TVZ & Ors v Manchester City Football Club Ltd

An open compensation scheme is not protected by without prejudice privilege merely because it forms part of an alternative dispute resolution process. Publicity may also prevent privilege arising or cause it to be lost. A trial judge must decide factual issues independently and should not rely on findings made by another investigation, although the underlying evidence may be admissible. Documents supplied to a solicitor acting as the client’s agent may be within the client’s control for disclosure purposes. Confidentiality and data-protection considerations do not displace disclosure where relevant, but appropriate redactions may protect victims’ identities. Original documents do not become privileged merely because they are later supplied during without prejudice negotiations.

Eight claimants brought claims against a football club arising from sexual abuse perpetrated by Barry Bennell while coaching youth football teams. The proceedings raised issues including vicarious liability, limitation, causation and quantum. The applications concerned the admissibility of the club’s survivors’ compensation scheme, the conclusions of the Mulcahy Review and Sheldon Report, disclosure of documents obtained during those processes, and statements concerning professional footballers’ earnings and pensions.

The central questions were whether the scheme and its documents were protected by without prejudice privilege, whether investigative conclusions could be relied upon at trial, whether documents held by the scheme administrator were within the defendant’s control, and whether underlying documents supplied during negotiations were privileged.

1. The application to withhold the Manchester City Survivors’ Scheme, its terms and its FAQs from the trial judge, and to remove references to it from witness statements, was refused. The scheme and the accompanying communications were open in nature. The scheme rules expressly identified particular offers as without prejudice save as to costs, which supported the conclusion that the scheme itself was not without prejudice. The defendant had also publicised the scheme extensively. Even if privilege had arisen, it had been lost or waived through that publicity.

2. The court gave a preliminary view that the findings of fact and conclusions in the Mulcahy Review and Sheldon Report could not be relied upon as evidence of the facts to be decided at trial. Under Rogers v Hoyle [2014] EWCA Civ 257; [2015] QB 265, consistently with Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1, the trial judge must decide the case on the evidence received in that trial and should not defer to findings made by another decision-maker. The evidence gathered by the investigations remained capable of admission as hearsay.

3. The reports did not need to be redacted before being placed before the trial judge. Their evidential narrative and conclusions were intertwined, and the trial judge could be trusted to distinguish admissible evidence from inadmissible findings. The final decision on admissibility was left to the trial judge.

4. The defendant was ordered to provide a witness statement within 14 days confirming that further checks had been made with Pinsent Masons and that all relevant contemporaneous documents within the defendant’s or Pinsent Masons’ possession or control had been disclosed, subject to agreed redactions and one witness’s refusal to release documents.

5. Documents supplied by scheme claimants to Pinsent Masons were within the defendant’s control for the purposes of CPR 31.8. Pinsent Masons acted as the defendant’s professional agents, and the defendant had a right to obtain or inspect documents held by them. GDPR restrictions did not determine the separate question of control for civil disclosure purposes, and the Data Protection Act 2018 permitted disclosure required by a rule of law or court order.

6. Relevant documents supplied by scheme claimants were disclosable, subject to redaction sufficient to protect their identities. Confidentiality expectations did not override the administration of justice. Once an individual applied to the scheme, communications concerning settlement were protected by without prejudice privilege, but pre-existing contemporaneous documents supplied in support of those negotiations did not thereby become privileged.

7. The question whether statements concerning footballers’ pay and pensions were factual evidence or expert evidence was left for determination by the trial judge at the pre-trial review. The judge indicated that, if required to decide the matter, she would not have prevented reliance on the statements in their present form, while leaving any inappropriate expert comment to be disregarded.

Not an appeal. The judgment determined interlocutory applications in pending High Court proceedings and left certain issues for determination by the trial judge at the pre-trial review or trial.