Case Alerts

Melanie Stanley v London Borough of Tower Hamlets [2020] EWHC 1622 (QB)

1. Plexus Law recently succeeded before Knowles Julian J. in setting aside judgment in a claim for breach of the Data Protection Act/GDPR, Misuse of Private Information, Breach of Confidence and Interference with Private and Family Life under Article 8 of the European Convention on Human Rights.
2. Judgment had been entered after proceedings were served by post just 2 days following the commencement of the Covid-19 pandemic lockdown, when the Defendant’s offices were closed (a fact that the Claimant’s Solicitor was aware of) and nobody from the Defendant knew that service had been effected. The Claimant’s Solicitor made no attempt to satisfy himself that service by post was still acceptable (having been told 6 weeks earlier that it was).

Background

3. The Claimant brought an action for damages after the Defendant allegedly revealed her private data. Proceedings were issued on 4^th December 2019 and the Claimant sought damages for “psychological distress, stress, inconvenience and financial loss.”
4. On 23^rd January 2020, the Claimant’s Solicitor sent the Defendant a letter before claim by post and email. No response was forthcoming and so a second letter/email was sent on 6^th February 2020. Finally, on 13^th February 2020, the Claimant’s Solicitor telephoned the Defendant’s Legal Services Department and spoke to an unnamed worker who told him that it was not his file but that proceedings could only be served by post. Service by email was not acceptable. The Covid-19 lockdown commenced on 23^rd March 2020.
5. Two days later, on 25^th March 2020, the Claimant’s Solicitor served proceedings on the Defendant by post. These were deemed served on 27^th March 2020. Acknowledgment of Service was due by 9^th April 2020 and when none was forthcoming, the Claimant’s Solicitor applied for default judgment on 15^th April 2020. This was granted by Senior Master Fontaine on 17^th April 2020.
6. Once the Defendant instructed Solicitors on 27^th April 2020, it quickly became apparent that Judgment had been entered. The Defendant therefore applied to set judgment aside. Plexus Law argued that judgment should be set aside for two reasons.

Limb 1 – Real prospect of successfully defending the claim

7. Plexus Law submitted that the Defendant had a real prospect of successfully defending the claim. The Claimant had failed to provide evidence that any breach by the Defendant had, in fact, caused her actionable injury or loss – the lack of such evidence meant that causation remained an open question. “Without loss, there is no cause of action.”

Limb 2 – Some other good reason

8. The Defendant also argued that there was “some other good reason” why Judgment should be set aside, pursuant to CPR 13.3(1)(b). That reason was that proceedings were served by post on the Defendant’s premises when the Claimant’s Solicitor knew these to be closed, and he failed to ascertain whether anyone was there who could deal with the matter at a time of national emergency. He failed to take into account the overriding objective and further, failed to consider the best-practice guidance issued by APIL and FOIL to the effect that firms should communicate with each other and temporarily agree to accept service by email during the Covid-19 pandemic.
9. In response, the Claimant argued that the Defendant only had itself to blame for service being effected by post, having failed to respond to her Solicitor’s letters dated 23^rd January 2020, 6^th February 2020 and 13^th February 2020. The Defendant itself had advised on 13^th February 2020 that service by post was required, and in any case, by 9^th April 2020, it should have had a system in place to deal with post. If it had had one, then Judgment would never have been entered.
10. Knowles J. accepted the Defendant’s arguments with enthusiasm. In particular, he noted that:

“33. Even if I am wrong about my earlier conclusion, I am satisfied that there is a good reason to set aside the default judgment. That reason is the unprecedented national health emergency which was unfolding at precisely the time Mr. McConville posted his documents to the Council. From 23^rd March 2020 onwards, the country was grinding to a halt and every employer and business in the UK – and indeed across the world – was suddenly having to develop new ways of working and to find ways of coping with employees not being able to travel into work. There were myriad problems and challenges to be faced, including, for example, establishing technological links and putting in place new ways of working. Parents had to worry about children no longer being able to go to school and all the associated childcare issues related to that. Emergency plans were having to be implemented and rapid adjustments made across all sectors of the economy.”

11. In the circumstances, the Claimant’s Solicitor failed to explain why he thought it appropriate to post documents to the Defendant’s offices “…when he knew or ought to have known they were shut and the Council was highly unlikely to be in a position to respond.” More than that, “Mr. McConville took no steps to ascertain whether the papers had been received and were being processed….The world shifted on its axis on 23^rd March 2020 and it was incumbent on him as a responsible solicitor and an officer of the court to contact the Council to acknowledge that the situation had changed and to discuss how proceedings could best and most effectively be served.” This conduct illustrated poor judgment. “A moment’s thought on his part would have shown that it was not fair or reasonable for him simply to place papers in the post to an office that he knew or should have known had been closed down two days before because of a national emergency.”

12. Moving to the question of whether relief from sanction should be granted, Knowles J accepted that it should, and paid particular attention to para. 4 of CPR PD 51ZA which states, “In so far as compatible with the proper administration of justice the court will take into account the impact of the Covid-19 pandemic when considering applications for the extension of time for compliance with directions, the adjournment of hearings and applications for relief from sanctions.”

Analysis

13. The author is unaware of any other reported cases dealing with service during the Covid-19 pandemic lockdown or turning on paragraph 4 of PD 51ZA. This case certainly places great importance on the need for parties to show common sense and reasonableness in the manner and timing of service of proceedings. Knowles J felt very strongly that the Claimant’s Solicitor had not acted reasonably in serving proceedings just 2 days after lockdown started without making the slightest effort to ensure that somebody would receive those proceedings. He did not find that to be sharp practice, but was highly critical of such poor judgment. The Defendant’s inability to acknowledge them was entirely due to the emergency situation created by the pandemic.
14. It is to be hoped that Claimant representatives will pay heed to this decision in order to avoid the criticism (and adverse costs consequences) that befell the Claimant’s Solicitor in this case.

To download this Case Alert as a PDF please click here.

The Defendant was represented by Nicola McDougall, Associate, of Plexus Law and by Counsel (and author of this article) Howard Cohen of Farrar’s Building.

If you would like to know more about this matter, please speak to your contacts at Plexus Law/Farrar’s Buildings:

Nicola McDougall, Associate

T: 020 8774 0807   |   M: 07429 050 699   |   E: nicola.mcdougall@plexuslaw.co.uk

Howard Cohen, Barrister

T: 020 7583 9241   |     E: HCohen@rarrarsbuilding.co.uk   |    W: www.farrarsbuildings.co.uk

Whilst we take care to ensure that the material in this Case Alert is correct, it is made available for information only, and no representation is given as to its quality, accuracy, fitness for purpose, or usefulness. In particular, the contents of this Case Alert do not give specific legal advice, should not be relied on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may arise from reliance on information or materials published in this Case Alert.

When does a path become a highway maintainable at public expense?

This Article summarises the recent Court of Appeal decision in the well known highways claim, which concerns quite complicated issues surrounding when a path becomes a highway; when is a highway a highway maintainable at public expense; and whether a landowner can avoid his common law duty of care, and that under s.2 of the Occupiers Liability Act 1957, for nonfeasance by reason of a right of way existing on the said land.

Background

The Claimant tripped on an exposed tree root on a public path that ran through a local park owned by Wigan MBC (the “Path”). The park was constructed in the 1930’s by the Council’s predecessor, Abram Urban District Council, who was at the material time also the highway authority, albeit the Council contended that Abram UDC was not acting in its capacity as a highway authority when it built the path.

A claim was initially intimated against the Council. The Council claimed that the path had become a highway via dedication, and relied upon the cases of Gautret v Egerton (1867) LR 2 CP 371 and McGeown v Northern  Ireland Housing Executive [1995] 1 AC 233, the so called McGeown trap:

‘A Landowner owes no duty of care for nonfeasance in common law or under OLA 1957 in respect of land where there exists a public right of way but may owe a duty of care for misfeasance.’

Further, the Council claimed that whilst the path was a highway, none of the conditions within the Highways Act 1980 were satisfied so as to enable the court to find that it was also a highway maintainable at public expense, in particular s.36(2)(a)1 was not satisfied.

At first instance, Judge Platts found that in order for s.36(2)(a) to apply, the path had to have been constructed by the highway authority with the intention that it would be a highway. The claim was dismissed on the basis there was insufficient evidence to satisfy that test.

Upon appeal before Waksman J, the Council contended that although its predecessor Abram UDC was the highway authority at the material time, it was not acting in that capacity when it built the path, nor did it

intend the path to be a highway at that point.  Waksman J found that there was no requirement for the Council to have intended to construct a highway from the outset, the fact it had become a highway at later point and had been constructed by the Council was sufficient. In respect of the capacity argument, Waksman J relied upon the obiter comments of Sedley LJ in Gulliksen v Pembrokeshire CC [2003] QB 123, that a Local Authority is a single body corporate, such that as Abram UDC was the highway authority at the material time it did not matter in what capacity it was acting.

The Issues Before the Court of Appeal

Did s.36(2)(a) apply? The question was split into three issues:

1. Intent Issue – did the Council intend the path to be highway when it was constructed
2. Capacity Issue – was the Council acting as a highway authority when the path was constructed
3. Retrospectivity Issue – does the section apply to paths which become highways before the commencement of the 1980 Act? The equivalent section in the 1959 Act states: “…a highway constructed by a highway authority after the commencement of this act…” . However, the italicised words are not contained in the 1980 Act.

Was the highway dedicated prior to 17 December 1949, such that the path was highway maintainable at public expense by the operation of the National Parks and Access to the Countryside Act 1949 Section 47 (1), Highways Act 1959 Section 38(2)(b) and Highways Act 1980 Section 36(1)? This was a new ground of cross appeal, the “date of dedication issue”.

In his Leading and unanimous Judgment, Lord Justice Bean found:

1. Capacity – in Gulliksen, Lord Sedley stated (obiter) that it did not matter what capacity the Council acted if it was also the highway authority, on the basis it was single body corporate. Bean LJ disagreed, preferring the ratio of Neuberger J (as he then was) in the original appeal. Please refer to the Judgment for the full reasoning, however, Singh LJ quite succinctly stated that the words “highway authority” mean “an authority exercising its highway functions”.
2. Intent – As the Council was not acting in its capacity as a highway authority when it constructed the path, it was not necessary to consider the intent issue.
3. Retrospectivity – The 1980 Act was intended to be a consolidating Act, save where amendments recommended by the Law Commission had been introduced, none of which related to s.36(2)(a). Consequently, as the provision in the previous 1959 Act related to highways constructed after the commencement of the Act, the position remained the same in the 1980 Act, s.36(2)(a) was not retrospective (with highways constructed after 1959 being caught by the 1959 Act, and therefore s.36(1) of the 1980 Act).
4. Date of Dedication Issue – The path had been open to the public since it was opened in 1930. Under the common law rule dedication is presumed from the first point of uninterrupted usage, and therefore the path was dedicated as a highway before 17 December 1949, when the National Parks and Access to the Countryside Act 1949 Section 47(1) made all existing public paths maintainable by the inhabitants at large. Consequently, the path was also a highway maintainable at public expense pursuant to s.38(2)(a) of the 1959 Act, and therefore s.36(1) of the 1980 Act.

Further, in what could potentially be a significant change in the law, obiter comments by Bean LJ, to which his fellow Judges agreed, also cast doubt upon whether the McGeown trap will survive in its current guise. Bean LJ was clearly concerned that a landowner of a park could owe a duty of care in respect of the grass either side of a path, but not in respect of the path itself, simply because a public right of way existed2. The inference that can be drawn is that it is only when the user is lawfully on the land because of the existence of a public right of way that the rule applies.

Conclusion

1. s.36(2)(a) is not retrospective, and only applies to highways constructed by a highway authority, acting in its capacity as such, after the commencement of the 1980 Act. The long held presumption that the Council is to be deemed a single body corporate, pursuant to Sedley LJ’s obiter comments in Gulliksen is incorrect.
2. The rule in McGeown may in future be significantly reduced, and not applicable to those persons using land other than by the existence of a highway, for example for the purposes of visiting a park.

Practical Considerations for Highway Authorities

This case has created a risk that Council owned paths in parks and public spaces could be considered highways. To guard against such a risk, and therefore remove the burden of overcoming the onerous duty of care under s.41 of the Highways Act, Councils should consider:

1. Closing parks for one day a year: or
2. Placing signs upon the paths that they are not a public right of way.

To do so will remove the ability to spring the McGeown trap, but as stated above it is now doubtful the rule will continue to apply in such circumstances. The duty of care in common law and under s.2 OLA 1957, i.e. to take reasonable care, is a lesser duty than that owed under s.41 HA 1980; and could potentially be satisfied by a reactive system of maintenance subject to good evidence that such a system is adequate.

Steps to show that a reactive system of maintenance is adequate could include:

1. The placing of signs or notices in public spaces for the reporting of defects
2. A record showing complaints are received and logged; and appropriate action taken
3. A record showing the history of accidents/claims, against usage, to confirm a reactive system has not resulted in an unreasonable amount of incidents
4. Evidence that grass cutters, bin collectors etc are instructed to report dangerous defects and a record that they do.

 

Note 1: Highways Act 1980: s.36(2) of the Highways Act 1980 sets out classes of highways that are maintainable at the public expense, the first of which is:

“(a) a highway constructed by a highway authority, otherwise than on behalf of some other person who is not a highway authority;”.

Note: 2: Paragraph 13 of Bean LJ’s Judgment in Barlow:

“I suspect that the true ratio of both Gautret v Egerton and McGeown v Northern Ireland Housing Executive is that if a person is only lawfully on a defendant’s land because of the existence of a public right of way which he or she is using, then there is no duty of care owed by the landowner either at common law (save in respect of dangerous acts such as the digging of pits) or under the Occupiers’ Liability Acts. But whether that is the case will have to await a decision in another claim. I only add that if I am wrong about this, and there really is no duty on anyone to maintain paths in municipal parks which have become rights of way, the traditional notices saying KEEP OFF THE GRASS ought in fairness to park users to be replaced by notices saying KEEP OFF THE PATHS.”

 

To download this Case Alert as a PDF please click here. 

If you would like to know more about this matter, please speak to your contact at Plexus Law:

Owen Welsh, Associate Partner

T: 0113 4681 734   |   M: 07989 197 456   |   E: owen.welsh@plexuslaw.co.uk

Whilst we take care to ensure that the material in this Article is correct, it is made available for information only, and no representation is given as to its quality, accuracy, fitness for purpose, or usefulness. In particular, the contents of this Article do not give specific legal advice, should not be relied on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may arise from reliance on information or materials published in this Article.

 

A significant amendment to the CPR was made on 6 April 2020 (the 113^th update) dealing with witness evidence and statements of truth.  With all that is happening in the world with the coronavirus this may have flown under the radar.

This overview is therefore relevant for all claims professionals who need to be aware of the new procedure and obligatory wording.

The two key updates are as follows:

1. Practice Direction 32 paragraph 18.1 (5) Evidence

You must confirm the process by which a statement has been prepared, for example, face-to-face, over the telephone, and/or through an interpreter”.

2. Practice Direction 22 Statements of Truth

Within this clause the  main points to note are:

2.1  The form of the statement of truth verifying a statement of case, a response, an application notice or a notice of objections should be as follows:

‘[I believe][the (claimant or as may be) believes] that the facts stated in this [name document being verified] are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”.

 2.2  The form of the statement of truth verifying a witness statement should be as follows:

‘I believe that the facts stated in this witness statement are true I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”.

To access our full guide to these new provisions please click here.

If you would like to know more about this matter, please speak to your contact at Plexus Law:

Anthony Baker, Partner

T: 0113 4681 702   |   M: 07811 545 321   |   E: anthony.baker@plexuslaw.co.uk

Whilst we take care to ensure that the material in this Legal Alert is correct, it is made available for information only, and no representation is given as to its quality, accuracy, fitness for purpose, or usefulness. In particular, the contents of this Legal Alert do not give specific legal advice, should not be relied on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may arise from reliance on information or materials published in this Legal Alert.

WM Morrison Supermarkets plc v Various Claimants [2020] UKSC 12

Morrisons will not be held vicariously liable for the actions of a disgruntled employee who leaked the personal details and payroll data of almost 100,000 members of staff, the Supreme Court has confirmed.

The Judgment in WM Morrison Supermarkets plc v Various Claimants [2020] UKSC 12 (the Morrisons case) was handed down yesterday alongside a parallel decision in Barclays Bank v Various Claimants [2020] UKSC 13 – the latter case addressing the first stage of the test for vicarious liability: whether the relationship is capable of giving rise to vicarious liability.

The Morrisons case addressed the second stage of the test: whether there is a sufficiently close connection between the employment and the wrongdoing.

This ruling comes after both the High Court and Court of Appeal held that Morrisons was liable to face thousands of claims by its employees for distress caused by the data breach committed by its former employee, auditor Andrew Skelton, who had in January 2014, whilst he was still employed by the supermarket following disciplinary proceedings, posted online the personal details and payroll data of 98,998 Morrisons employees, as well as sending CDs containing this data to various newspapers.

The 2001 case of Lister v Hesley Hall [2001] UKHL 22 set the precedent for the close connection test. In order for vicarious liability to flow it has to be shown that there is a sufficiently close connection between the employee’s duties and the wrongful act. The case involved abuse claims brought by boys against the employers of the abusing warden of their school residence. The Court held that there was a sufficiently close connection between the legitimate intimacy with the boys which the warden’s duties comprised, and the illegitimate intimacy and abuse carried out by the warden.

The scope of the close connection test was widened by the decision in the 2003 case of Mattis v Pollock [2003] 1 WLR 2158 where a nightclub doorman stabbed a customer outside the nightclub following an incident in the club earlier that evening. The Court of Appeal found that even though the doorman’s conduct was motivated by revenge, the attack was sufficiently closely related to the doorman’s duties that the nightclub employer of the doorman was vicariously liable to the customer for the injuries caused by the doorman’s actions.

Wider still was the close connection test stretched in a 2016 case against Morrisons (Mohamud v WM Morrison Supermarkets [2016] UKSC 11) where a petrol pump assistant responded to a customer’s enquiry about printing some images from a USB stick with a violent attack against him. The Supreme Court held that Morrisons was vicariously liable for the employee’s actions on the basis that attending to customers and responding to their enquiries was within scope of the employment activities.

Welcome relief then for Morrisons, employers and liability insurers alike is the Supreme Court’s ruling yesterday that Mr Skelton’s actions were not sufficiently closely connected to his employment duties since at the time he committed the data breach he was pursuing a personal vendetta against Morrisons and seeking revenge for the disciplinary proceedings he had previously been subject to. The decision serves to check the limits of employers’ liability for the actions of vengeful employees and highlights an important consideration in the stage 2 test: the full picture of the employment at the time of the wrongdoing.

To view/download this Case Alert as a PDF please click here.

If you would like to know more about this matter, please speak to your contacts at Plexus Law:

Tim Francis, Partner

T: 020 7618 0840   |   M: 07889 355 517   |   E: timothy.francis@plexuslaw.co.uk

Rachel Auld, Solicitor

T: 020 7398 9843   |   M: 07790 282 903   |   E: rachel.auld@plexuslaw.co.uk

Whilst we take care to ensure that the material in this Case Update is correct, it is made available for information only, and no representation is given as to its quality, accuracy, fitness for purpose, or usefulness. In particular, the contents of this Case Update do not give specific legal advice, should not be relied on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may arise from reliance on information or materials published in this Case Update.

 

 

 

Barclays Bank plc v Various Claimants [2020] UKSC 13

Introduction

With the majority of the world distracted by Covid-19 and the upheavals this has entailed, the Supreme Court  handed down judgment on 1 April 2020 in 2 important cases, which clarify the extent of an organisation’s vicarious liability for the actions of others.

In the first of these cases (Barclays Bank plc v Various Claimants [2020] UKSC 13) the Supreme Court held that Barclays should not be held vicariously liable for sexual assaults perpetrated by an independent doctor who carried out medical examinations on behalf of the bank. This decision is an important pause on the expansion of vicarious liability and decisively establishes that an organisation should not be responsible for the actions of independent contractors.

The second case (WM Morrison Supermarkets plc v Various Claimants [2020] UKSC 12) which places further limits on the doctrine of vicarious liability will be considered in more detail in a separate article later this week.

Background

The index claims arose out of a series of alleged sexual assaults by a self-employed medical practitioner, Dr Gordon Bates, who carried out pre-employment medical examinations for Barclays Bank in the North East of England between 1968 and 1984. In the course of these examinations, Dr Bates is alleged to have sexually assaulted as many as 126 women. The medical examinations usually took place in a consulting room at Dr Bates’ home.

Dr Bates died in 2009 before the alleged offences were investigated by police. It has been reported that a subsequent investigation in 2013 established that if Dr Bates had still been alive, police considered that there would have been sufficient evidence to pursue a charging decision/prosecution.

With Dr Bates deceased and his estate distributed, Dr Bates’ victims were left to pursue claims against Barclays on the basis that the assaults were committed during the pre-employment medical examinations arranged by the bank.

First Instance and Court of Appeal

At first instance and in the Court of Appeal, the courts found that Barclays was vicariously liable for the assaults committed by Dr Bates. The decision focussed on the 2 stage test for vicarious liability established in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 (AKA the Christian Brothers case) and the 5 policy reasons identified by Lord Phillips which dictate whether it is fair, just and reasonable to hold an organisation vicariously liable for the actions of someone else:

1. The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability
2. The tort will have been committed as a result of activity being taken by the employee on behalf of the employer
3. The employee’s activity is likely to be part of the business activity of the employer
4. The employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee
5. The employee will, to a greater or lesser degree, have been under the control of the employer

On the facts, both the High Court and the Court of Appeal found that it was fair to impose vicarious liability. The medical examinations were part of Barclays’ business activities (i.e. part of their hiring process) and they had created the risk of the assaults occurring by requiring applicants to undergo a medical with a pre-selected doctor. Dr Bates was under the control of Barclays as he was required to answer prescribed questions using a standard form.

The Supreme Court

The lower instance decisions have now been overturned by the Supreme Court who unanimously held that Barclays should not be responsible for assaults by Dr Bates as he was an independent contractor.

In an authoritative judgment, Lady Hale reiterated the applicability of the 2 stage Christian Brothers test:

1. The relationship between the parties must be such that it is “proper for the law to make one pay for the fault of the other”
2. Where, Stage 1 is satisfied, there must be a close connection between the relationship and the wrongdoing of the third party

The Claimants’ cases fell down at stage 1 of the test as an independent contractor will not usually be in a relationship akin to employment and it is not fair, just or reasonable to hold an organisation responsible for the actions of an independent contractor. This was clearly and comprehensively set out  at paragraph 28 of the judgment:

28. Clearly, although Dr Bates was a part-time employee of the health service, he was not at any time an employee of the Bank. Nor, viewed objectively, was he anything close to an employee. He did, of course, do work for the Bank. The Bank made the arrangements for the examinations and sent him the forms to fill in. It therefore chose the questions to which it wanted answers. But the same would be true of many other people who did work for the Bank but were clearly independent contractors, ranging from the company hired to clean its windows to the auditors hired to audit its books. Dr Bates was not paid a retainer which might have obliged him to accept a certain number of referrals from the Bank. He was paid a fee for each report. He was free to refuse an offered examination should he wish to do so. He no doubt carried his own medical liability insurance, although this may not have covered him from liability for deliberate wrongdoing. He was in business on his own account as a medical practitioner with a portfolio of patients and clients. One of those clients was the Bank.

Conclusion

This case places a clear limit on the doctrine of vicarious liability which has expanded rapidly in recent years to cover a vast array of individuals who fall outside usual employee-employer relationships including prisoners who cause injury in the course of the work duties within a prison (Cox v Ministry of Justice [2016] UKSC 10) and foster parents who abused the children placed in their care (Armes v Nottinghamshire County Council [2017] UKSC 60) and to employees who commit wrongful acts by assaulting customers (Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11) or colleagues at a work party (Bellman v Northampton Recruitment Ltd [2018] EWCA Civ 2214).

The decision in Barclays shows that in many cases it is not necessary to go beyond Stage 1 of the Christian Brothers test (i.e. is there a relationship of employment or akin to employment?). It will only be necessary to consider Lord Phillips’ policy reasons in borderline or novel cases where the relationship is not clear cut. These cases frequently involve sexual abuse claims arising out of assaults by volunteers or members of the clergy/religious organisations.

For now, the law seems settled. Organisations will not be vicariously liable for the actions of independent contractors where it is  established that those contractors are carrying on business on their own account. Going forwards, expect the battleground of vicarious liability to shift towards the emerging gig economy (e.g. Uber, Deliveroo, DPD, etc.) where workers sit somewhere between the traditional roles of employee and independent contractor.

To view/download this Case Alert as a PDF please click here.

If you would like to know more about this matter, please speak to your contacts at Plexus Law:

Andrew Caplan, Partner

T: 01245 951 730   |   M: 07790 929 690   |   E: andrew.caplan@plexuslaw.co.uk

Kate Prestidge, Partner

T: 01245 951 726   |   M: 07790 341 706   |   E: kate.prestidge@plexuslaw.co.uk

Marlon Ellis, Solicitor

T: 01245 951 715   |   M: 07790 437 367   |   E: marlon.ellis@plexuslaw.co.uk

Whilst we take care to ensure that the material in this Legal Alert is correct, it is made available for information only, and no representation is given as to its quality, accuracy, fitness for purpose, or usefulness. In particular, the contents of this Legal Alert do not give specific legal advice, should not be relied on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may arise from reliance on information or materials published in this Legal Alert.

The Court of Appeal in Carpenter v Swift have declined the Claimant’s application for a Protective Costs Order. The case is listed for hearing next month.

The Judge at first instance made a lump sum award of £4,098.051 for the Claimant who was a below knee amputee. The Judge found the additional capital cost of the required special accommodation would be £900,000 more than the value of the Claimant’s existing home. However, she concluded she was bound by the approach in Roberts v Johnstone to apply the discount rate to the additional cost. With a negative discount rate of -0.75% she was unable to make any award in respect of the additional capital cost.

The issue on Appeal is whether a Judge can make an award for the additional capital cost to fund the special accommodation arising from his or her disability. Although the issue is narrow it is of general importance and can make a difference of several hundred thousand pounds on an individual case. The Claimant’s Counsel described the issue as the “issue of the generation”.  The Defendant’s position was that it was an issue of particular and enduring financial importance to Insurers in respect of their continuing business, and, indeed, to the legal profession and Insurers generally who deal with the cases of seriously injured litigants.

The Appeal was originally listed for hearing in July 2019 but was adjourned to enable the parties to obtain further expert evidence. The Claimant applied for leave to introduce evidence of a mortgage package backed by a periodical payment order (PPO). The Defendant objected to the appeal, but the parties now have permission to adduce evidence from four experts in different disciplines.

The parties exchanged expert evidence in November 2019. It maybe of significance that following exchange the Claimant applied for a Protective Costs Order (PCO). The general purpose of a PCO is to enable a Claimant of limited means to advance a case without fear of an Order for substantial costs.

At the time of the original Appeal the Claimant’s cost exposure would have been £209,000 which represented the Defendant’s costs and her own minimal disbursements. By the time of the hearing of her application for a Protective Costs Order the Claimant was facing Defendant/own costs of £710,000 and if the case proceeded to a full hearing as much as £944,000. This sum is considerably higher than the Claimant’s life savings. Her own Counsel described her as:

“An unwilling participant in the litigation as she was compelled to bring the proceedings and fight them to trial in order to recover from the Respondent the amount that she was eventually awarded as compensation for the serious injuries she suffered as a result of a traffic accident for which the Defendant was entirely responsible; and she is now compelled to bring the Appeal in order to recover damages for the cost of suitably adapted accommodation, a long established head of recoverable loss”. 

Having reviewed the authorities the Court of Appeal concluded the policy in practice of the Court was that a Protective Costs Order (PCO) should not be made in private litigation and on this basis the Claimant’s application was dismissed.

The Claimant did not say whether she will proceed with her Appeal if her application for a PCO was refused.  However, the timing of the application does seem to indicate a lack of confidence on the Claimant’s side. It remains to be seen whether the appeal which is listed for March 2020 will proceed.

To view/download this Case Alert as a PDF please click here. For any further information regarding this matter please speak to your contact at Plexus Law:

Philip D’Netto, Partner

T: 01 61 245 7929   |   M: 07970 318 434   |   E: philip.dnetto@plexuslaw.co.uk

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