LEAGUE CRICKET CONFERENCE LEGAL UPDATE
Winter 2008
This quarter we concentrate on two issues which have affected a number of
Clubs and Leagues throughout the country in recent times.
ISSUE 1 - Complaining Neighbours
A) The scenario is that of a cricket club ground with neighbouring properties on or
near the boundary. Cricket balls from match and practice activities end up in
neighbours properties. This can in certain circumstances amount to Civil Wrong
(a Tort) of NEGLIGENCE and or NUISANCE
B) The writer is aware of two cases across the country at present of where
neighbours are seeking legal redress against cricket clubs and in one, seeking
a Court Injunction to have the Club closed down.
REMINDER: A club will be sued in the names of its Officers. In the event
of liability being proven and in the absence of the club having adequate
Public Liability Insurance, and or sufficient funds to pay damages,
payment would be the responsibility of its Officers
C) The basic principle is that a landowner owes a Duty of Care to take all
reasonable steps to ensure that activities on its own land do not result in
reasonably foreseeable harm or loss being suffered to neighbours either in
terms of damage to their property or injury to their person.
D) The Tort of Negligence can arise from a single act, whilst Nuisance generally
requires a continuing state of affairs or activities. The burden of proof lies on the
"complaining neighbour(s)" on a BALANCE OF PROBABILITIES TEST that
they have suffered loss / harm due to one or both of these torts having been
committed
E) Regrettably Cricket Clubs have been at the centre of litigation in this field
over the years. Bolton v Stone 1951 involved Cheetham Cricket Club in
Manchester and went all the way to the House of Lords. Miller v Jackson
1977 concerned action taken by a neighbour against Lintz Cricket Club in
County Durham which went to the Court of Appeal. I have also tracked
down a case involving Water Orton CC in Birmingham in the 1960s.
F) The first principle from these Decisions is that a Cricket Club's liability will
depend on the individual facts which apply in each case. The following
factors exist
• What is the distance between the wicket and the neighbour's land where
'the injury' occurred? In Bolton v Stone the distance from the wicket to
the edge of the ground was 80 yards, and there was a further 20 yards
between that, and where Miss Stone was injured in
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her garden. The Club had erected a 7 foot fence which due to the
ground's gradient meant that the top of the fence was 17 foot from the
base of the pitch from where the ball was struck. In Miller v Jackson the
neighbour's garden was just 35 yards from the wicket at one end and 65
at the other, (add a further 20 yards to each for the distance from each
wicket to the neighbour's house) Similar distances existed in the Water
Orton CC case.
•
What steps did the Club take to minimize the risk of injury or loss being
sustained? In the Miller case, Lintz had over the years increased the
height of the fence, culminating in a chain link fence of 14 feet 9 inches
separating the ground from Miller's garden. Water Orton constructed a
fence 100 feet long and 20 feet high.
•
Were the steps taken, one which a "reasonable cricket club on the
mythical Clapham Omnibus" in its position would have taken or would
the latter have done more? In the cases involving Water Orton CC and
Lintz CC, the neighbours argued (and won) that each fence was not
sufficiently high to prevent balls being hit on to their land. Water Orton
had to erect a 125 feet long and 30 feet high fence before the case was
settled 'out of court' whilst Lintz were ordered to pay £400.00 in
damages to cover past and future loss suffered by Miller for nuisance of
balls ending up on their property
•
Were the injuries / harm suffered by the neighbour a reasonably
foreseeable consequence of the failure by the Club to have taken
adequate steps?
G) The second principle is that the fact that neighbours may have a claim
notwithstanding that they moved to their property, knowing a cricket club
ground abutting, already existed. In all three cases the Cricket Club had played
cricket on the ground for many years- In Bolton. Cheetham CC since around
1864, In Water Orton since 1890, and in Miller since 1905. Knowledge that
cricket is played on neighbouring land and that cricket balls could come on to
your land, does not prevent a Neighbour still seeking redress in the Law of
Torts
H) Redress claimed by a neighbour can be either Damages for loss injury or harm
or an Injunction (Court Order). Injunctions comprise two types. Either requiring
the Club to erect a higher structure separating its land from the neighbour, or at
the most extreme to stop the Club playing cricket on the ground totally. In Lintz
CC case. Miller sought an Injunction to stop cricket being played. The
neighbour failed, the Court arguing that the "public interest" of cricket being
played on the ground outweighed the nuisance suffered by the Millers with
balls coming on to their garden
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CLUB ACTION PLAN
1. Ensure that as a Club you have comprehensive Public Liability Insurance with
cover of at least FIVE MILLION POUNDS £5,000,000.00. Ensure that this
includes Legal Expenses Cover.
2. Carry out a Risk Assessment- be objective by trying to see matters from the
neighbour's perspective.
3. Invite your Insurance Company to your ground to advise you on what
reasonable steps you should be taking to minimize the risk of cricket balls from
your ground ending up in your neighbours land
4. If an Insurer will not send a representative to attend (which is most likely), send
the Insurer photographs of the' lie of the land' showing the existing fencing /
netting and diagrams of its length and height
5. Remember that by following the procedures at 3 and 4, you are showing that
you have regard for your neighbours AND in addition in the event of litigation, it
boils down to whether you have taken all reasonable steps. If an Insurer
confirms that it is happy with the precautions taken, this will assist the litigation.
6. Seek funding for the acquisition and erecting of new fencing or netting.
7. Put monies aside periodically in the Club Budget to cover the cost of paying any
excess on the Insurance Policy in the event of a successful claim made against
the Club
8. Periodically check (say at start and end of season) the condition of the fencing /
netting and its adequacy.
9. Work with, and not against your neighbours.
10. Keep an ongoing record of when balls end up on neighbours land. This
will be crucial in the event of litigation- you can be sure your "difficult"
neighbour will be counting! In the Lintz case despite the frequency of balls
being hit on to Miller's property reducing due to the extra fencing, the
neighbour won in both Negligence and Nuisance. In Bolton, prior to Miss
Stone being hit by a cricket ball, it had been very occasional for a ball to
have landed in her garden so her claim in Nuisance failed
WRITER'S SUMMING UP
• This is a hugely problematic area of the Law. Each case will be decided on ITS
OWN FACTS - the geography of the land, the distance between wicket and
neighbour's land - the height of the fencing or netting, the state of repair of the
fence or net.
• As a Club you must be pro-active.
• Many Legal Academics consider that if the sets of facts in Lintz CC were
repeated today, the Cricket Club would not be so lucky to avoid an Injunction
have it closed down.
• The greater the danger that damage may be caused to neighbouring property,
the greater the duty of care owed and the safeguards needed to be taken to
minimise the risk
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ISSUE 2
Non Payment of Sponsorship Monies
A) The classic scenario is that a Club / League have secured sponsorship. The
Sponsor due to its worsening financial position does not pay. Sponsorship
should take the form of a written agreement between the Club / League and
the sponsor containing all the fundamental terms, such as the quantum sum to
be paid, the date of payment, the length of the sponsorship, and the
obligations of each party.
B) Where you do not receive your sponsorship monies by a due date, the
importance is to act promptly. There is the possibility that if you have not been
paid, other creditors may also be in the same position as you.
C) It is vital that you act promptly IF you believe that the Sponsor is unable to pay,
and one of the most effective ways of seeking to be paid, is the Service of a
Statutory Demand.
D) A Statutory Demand is a formal demand for payment of a debt, the demand
being set out in a prescribed form. The debt must be bona fide and be for a
sum in excess of £750.00 (Seven Hundred and Fifty Pounds). A statutory
demand should NOT be used where as a creditor, you are aware that there is
an existing dispute between you and the debtor / sponsor. There are major
cost consequences if a Statutory Demand is used, where a dispute is known,
as it is deemed to be an "abuse of process"
E) The Debtor Sponsor has 21 days in which to respond, either by paying up
or showing it has a valid defence against making the payment. A debtor
the subject of a Statutory Demand must show the dispute is 'genuine and
substantial'.
F) Where a debtor sponsor fails to respond within 21 days, the Creditor may
then proceed to initiate Insolvency Proceedings against the debtor
/sponsor namely a Winding Up Order if the Debtor is a Company or a
Bankruptcy Petition where the Individual is a non corporate body.
G) Where a Club / League sponsor has not received their sponsorship, and
there is no obvious reason for non payment such as an ongoing dispute
the use of the Statutory Demand is by far the best way to bring the matter
'to ahead'. An alternative course of action, is the issue of formal
proceedings in either the County Court or High Court (dependent on the
amount owed) for debt recovery based on a breach of contract.
Remember until a Judgment or bankruptcy /winding up order is obtained,
your Club / League is an unsecured creditor.
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H) In these difficult financial times, there is a difficult balancing act for Clubs
and Leagues where they do not receive your sponsorship monies. The
use of the Statutory Demand or immediate Legal Proceedings is unlikely
to endear you to your Sponsor, but at the same time, if followed, puts you
in a better position should the Sponsor go under. At the very least, if you
are not satisfied with the Sponsor's explanation for the delay in payment,
you should be writing to the Sponsor stating that if payment is not
received within 14 days, that you will serve a formal Statutory Demand
for Payment
AND FINALLY
Male Club members contemplating a sex change, to ensure that their club can
field a ladies side and therefore benefit from extra funding available, need to be
aware that under new draft regulations for Identity Cards issued by the Home
Office on the 21st November 2008, such members will from 2012 need two
identity cards whilst undergoing the change of gender. The first ID card will be for
their current male status, the second for their proposed female status and there
is a fee for each application.
Malcolm Buck- Solicitor- Tel No 0117 9713535
This Advice is not to be treated as a Contract between writer and recipient and
neither the writer nor the League Cricket Conference accepts any liability. This
Update is as a guide only and Clubs and Leagues are advised to take their own
Legal Advice in the event of all questions of Law.
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