Post on 22-Mar-2016
description
Legal Watch:Personal InjuryFebruary 2014
Issue 007
Events
Plexus and Greenwoods hold a series of events which are open to interested clients. See below for those being held in the next months:
MBIG Seminar | 22.05.2014 | Wellcome Collection,
London, NW1 2BE
In This Issue:
• Civil procedure/compliance with directions
• Vicarious liability
Almost every day brings more post Jackson/Mitchell cases.
Although these are non-personal injury cases we report
them because they reflect the current attitude of the courts.
In Newland Shipping & Forwarding v Toba Trading FZC
and others (2014) EWHC 210 (Comm) the first defendant
company and the third defendant (an individual) sought
relief from sanctions under CPR 3.9 in respect of an order
entering judgment against them. They also sought the
variation and/or revocation of the order under CPR 3.1(7).
The claimant had claimed sums due from the first
defendant, an Iranian-owned company based in the United
Arab Emirates, in respect of the supply of oil products. The
third defendant was said to be a board member, managing
director and an (or the) alter ego of the first defendant. The
defaults on which the order entering judgment was based
were the following: an allegedly inadequate disclosure list
from the first defendant; a failure to file separate disclosure
lists on behalf of the first and third defendants; a failure to
serve witness statements by 25 October 2013 pursuant to
an order made on 26 July 2013. Neither of these defendants
had attended the hearing on 15 November 2013 at which
the order entering judgment was made. They had become
involved in a dispute with their solicitors over fees and
their solicitors had ceased to act for them. They were re-
instructed on 27 November 2013. The claimant had brought
two actions. They had been ordered to be heard together at
a trial fixed for February 2014.
Allowing the applications in part, the High Court judge held
that for it to be appropriate to exercise the discretion which
existed under CPR 3.1(7), the party seeking variation and/
or revocation of the order would usually have to establish
one of the following: that there had been a material change
of circumstances since the order was made; that the facts
Civil Procedure/Compliance with Directions
03
any previous road traffic accidents and a signed mandate
for the release of his clinical records, among other things.
Following his non-compliance with that order, an unless
order was made on 11 December 2012: it was provided
that, if disclosure was not made by 3 January 2013, the
claimant’s claim would be automatically struck out. By an
order of 9 April 2013, a district judge declared that the claim
stood struck out, having considered written representations
from the solicitors acting for the first defendant and from
the solicitors acting for the second respondent insurer. The
claimant then made an unsuccessful application to set
aside the order of 9 April.
He then appealed arguing that the automatic strike-out
provisions had not been triggered as there had been no
breach, or no substantial breach, of the order of 3 August
2012. First, his GP’s surgery had sent his records to the first
defendant on 8 February 2013; had the judge’s attention
been drawn to that fact, he should have inferred that the
records were sent following a request under the mandate.
Second, although he had been involved in a previous
accident in 2005, he was not in breach of the order of 3
August 2012, as his former solicitors had disposed of a
copy of the relevant medical report; he was not obliged to
state what efforts had been made to locate the report, as
the August order had been for specific discovery and no
requirement under CPR 31.12(2)(b) for a specified search
had been made.
on which the order was made had been misstated; that
there had been a manifest mistake on the judge’s part in
formulating the order. Only the second requirement was
met here: it was stated that the claim for the price was
$4,534,120.48, whereas it was in fact $3,904,060.16; the
judgment would be varied so as to reflect the correct figure.
It was clear that the judgment entered against the third
defendant was a judgment in default rather than a judgment
entered on the basis of non-compliance with court orders.
He had never acknowledged service. The appropriate
procedure for challenging the judgment in his case was
CPR 13 and not 3.9.
Relief from sanctions under CPR 3.9 would be granted in
respect of the second action, since the non-compliance in
relation to disclosure and witness statements had occurred
only in the first action.
Relief from sanctions would be refused in respect of the
non-compliance in the first action. The nature of that non-
compliance was serious. The defaults in relation to disclosure
and witness statements were matters of substance and
importance, particularly bearing in mind the February trial
date. Further, there was no good reason for the defaults: any
difficulties that had arisen as a result of the first defendant’s
loss of representation were foreseeable consequences of
its not being prepared to pay fees which it was able to pay
but chose not to. In accordance with the robust approach
required under the new form of CPR 3.9 this was not an
appropriate case for relief. If the first defendant was to have
any recourse in the first action, it would need to be by way
of appeal.
A second case on this topic is Wahid and another v Skanska
UK Plc and another (2014) EWHC 251 (QB).
The appellant/claimant claimed to have been injured in
a road traffic accident allegedly resulting from the first
respondent/defendant’s negligence. The first defendant
put in issue the genuineness of the accident. On 3 August
2012, an order was made for standard disclosure by lists.
The claimant was ordered to provide, by 15 October 2012,
copies of any medical reports outlining injuries sustained in
“In accordance with the robust approach required under the new form of CPR 3.9 this was not an appropriate case for relief.”
04
Dismissing the appeal, the High Court judge held that the
judge who dismissed the claimant’s application to set aside
the order of 9 April 2013 had not erred in concluding that
there was no relevant application before him. The April
order merely declared that the claimant’s statement of
case had been struck out on 3 January 2013. There was no
application to set aside the striking-out on 3 January or the
unless order of 11 December 2012 pursuant to which the
claim was struck out.
The judge had been right to hold that in any event an
application for an extension of time would have been required
to make an application for relief from the sanction of the
December order and that there were no grounds on which it
would be proper to grant an extension or relief. A challenge
to the validity of the unless order of December 2012 or the
consequential automatic strike-out of 3 January 2013 would
have to have been made by way of appeal against that order
and the automatic strike-out or by way of an application
to vary or revoke the December order under CPR 3.1(7). In
the interests of finality in litigation, considerations of delay
would apply to such an appeal or application. In any event,
the claimant’s counsel had conceded before the judge
that the claimant had not complied with the order to give a
medical mandate. He was also in breach of the part of the
August 2012 order which required the provision of copies of
any medical reports outlining injuries sustained in previous
accidents. The requirement was for standard, not specific,
disclosure.
CPR 31.10(4) provided that the standard disclosure list had
to indicate, among other things, those documents which
were no longer in the party’s control and what had happened
to them. The list of documents provided by the claimant did
not include such a statement regarding the medical report
resulting from the 2005 accident.
CommentThis case emphasises the need for disclosure lists to be
completed properly. The claimant’s failure in this case to
list the medical reports from his previous claim that had
been disposed of, is often mirrored in other cases where
claimants cannot produce earnings information which they
have lost or destroyed. Rarely are these dealt with in the
disclosure lists, as documents no longer in the claimant’s
control and the reason given for what happened to them.
The defaulting party enjoyed a better outcome in Bank of
Ireland v Philip Pak Partnership (2014) EWHC 284 (TCC)
The defendant applied for an order that the claimant was
in breach of CPR 3.13 because it had filed a costs budget
which did not contain a full statement of truth.
The claimant’s costs budget was in the form of Precedent
H annexed to CPR PD 3E. Contrary to the claimant’s
solicitor’s normal practice, it had been prepared by an
external draftsman, who assured him that it was ready to
sign. Acting on that assurance, the solicitor failed to notice
that the document did not include the full statement of truth.
He signed it and the parties’ costs budgets were exchanged
seven days before the case management conference.
An identical form was subsequently served with the full
statement of truth included.
The claimant argued that as the original budget was in breach
of CPR 3.13, the claimant’s solicitor required relief from the
sanction otherwise imposed by CPR 3.14 and that CPR
3.9 applied. It emphasised the importance of statements of
truth and asserted that there was no reasonable excuse for
the solicitor’s failure and that there should be no relief from
sanction.
Dismissing the application, the High Court judge held that
there was nothing in CPR or the relevant practice direction
requiring each and every failure to comply with the formal
requirements for budgets as rendering the budget a nullity.
The logical consequence of the defendant’s argument was
“...there were no grounds on which it would be proper to grant an extension or relief...”
05
that every irregularity, even an omitted word or spelling
mistake, would make the budget a nullity, which would
achieve nothing except to bring the law generally into
disrepute. The importance of statements of truth in costs
budgeting was not to be underestimated, but it varied
depending on context. Their purpose in costs budgets
was for solicitors to certify the reasonableness of the
budget. The notion that a document which included the
words “statement of truth” and which was signed by the
partner of a law firm might nevertheless be a complete
nullity was unsustainable. The budget had been filed and
served on time; it suffered only from an irregularity that had
consequently been rectified. CPR 3.14 was not, therefore,
applicable.
If the court was wrong that CPR 3.14 did not apply, relief
from sanction would have been granted on the basis that
the non-compliance was trivial and a failure of form rather
than substance. It would not generally be appropriate to
characterise the absence of a statement of truth as “trivial”
but, on the facts of the instant case, the defendant could
have been in no doubt that the solicitor signing the budget
was intending to certify the costs as reasonable. The case
was far removed from one where there had been a failure to
file and serve the budget.
Newland Shipping & Forwarding v Toba Trading FZC and
others (2014) EWHC 210
“The logical consequence of the defendant’s argument was that every irregularity… would make the budget a nullity.”
06
The case of Mohamud v Wm Morrison Supermarkets Plc
(2014) EWCA Civ 116 sees the court placing a limit on an
employer’s liability for the actions of its employee.
The claimant/appellant appealed against the dismissal of his
claim that the defendant/respondent supermarket operator
was vicariously liable for an assault perpetrated by one of
its employees.
The claim arose out of an incident at a petrol station kiosk
run by the defendant and staffed by three of its employees.
The relevant employee’s duties involved assisting customers
and ensuring that the shop and petrol pumps were in good
running order. He had specific instructions not to confront
angry or abusive customers, and he had had training on that
subject.
On the day in question, the claimant visited the kiosk as a
customer and asked, politely, if there was a printing facility.
The employee responded by abusing and assaulting the
claimant, for no apparent reason and despite his supervisor’s
attempts to stop him. The issue at trial was whether there
was a sufficiently close connection between the assault
and the employee’s employment to make it fair to hold the
defendant vicariously liable. The judge found that there was
not. He found that the attack on the claimant was brutal and
unprovoked, and that the employee had carried it out purely
for reasons of his own. He held that the defendant was not
vicariously liable.
Vicarious LiabilityIn his appeal, the claimant submitted that the assault had
arisen from his customer/sales assistant interaction with
the employee, and that it had therefore been committed
within the parameters of the employee’s duties, fixing the
defendant with liability.
Rejecting the appeal, the Court of Appeal held that the
judge had correctly focused his attention on the test set out
in Lister v Hesley Hall Ltd (2001). The question was whether
the connection between the assault and the employment
was sufficiently close to make it fair and just to hold the
defendant vicariously liable. Each case turned on its own
facts, and the authorities from Lister onwards made it clear
that careful attention had to be given to the closeness of
the connection between the tort and the employee’s duties,
viewed in the round.
The fact that the assault had taken place while the
employee was on duty at his place of work was relevant,
but not conclusive. The mere fact that the employment
provided the opportunity, setting, time and place for the
assault was not necessarily sufficient to fix the defendant
with liability. Moreover, the fact that the employee’s job
included interaction with the public did not, by itself, provide
the necessary connection. Some factor or feature going
beyond interaction between the employee and the victim
was required.
The decided cases examined the question of close
connection by reference to factors such as the granting of
authority, the furtherance of an employer’s aims, the inherent
possibility of friction or confrontation in the employment,
and the additional risk of the kind of wrong occurring. Those
approaches represented different ways of answering the
question, and they were illustrative of the necessary focus.
It was important to recognise that, on the judge’s findings,
the employee had no responsibility for keeping order and
he had committed the assault purely for reasons of his
own. He had not been given duties which involved the clear
possibility of confrontation and the use of force, nor had he
“He had specific instructions not to confront angry or abusive customers...”
The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 8 Bedford Park, Croydon, Surrey CR0 2AP. Parabis Law LLP is authorised and regulated by the SRA.
www.plexuslaw.co.ukwww.greenwoods-solicitors.co.uk
Contact UsFor more information please contact:
Geoff Owen, Learning & Development Consultant
T: 01908 298 216
E: gro@greenwoods-solicitors.com
Other PublicationsIf you would like to recieve any of the below, please
email indicating which you would like to recieve.
Monthly:
• Legal Watch: Property Risk & Coverage
Bi Monthly:
• Legal Watch: Employment Writes
Quarterly:
• Legal Watch: Counter Fraud
• Legal Watch: Health & Safety
• Legal Watch: Marine
• Legal Watch: Professional Indemnity
• Legal Watch: Disease
been placed in a situation where an outbreak of violence
was likely. Rather, his duties were circumscribed and he had
been instructed not to engage in any confrontation with a
customer.
There was nothing to bring the case within the close
connection test so as to enable a finding of vicarious
liability. The law was not yet at a stage where the mere
fact of contact between a sales assistant and a customer,
which was plainly authorised by an employer, was of itself
sufficient to fix the employer with vicarious liability. Were the
defendant to be held liable for the employee’s assault on the
claimant, it would mean that in practically every case where
an employee was required to engage with the public, his
employer would be liable for any assault which followed on
from such an engagement. That was a step too far.
Mohamud v Wm Morrison Supermarkets Plc (2014)
EWCA Civ 116
“There was nothing to bring the case within the close connection test so as to enable a finding of vicarious liability.”