Blackpool Football Club v DSN 2021 EWCA Civ 1352 - September 2021
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Blackpool Football Club v DSN [2021] EWCA Civ 1352 September 2021
Executive summary who was hoping that Roper would make his
dreams come true. Sadly, what Roper did to
The Court of Appeal has unanimously held that
DSN is the stuff of nightmares.
a football club is not vicariously liable for sexual
abuse committed by a scout because the scout The appeal
was an independent contractor. Following
At a High Court trial in January 2020 Griffiths J
Barclays Bank plc v Various Claimants [2020]
accepted DSN’s allegations and held that BFC
UKSC 13 no vicarious liability can arise for the
was vicariously liable for Roper’s actions. To
acts of a true independent contractor. On the
enable him to reach that conclusion, he also
facts, the complete absence of any control
held that even though proceedings had been
exercisable by the club over the scout was
issued over 30 years out of time, and
fundamental to the outcome.
notwithstanding the deaths of Roper and BFC’s
Football scouts Background
Frank Roper operated a busines selling sporting
most important witness (their former head of
youth development, Jack Chapman) it was just
are independent
and equitable to allow the claim to proceed.
equipment from shops in Stockport and then
Blackpool. He also scouted talented footballers; BFC was granted permission to appeal on four
contractors, not
not only for his own team, Nova Juniors, but out of eight grounds. Their appeal was
also for professional clubs, most notably confined to a review of the issues of limitation
Blackpool (‘BFC’). His ability to identify and refer and vicarious liability.
employees
talent was, without doubt, instrumental in
The Court of Appeal (Macur and Stuart-Smith
saving the club from going out of business on
LJJ, Sir Stephen Richards) heard the appeal on
at least two occasions when players that he
22-23 July. The lengthy, detailed and thorough
had spotted and referred to BFC, David Bardsley
‘Scouts are never off duty’ and Paul Stewart, were sold for substantial
judgment of Stuart-Smith LJ, with whom the
other judges agreed, was handed down on 9
six-figure sums in the 1980s.
September.
(Michael Calvin: ‘The Nowhere Men: However, Frank Roper was also a convicted
The unknown story of football’s true paedophile who preyed on young boys under
Limitation
talent spotters’) the pretext of helping them to follow their Ground 2: the decision that S11 Limitation Act
dreams of a professional career. In June 1987, 1980 should not apply to this action was
during a football tour to New Zealand that he founded on a perverse conclusion that there
had organised and almost exclusively funded, was no real possibility of significant prejudice
Roper sexually assaulted the claimant in this to the defendant from the delay.
case, DSN, then a 13-year-old aspiring footballerGround 4: the judge misdirected himself as to Vicarious liability
the significance of the evidence said to be
Ground 7: the judge was wrong on the facts and
consistent in supporting the claimant’s case on
in law to hold that Frank Roper was at any
vicarious liability.
material time in a relationship with the
The appeal on limitation was dismissed in defendant that was capable of imposing
relatively short order. vicarious liability on the defendant for his torts.
BFC argued with some force that the deaths of Ground 8: the judge was wrong in law and in
Roper and Chapman, the dangers of unreliability fact to hold that there was a sufficient
of memory, the impressionistic nature of much connection between the claimant’s assault and
of the evidence (given by witnesses who would any relationship between Frank Roper and the
have been young boys at the material time) and defendant.
the loss of documentation that could have shed
These grounds of appeal mirror in turn the two
light on the nature of Roper’s relationship with
stages of the accepted test for determining
BFC all combined to make it practically
whether vicarious liability should be imposed,
impossible for the defence to mount legitimate
and the questions can conveniently be
challenges to the evidence which formed the
summarised:
crux of DSN’s case and upon which the judge
based his conclusions. BFC argued, to no avail, Stage one: was the relationship between BFC
that reaching the conclusions on the available and Roper capable of giving rise to vicarious
evidence that he did, without giving sufficient liability?
weight to BFC’s inability to challenge (through
Stage two: was Roper acting in the course of, or
no fault of their own), the judge had fallen into
in a sufficiently close context to, his
the trap of placing the cart before the horse, as
employment when he committed the tortious
famously observed by Auld J in Bryn Alyn.
act?”
However, despite the merit in these
Griffiths J had held that both stages were
submissions, the Court of Appeal refused to
satisfied and that BFC was thus liable. The
overturn the judge’s decision to disapply the
Court of Appeal completely disagreed. Stuart-
limitation period and allow the claim to proceed.
Smith LJ set out in considerable detail the
The judge’s discretion in deciding whether to
numerous aspects of the evidence which
disapply is unfettered. As a matter of principle,
should have led Griffiths J to conclude that no
the Court of Appeal should be very slow to
vicarious liability arose at either stage.
interfere unless the original decision could truly
be regarded as perverse. The original decision His most significant analysis is his stage one
did not satisfy that definition. examination of the relationship between BFCand Roper. Adopting Lady Hale’s authoritative Having decided that the relationship between - BFC had never asked for the trip or organised
judgment in Barclays, he assessed that it was Roper and BFC was not one that gave rise to any aspect, nor was the trip advertised as a
clear on the facts that Roper was an independent vicarious liability, there was no obligation to look BFC tour
contractor: at stage two of the test, but Stuart-Smith LJ did
- BFC could never have afforded the cost of the
so.
• Even though BFC had the benefit of Roper’s trip
scouting, none of the normal elements of a Was the trip during which the abuse occurred
- Roper selected the boys who went on the trip
relationship of employment are present sufficiently closely connected to the activities of a
scout that vicarious liability would have been - Only one or at most two of the boys on the trip
• There was no evidence of any contract of
imposed had stage one been satisfied? were members of the BFC School of
service or for services
Excellence; the rest had no connection at all to
The answer was a very clear and very firm ‘no’.
• There was no evidence of ties imposing BFC
Stuart-Smith LJ set out a lengthy list of facts, all
obligations on either side. For example, Roper
of which should have led the judge to conclude - The team was photographed in Everton and
also referred boys to other clubs: there was no
that stage two was not satisfied either. It was England kits, but never wore BFC kit
obligation for him to refer boys either from his
refreshing to observe that in examining the
own team or elsewhere exclusively to BFC - Ten days of the trip was spent in Thailand,
evidence Stuart-Smith LJ was not afraid to
where Roper sourced counterfeit sports
• Roper had a full-time job running his own conclude that what witnesses believed, and
equipment for resale through his business.
business, he was financially independent of repeatedly set out as their impressions, were
During that time no football was played. That
BFC from whom he received no wage or incorrect when placed against more significant
part of the trip had nothing whatsoever to do
retainer and incontrovertible evidence:
with the football tour but was solely for the
• Fundamentally, BFC had no control • This was Roper’s trip, not BFC’s trip. BFC could benefit of Roper’s business as well as a means
whatsoever over what Roper did or how he never have afforded it, yet Roper paid for and of covering his costs of the trip.
did it. The fact that BFC could theoretically end organised everything. A £500 donation from
• (Para 144) - The idea that a person employed
their association with Roper was nothing to the BFC represented only 2% of the overall cost.
as a scout by a football club (great or small)
point.
• Simply because the BFC manager spoke in would be required single-handedly to promote,
It followed that Roper was clearly an independent support of the trip at a local meeting room organise, run and fund a trip for young boys
contractor. In line with Barclays, the relationship owned by BFC did not justify the judge’s lasting a month, during ten days of which no
between BFC and Roper was not one which could erroneous conclusion that this trip was ‘as football would be played but the employee
give rise to vicarious liability. close to an official trip as makes no difference’. would pursue their own independent
Parents who gave evidence of having that commercial interests seemed to be unlikely in
For the sake of completeness, Stuart-Smith LJ
impression were wrong, not least because on the extreme. To suggest that undertaking such
then considered his conclusions against Lord
the facts: a trip would be part of the ordinary course of
Phillips’ five policy reasons, referred to by Lady
such a scout’s work seemed to be quite unreal.
Hale as providing some assistance in less clear - The BFC manager was speaking as a parent
cases. His conclusion was unchanged. of one of the selected boys, not in an official
BFC capacityComment
This is the first case of many that have been advanced against various professional clubs in which a court has been asked to examine the
relationship between football clubs and scouts. The most important and significant element of the judgment is the finding that Roper was
an independent contractor. He was not an employee or even someone akin to an employee. Following Barclays, BFC could not be
vicariously liable for his actions.
It is the lack of any control over Roper that really marks him out as an independent contractor rather than an employee. Roper went about
his business exactly as he pleased, doing what he wanted in his own way, referring players to various clubs at his sole discretion. BFC
many have benefited, but so did other clubs, depending on what Roper himself decided to do. He was his own boss, and BFC had no say
whatsoever in how he ran any aspect of his life.
This decision has clear and direct ramifications for those ongoing cases in which scouts in football (and, indeed, other sports) were
operating in the same way as Roper; individuals who had jobs or businesses upon which they depended for their livelihoods, but who also
spent time watching junior football, often coaching their own team, and liaising with various professional clubs to give talented young
players a chance of following their dreams. As Michael Calvin observed, scouts are never off duty. They could spot a talented player at any
time, in all sorts of different circumstances. But simply because someone can be defined as a scout does not make them an employee;
and based on this judgment it is far more likely that they are independent contractors for whose actions no vicarious liability can arise. For
those with cases involving similar factual scenarios that are currently being pursued against sporting clubs and associations, this decision
is a very significant precedent.
Alastair Gillespie
Partner & Head of Abuse In light of the Court of Appeal’s adoption of the reasoning in Barclays, which followed on the heels of several other Supreme Court
alastair.gillespie@h-f.co.uk decisions on vicarious liability, the chances of the Supreme Court wishing to hear any appeal from this decision are remote in the extreme.
Finally, the decision not to interfere with the judge’s ruling on limitation is frustrating but not surprising. The bar that BFC had to clear was
extremely high. Could the judge’s original decision really be described as perverse? The Court of Appeal thought not. And the court was
correct in its view that as a matter of principle appellate courts must be extremely slow to interfere with judgments based upon an
unfettered discretion. What their review of the judgment did illustrate, though, was the difficulties that first instance judges face in trying to
make sure that they do not put the proverbial cart before the horse. It is not simply a question of doing one’s best to reach conclusions on
the available evidence. That is not sufficient for the purposes of assessing whether discretion should be granted to disapply the limitation
period. Judges must look beyond that and consider the extent to which the situation would be different if witnesses and documents that
were now unavailable had been in play. These case-specific arguments will continue to be legitimate in appropriate cases and this
decision should not be regarded as setting any precedent on questions of limitation.Disclaimer & Copyright Notice The contents of this document are considered accurate at the time of delivery. The information provided does not constitute specific legal advice. You should always consult a suitably qualified solicitor about any individual legal matter. Horwich Farrelly Limited accepts no liability for errors or omissions in this document. All rights reserved. This material provided is for personal use only. No part may be distributed to any other party without the prior written permission of Horwich Farrelly Limited or the copyright holder. No part may be reproduced, stored in a retrieval system or transmitted in any form or by any means electronic, mechanical photocopying, microfilming, recording, scanning or otherwise for commercial purposes without the written permission of Horwich Farrelly or the copyright holder.
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