James Counsell QC writes PI case analysis for LexisNexis PSL

“Football club vicariously liable for historical sex abuse but a girls’ boarding school is not.” LexisNexis PSL invited James Counsell QC to analyse his recent high profile sexual abuse cases.

Following on from the judgment in BXB v Watch Tower (handed down on 30 January) come two more historical abuse judgments in claims brought against institutions—one against Blackpool Football Club and the other against a girls’ boarding school. Both claims raised very similar issues and were tried by the same Judge (Griffiths J) but they ended with diametrically opposite results. James Counsell QC acted for the claimants in all three cases and examined their implications for other cases in the pipeline, for Lexis Nexis PSL.

Excerpt from article

DSN v Blackpool Football Club Ltd [2020] EWHC 595 (QB), [2020] All ER (D) 92 (Mar)

EXE v Governors of the Royal Naval School [2020] EWHC 596 (QB), [2020] All ER (D) 100 (Mar)

The practical implications

In both cases, the court was dealing with limitation (the claim was 22 years out of time in DSN and 20 years in EXE), vicarious liability, causation and quantum. The contrasting results of these two cases is a useful reminder that, however complex and fast-moving the law is in this area, ultimately, a claim often comes down to the credibility of the witnesses and, in particular, of the claimant.

In DSN the judge at para [49] entirely accepted the claimant’s account as being ‘cogent, circumstantial and convincing’, supported, as it was, by a number of witnesses, some of whom had also been abused. Accordingly he was satisfied that, even if the case had been heard within time, and other witnesses, then alive, had been available, that other evidence would not have persuaded him to a different conclusion. He therefore found at para [60] that there was ‘no real risk of substantial prejudice’ and disapplied the limitation period.

The result was quite the opposite in EXE, where the same judge was not able to accept the claimant’s evidence, not because she was telling untruths but because her memory could not be said to be reliable enough when contrasted with other evidence both from contemporary sources and from the witnesses, including her father and sister, who gave evidence at the trial. Accordingly, the judge was not able to disapply the limitation period in that case.

Read the full analysis

This excerpt is part of an article published by Lexis®PSL on 23/03/2020. Members can read the full article here.

More information

James Counsell QC specialises in acting for victims of historical sexual abuse and is a leading authority on this subject. James is currently instructed in cases against football clubs and other sporting bodies, religious and educational organisations and the Scout Association.

To instruct James or find out more, please contact Graham Woods or Chris Rowe on +44 (0)20 7353 6381.

External Publications 30 Mar, 2020