Tod v Swim Wales

Until 1994, the Claimant was a lieutenant with the Staffordshire Regiment of Her Majesty’s Armed Forces, at the Catterick and Lichfield bases. His responsibilities at the time included commanding a platoon of young recruits aged 16 to 17 years.

Following a trial held on 1 and 2 November 1993, the Claimant was convicted by General Court Martial of the following offences against a number of the said recruits:

The Claimant was originally sentenced to 15 months’ imprisonment, later reduced on appeal to 9 months. After serving half his sentence, the Claimant was dismissed with disgrace from Her Majesty’s Service.

The Claimant sought to rebuild his life after serving his sentence, trying, as he put it, to “forget what he did”. He committed no further offences and went on to develop a successful business. He also married and had three children.

In 2014, the Claimant and his family returned to the UK after living abroad in Zambia and South Africa for eight years. They settled in South Wales. The Claimant’s three boys are keen sportsmen, the older two showing a particular flair for water polo. The Claimant had himself played and coached water polo whilst in the Army between 1987 and 1992.

Upon his return to the UK, the Claimant looked for a water polo club nearby and chose to join the Club. In October 2014, the Claimant’s boys began taking part in water polo sessions organised by the Club. At that time, junior water polo at the Club was largely organised and coached by a Mr Brian Jones.

In November 2014, Mr Jones, who was struggling to dedicate a sufficient amount of time to the Club and coaching, made enquiries of various people at the Club, including the Claimant, as to whether they wished to attend a Level 1 water polo coaching course (which the Club would fund); and whether they might volunteer to help coach water polo at the Club. The Claimant expressed interest in both.

The Claimant was informed that he would need to undergo a DBS check. Mr Swift provided the Claimant with a DBS form to complete, which he offered to ‘process … and send off to Swim Wales’ for the Claimant. This form was a pro-forma produced by Swim Wales and which all Member Clubs were required to use in the interests of consistency.

On 26 November 2014, the Claimant returned the completed DBS application to the Club:

Mr Swift was not told anything further about the offences at the time. The Claimant did, however, speak to Mr Wicks, who, as the Club’s Welfare Officer, wanted to ascertain the nature of the convictions. Mr Wicks had various chats with the Claimant at the time. He recalls mention of “bullying” but no further detail being provided. His evidence to the subsequent investigation was that the Claimant had told him:

Mr Wicks does not recall using the phrase “take the rap”. However, his understanding was that the Claimant had taken responsibility for bullying by others. He had heard of bullying in the Army in the press and had formed the view, based on what the Claimant had told him, that the Claimant, as commanding officer, had taken responsibility for such conduct. I find, based on this evidence, which the Claimant did not seek to disavow, that the Claimant did give Mr Wicks the impression at the time that the bullying comprised conduct by others for which he had had to take the blame, and that he did not provide any details of the conduct in question.

The Club emailed the Claimant’s DBS application to Swim Wales for processing. Swim Wales undertook the processing of such applications in order to save Member Clubs’ time and as part of its role to support such clubs. It acted as a middleman between the Member Clubs and the DBS. Whilst the pro-forma bears Swim Wales’ name, this was simply due to the fact that it had an account with the Wales Council for Voluntary Action, which had historically processed DBS applications via its “Sports Safe” project, for the purposes of processing applications on behalf of Member Clubs. This is the same for other NGBs in sport in Wales.

On 27 November 2014, Mr Swift informed the Claimant:

It will be noted that this reference to the need to become a ‘member’ of Swim Wales is contrary to Rule 10 of the Rules, which provides that Individual Members are only members of Member Clubs. There are other such references in the documentation. I shall return below to whether these references are apt to create a relationship of membership between Swim Wales and Individual Members.

On 16 December 2014, the DBS Certificate was returned by the DBS. As mentioned above, this DBS certificate disclosed no convictions whatsoever. The DBS certificate states (in the top right-hand corner) ‘Name of Employer: SWIM WALES’. This merely reflects the fact that Swim Wales processed the application through its account with the WCVB/DBS on behalf of the Club. This is the same for all applications that Swim Wales processes on behalf of its Member Clubs. It is not an indication that the Claimant was or was about to become an employee of Swim Wales. The Claimant’s status was, at all times, that of a volunteer and not that of an employee.

The Claimant was also required to complete a registration form for Swim Wales/British Swimming. This form asks for identity details, gender, ethnicity, whether Welsh is spoken, and the country which is to be represented in international events. The form also requests the applicant to tick the category of membership being sought – these range from category 1 through to category 9 - and also whether individual membership (the default position being that the applicant is a member of an affiliated club) is being sought. The Claimant did not indicate which category of membership he was seeking nor did he tick the box for individual membership. The Claimant also did not enter the code of the Club of which he was a member or the date of joining. The declaration of consent at the foot of the form is:

There is a similar declaration of consent in respect of members under the age of 18 years to be signed by the parent/guardian.

This form was completed on 12 February 2015. However, the form does not appear to have been processed by Swim Wales until April 2015, as the joining date recorded on Swim Wales’ system is 19 April 2015. The Claimant contended in evidence that he had filled in a form before this one and had been asked to fill one out again. I reject that evidence. The Claimant had not previously mentioned in any of his statements that he had filled in another registration form before this one, or that having done so, he had been asked to fill out another. Neither Mr Swift nor Mr Wicks mention an earlier form. Furthermore, there is nothing in the contemporaneous documentation to suggest that there was such a form. Given the nature of the dispute, whereby the Claimant is seeking to establish that there was a contractual relationship between him and Swim Wales, it seems to me to be highly unlikely that the Claimant would have omitted to mention another document which might be relevant to establishing the date on which that relationship commenced. The more likely explanation for the Claimant’s contention is the recognition that he was carrying out coaching activity from about the end of 2014/January 2015, which was several weeks before his registration with Swim Wales, and that there was, therefore, a ‘gap’ which needed to be plugged. The significance of this will become apparent below.

The Claimant also paid a ‘membership fee’ to the Club. The Club determines the total fee to be paid by each Individual Member and requests payment of that sum from its members.

From the fee that it receives from each Individual Member, the Club pays a sum to Swim Wales and keeps the rest of the fees paid. The sum paid by Member Clubs enables Swim Wales to obtain insurance on behalf of the relevant Member Clubs and maintain a register of Individual Members eligible to enter competitions or other events. Member Clubs are entitled to charge other membership fees to Individual Members that are retained by those Member Clubs, and which are not paid to Swim Wales.

Between the end of 2014 (when the DBS Certificate was returned) and July 2015, the Claimant was involved in various aquatic and water polo events. The Claimant contends that these were Swim Wales’ events and that he was participating in them as a volunteer for Swim Wales. Swim Wales contends these were not its events, but Club or other events, and that the Claimant’s participation in them was as a member of the Club.

The types of events in question include the following:

Swim Wales contends that it has only seven annual swimming events. An example of this is the annual Summer Open Meet, which in 2017 hosted 1000 swimmers from 160 clubs across England, Wales and Scotland at Wales National Pool in Swansea. The Claimant is not formally recorded as having attended any of these annual events in either a personal capacity or as a member of the Club. Swim Wales further contends that, insofar as it provides any administrative, financial or other support for events organised by Member Clubs, it is doing no more than fulfilling its obligations to such clubs in accordance with its Articles of Association and the Rules.

The position as regards the RTCs is relatively straightforward: These are training sessions organised by the Amateur Swimming Association (“ASA”). Mr Ward, who gave evidence for the Claimant, accepted that the RTCs were coordinated by the ASA. Individuals who participated in the RTCs were volunteers from clubs across the country. This is consistent with the evidence of Mrs Cameron on this issue. Accordingly, I find that the RTCs were not Swim Wales’ events.

The position of the Clinics is not quite so straightforward. The Claimant says that he was asked by Mr Ward in March 2015 to assist in training the youth squad at the clinics “run by Swim Wales once a month in Cardiff”. He also says that he was invited to start attending coaches’ meetings prior to the clinics by Mr John Evans, who is the Swim Wales water polo coordinator, and that he attended such meetings on a monthly basis between April and July 2015. Mr Ward, in his evidence, maintained that the Clinics were Swim Wales’ events. He relied, in particular, on the fact that all the participants were aware that they were attending under the Rules of Swim Wales, that they had to be Swim Wales “members” and the Clinics were coordinated by Mr Evans, the Swim Wales water polo coordinator.

Mrs Cameron’s evidence was that the Clinics are not run by Swim Wales but are in fact run by volunteers from the Club and other water polo clubs in Wales.

I do not doubt Mr Ward’s sincerity in expressing his belief that these Clinics were Swim Wales’ events. However, in my judgement these Clinics were organised by the Clubs and other clubs albeit with assistance and support provided by Swim Wales. The factors which lead me to that conclusion are as follows:

The U19 event had more significant Swim Wales support. Mr Evans assisted in the coordination of the necessary meetings and Ms Leisa Forest, a Swim Wales Events Manager, also provided assistance. Not only that, but the pool was paid for by Swim Wales. Mrs Cameron explains that this was because the pool hirer would not accept a booking without an official purchase order, which the Clubs were not in a position to provide, and Swim Wales decided to step in. The casual onlooker could, in the circumstances, be forgiven for thinking that this was a Swim Wales event. However, on balance, my view is that it was not. I say that for the following reasons:

Accordingly, I find that the Claimant was not involved in Swim Wales’ events in the period up to July 2015.

It is not in dispute that in July 2015, a parent of a child member at the Club came across online press articles relating to the Claimant’s Court Martial convictions and reported this to the Club.Those press articles alleged that the Claimant had:

This was the first time that the Club was aware that the Claimant’s declared convictions had involved the mistreatment by him of young recruits “not long out of school”, and had involved conduct that might be described as sexual in nature.

Ms Knight, the Club’s Welfare Officer reported the parent’s concern to Mrs Cameron, Swim Wales’s Safeguarding Officer.

In accordance with the options available under Swim Wales’ Safeguarding Protocol in place at the time, Swim Wales considered it appropriate to instigate a fact-finding investigation by an independent third party. The person appointed, on 3 August 2015, was Mr Keith Oddy, an Independent Child Protection Officer and Consultant to various NGBs.

The investigation had two purposes:

In addition, on 23 and 24 July 2015, Mr James, then CEO of Swim Wales, directed the Club (pursuant to powers under Rule 53 of the Rules) to suspend the Claimant pending the outcome of the investigation. Mr Knight, Chairman of the Club, suspended the Claimant on 24 July 2015 “from all coaching and organising duties in respect of city of Newport Swimming and Water Polo Club with immediate effect and until further notice”. The Claimant was expressly told that he was not permitted to discuss the matter with anyone from the Club.

The Claimant contacted Mrs Cameron to raise his concern that “keeping quiet” would be prejudicial to him and would lead to speculation and gossip. Mrs Cameron stated that it was in his interests not to say anything about the matter at this stage.

There is a dispute as to what happened next during this discussion. The Claimant asserts that he asked what he should say if he was asked why he was no longer coaching, and that Mrs Cameron’s response was that he should tell people he was ill. The Claimant thought that this was lying and was not prepared to do this. Mrs Cameron’s evidence was that she did not say anything about telling people he was ill and did not ask him to lie; she merely suggested that his wife might take his children to the Club instead of him.

The dispute as to whether the Claimant was asked to say that he was ill is not one that is necessary for me to resolve given the nature of the issues I have to consider. What is clear is that the Claimant was given a clear instruction by the Club and reiterated orally by Mrs Cameron, that he should not discuss the matter with anyone else at the Club.

The Claimant decided not to comply that instruction. A few hours after the email confirming his suspension, the Claimant wrote a lengthy letter to the parents of child members of the Club giving his account of the reasons for his suspension. I shall come back to the details of what he said in that letter below. For present purposes, I find that the Claimant defied an express instruction not to discuss the matter with anyone from the Club.

On 30 July 2015, Mr Knight confirmed the suspension from “all club activities”. The Claimant responded by querying the terms of the suspension and suggesting that he was being discriminated against. Mr Knight responded to the Claimant by rejecting the claim of discrimination as being “completely unfounded” and reiterated that he was:

“suspended from all activity associated with the Club. So, no you cannot be involved in any water polo activity what so ever (sic). You cannot play, you cannot train, you cannot coach and you cannot referee.”

On the same day, 30 July 2017, Mr James wrote to the Claimant on behalf of Swim Wales to confirm its decision to “suspend your membership with Swim Wales and further confirm that you are not permitted to be involved in any club activities at [the Club] pending an investigation.”

Notwithstanding the clear terms of that suspension, the Claimant did participate in some Club activities:

I find that these activities were in breach of the terms of the suspension. The Claimant had, at that stage, little respect for the suspension and considered that he would only comply to the extent that he considered the terms of the suspension to be fair. He was not therefore willing to accept Swim Wales’ assessment of the situation. Whilst Mr Knight may have been responsible to some extent for encouraging the Claimant’s participation in a limited capacity in defiance of the suspension, it is clear that the Claimant, certainly at that stage, placed his Club responsibilities ahead of any instruction from Swim Wales. I also find that the Claimant acted as he did in the knowledge that there was no authorisation for his activities from Swim Wales. Mr Knight’s evidence was clear in that he did not give or seek to give the Claimant the impression that he had Swim Wales’ blessing to “stretch the boundaries” of the suspension. I accept that evidence (which was given on behalf of the Claimant) and reject that of the Claimant suggesting otherwise. It is noteworthy that whatever Mr Knight might have said to him, the Claimant was told by Mr Evans on 10 November 2015 (i.e. even before any of the activity above) that, “Julian [Knight] at Newport has been informed that Swim Wales have not been able to lift your suspension including for admin purposes of the Club. I would have thought he would have told you.… I spoke to Zita [Cameron] and have been given instructions to that effect. Until your suspension is lifted I cannot invite you to meetings or involve you in Swim Wales and club issues.” I was not taken to any communications from Swim Wales which suggested that the restrictions had been relaxed by Swim Wales at any point.

Mr Oddy’s fact-finding investigation took far longer than anyone had expected. The delay is one of the matters which the Claimant complains about. It goes to the alleged breaches of contract and it is not necessary for me to determine whether there was any default.

It is relevant to note that at the outset of Mr Oddy’s investigation the Claimant was requested to provide ‘a full written account from [the Claimant] of the circumstances surrounding your court martial and the reasons for [the Claimant’s] confinement’ and that Swim Wales needed to obtain ‘conviction details direct from the Army’. Notwithstanding these requests, which were reiterated by Mr Oddy, the Claimant did not provide any significant information or explanation to Swim Wales about the factual background to the offences of which he had been convicted.

The Claimant did submit a subject access request to the MOD for his service record and discharge papers.

On 29 August 2015, the Claimant emailed Mrs Cameron and Mr Oddy to confirm that he had ‘received the papers from the Army, including confirmation of the Courts Martial’. Attached to that email were some of the documents that had been sent to him by the Army pursuant to his subject access request. None of these provided any details about the offences.

On 1 June 2016, Mr Oddy received a letter from the Service Police Crime Bureau, which finally set out the details that Mr Oddy had been seeking. That letter explained as follows:

The details of these charges certainly paint a different picture from that painted by the Claimant in his initial discussions with Mr Wicks and Mr Swift in November 2014 and (as will become apparent below) in what he said in his letter to parents of 24 July 2015.

It is clear that the Claimant sought in those discussions and in the letter to parents to blame the bullying conduct on others, whereas it was the Claimant’s own conduct that led to his convictions. Moreover, the sexual nature of some of the conduct was such that it would have been likely to cause Mr Wicks to take a different approach to the Claimant’s application. Indeed, he accepted during cross-examination that had he known about these matters they would have caused him concern and that he would have passed it ‘up the ranks’. He said that this was material that he would have expected to be included in the DBS check and the fact that the DBS was clean gave him confidence that he could allow the Claimant to go poolside.

The Claimant’s letter to the parents included the following passages:

“In 1992, some 23 years ago, I was a serving officer in the British Army, training recruits at one of the Army’s training Devils. Allegations were laid against my Training team and myself listened to ill-treatment of recruits…

At the court martial the Prosecuting Officer opened his statements by informing the court that at no time has any allegation be made against me that anything I pleaded guilty to was done for personal sexual gratification or for personal satisfaction. I did plead guilty to several allegations, which included scandalous conduct unbecoming an officer in that my dog performed imitated sexual intercourse with a pillow and ill-treatment of soldiers in that I hit one soldier over the head with a branch.

These were true, my neutered dog, Chester, did like pillows and when the recruits through pillows back and forth between themselves Chester will try and catch it. When he did, despite being the, he will take his revenge on the pillow. One recruit captured this on camera and pinned the resultant picture to his noticeboard. I also admit that I did hit a recruit over the head with a tree branch but only on his helmet, which protected his head completely.…

One of the Ring Leaders of Recruits was within the training platoon which made allegations, and was discharged following barricading himself into barrack block in is to be released from military service, was Adam Fury. Fury went on to murder Joanne Tergembo …

I find the fact that a partially inaccurate newspaper report which has been in the public domain since 1993 should impact on myself as a coach now 2015, 23 years later, quite astounding following all the previous checks Swim Wales, the police’s CRB and DBS checks and my own voluntary admission and explanation of my past to the Club and by default Swim Wales, prior to my accepting the position of volunteer coach with the Club.”

The Claimant maintains that what he said to the parents was based on his recollection; that he found it difficult even now to remember the details; that he was afraid that the press reports from the time had shaped his view; and that his memory had in fact become distorted over time. In other words, what he said to the parents was not a deliberate distortion of the facts but based on his genuine, albeit imperfect, recollection at the time.

I reject the Claimant’s explanation for the difference between the true nature of the facts giving rise to his conviction and the portrayal of those facts in the letter:

For these reasons, I consider it inherently unlikely that the Claimant had forgotten or become confused about the details of his convictions. I find that the Claimant did recollect the allegations but sought intentionally to downplay the nature of his offences both in November 2014 when informing Mr Wicks about them and in his letter to parents in July 2015.

Mr Oddy produced the Oddy Report (dated 11 June 2016) within a few days of receiving the letter from the Service Police Crime Bureau. Mr Oddy drew several adverse conclusions as to the Claimant’s conduct and his attitude to the safeguarding process. He recommended:

Swim Wales commissioned a risk assessment based on the information provided by Mr Oddy. On 27 June 2016, it engaged Mr Craig Barlow, Independent Forensic Social Worker and Criminologist, to provide such a risk assessment. Mr. Barlow, in a report dated 30 June 2016, concluded

Swim Wales accepted the recommendations in the Oddy Report. The Claimant was informed of that decision by way of a letter dated 22 July 2016 from Mr Feeney. The Claimant sought to appeal against Swim Wales’ decision (even though the Rules did not provide for an appeal) and to have the matter referred to Sports Resolution UK. Swim Wales did not refer the matter.

The principles to be applied in deciding whether or not a contract should be implied are well-established. They were summarised recently by the Court of Appeal in Heis & others v MF Global UK Services Ltd (in administration) [2016] EWCA Civ 569, in which Vos LJ said as follows:

The following points may be distilled from that helpful summary:

‘Necessity’, for these purposes, is more than mere ‘consistency with’ a contractual relationship. In The Aramis [1989] 1 Lloyds LR 213, Bingham LJ stated (at [224 - 225], emphasis added):

Where an arrangement is consistent with a contractual relationship but is, in reality, merely convenient administrative machinery governing how the parties interact with one another, it will not be sufficient to demonstrate the requisite necessity: See West Bromwich Albion v El-Safty [2006] EWCA Civ, where (at [43]) Rix LJ said as follows (emphasis added):

“42 The question therefore arises as to whether a contract between Mr El-Safty and WBA itself can be implied. The test for such an implication, as it became common ground during the hearing of the appeal, is necessity: see Baird Textile Holdings Ltd v. Marks & Spencer plc [2001] EWCA Civ 274, [2002] 1 All ER (Comm) 737 , especially at para 62.

43 The weight of an argument for such an implication rests, in reality, upon the background of other contracts involving other WBA players in respect of which invoices have been submitted to WBA. Even if one ignores the fact, however, that this was not the way in which the contract relied upon by WBA in this case was pleaded, it seems to me that this background does not carry the argument into the required realms of necessity. There is no evidence as to how or why this way of dealing, of invoicing WBA, became the norm. Mrs El-Safty was not called as a witness, but since the contract was not formally pleaded as one arising out of a course of dealing, nor even as having been made through her, nothing in particular turns on Mr El-Safty’s failure to call his wife. All that can be said with confidence is that, in circumstances where it appears to have been recognised that the paying funds would primarily be forthcoming from BUPA, this became a convenient method of achieving payment. Mr Stuart Smith is entitled to say that this method is consistent with the primary obligee being WBA, as insured. But something more than consistency is required, namely necessity: and it seems to me to be unnecessary to imply a contract between Mr El-Safty and WBA when it is sufficient to imply a contract between him and his patient, Mr Appleton, and to say that the invoicing just represents a machinery of payment in circumstances where Mr Appleton was a member of the BUPA scheme entered into by WBA and his relevant medical expenses were to be paid for him by WBA. Therefore, even the fact that on an occasion or occasions in the past, WBA paid where BUPA did not, or, before the change in 1998, paid first and recovered payment from BUPA, does not take the matter further than that.

44 Even if it were necessary to imply any contract between Mr El-Safty and WBA, no contract should be implied which went further than such necessity required…”

There are no special principles applicable in determining whether a contract is to be implied in the sporting context. The principles summarised in paragraph 80 above also apply. The leading case in the sporting context is Diane Modahl v British Athletic Federation [2001] EWCA Civ 1447 (“the Modahl case”). In that case, the Court of Appeal considered whether there was an implied contract between Ms Modahl, a successful professional athlete, and the British Athletic Federation (‘the BAF’), the NGB for athletics in the UK. Ms Modahl had been a member of an athletics club (Sale Harriers), which was affiliated to the BAF, which was in turn a member of the International Amateur Athletics Federation (‘the IAAF’). Ms Modahl was suspended from all competition following a positive drugs test at an IAAF event. She challenged the decision of the BAF’s Disciplinary Committee confirming the suspension, and an Independent Appeal Panel allowed her appeal. Ms Modahl then lodged proceedings contending that members of the Disciplinary Committee had been biased against her. She sued the BAF for damages on the basis that there was an implied contract between her and the BAF, which contract BAF had breached by failing to ensure that members of the Disciplinary Committee were unbiased and that she would receive a fair and impartial hearing.

The Court of Appeal held, by a majority (Jonathan Parker LJ dissenting), that there was an implied contract. However, the claim for breach was rejected. Ms Modahl’s case was put on 3 alternative bases:

Whilst these submissions were considered by the Court of Appeal - Jonathan Parker LJ doing so systematically at [73] to [80] of the judgment and rejecting them – they should not be seen as independent tests for determining whether there is an implied contact in the sporting context, but merely ways in which the particular circumstances of such cases may helpfully be considered and analysed. The key principles to be satisfied remain, in my judgment, those which I have summarised at the outset of this section. That much is apparent from the analysis of Mance LJ in relation to implied contracts in the Modahl case (emphasis added):

“100 For there to be a contract, there must be (a) agreement on essentials of sufficient certainty to be enforceable, (b) an intention to create legal relations and (c) consideration. Both the first two requirements fall to be judged objectively. In Chitty on Contracts , 28^th ed (1999), vol 1, p 21, para 1-034, it is pointed out that:

“Contracts may be either express or implied. The difference is not one of legal effect but simply of the way in which the consent of the parties is manifested. Contracts are express when their terms are stated in words by the parties. They are often said to be implied when their terms are not so stated, as, for example, when a passenger is permitted to board a bus: from the conduct of the parties the law implies a promise by the passenger to pay the fare, and a promise by the operator of the bus to carry him safely to his destination.”

101 The same paragraph concludes:

“Since, as we have seen, agreement is not a mental state but an act, an inference from conduct, and since many of the terms of an express contract are often implied, it follows that the distinction between express and implied contracts has very little importance, even if it can be said to exist at all”

102 One distinction exists however in relation to the ease with which an express or implied contract may be established. Where there is an express agreement on essentials of sufficient certainty to be enforceable, an intention to create legal relations may commonly be assumed: Chitty on Contracts , vol 1, p 155, para 2-146. It is otherwise when the case is that a contract should be implied from the parties’ conduct: pp 156-157, para 2-147. It is then for the party asserting a contract to show the necessity for implying it: see The Aramis [1989] 1 Lloyd’s Rep 213 , Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council [1990] 1 WLR 1195 , Paal Wilson & Co A/S v Partenreederei Hannah Blumenthal [1983] 1 AC 854 and Mitsui & Co Ltd v Novorossiysk Shipping Co [1993] 1 Lloyd’s Rep 311 .

103 In the present case, although the language of the defendant’s rules has the contractual aspects to which I have drawn attention, there is no conversation or document which can be identified as constituting an express agreement. Any contract must be implied from conduct, in the light of the rules. The rules, in my view, contain a framework of rights and duties of sufficient certainty to be given contractual effect with regard to the athlete’s entitlement and ability to compete. Consideration exists in the athlete’s submission to the rules and to the defendant’s jurisdiction, in the defendant’s agreement to operate the rules and to permit the athlete to compete in accordance with them, and in both parties’ agreement on the procedures for resolution of any disputes contained in the rules.

104 Neither the fact that the defendant only entered the scene in 1991 nor the fact that the rules may have changed from year to year affects this conclusion. One would expect athletes like the Claimant to have been generally aware of such changes, so far as they affected them. The question is whether the conduct of the parties in operating the rules, as they existed from time to time, in relation to each other necessitates the implication of a contract.

105 In my judgment, the necessary implication of the Claimant’s conduct in joining a club, in competing at national and international level on the basis stated in the rules and in submitting herself to both in- and out-of-competition doping tests is that she became party to a contract with the defendant subject to the relevant terms of the rules. I have already identified three respects in which the rules appear to point towards a contractual analysis. I find unpersuasive the submission that an athlete had no personal right to enforce the obligations and standards of behaviour imposed expressly or impliedly on the defendant under its rules. The submission that no one can have intended this in a sporting context seems unrealistic in relation to the modern sporting scene, which, whatever the labels of amateurism, has aspects affecting substantially the career, livelihood and prosperity of participants. Further, since the existence of a contract falls to be assessed objectively, I do not think that it is illegitimate or circular to prefer an analysis which gives enforceable rights and remedies in respect of obligations which are terms expressed or implied in the rules, when compared with an analysis which provides no more than the colder comfort of declaratory or injunctive relief to restrain or annul any conduct by the national governing body which would constitute a restraint of trade. As at present advised, I would prefer to view the Claimant’s submission in 1994 to the jurisdiction of the defendant’s disciplinary committee (and thereafter to the independent appeal tribunal) as confirming the existence of a prior contract, although, if necessary, I would regard it as the final step bringing one into existence.”

It is also relevant to note that the formality of communications between the sportsperson in question and the relevant NGB may demonstrate an intention to create legal relations. As Richards J (as he then was) held in Bradley v The Jockey Club [2004] EWHC 2164 (emphasis added):

“55.

That brings me to the effect of that exchange of correspondence. On the face of it, it gave rise to a clear agreement between the parties that (i) the claimant would be treated as if bound at all material times by the Rules of Racing , and (ii) the Jockey Club would apply the Rules accordingly and in particular would conduct an inquiry into whether he had acted in breach of the Rules and would make available to him a right of appeal in accordance with the Rules. Mr Warby submitted that there was no intention to create legal relations by that correspondence, but I reject the submission. These were considered, formal letters; and given the importance of the subject-matter and the potential seriousness of the sanctions, it would be very surprising if the parties intended anything other than to create legal relations. Mr Warby also submitted that there was no consideration, in that the agreement benefited only the claimant by giving him the possibility of an appeal: the sanctions available to the Jockey Club in consequence of the agreement were no different in practical effect from the sanction of exclusion that would have been available without the agreement. This argument depended on a detailed examination of a number of rules, in particular Rule 2(v) (the power to exclude), Rule 205 (which relates to the effect of disqualification) and Rule 220(iv) (which prohibits association, in connection with horseracing, with any person known to be disqualified or otherwise excluded under Rule 2(v) ). I found it unpersuasive. There was in my view a clear benefit not only to the claimant but also to the Jockey Club in having wider and more flexible powers with regard to the imposition of penalties, including a power to fine as well as to disqualify. I conclude that there was ample consideration to create a binding contract.”

The Claimant represented himself. He did so very ably, although he did understandably stray into the territory of breach from time to time. On the issue before me, it was his submission that he has repeatedly been referred to by officers of Swim Wales and others as a “member” of Swim Wales, and that this is indicative of the true picture, which is that he is a member and that there is an implied contract between himself and the Defendant. He places heavy reliance on the Modahl case, which he submits supports his case. He submits that there is an implied contract in this case on each of the three bases relied upon by Ms Modahl in her case. Thus, he submits:

As for the other requirements for the existence of a contract, the Claimant submits that there is mutual consideration in the form of his submission to Swim Wales’ jurisdiction with regard to the investigation and his submission to the sanction. Consideration moves from Swim Wales in their operation of the rules within its procedures and policies and in permitting the Claimant to coach and participate in events in accordance with Swim Wales’ Rules. He says there was a clear intention to form legal relations in that he expressly agreed to abide by the Rules and that a direct relationship was formed between himself and Swim Wales which entitled it to bypass the Club by imposing sanctions on him directly. He submits that there is no issue as to the certainty of terms given that they are clearly set out in the Rules and in policies and procedures, which he expected Swim Wales to apply.

Finally, whilst he accepts that the sanction imposed has not resulted in the loss of his livelihood, he submits that its impact on him has been considerable. His reputation has suffered greatly. He considers it unjust that he continues to be subject to the suspension in circumstances where the DBS has openly stated that it would not be appropriate to include him in the Children’s Barred list, the ASA has determined that the suspension is unsafe, and a Social Services investigation in 2015 concluded that he did not present a risk to children with whom he is in contact.

Swim Wales was represented by Mr McPherson QC. He submits, in summary, that:

In my judgment, there is no implied contract in this case.

The principal reasons for so concluding are that there was no intention to create legal relations and there is simply no need to imply a contract having regard to all the circumstances of this case:

It is common ground that there are no documents in this case that would suggest the existence of any express agreement between the Claimant and the Defendant from which an intention to create legal relations could be assumed, and any contract must therefore be implied from the parties’ conduct: Modahl at [102]. There was, however, an express agreement between the Claimant and the Club. The Club’s constitution imposes an obligation on the Claimant to comply with its rules. However, it also requires the Claimant to comply with Swim Wales’ Rules. The obligation on the Claimant to comply with the Swim Wales’ Rules is an obligation owed to the Club; it is not one that is owed to Swim Wales. Moreover, the Club is required to ensure that the Claimant complies with the Rules as part of the Club’s obligation to Swim Wales as an affiliated member. The mere fact that the Claimant agrees to abide by the Rules does not necessitate a contractual relationship between them.

That analysis is supported by the terms of Rule 10 of the Rules which provide that Individual Members (i.e. those like the Claimant, who are members of Member Clubs) are not and shall not be members of Swim Wales. The Individual Members are only bound by and subject to Swim Wales’s Rules “by virtue of their membership of the Member Clubs”. Similarly, the right to participate in competitions and events arises “via their membership of the Member Clubs and the Member Clubs’ membership of Swim Wales.” (Rule 11). These rules make it quite clear, in my judgment, that there is a deliberate two-tier structure whereby any obligations in respect of Swim Wales’ rules are owed to the Club and any benefits in terms of participating in Swim Wales’ events are derived through membership of the Club.

Rules 30 and 31 provide that it is the Member Clubs that must ensure compliance by their members and that any failure to do so would be grounds for expulsion of the Member Club.

The position is to be contrasted with that in the Modahl case, where Mance LJ considered that there were several obligations in the BAF Rules which were expressed in terms of obligations owed directly to BAF by Ms Modahl: Modahl at [97] to [98]. There are no such obligations in the Rules in the present case. All obligations owed by Individual Members are, as I have said, owed to the Member Clubs.

Viewing the matter objectively, there is nothing in the Rules to indicate that there was any intention on Swim Wales’ part to enter into legal relations with Individual Members. The absence of such intention is not surprising given that, if that were not the case, the result would be that Swim Wales would owe contractual obligations to many thousands of club members (many of whom will be minors and therefore lacking in any capacity to contract) across the land. Rule 10 seeks to ensure that the rules of the NGB are complied with but only through the Member Clubs ensuring compliance by their Individual Members: Rule 30.

The Claimant submits that one also needs to consider the conduct of Swim Wales and the repeated references (some of which are set out above) to the Claimant as a “member of Swim Wales” or the need for him to be such a member. However, I do not consider that these references are such as to override the clear effect of Rule 10. Swim Wales has explained that, for insurance and administration purposes, Individual Members do need to be registered with Swim Wales, and there is a registration form for that purpose. It is in that context that the term “member” has been used, i.e. to denote a person who has completed the registration process, and not to describe a person who is in a contractual relationship with Swim Wales. Whilst the use of the term “member” is undoubtedly a convenient shorthand, it is apt to confuse. However, that potential confusion arising out of the use of a title does not, in my view, affect the clear meaning of the Rules.

The Claimant’s contention that, by signing the registration form and agreeing to abide by Swim Wales’s Rules he thereby became a member of and entered into legal relations with Swim Wales, cannot be accepted:

It is not necessary to imply a contract because the two-tier structure described above fully explains the relationship between the Claimant, the Club and Swim Wales:

The absence of any intention to create legal relations and of necessity are sufficient to find that no contract is implied. It is not therefore necessary to consider the other contractual elements relied upon, such as certainty of terms and consideration. I shall nevertheless consider them briefly for completeness:

The Modahl case is not on all fours with the present as suggested by the Claimant:

I mention these differences, not to suggest that the Modahl case is not relevant – it clearly is – but merely to explain that any similarity between that case and the Claimant’s is somewhat superficial and does not automatically give rise to a conclusion that a contract must be implied in the same way.

The Claimant has advanced his case before me on the same three bases as did Ms Modahl. I deal with each of them in turn:

For the reasons already set out above under “Intention to Create Legal Relations”, the Club Basis does not assist the Claimant here. The Claimant may have agreed to abide by Swim Wales’ Rules in becoming a member of the Club. However, any obligation that he had was owed to the Club, not Swim Wales. Whilst it may have appeared to the Claimant at times that Swim Wales was exercising authority over him directly – and I would accept that there was a certain looseness of terminology on the part of Swim Wales in this regard - the legal position, in my view, is that any authority to suspend the Claimant was derived from the Claimant’s membership of the Club.

The submission here is that the Claimant’s participation in Swim Wales’ events and under its sole jurisdiction establishes a contractual relationship. In my judgment, this claim fails on the facts. As set out above, I have found that none of the events upon which the Claimant relies were Swim Wales’ events, notwithstanding outward appearances. His activities were undertaken for the Club or at events organised by the Club either by itself or in conjunction with other clubs with the assistance and support of Swim Wales.

Mr McPherson QC submitted that there was no submission here in the sense described in the Modahl case because: (a) the investigation was instigated by Swim Wales and not by the Claimant (c.f. the position in the Modahl case); and (b) the Claimant did everything he could not to submit to Swim Wales’ investigation. The Claimant says that he did submit because he did not walk away from the process at any time, as he could have done, and any challenges to the process were in an attempt to ensure that he was being treated fairly.

I do not agree with Mr McPherson that the identity of the party instigating the process affects the question of submission. It is open to a party to submit to an investigation and a process commenced by the other party. I do, however, agree with Mr McPherson that the Claimant’s conduct in relation to the suspension and the investigation cannot, on the facts of this case, be regarded as submission:

I accept that the Claimant is entitled robustly to challenge and test the procedure being applied to him by Swim Wales. However, it seems to me that the Claimant’s conduct here went well beyond legitimate challenge and amounted at times to open resistance. There was no “submission” as in the Modahl case.

The Claimant’s case therefore does not succeed on any of the three bases relied upon in the Modahl case.

I turn now to deal with what may be described as Swim Wales’ alternative case, which is that even if a contract could be implied in the circumstances of this case, the Claimant’s misrepresentations at the outset of his membership of the Club meant that Swim Wales had the right to rescind the contract. It is not strictly necessary to deal with this alternative case given my conclusion that a contract is not to be implied here. However, I shall deal with it briefly for two reasons: First, there was considerable evidence in relation to the issue; and second, both parties have made representations on it. The Claimant, in particular, is at pains to establish that there was no misrepresentation.

The relevant principles are not in dispute. They are summarised in Mr McPherson’s skeleton argument as follows:

The Claimant submits that he gave as much information as he was required to give by the DBS process and voluntarily gave more in the form of police certificates. Furthermore, he contends that he voluntarily disclosed his court martial and gave such information about it as he could recall at the time. He further notes that the young recruits involved in the incident giving rise to the court martial were not children as Mr Oddy has – incorrectly according to the Claimant – described them in his report. Given that the DBS has since concluded that he should not be on any barred list, he submits that there is no basis on which Swim Wales could say that it was misled.

Mr McPherson submits that the misrepresentation was clear. Whilst it is accepted that a non-disclosure in the DBS form is not a misrepresentation, the impression given to Mr Wicks that the Claimant had been court martialled for something done by others certainly is. Moreover, the misrepresentation was fraudulent in that the Claimant knew that what he said to Mr Wicks and to the parents in his letter in July 2015 was about as far from reality as possible.

I find that the Claimant did misrepresent the position. Whilst there was no overt misrepresentation in completing the DBS form (which, perhaps surprisingly, does not seek particulars of any conviction that is disclosed) there was a material misrepresentation in the discussion with Mr Wicks in November 2014. The evidence was clear: Mr Wicks had been given the impression by the Claimant that he had been court martialled for taking responsibility for the bullying conduct of others. That was obviously incorrect. Of equal concern is the seriously misleading letter sent to parents shortly after the suspension was imposed and in defiance of an express instruction not to contact others in the Club. As set out above, I have found that the letter sought deliberately to downplay the serious and sexual nature of the incidents and to minimise the Claimant’s culpability. I reject, for reasons already explained, the Claimant’s explanation that this account was based on his hazy recollection at that time. Similarly, I do not consider that what he told Mr Wicks was based on a hazy recollection.

The Claimant has, therefore, made false or misleading statements both by omitting to give the full picture and by stating matters which were obviously not true. The Club’s safeguarding officer was clearly influenced by the rather anodyne DBS information in conjunction with the further misleading details given to Mr Wicks. Had the true picture been disclosed to Mr Wicks at the time, he would, as he said, have passed it up the ranks. That would have been likely to result in the contract not being entered into at all. The fact that the DBS has since concluded that the Claimant should not be on the Barred List does not affect the conclusion that there was a misrepresentation at the outset of the relationship (and again in July 2015).

It follows that even if there had been a contract (which I have found not to be the case) it would have been subject to a right of rescission.

This further question does not arise given my finding that there was no implied contract. I deal with it briefly for completeness nevertheless.

The Claimant’s Amended Particulars of Claim (settled by Counsel) contend that:

“38.

It was an implied term of the contract that Swim Wales would afford the Claimant an opportunity to make representations on his own behalf in person or in writing prior to any determination in respect of his approved role, acting fairly and in accordance with the principles of natural justice in conducting its disciplinary procedures.”

The Claimant’s skeleton argument suggests that:

“67.

The terms of the implied contract should ensure fairness on behalf of Swim Wales at all stages of their procedures, processes and in line with their policies. As such,

a)

Swim Wales should apply the rules of natural justice to all investigations, hearings and decisions, using fair procedures.

b)

Swim Wales should ensure, through the fair application of the rules, policies and procedures, coupled with the principles of natural justice, that any disciplinary process reach’s (sic) a fair decision overall.”

Swim Wales submits that the implied terms should be similar to those Mance LJ found to exist in the Modahl case at [121] – [122]:

“‘Whilst the disciplinary committee is under the rules more closely linked in composition to the defendant, it is inherent in the Claimant's own case, as well as in the defendant's, that the disciplinary committee was intended under the rules to fulfil an independent adjudicatory role. On that basis, which I accept, I again see no reason for treating the defendant as answerable for all aspects of a disciplinary committee's behaviour, as if its members were acting as employees or agents.

In these circumstances, I would regard any implied obligation on the part of the defendant under its rules as extending, at most, to an obligation to act in good faith and take due care to appoint persons who so far as it knew or (probably) had reason to believe were appropriate persons to sit on the relevant disciplinary committee.”

Accordingly, Swim Wales submits that the implied terms in this case should be such as to require Swim Wales:

The test in deciding whether to imply terms is necessity. On the assumption that a contract is to be implied, it seems to me that the test of necessity would be satisfied by the terms proposed by Swim Wales. Swim Wales is not in the position of an employer vis-à-vis the Claimant or a regulatory body whose decisions might affect the livelihood of the Claimant or those in his position. It is not unreasonable for it to choose not to adopt as part of its Rules the machinery of a full hearing process and to decide instead to appoint an investigator whose recommendations could be accepted. In those circumstances, it is not necessary, in order to give proper effect to the relationship between Individual Members and Swim Wales, to imply the terms proposed by the Claimant (whether in the Amended Particulars or in his Skeleton Argument). Such terms, which involve the right to make written or oral representations, are more apt for a disciplinary and/or regulatory process which is not what Swim Wales seeks to operate here. Of course, the process which Swim Wales does seek to operate should be conducted in good faith so as to ensure that it is impartial and just. In my judgment, the two terms proposed by Swim Wales satisfy that requirement and go no further than is necessary in the circumstances.

For the reasons set out above, I answer the two preliminary issues before this Court as follows: