James Counsell QC secures costs against Blackpool FC in sexual abuse claim
In a judgment handed down on 20 March 2020, James Counsell QC obtained an indemnity costs order against Blackpool Football Club after the Judge, Griffiths J ,was critical of the Club for the way it refused even to enter into settlement discussions for its liability for sexual abuse offences by Frank Roper.
The Court had earlier given judgment on liability and quantum on 13 March 2020 (read the earlier judgment here) in favour of the Claimant, known as DSN, in a claim for damages arising out of sexual abuse which he had suffered at the hands of Frank Roper, who worked for the club in the 1980s as a scout. In that earlier judgment, Griffiths J had criticised the club for failing to accept that the abuse had occurred, thereby causing additional distress, despite not having any evidence to challenge both the Claimant’s account and the evidence of other witnesses who had also been abused by Roper when they were young boys.
In his costs judgment, Griffiths J ordered the Defendant to pay indemnity costs not just from the date after the Claimant had bettered his own Part 36 offer but also from an early stage of the litigation because the club, through its solicitors, had repeatedly ignored attempts by the Claimant’s solicitors to enter into negotiations, merely stating that the club was confident in the strength of its own case.
The Judge, Griffiths J said (para 28);
“The reasons given for refusing to engage in mediation were inadequate. They were, simply, and repeatedly, that the Defendant “continues to believe that it has a strong defence”. No defence, however strong, by itself justifies a failure to engage in any kind of alternative dispute resolution.
Experience has shown that disputes may often be resolved in a way satisfactory to all parties, including parties who find themselves able to resolve claims against them which they consider not to be well founded. Settlement allows solutions which are potentially limitless in their ingenuity and flexibility, and they do not necessarily require any admission of liability, or even a payment of money. Even if they do involve payment of money, the amount may compare favourably (if the settlement is timely) with the irrecoverable costs, in money terms alone, of an action that has been successfully fought. The costs of an action will not always be limited to financial costs, however. A trial is likely to require a significant expenditure of time, including management time, and may take a heavy toll on witnesses even for successful parties which a settlement could spare them.
As to admission of liability, a settlement can include admissions or statements which fall short of accepting legal liability, which may still be of value to the party bringing a claim. In the present case, for example, I have already in my previous judgment commented (at  EWHC 595 (QB) paras 188-189) on the opportunity missed by the Defendant at the very least to acknowledge and accept that the Claimant was sexually abused by Roper (it having no positive case to the contrary, and no evidence to support a case to the contrary). The passage in the Claimant’s witness statement which I quoted in paragraph 188 of my previous judgment shows that the Claimant was not primarily motivated by money (and the low figure of his final Part 36 offer confirmed that). He “expected the club to want to engage and to understand what had happened”. The club could have engaged with him (having received his statement, which was dated as long ago as 28 May 2019) without prejudice to what it presented at trial as its strongest defences: namely, that the claim was outside the limitation period and that the club was not vicariously liable for Roper’s sexual abuse of the Claimant, even if that abuse were to be admitted. It did not engage at all.”
Griffiths J also ordered the club to make a payment on account of costs of £200,000. Read the full Judgment here.
A stated previously, Claimant lawyers see this case as likely to have implications on the numerous cases currently making their way through the court process.
Barristers: James Counsell QC