault. The claimant has, as I have said, been consistent in saying that there was a twelve to fifteen month gap between the two assaults and that the second assault occurred in the autumn of 1987. NP said that the events he had witnessed involving the claimant (the bad line call, the threat by Mr Berry and seeing him upset in the dressing room thereafter) had all occurred in the early part of 1987 and he was “definite” about that. He said that the claimant was wrong to say that it was any later than that. If that is correct, then the gap between the two alleged assaults would have been no more than six months which is so inconsistent with the claimant’s firm recollection and repeated account that NP’s evidence cannot in my judgment be regarded as supportive of the claimant’s account at all.

[94]In short, the evidence of BD, IG and NP was to a greater or lesser extent inconsistent, contradictory, unreliable and incredible and the evidence of Mr Howard was at least in part dishonest. Their evidence, individually and collectively, provides no credible support for the claimant’s claim.

Mr Hill

[95]Mr Dennis Hill was the manager of East Belfast Football Club, an amateur team, between 1997 and 2001, during which time the claimant played for that team. He gave no evidence directly as to liability. He knew nothing of the claimant’s alleged experiences during their association. His evidence was indirectly relevant to liability, albeit not perhaps intended by the claimant to be so, in that he described the claimant as having been a reliable player whose disciplinary record was good. This evidence sits uneasily and seems to me to be inconsistent with or at least unsupportive of the claimant’s evidence that during that period he was still drinking heavily (he said that he stopped only in 2004). Otherwise his evidence was only relevant the issues of causation and damages.

Mr Washington

[96]Mr John Washington did not make any witness statement in this matter until 10th July 2015, which was the fifth day of the trial, later supplemented by a statement dated 13th July 2015, that is to say the sixth day. By definition, those statements had not been filed or served by the date set by the relevant case management directions order. Exceptionally, I granted an application made on the sixth day of trial by the claimant for relief from sanction. This application had been opposed by both defendants because any witness statements upon which the claimant intended to rely should have been filed and served by 30th April 2014. However, Mr Washington had only made himself known to the claimant’s legal advisors on 10th July 2015. He verified his two statements (1, C193 and C195 respectively) and said that although he had been aware of the case in 2013 he had only been prompted to contact the claimant’s lawyers after reading a newspaper report on 7th July 2015. His evidence, if reliable, is remarkable and contradictory of the evidence of the second defendant that no such practice as “gloving” existed. It was that he had heard the second defendant, in a radio interview approximately contemporaneous with the assaults alleged by the claimant (he said “1986 to 1988” in his statement but was less specific when cross-examined), publicly state that if any young lad or apprentice at the club should get too big for their boots there was a way of bringing them down a peg or bringing them back to earth which was “the glove treatment” involving “the Deep Heat rub” which was very hot and put in a “very sensitive place”.

[97]In his handwritten note written on 7th July 2015 and addressed to Ms Weereratne QC (1, C198) he had expressly referred to “the glove treatment” but he had not done so in his witness statements dated 10th July 2015 (1, C193) or 13th July 2015 (1, C195). This is a major inconsistency, occurring within three days thirty years after the event and it suggests at the very least that his recollection is not fixed or clear and also that he had been influenced in what he had initially written by what he had read in the newspapers reports which he admitted he had read and had been the catalyst for his note to counsel. In short, it casts doubt on his reliability if not credibility. In cross-examination he sought to explain this discrepancy by saying that his note was “a rush job”, that when he wrote it he thought that was what had been said but he had thought a bit more about it before talking to the solicitor for the purpose of making his statement and his recollection had changed. He did not allege that there was any mention of anal digital penetration but he claimed to have been shocked on hearing it and assumed that other people would have complained (although he himself did not). He said that it had a resonance for him because of an alleged experience of abuse in his own youth during an industrial apprenticeship in the 1950s. He did not contact the radio station or anyone else to complain. He said that he thought others would have done so but on the evidence before me no one ever did so, although (as I find to be a fact on the unchallenged evidence of the sports editor at the time, Mr Gaskell) the programme had many tens of thousands of regular listeners in the North Staffordshire area.

[98]The evidence of Mr Washington did not in any event support the claim that the practice involved digital anal penetration. Indeed it was not his understanding that that was the case. Rather, his understanding at the time was that the glove would be applied externally to the genital area. The essence of his evidence was that far from being unaware of this practice the second defendant in the 1980s was so unabashed at admitting its existence that he mentioned it in a public radio broadcast to a reporter who was so unconcerned that he did not follow it up at all.. Under cross-examination it became clear that his supposedly clear memory was rather selective. He had misremembered the name and timing of the relevant radio programme. He added more details of the interview but said that it was truncated abruptly for a discussion of match tactics (implying that it was a pre-match interview) whereas in his witness statement he had said that the next item relayed the scores (implying that it was a post-match interview).

[99]I allowed a two-day adjournment for enquiries to be made after the grant of permission to rely on Mr Washington’s evidence during which time the statements of two BBC employees at the time, now freelance, namely Mr Gaskell (1, C202) and Mr Johnson (1, C204), respectively the sports editor and a sports reporter at BBC Stoke, were obtained on behalf of the second defendant. They were impressive witnesses and their oral evidence (which I summarise in paragraphs 114 to 116 below) did not support his alleged recollections but rather cast very considerable further doubt upon them. Whilst it is not perhaps wholly impossible that he may have heard what he believes he heard or something similar I am not only satisfied on the balance of probabilities but quite sure that it was not said to Mr Gaskell or Mr Johnson. The chance that it could have been said without one or other of them being aware of it is, on their evidence, so small as to make it overwhelmingly probable that Mr Washington has either misheard or misremembered or is simply mistaken in his (apparently) honest and disinterested belief. His evidence, although apparently of significance when first read on paper, justifying exceptional permission to rely on him, did not stand up to scrutiny and does not help me towards the resolution of this claim.

THE DEFENCE

[100]In the course of dealing with the evidence of the claimant and his witnesses I have tried to identify the principal matters of evidential dispute, have incorporated the evidence of the defendants’ witnesses where relevant and have made some findings of fact where possible and, in my view, appropriate. Accordingly, what follows is a comparatively brief summary of the oral evidence given in support of the respective defences, particularly in the case of the first defendant. By agreement between counsel and with my approval the evidence for the second defendant was called before that for the first defendant. THE SECOND DEFENDANT’S WITNESSES Mr Fox

THE SECOND DEFENDANT’S WITNESSES

[101]The second defendant himself verified his three witness statements (1, C64, 71A and 71F). He amplified his evidence by referring to the fact that he had started ‘The Junior Potters’, which was the junior supporters club (for supporters aged under 16 years) and had become its president. He had not been an apprentice at the club but at Sheffield Wednesday FC. He was thoroughly cross-examined by Ms Weereratne QC and it would, in brief, be a fair summary of his evidence to say that he remained unshaken, firmly and politely (perhaps with excessive politeness having regard to the allegations made against him) saying that “the events did not occur”. This was as pleaded in paragraph 13(f) of his Defence. He said that the allegations made by the claimant were false.

[102]The second defendant had prepared a rough sketch of the layout of the ground floor of the Victoria Ground. It was inserted into the trial bundle (1, C68A) but he agreed certain modifications suggested by Mr Fewtrell (on the basis of instructions from Mr Mills) who had used the modified sketch when cross-examining the claimant. It showed that the two dressing rooms were at opposite ends of the corridor which was parallel to but not as long as the pitch outside. Between the two dressing rooms there were a number of offices which, running along the corridor on the right side looking from the away team (apprentices’) towards the home team (professionals’) rooms would have been occupied by the manager (Mr Mills), the club secretary and assistant secretary, the personal assistant to the manager and the main public reception room. Between the reception area and the PA’s office was an open entrance for players or guests flanked by a press room. On the left side were the referee’s room (only used on match days), Mr Lacey’s office, the office of the first team coach (possibly unoccupied in the 1986-87 season but probably occupied by Mr Chung in the 1987-88 season), the washing room and the physiotherapy room. Between Mr Lacey’s office and Mr Chung’s office was the tunnel to the pitch. I find as a fact on the totality of the evidence on all sides that the areas and offices used by the first defendant’s staff other than Mr Mills, Mr Lacey and Mr Chung would probably have been occupied each weekday morning, that after the conclusion of the morning training sessions those three men would usually have gone to their offices and that most if not all the offices or rooms off the corridor would not have been unoccupied at the time of the alleged assaults on the claimant.

[103]Ms Weereratne QC suggested to the second defendant that he was “hiding behind his good character”. A similar suggestion was made to his witnesses. In my judgment, it is correct to say that he has not simply a good character but a positive good character, by reference to his reputation as a long serving player for the club, his sports-related charitable activities and his involvement, with his wife, in the fostering of children. It is right to recognise that in a case such as this a defendant with a good character has been something of a catch-22 situation: in principle a positive good character is relevant to credibility on the basis that it may be argued that such a person is on the balance of probabilities less likely to have behaved in the manner alleged; on the other hand it is a sad fact that claims, revelations and indeed convictions over recent years have demonstrated that a good reputation can be an effective cover for misdeeds. However, I remind myself that the question in this case is not whether it is likely that the mature elder statesman of football aged 58 years with a distinguished football career behind him that the second defendant has now become assaulted the claimant, but rather whether his younger self, half his lifetime ago when 29 years old, did what the claimant alleges but is now unable or unwilling to admit it. The extent to which an (apparent) good character in later life may be of relevance to the likelihood of misbehaviour long ago is less compelling.

[104]I am not sure that it was entirely fair of Ms Weereratne QC to suggest that Mr Fox was “hiding behind” his good character but it seems to me to be a point of little relevance. Taken to its logical conclusion it would mean that possession of a good character would be a positive disadvantage to a defendant in such a case which is not how the law stands. It is a neutral factor. She invited him to admit to his past behaviour and to apologise to the claimant. Firmly but politely he refused to do so on the basis that he said that he had done nothing wrong and therefore had nothing for which to apologise.

[105]He admitted that what he described as “jovial things” went on, that is to say what he regarded as ordinary pranks, jokes or high jinks of a kind that ordinarily then did and probably still do occur in the milieu of male sporting dressing rooms. Ms Weereratne QC suggested to him that he was presenting a picture of an incredibly well-behaved group of men but he insisted that pranks (examples given were cutting feet off socks, tying knots in sleeves, making those who had cleaned themselves muddy again, and the like) were only played on and between equals and that there was no playing of pranks upon or ribaldry of apprentices. He agreed that he was nicknamed “Foxy” but denied ever having been invited to “give him the glove”, a practice which he said “never happened” to anyone. He flatly denied the allegations made not only by the claimant but also by PL, BD and JE.

[106]He voluntarily disclosed his medical records for 1986 to 1988 to demonstrate that he had suffered an injury in a swimming pool accident in 1987 which appeared to have aggravated a longstanding back problem dating from 1983. Particular reference was made to records between 17th September 1987 and 19th April 1988 and to the fact that he had been suffering back pain since about June 1987 and required surgery in the form of a laminectomy in January 1988. At first it appeared that these records were relied upon to demonstrate either that it was unlikely that he would have been at the club or in the home team dressing room on the occasion of the alleged second assault or perhaps that he would have been unfit to take part in the activities surrounding that alleged assault, but he agreed that he was in fact at and around the club during the whole of that period, training and indeed playing (if only in reserve teams). Ultimately, therefore, the fact (as I find it to be) that the second defendant was suffering back pain and discomfort during the latter part of 1987 is not of itself inherently inconsistent with the truth of the allegations made by the claimant.

[107]He said that if he had ever come across the alleged punishment ritual of “gloving” he would personally have stopped it or “at least I would like to think so”. He agreed that it would have been an unacceptable practice from his point of view in 1986 or 1987 and there was no question of seeking to argue that if (which he denies) it happened it could be excused or explained or condoned on the basis that times have changed.

[108]With reference to the evidence of Mr Washington, he confirmed that he did appear on the local radio programmes but said that he had definitely not said what Mr Washington claimed to remember. It was suggested that he had in fact said it because at that time he was unashamed and because the practice was tolerated but he denied both suggestions firmly.

[109]A considerable amount of time was spent exploring the question of whether or not tea (in addition to orange juice) would have been made available in the home team dressing room during the summer months, his apparent argument being that the allegation of a punishment for making lukewarm tea in July or August 1986 was inherently incredible because no tea would have been made at that time in any event. When pressed, he said that if tea was required then it would be made by the individual who required it, rather than being brought in a teapot. However he did appear to accept that it was at least possible that tea might have been made as late in the year as August. Insofar as it is necessary to do so, I find on the balance of probabilities that at the very least it is quite possible that some players might wish to drink tea in August and that accordingly a pot of tea might have been brought to the dressing room by an apprentice for their purposes. I cannot on the evidence before me find that it is impossible that a pot of tea might have been brought to the home team dressing room by an apprentice at that time of year. I am accordingly unable to find that the claimant’s allegation that the catalyst for the first assault was the presence of a lukewarm pot of tea is inherently incredible, impossible or even improbable.

[110]Ultimately, Mr Fox was unshaken in his denials by the searching cross-examination.

Mr Parkin

[111]Mr Parkin verified his statement (1, C128) and told me that he had been an apprentice at the club between 1982 and 1984 and thereafter played for the club until 1988 before moving to other clubs at West Bromwich, Mansfield, Rochdale and Barnsley, initially as a player and latterly as the assistant manager. He is now the assistant manager of Bradford City FC. He disputed the claimant’s suggestion that apprentices were able to “hang around” the home team dressing room, which he said did not happen when he was an apprentice or when he was a first team player. He said that Mr Lacey was a man of strong discipline who brought his apprentices up to be the best they could be. He denied the existence of any such punishment as the claimant alleged whether during his time as an apprentice or during his time as a player and he firmly denied that he had been involved in any such assaults. The details of those assaults and his participation in them were fully put to him and his response was “absolutely not”.

[112]Like the second defendant, he said that in July or August only cool drinks would have been provided, not tea, but he accepted that there might have been one or two players who would have drunk tea. Overall, he was an impressive witness and (recognising the same point about good character having been made to him as to the second defendant) his credibility was in my judgment supported by the fact that he was not dogmatic in denying that the demand for tea was possible. He said that he did not mean to say that tea was never made but rather that “withoutquestion” more squash was consumed than tea. He also accepted that, in relation to another area of apparent dispute, it was “possible” that a linesman might be used in a training match, as the claimant had alleged, although he also said that he could not remember this possibility having actually occurred. In this respect at least he did not support the second defendant’s evidence which was that this would never have happened and it certainly did not appear to me that he was simply reciting an agreed script.

[113]Ultimately, like the second defendant, Mr Parkin was adamant of his innocence and was unshaken by cross-examination.

Mr Berry

[114]Mr Berry verified his statement (1, C118) and told me that he was not apprenticed at the club but joined from Wolverhampton Wanderers. By 1986, then aged 29 years, he had become team captain. As he himself confirmed, it would have been difficult to mistake him for any other player. He was and is six feet two inches tall and black and at the time he had an ‘Afro’ haircut. At that time, he said that he regarded himself as a role model because of his race. He “absolutely” denied that he had ever been involved in “gloving” or that he was aware of any such practice.

[115]He agreed that there were definitely high jinks (in addition to the mud and socks pranks he recalled stereotypical remarks about penis size specifically directed at another black player) but he said that there was no malice in any of these pranks. He had been the victim of pranks and he had been the perpetrator of pranks but never participated in “gloving”. He said that from his point of view, knowing as he does and did the properties of the ‘Deep Heat’ rubbing lotion, it would have been unacceptable to use it in the manner the claimant alleged. He denied having been the person who had placed a teapot on the claimant’s buttocks. He said that the practice of “gloving” as described by the claimant was not acceptable now and would not have been acceptable in the 1980s. He very firmly stated that if he had known about or witnessed it he would have stopped it.

[116]He was invited by Ms Weereratne QC to apologise. He declined on the basis that “it is fiction”.

Mr Saunders

[117]Mr Saunders verified his statement (1, C122). He adamantly disputed that he had been involved in any way in assaults of the kind alleged by the claimant. In particular he denied having participated by removing the claimant’s shorts. Like his former colleagues, he did not suggest that any such practice, if it had existed, could or would have been considered acceptable at the time and certainly not by him. As a black player he was then, like Mr Berry, perhaps a rarity and also regarded himself also a role model. Further, at the present time, he regards himself as “a strong Afro-Caribbean role model”. In recent years he has become a support worker for black youths without father figures in their lives. He said that if he had witnessed “gloving” he would have been “disheartened” and “would like to think that I would have stopped it”. He stressed that he had not been brought by his parents up to behave in the way alleged against him but rather he had been “brought up properly, to do the right thing”. He denied that he had participated in either alleged assault on the claimant, whose name he did not remember. He had not seen him since the 1980s until he came to court for this trial in July 2015.

[118]I found Mr Saunders to be a very impressive witness who gave every appearance of being truthful and of being genuinely surprised and indeed bemused by the allegations. He was entirely unshaken by cross-examination and there were no inconsistencies in his denials. Naturally, I bear in mind Ms Weereratne QC’s point that it is very difficult to disprove a negative and thus to undermine a denial. However, I am bound to say that I believed his denial of participation. He was, if anything, the most credible of the second defendant’s three footballer witnesses and I believed his evidence.

[119]I am satisfied, on the balance of probabilities and find as a fact that he did not participate in any assaults on the claimant (even if others did so). This finding does not, of itself, lead me to find that no assaults took place, but I am satisfied that if they did the claimant is mistaken in his recollection that Mr Saunders was an active participant or indeed was even present.

Mr Johnson

[120]Mr Johnson verified his witness statement (1, C204). He had been the regular football reporter for BBC Radio Stoke on match days in the 1980s. He was also a teacher at the time. He is now a retired headmaster and is still a freelance broadcaster. He presented as a man of high personal and professional standards, both educational and journalistic. He had no recollection of the comments attributed to the second defendant by Mr Washington, adamant that he had never heard him say any such things and adamant that he would not have ignored it if he had done so. I accept his evidence that if the second defendant had said it to him he would have followed it up at the time and remembered it now. He had enjoyed good health and rarely if ever missed a league match involving the club, upon which match he would have commentated as well as setting the scene beforehand and speaking to players or the manager afterwards. He could not of course exclude the remote possibility that it had been said to another reporter filling in for him on the very rare occasion of a possible absence. I find as a fact that he was telling the truth. If the second defendant said what Mr Washington claimed to recall, it was not said to Mr Johnson.

Mr Gaskell

[121]Mr Gaskell verified his witness statement (1, C202). In my judgment his evidence effectively closed the door on the possibility that the second defendant did say what Mr Washington claimed to remember but said it to a reporter other than Mr Johnson. Mr Gaskell was the sports editor and presenter of the match day programme of which Mr Washington said he was an avid listener. It would have been on air no later than 2.00pm on Saturdays and sometimes as early as 1.30pm, before match time which was usually 3.00pm. He would always have been in a mobile studio at the Victoria Ground or in the studio at the BBC premises in the town. If any pre-match interview had been conducted with any player, including the second defendant, he would have conducted the interview and it would have been pre-recorded during the preceding week and edited for broadcast. He would therefore have(a) heard what was said during the interview

(b) heard it again at least once whilst editing and

(c) heard it again when broadcast. He had no recollection of the comments attributed to the second defendant by Mr Washington. He was as adamant as Mr Johnson that he would not have ignored it if it had been said to or heard by him. There would, he said, have been “a story” to follow up and as a professional journalist he would have done so. Ms Weereratne QC invited him to accept that this was a rationalisation made with hindsight applying 2015 standards not those of the 1980s, but he firmly disagreed. He said that he would not have been doing his job properly had he let it go. When asked by Ms Weereratne QC whether he thought Mr Washington was lying, he said that it was not for him to say but he must at the least have misheard. There were at the time “many tens of thousands of listeners” to the programme and he was personally proud of increasing its loyal audience during the years 1986 to 1992. There is no evidence that any of those listeners made any comment far less complaint about any such remark and, as Mr Washington admitted, he did not do so at the time.

[122]I find that the possibility that the second defendant said what he is alleged to have said on an occasion when neither Mr Johnson was the reporter/commentator nor Mr Gaskell was the presenter/interviewer/editor of the programme is so remote as to prevent any finding that the words alleged were in fact spoken or have been accurately remembered. On the balance of probabilities I find that no such comment was made by the second defendant during the radio programme in question on any occasion. I am unable to accept the accuracy of Mr Washington’s recollection and evidence, however honest it may be. If it is honest, I am quite satisfied that it is honestly mistaken. THE FIRST DEFENDANT’S WITNESSES Mr Mills

THE FIRST DEFENDANT’S WITNESSES

[123]Mr Michael Mills was England captain at the 1982 World Cup and has been awarded an MBE for services to football. Those two facts, in and of themselves, are of no relevance to, and will have no influence on, my decision. Of relevance and importance is the fact that in 1985 he joined the club as player/manager. He was in that post when the claimant arrived and throughout his apprenticeship. He verified his witness statement (1, C137), confirmed that he had never witnessed “gloving” and said that he was wholly unaware of any such practice having existed, whether in 1986 to 1987 or at any other time at the club. He confirmed the corrections to the second defendant’s sketch plan of the ground floor and corridor area of the Victoria Ground. His office as manager, together with those of the secretary and assistant secretary and various support staff were along the corridor. Plainly, if the offices were occupied, as I have found most if not all probably were in the middle of the day when the morning training sessions ended, any noisy commotion in the corridor could not fail to have been heard by the occupants.

[124]None of the claimant’s witnesses, except BD who appeared to dislike him for some unexplained reason, had expressed any positive dislike of Mr Mills. None of the claimant’s witnesses, including BD, had suggested that he had ever been present when “theglove” happened and only one of them suggested that he was actually aware of the practice. That one was JE, who in his witness statement had said that Mr Mills had once made a remark to him to the effect that that he should “beware of the glove” but as I have said (see paragraph 74 above) in cross-examination at the limitation trial about this evidence he was much less dogmatic, he admitted that he had not mentioned this remark when making his police statement and he appeared to accept that the remark, if made at all, may have been made by someone else. Mr Mills expressly denied making any such remark, which would of course be inconsistent with his general denial of knowledge. Leaving aside JE, the claimant’s case against the club was otherwise based on the proposition that the club’s representatives such as Mr Mills and Mr Lacey knew because “everyone” knew.

[125]Mr Mills was an impressive witness and his evidence had the ring of truth. I accept his evidence and find as a fact both that he was unaware of any such practice as “gloving” at the club at or after the time he joined the club and that he would not have tolerated but rather would have stopped it if he had known. I repeat that I find that he did not make the remark alleged by JE.

Mr Lacey

[126]Mr Lacey verified his witness statement (1, C149). He also confirmed that he as youth team coach had never witnessed “gloving” and said that he was wholly unaware of any such practice having existed, whether in 1986 to 1987 or at any other time at the club. The claimant, the second defendant and all their respective witnesses who had known him in the 1980s had spoken positively and well of Mr Lacey. No-one had a bad word for him. He was responsible for the training and general welfare of the apprentices including the claimant (who had made no criticism of him even when invited to do so). There was reference on all sides to his parting reference for the claimant (2, A250). I find that he did write this reference and did so in the most positive terms possible with the genuine motive of trying to help him to find another football placement.

[127]He was an impressive witness and his evidence also had the ring of truth. I accept his evidence and find as facts both that he was unaware of any such practice as “gloving” at the club at or after the time he joined the club and that he would not have tolerated but rather would have stopped it if he had known.

[128]It follows that I find that if there was a practice of “gloving” at the club neither Mr Mills nor Mr Lacey had actual knowledge of it or of any events which would or should have aroused their suspicions.

Mr Chung

[129]Mr Chung was the first team coach at the time of the claimant’s apprenticeship. He did not give oral evidence but his witness statement (1, C144) was admitted as hearsay evidence. Again, neither the claimant nor any of his witnesses made any specific positive criticism of Mr Chung or alleged that he had ever been present when “gloving” had occurred. FINDINGS ON LIABILITY The claim against the second defendant

FINDINGS ON LIABILITY

[130]The evidential conflict is stark. I have referred to the unsatisfactory nature of the evidence of the claimant and of some of the witnesses called on his behalf. I have recorded (see paragraphs 51, 52 and 60 above) that I reject the claimant’s evidence that he descended into a cycle of alcoholic dependence, that his personal relationships were adversely affected or that his football performance deteriorated after the assaults, but I still have to consider whether, despite such embellishments, exaggerations or frank inventions, he has nevertheless established on the balance of probabilities that he was assaulted on either or both of the alleged occasions by the second defendant. On his own evidence alone, because of the conflicts and uncertainties arising from these embellishments, he would have an uphill task discharging the burden of proof upon him. Mr Mulderig, who made his closing submissions first because of the order in which the witnesses had been called, submitted that he had “not come close” to succeeding. In his closing submissions Mr Fewtrell described his evidence as being “riddled with lies and inconsistencies”. A decision cannot be made simply by reference to the claimant’s evidence because there are other witnesses (on all sides) and I must consider the totality of their evidence. My ultimate findings of fact, to the extent that I can make them even on the balance of probabilities after such a long lapse of time, depend on my assessment of the credibility of those witnesses and the reliability of their evidence as well as that of the claimant himself.

[131]I regard the evidence of all four of the former apprentices who gave oral evidence in purported support of the claim on the basis that they had witnessed either the actual assaults or the preamble to or aftermath of those assaults as being to a greater or lesser extent unreliable or incredible. The fifth former apprentice, who gave evidence at the limitation trial but not at the substantive trial, claimed to have witnessed occasions of the use of the glove but not digital penetration. His evidence was inconsistent with that of other witnesses including that of the claimant in so far as it had developed since the limitation trial but, being absent from the substantive trial, he could not be cross-examined about those matters.

[132]The evidence of PL is the only evidence given in support of the claimant which, if it were to be accepted, would in my judgment justify any positive finding of any facts contrary to the second defendant, albeit not directly relating to the specific assaults alleged by the claimant. Uniquely among the claimant’s witnesses, he remained essentially unshaken after cross-examination and, to that extent, may deserve equal comparison with the defendant’s witnesses. Apart from the two features which I have mentioned (see paragraph 71 above) he was an apparently solid witness. However, in the context of the effect of his evidence on the principal dispute (see paragraph 72 above), I find it troubling that, at a time before PL’s evidence was available to him, the claimant had told the police in his (criminal) witness statement dated 8th April 2009 (3, B5) only that he had been “in the first team dressing room” when “grabbed and forced … onto the table”. Although he had referred to being “dragged into” the home team dressing room on the occasion of the alleged second assault in his first (civil) witness statement dated 31st January 2013 (1, C1), he had not mentioned being dragged along the corridor from the apprentices’ dressing room in that statement. He did not mention it in his evidence at the limitation trial in December 2013. Even after PL’s statement became available to him he did not mention it in his second (civil) witness statement dated 30th April 2014 (1, C11a). He did not add the detail of having himself being dragged along the corridor until his oral evidence in July 2015, more than six years after his first formal statement. I find that it is probable that by the time of the substantive trial the evidence of the claimant had been influenced by PL’s account of his alleged experience and that he embellished his own account to include the allegedly strikingly similar details. An embellishment provoked by an account the reliability of which is itself in doubt further weakened the claimant’s ability to discharge the burden of proof. It also had an adverse effect on the consistency of the claimant’s evidence with that of JE (see paragraph 73 above).

[133]PL’s similar fact evidence, whilst given by a witness of apparent credibility, is weakened firstly by my positive finding of lack of knowledge on the part of Mr Mills and Mr Lacey and secondly because I am satisfied that it has led the claimant to embellish his own account of his own second assault in a manner which makes his account inconsistent with that of another of his own witnesses (JE). I am therefore in real doubt as to whether the features of PL’s experience which were said to be strikingly similar were in fact features of the claimant’s own alleged assault. In any event I find myself unable to make positive findings of fact which would enable me to prefer PL’s evidence to that of the second defendant or Mr Berry in relation to the alleged assault by them on him. I am unable to find as a fact whether an assault on him in 1985 occurred or not. Even if it did, I would have been unable to find whether it was perpetrated by them or not, it being simply his word against theirs after thirty years.

[134]In considering whether the claimant has discharged the burden of proving that one or both assaults occurred, his own evidence must be carefully examined and evaluated. It remains his reliability and credibility which must be favourably assessed if he is to succeed. It was for that reason that I considered that I had to deal with the evidence he gave in considerable detail and as I have already said his evidence was ultimately unconvincing.

[135]The totality of the evidence called on behalf of the second defendant about the assaults amounted to a vigorous and unshaken denial that either of the assaults alleged by the claimant occurred. I have already recorded that I found the evidence of Mr Saunders to be honest and reliable and that the claimant is mistaken about his participation. If the second defendant, Mr Berry and Mr Parkin are also to be believed then not only the allegations made by the claimant’s witnesses but those made by the claimant himself are false, whether in the sense that they are honestly believed by the claimant to be true or alternatively known by him not to be true. Conversely, if the claimant’s allegations are true, there can be no question of those three witnesses having genuinely and honestly forgotten what happened.

[136]Ultimately, the significance of PL’s evidence is that it prevents me from dismissing the claim on the basis of a finding of fact that the claimant was not assaulted at all or at least not by the second defendant. But for his evidence, I might well have been able to justify doing so but his evidence sows the seed of doubt as to whether there was ever such a punishment ritual at the club. But for him, I would have been able to find that I preferred all the defendants’ witnesses to the claimant and his witnesses wherever there was an evidential dispute between them and on that basis would have found that there was no such ritual as alleged. I cannot make such a finding because I am unable to find as a positive fact that PL was not assaulted and that he was not assaulted by the second defendant. If in truth (as opposed to legal fact) he was assaulted the evidence given by and on behalf of the second defendant to the effect that no such practice had ever existed would be contradicted. This would still not have proved the claimant’s claim to be true but it would have supported his credibility.

[137]I disapplied the primary limitation period and allowed the claimant to proceed with his claim on the basis that a fair trial could still take place. I find that the substantive trial, although fair, has demonstrated that such a long passage of time has so affected the reliability of the memories of some of those giving evidence and the credibility of that evidence that the picture has become so confused and the truth, whatever it may be, so obscured that I am unable to make the positive findings of fact necessary in order for the claimant to succeed. I do not find the claimant’s allegations are consciously dishonest or that nothing untoward ever occurred between players and apprentices at the club all those years ago, but I am unable to find as a fact that the specific events alleged by and allegedly involving the claimant did occur.

[138]Unsatisfactory as it may seem after such a long trial, but having regard to my duty to apply the burden and standard of proof appropriately, I am driven to the conclusion that the claimant has failed to discharge the burden of proof in his claim against the second defendant and it should be dismissed. His claim fails not because I find on the balance of probabilities that there was never any “gloving” at the club or that he was not “gloved” but because he has not proved those allegations and I cannot find on the balance of probabilities that he was “gloved”.

The claim against the first defendant

[139]It follows inevitably that his claim against the club, which only fell to be considered if he succeeded in his claim against the second defendant, also fails and should be dismissed.

DECISION

[140]In all the circumstances I find that the claimant has failed to discharge the burden of proof which rests upon him. I determine both issue (1) and issue (2), as set out in paragraph 28 above, in the negative. The claim accordingly fails and is dismissed.

[141]At the risk of repetition, this decision is not the equivalent of a positive finding that no such assaults took place. Except in so far as I have been able to make some findings of fact about matters which do not bear directly on the happening of the specific assaults alleged by preferring one witness over another in relation to certain matters, I am unable to make such a positive finding in favour of the second defendant. A civil trial is not a search for absolute truth, even when findings of fact are possible, but I am very conscious that the full truth has not been revealed by this trial. I have the uncomfortable feeling that neither the claimant nor the second defendant have given a fully accurate account and that both they and others may have been economical with the truth. There is both a legal and a moral difference between the telling of a lie in answer to a direct allegation and keeping silent when the correct allegation has not been made. Whilst I am unable to find the facts necessary for me to conclude that the claimant has proved that the alleged assaults on him happened or happened in the way he alleges or that “the glove” was used in the manner he alleges, I am equally unable to find positively that they did not and it was not. I confess to a lurking suspicion (partly but not wholly arising from the evidence of both JE and PL) that some form of prank may lie at the root of this case. A prank that may have involved a glove but not the extra features of the hot rubbing gel or digital penetration. A prank which is now, honestly or otherwise, misremembered or exaggerated. A prank that caused no lasting harm and would and could not justify the extensive claim made in this case. A prank in a form that has not been alleged so that the second defendant and others have not been required to admit or deny it but can with a clear conscience deny that which has been alleged. This suspicion amounts to no more than speculation (if that). Suspicion and speculation are no substitutes for evidence and no basis for findings of fact.

Additional remarks (vicarious liability)

[142]It follows that it is, strictly, unnecessary to consider the merits of the claim against the first defendant, which is dependent upon the claimant succeeding in his claim against the second defendant. However, in deference to the detailed and interesting submissions of Mr Fewtrell and Ms Weereratne QC, and in case the case should go any further, I propose to deal fully with the vicarious liability issue, set out as issue (3) in paragraph 28 above.

[143]In the course of my previous judgment (paragraphs 43 to 45) I dealt with the current state of the law on this issue, so far as was necessary for the purposes of deciding the preliminary issue of limitation and on the basis of the authorities cited to me at that time. The leading cases are still Lister v Hesley Hall

[2002] 1 AC 215

(HL) and Various Claimants v Catholic Child Welfare Society and Others

[2012] UKSC 56

[2013] 2 AC 1

. At its most basic the question is whether the court is satisfied that any tortious act of an employee which has been proved by the claimant was “so closely connected with his employment that it would be fair and just to hold the employer vicariously liable”. The burden of proof is on the claimant to prove that the acts of the second defendant, if proved, were so closely connected with his employment that it would be fair and just to hold the club vicariously liable for them. If so, the club will not be held liable for any culpable act or omission on its own part. Rather, it will be held answerable in law for the fault of the employee even though the club itself, as employer, is not (by any official or management staff) at fault. In my previous judgment, I summarised the position as set out in Munkmanon Employer’s Liability,16th edition 2013, paragraph 4.89, citing the decision of the Supreme Court in the Various Claimants. This decision applies to vicarious liability generally and for the avoidance of doubt I find there to be no distinction between vicarious liability for child sexual abuse (specifically in issue in that case) and the vicarious liability for serious intimate physical assault (specifically in issue in the present case). The law is as stated by Lord Phillips at paragraphs [86]-[87]: “Vicarious liability is imposed where a defendant, whose relationship with the abuser put it in a position to use the abuser to carry on its business or to further its own interests, has done so in a manner which has created or significantly enhanced the risk that the victim … would suffer the relevant abuse. The essential closeness of connection between the relationship between the defendant and the tortfeasor and the acts of abuse thus involves a strong causative link … [C]reation of risk is not enough, of itself, to give rise to vicarious liability for abuse but it is always likely to be an important element in the facts that give rise to such liability.”.

[144]Having regard to the fact that the club concedes that the relationship of employer and employee is capable of giving rise to vicarious liability, the dispute between the parties is whether there is a sufficient closeness of connection between(a) that relationship and

(b) the alleged assaults. That dispute arises from the application of the second stage of the test (see paragraph 28 above). Mr Fewtrell’s general submission on behalf of the club is that even if the second defendant did assault the claimant in the manner alleged on either or both occasions, those assaults were not so closely connected with his employment that it would be fair and just to hold the club vicariously liable because such acts could not fairly and properly be regarded as being done by the second defendant whilst acting in the ordinary course of the club’s business or his employment. Mr Fewtrell effectively adopted the phraseology used by Lord Nicholls in Dubai Aluminium v Salaam

[2003] 2 AC 366

, a case decided after Lister but before Various Claimants.

[145]More specifically, Mr Fewtrell’s submission for the club was that the alleged assaults cannot fairly and properly be regarded as being closely connected with the second defendant’s employment because the club did not create or enhance the risk of that kind of behaviour occurring to the claimant or any other apprentice. Reliance was placed on the fact that (as he invited me to find) the club conferred no special authority on the professional players. The apprentices looked up to them as role models but this did not amount to the conferring of a power over them. I would have found as a fact that the second defendant had no contractual authority to train or chastise apprentices, the tasks of the apprentices being done on the instructions of the club (acting by Mr Lacey) not of the professional players, there being no express term to that effect in the second defendant’s contract (2, A251).

[146]Mr Fewtrell submitted that such assaults could not in any way be said to be a means of advancing the club’s interests or business, improperly or at all. The risk of friction or confrontation between different classes of employee is a feature of human interaction but was, he submitted, no more inherent in the club’s business conducted at the Victoria Football Ground than in any other workplace and in that context the second defendant’s conduct, if proved, was an unrelated and independent venture of his own (albeit in company with other employees of the club) and constituted at best a ‘frolic’ or at worst a ‘personal act of vengeance or spite’ for a perceived slight. His concluding argument was that it should be held that, even as the law has now developed, these actions fall outside the admittedly wider range of employer’s liability for employee’s actions.

[147]In Wilson v Exel UK Limited

[2010] CSIH 35

the Scottish Court of Session decided that it is not enough to bring home vicarious liability that the acts were committed in the employer’s premises during the hours of work, the mere opportunity to commit them having been provided by the fact of employment, where the employee’s behaviour was an unrelated and independent venture of his own, that is to say a personal matter, rather than a matter connected to his authorised duties. The club adopts this decision and I am asked to follow it.

[148]I find that, on the evidence before me, the second defendant, even as the player designated as club captain, had no express or implied power or duty or discretion conferred upon him by the club to train, discipline or chastise the apprentices. His duties were to train with the first team, to play in goal for the first team (and for the reserve team if so required) and perhaps to act as president of the youth fan club (‘The Junior Potters’). Although the contrary appeared to be pleaded against the club, I accept the unchallenged evidence of Mr Mills and Mr Lacey on this point. Thus, on the authorities, if the second defendant had been accused of assaulting a youth supporter in the course of performing the latter role the club would probably have been vicariously liable if the assault were to be proved. But that is not the case. At the time of the alleged assaults, the second defendant was neither training, nor playing in goal nor acting as the fan club president. Similarly, if the claimant’s allegations had been made against Mr Lacey, who had been given direct authority over the apprentices and duties in relation to them including disciplinary powers, then the club would probably have been vicariously liable if the allegations were to be proved. Again, that is not the case.

[149]Mr Fewtrell relied on the case of Mohamud v W M MorrisonsSupermarkets PLC

[2014] EWCA Civ 116

, a decision of the Court of Appeal subsequent to the Various Claimants’ case in which a violent unprovoked attack by a petrol station attendant employed by the defendant was held not to give rise to vicarious liability. Treacy LJ said at [46] that: “… [T]he mere fact that the employment provided the opportunity, setting, time and place for the tort to occur is not necessarily sufficient … [S]ome factor or feature going beyond interaction between the employee and the victim is required … such as the granting of authority, the furtherance of an employer’s aims, the inherence of friction or confrontation in the employment and the additional risk of the kind of wrong occurring”.

[150]Each case must be decided on its own facts. Mohamud can of course be distinguished on its facts because the relevant employee did not attack another employee (or trainee) but a member of the public. However, in my judgment it is the connection between the act of the wrongdoer employee and the relationship between the wrongdoer employee and the employer which matters, rather than the status of the alleged victim. The authorities do not appear to me to draw any distinction relevant in law between victims who are fellow employees (whether senior or junior) or customers or persons for whose care the employer was responsible (for example children in care homes) or strangers. Two contrasting reported cases are illustrative. In Wallbank v Wallbank Fox Designs Limited

[2012] EWCA Civ 25

, a junior employee assaulted a factory manager in response to an instruction and the employer of both was held vicariously liable because of the possibility of friction inherent in any workplace where instant instructions and quick reactions are required and the risk of an “over-robust” reaction was held to have been a risk created in the particular factual scenario in that case. On the other hand vicarious liability was not accepted in a case decided on the same occasion by the same court, namely Weddell v Barchester Healthcare Limited

[2012] EWCA Civ 25

, in which one employee called another employee at home and asked him to do a voluntary shift. When the other refused but came to the workplace to assault the maker of the request the employer was held not to be liable.

[151]I confess that I find it hard to discern a relevant distinction between those two contrasting cases other than the speed of reaction and that in the former everything happened on the work premises but in Mohamud (at paragraph [35]) the two appear to have been reconciled by deciding that the cases in which an injured employee assaulted by another employee was successful the wrongdoer had been “given duties involving the clear possibility of confrontation” whereas in those cases in which the injured employee so assaulted failed no such duties had been given to the wrongdoer or such duties as had been given to the wrongdoer were circumscribed. This appears to me to be consistent with the non-inclusive list of factors identified in the Canadian case of Bazley v Curry (1999) 174 DLR (4th Ed) 45 the approach of McLachlin J in which was followed or adopted in Lister. Those factors included, at paragraph 41(3) of her judgment, the fact of the giving of power by the employer to the wrongdoer, the extent of the power conferred on the wrongdoer in relation to the victim and the extent to which the employer’s business afforded the wrongdoer the opportunity to abuse that power.

[152]In the most recent Court of Appeal authority on this issue, Graham v Commercial

[2015] EWCA Civ 47

, the facts were that a person described as a “co-employee” with no apparent distinction in status between the wrongdoer and the victim, had used a cigarette lighter in the vicinity of the victim whose overalls had been sprinkled with a thinning agent and a fire started which caused serious injury. This was described by the trial judge as a “deliberate and clearly reckless” act and by Longmore LJ as “frolicsome but reckless”. The claimant failed at trial and on appeal. The wrongdoer’s conduct was held to be similar to that of the wrongdoer in Wilson. The case fell into the category of cases in which it is inappropriate to impose vicarious liability.

[153]None of the cases seem to me to place the focus on the duties given by the employer to the victim, but Miss Weereratne QC would in effect be driven by the fact (as I find) that no duties were given to the second defendant in relation to the apprentices in general or the claimant in particular to submit that it was the duties given to the apprentices (to the victim) which created or enhanced the risk of confrontation with first team players or of violence, whether frolicsome or vengeful or however else described, being done to them by first team players. She submitted that it would not matter whether the victim was an apprentice, another employee or a supporter. Her general submission was that the status of the victim is irrelevant and that, as she put it “a victim is a victim”. I accept that submission so far as it goes but the context of the assault on the apprentice, the employee or the supporter is important for the satisfaction of the “close connection” test.

[154]More specifically, taking her written opening and her closing oral submissions on behalf of the claimant as a whole Ms Weereratne QC argued that the club is a business, its business being association football and, whether or not there was a formal contractual obligation or requirement upon the professionals to train or chastise apprentices, the first team players and the apprentices nevertheless interacted in a strict hierarchical manner, the apprentices’ duties including the performance of menial duties for the first team players (cleaning boots, putting out clean kit, preparing refreshments) which were imposed on them by the club requiring them to enter the first team players’ dressing room from time to time.

[155]Ms Weereratne QC also relied on the fact that the apprentices were also engaged on occasions in playing competitive minor league matches against other clubs, or practice matches among themselves, when the teams consisted of a mixture of first team players and apprentices, albeit that the question of how often if ever apprentices ever acted as linesmen was in dispute. In so far as it may be necessary, although it seemed to me not to be very important in the context of vicarious liability (it was more important to the facts of the second assault), I find on the evidence of Mr Mills and Mr Lacey that there were occasions, albeit rare, when apprentices might have been asked to act as linesmen and that it would have been Mr Chung rather than Mr Lacey who asked them.

[156]In short, in her submission, far from keeping the first team players and the apprentices apart, the way in which the club operated its business unavoidably brought them together and if indeed the claimant did receive “the glove” from the second defendant firstly for the perceived fault of failing to make the tea hot enough to the satisfaction of some professionals and secondly for the perceived fault of having given an erroneous line call, then there was a sufficiently close connection between those acts and the relationship between the second defendant and the club and (perhaps more obviously in the case of the lukewarm tea rather than the erroneous line call) the carrying on of the business.

[157]Of those arguments or submissions it seemed to me that the one which would have to be accepted for the claimant to succeed is that summarised in paragraph 153 above.

[158]At risk of repetition, the claimant’s case is that in the course of and for the purpose of the club’s business of football they operated a system whereby, as part of their training, the apprentices performed what might be called “menial” duties for the professional players, including cleaning their kit, preparing liquid refreshments and cleaning their dressing room and it was this feature of the case which created or enhanced the risk of a professional assaulting an apprentice. The question is whether this created or enhanced a risk of friction such that professionals would, if disgruntled for whatever reason with the performance of menial or other services for them by apprentices, deliver some form of punishment whether or not strictly contractually authorised to do so.

[159]I am invited to find that the club had created an inherent risk that, given the disparity of status between the professionals and the apprentices and the fact that the apprentices were required to perform menial services for the apprentices and in so doing come into close contact with them, real or perceived transgressions of the performance of those tasks would, in the context of an entirely male sporting workplace environment, lead not to some kind of formal complaint to management but to some form of non-contractual immediate informal sanction or punishment being imposed on apprentices by professionals.

[160]In response, the club relies on the absence of actual knowledge or active encouragement and also on the absence of any supervisory or disciplinary duties or powers expressly contractually granted to the professional footballers in relation to apprentices. I am indeed satisfied on the balance of probabilities that only Mr Lacey, or higher authority above him such as such as Mr Mills or, in a case of sufficient seriousness, the board of directors, had those formal duties or powers. I find that in fact, if Mr Lacey had witnessed what was allegedly going on or had been made aware of what was allegedly going on, he would neither have condoned nor approved but would have stopped any such practice

[161]In my judgment, the acceptance of the claimant’s submission would involve an extension of the boundaries of vicarious liability beyond the parameters of the decided authorities. I consider that if I were to accept it I would be significantly and unjustifiably extending the scope of vicarious liability. Most if not all apprentices or trainees in all workplaces, not just sporting organisations, would be at such a theoretical risk and such a finding would be little short of holding that any employer should be vicariously liable for any assault on any apprentice or trainee by a full-time employee in all circumstances. If not a “leap”, as Mr Fewtrell suggested, it would be a step further than the authorities justify. I am not prepared to make that step on the facts of this case. In the absence of the conferring by the club on the second defendant of any formal duties or powers in relation to the apprentices or proof that the management of the club in the persons of such senior employees as Mr Lacey or Mr Mills actually knew of and condoned the alleged practice, I find that even if it had occurred (as to which the claimant has not discharged the burden of proof) it would have been deliberate and intentional or reckless conduct involving a serious assault outside the course of the second defendant’s employment. In other words, it would have been conduct of a kind analogous to that in the cases described by Longmore LJ in Graham as ones in which it is inappropriate to impose vicarious liability.

[162]In summary, even if I had found that the claimant had proved his case against the second defendant I would have found that he had failed to prove it against the first defendant, that is to say that he had failed to establish his entitlement to hold the club vicariously liable for the second defendant’s tortious conduct.

[163]Accordingly if, contrary to my primary finding that the claim against the second defendant fails, the claimant had proved that he was assaulted by the second defendant (assisted by other professionals) on either or both of the two occasions alleged, the criteria for the imposition of vicarious liability for such assault or assaults would not have been made out on the particular facts of this employment relationship. I would have determined issue (3), as set out in paragraph 28 above, in the negative. The claimant would not have been entitled to judgment jointly and severally against the first defendant (the club) as well as against the second defendant.

CONCLUSION

[164]On my primary findings, the claimant’s claims against both defendants are dismissed.

[165]The appropriate costs order will be one in both defendants’ favour against the claimant for the costs of the claim to be determined by detailed assessment in default of agreement. The parties were not required to attend court for the formal handing down. As I have said (paragraph 10 above) a draft of this judgment was circulated. I also invited the parties to lodge a draft order for the court’s approval before the handing down date. They have helpfully done so, subject only to my approval of interim payments on account of costs and my decision as to time for payment thereof. I signified my approval and have directed payment within 21 days after handing down. The appropriate Order, essentially in terms of the draft version agreed and lodged, will be sealed and sent to the parties.