The story concerning the pressure exerted by Chelsea Football Club in asking Gary Johnson to sign a confidentiality agreement before they would pay him £50,000 in compensation for abuse which he suffered at the hands of the deceased Eddie Heath, his former coach, has sparked controversy both in the worlds of football and law.
I write this blog having just debated the rights and wrongs of confidentiality or “gagging” agreements on BBC Breakfast this morning. The view clearly expressed both by lawyers and survivors alike is that confidentiality agreements are wrong and should be outlawed in child abuse cases. They are, however, quite legal.
So, are gagging clauses common? In the world of commerce they are common place where highly sensitive negotiations are taking place. Where the brand in question would be damaged if disclosure took place, they are understandable where, for example commercial secrets being revealed could damage jobs, and cause harm to intellectual property.
Child Abuse cases are different, and a good example of a type of situation where the wisdom of commerce does not cross the legal divide, and practises are diametrically opposed.
In the Chelsea case it is reported that the gagging clause was requested by the Chelsea Board, who suggested that it was actually proposed by their public liability insurers. It was thus proposed by their lawyer, who, I would surmise, argued that:-
- Eddie Heath was dead and therefore Gary could not prove that the abuse took place – an insult and anger causing for any victim of abuse.
- They could take advantage of a time delay argument, should he take the case to Court.
- They would pay the sum of £50,000 if Gary kept quiet.
- There was no police investigation or corroborative evidence to back up his story, so he would have difficulties proving his case.
All of the above arguments are typical in the adversarial system we currently deal with at Simpson Millar. Some argue that conflict and controversy are inappropriate in the area of child abuse.
So why are confidentiality agreements so wrong in abuse cases?
- Often in childhood, the abuser silenced the abusee by suggesting that they would not be believed.
- The abuser often uses threats of violence to ensure confidentiality is maintained.
- When the abuse is disclosed many years later the victim should not be silenced again because this is a replication of earlier abuse and can damage the psychology of the victim.
On Tuesday and Wednesday this week, I attended the IICSA inquiry in London to discuss problems in civil litigation. One of the issues was the inappropriateness of confidentiality agreements in these types of case.
One of the insurers present, the Ecclesiastical proudly referred to their “Model Litigation Policy”, which states clearly that such agreements will only be used in cases where the abusee requests or consents to it.
It was suggested that their policy be replicated across all insurers and become an accepted way of behaving in such cases. It is thus ironical that Chelsea say that their insurers suggested a gagging clause.
There is not space in this blog to discuss the abolition of time limits in child abuse cases, but it is going to become the law in Scotland in the foreseeable future.
If you have been affected in any way by abuse and you would like legal advice on any aspect, then you can contact one of our female or male specialist solicitors in confidence by calling 0800 260 5002 or by emailing us at email@example.com