John Smith is a partner in Davies Arnold Cooper.
The article in The Lawyer 1 November, 'A sporting chance of success', argued that the outcome of the O'Neill v Fashanu case had opened the door to sports injury claims and that the settlement was a good one from John O'Neill's point of view.
I acted for Dean Saunders and Liverpool Football Club in the action brought against them by Paul Elliott, and also represented John Fashanu and Wimbledon Football Club in the proceedings brought by John O'Neill.
First, it is not true to say that the Elliott v Saunders case closed the door to sports injury claims. Justice Drake made it clear in his judgment that every case depends on its own facts and that the decision would not prevent other actions from being brought.
Second, if a claimant can prove 'intention' – that the defendant intended to injure or foul him, then he will almost certainly succeed. If he can prove 'recklessness' – complete disregard for the safety of another, he will also be likely to succeed. However, all potential claimants should be aware that these are difficult to prove, particularly in football. Thus it is wrong to say the O'Neill v Fashanu settlement has changed anything.
It is also wrong to infer that the settlement has weakened the defendants' position. The settlement of u70,000 was a commercial one for the defendants and was not based on any apportionment of liability.
The article omits the fact that the u70,000 offer included O'Neill's legal costs. I am prevented by a confidentiality agreement from discussing the terms of settlement. However, as the plaintiff's solicitor has admitted in the article that total costs would certainly have run into six figures, I think it is clear why the defendants saw this as favourable.
Elliot v Saunders was successfully defended by the defendants and O'Neill v Fashanu was settled by the defendants on favourable terms.
If similar cases are pursued they will be dealt with in the same way as the defendants maintain that the burden of proof that is on the claimant is difficult to discharge.