Legal WatchPersonal InjuryFebruary 2014

Issue 008

02

We bring you this week’s inevitable post Mitchell/Jackson

case.

In Chartwell Estate Agents Ltd v Fergies Properties SA and

another [Lawtel 21/02/2014] the claimant/appellant applied

for an extension of time to serve its witness statements in

its claim against the respondent/defendant for commission

owed following the sale of a property.

The claimant had made repeated requests to the defendant,

stating that it would apply for specific discovery if it did not

provide full disclosure, without which it was impossible to

complete its witness statements. The defendant refused

those requests, disagreeing with the documents’ relevance

and their effect on the preparation of witness statements.

The claimant informed the defendant that it was not going to

be ready to exchange witness statements simultaneously on

the relevant date and the exchange did not take place. The

defendant stated that although it would have been ready to

exchange, it had not finalised its own statements because

of the claimant’s stated position. The claimant did not make

an application for specific discovery. The defendant later

offered disclosure without seeking to determine the issue

of the documents’ relevance, but refused to consent to

an extension of time for serving the witness statements,

contending that that was a matter for the court to consider.

Several weeks after the ordered exchange date, the claimant

issued the instant application for the court’s permission, as

required by CPR 32.10, to serve the witness statements out

of time.

It submitted that (1) an extension of time should be granted

as the breach was trivial and there had been a good reason

for the breach, given the defendant’s failure to provide

the disclosure earlier and the defendant’s own failure to

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In This Issue:

• Civil Procedure/Compliance with directions

• Vicarious liability

• Jurisdiction

Civil Procedure/Compliance with directions

03

serve its witness statements; (2) the relief from sanctions

provision under CPR 3.9 did not apply to an application for

an extension of time under CPR 31.10, so that the court

was only required to decide whether to grant permission to

adduce the statements.

‘..it was an important factor that there was nothing to prevent the trial window being maintained’Allowing the application, the High Court judge held that

notwithstanding the purported complexity of the case’s

issues, it was an important factor that there was nothing to

prevent the trial window being maintained. Both parties had

been at fault. The ongoing disclosure dispute should have

been addressed at an earlier case management conference.

Having taken issue with the defendant’s disclosure, the

claimant’s failure to apply for specific discovery and for

an extension of time for serving the witness statements

was not trivial. Even in the absence of full disclosure, the

claimant could have served its witness statements and then

applied to serve supplemental statements if that became

necessary upon full disclosure. There was no justification for

its failure to seek an extension of time before the exchange

date. However, the claimant’s default could not be seen in

isolation as the defendant’s eventual offer of disclosure could

have been made much earlier. Most importantly, the instant

case concerned a simultaneous exchange of statements,

rather than sequential service. The defendant had not been

ready to exchange on time. There was therefore default

on both sides. The trial date remained and both parties

could exchange witness statements almost immediately.

Refusing relief through a robust application of CPR 3.9 as

amended would have effectively ended the claimant’s claim.

That was too severe a consequence and an unjust result

when considered against the history of the case. As the

court would not increase the costs budgets any additional

expenditure incurred would be a direct consequence of the

parties’ defaults.

(Obiter) There was clear authority that CPR 3.10 constituted

a sanction. It was arguable that, when seeking an extension

of time before the trial had started, CPR 3.9 did not apply

because the sanction had not yet taken effect. If that was

true, then relief from sanctions would not be required and

the court would just be required to consider, applying the

overriding objective, whether to extend time. It was also

possible that the actual sanction under CPR 32.10 was

that permission would be needed to adduce the witness

statement. The contrary view was that when the time limit

for exchanging witness statements expired, CPR 32.10

debarred a party from calling a witness unless the court

gave permission, so that the debarring ran from the expiry

of the deadline until the point at which permission was

granted, when relief from the sanction would be required.

If the court was wrong that CPR 3.9 had applied, it had still

been appropriate to extend time.

Chartwell Estate Agents Ltd v Fergies Properties SA and

another [Lawtel 21/02/2014]

04

Vicarious liabilityIn last week’s edition of this publication we featured the

case of Mohamud v Wm Morrison Supermarkets Plc as an

example of a court limiting an employer’s vicarious liability

for the actions of an employee. In Cox v Ministry of Justice

(2014) EWCA Civ 132 the decision went the other way and,

as in the case of Various Claimants v Institute of Brothers of

the Christian Schools cited in the judgment, the concept of

‘employment’ was extended to establish liability.

‘..the fact that the prisoner was bound to the defendant by an imprisonment sentence…rendered the relationship between him and the defendant, if anything, closer to that of an employer and its employees’The claimant/appellant appealed against a decision

dismissing her personal injury claim against the defendant/

respondent. She had worked as the catering manager at a

prison. When unloading a consignment of food under her

supervision, a prisoner had dropped a sack causing a food

spillage. The claimant instructed all of the prisoners to stop

working until the spillage had been cleared but, negligently

and contrary to her instructions, another prisoner continued

working and dropped a sack onto the claimant’s back

while she was kneeling on the floor clearing the spillage.

The judge concluded that, although the defendant’s

relationship with the relevant prisoner exhibited some

salient features of the employment relationship, including

the fact that the prisoner was compensated for his kitchen

work, an imposition of vicarious liability was not justified.

In particular, he referenced the fact that employment was

a voluntary, mutual relationship, unlike prisoners’ work, the

prisoner’s work had not furthered the defendant’s business

undertaking, and although there was a relationship of

control, it arose from common sense and the fact that

duties were owed by the ministry to its prisoners. The judge

also concluded that the defendant was not in breach of its

direct personal duty to the claimant because it was not the

prisoner’s lack of training in manual handling operations that

had caused the accident but his disregard for the claimant’s

instructions and the obvious risk of injury.

The claimant appealed. Allowing the appeal, the Court

of Appeal held that adopting a principled, coherent and

incremental approach, it was necessary to apply the features

of the traditional relationship giving rise to vicarious liability,

and to ask whether the features of the instant case fell

within them so that it was fair and just to impose vicarious

liability on the defendant. That involved asking whether the

relationship between the prisoner and the defendant was

one akin to employment. When one carried out that task and

applied the relevant features identified in Various Claimants

v Institute of Brothers of the Christian Schools (2012), it was

clear that those features distinctly applied in the instant

case. In particular, the features which applied were the

ability to compensate the prisoner for his work, the fact that

his employment by the defendant had created the risk of

the injury being caused to the claimant, and the fact that the

prisoner would have been under the defendant’s control.

The work carried out by the prisoner and the other kitchen

workers was essential to the functioning of the prison and

was different in nature from the activities of those prisoners

engaged in education, training or on offending behaviour

programmes. The work carried out by the prisoner relieved

the defendant from engaging employees at market rates and

05

with all the concomitants of an employment relationship,

and it was clearly done on the defendant’s behalf and for

its benefit. There was no reason that the defendant should

not take on the burden of the prisoner’s work as well as

the benefit. As in Various Claimants v Institute of Brothers of

the Christian Schools, the differences between the prisoner’s

relationship with the defendant and the normal employment

relationship, including the fact that the prisoner was bound

to the defendant by an imprisonment sentence and not

a contract, and the fact that his wages were nominal,

rendered the relationship between him and the defendant, if

anything, closer to that of an employer and its employees:

far from there being mutuality or consent, there was an

element of compulsion in engaging in the activity directed

by the ministry as the quasi-employer. The defendant was

accordingly vicariously liable for the claimant’s injury.

The judge’s findings as to the likely content of any training

and as to the consequences if such training had been

provided were unassailable on both duty and causation. The

judge was not obliged to draw any inferences against the

defendant. He was entitled to conclude that the provision

of training would not have caused the prisoner not to ignore

both the obvious risk of injury and the claimant’s express

instructions.

(Per Beatson, L.J.) It was understandable that considering

whether a relationship was akin to employment could lead

to a focus on whether the relationship was voluntary, but

that focus could mislead if it was taken as a bar to vicarious

liability rather than simply a factor to be taken into account.

While the existence of control was important, vicarious

liability did not depend solely on it: what one was looking for

was whether the person who had committed the negligent

act was so much part of the work, business or organisation

of the person or entity who it was said should be vicariously

liable that it was just to make the latter answer for the

negligence of the former.

In Cox v Ministry of Justice (2014) EWCA Civ 132

06

JurisdictionThe case of Brownlie v Four Seasons Holdings Inc (2014)

EWHC 273 (QB) is the latest in a series in which the courts

have shown a readiness to seise jurisdiction for an English

national.

The claimant and her late husband, who were British and

resident in the United Kingdom, had been staying in Egypt

at a hotel which formed part of the hotel group carrying

the defendant’s name. During a sightseeing tour, the car

in which they were travelling crashed, injuring the claimant

and killing her husband and his daughter. The claimant

had booked the tour by telephoning the hotel’s concierge

before they left the UK, having referred to a brochure she

had picked up on a previous stay at the hotel. She claimed

that the defendant was liable for her personal injuries and

under the Fatal Accidents Act 1976; she also claimed under

the Law Reform (Miscellaneous Provisions) Act 1934 as the

executrix of her late husband’s estate. In a letter before

action to the defendant she sought pre-action disclosure

of documents relating to the tour booking. The defendant

passed the request to the hotel in Egypt. Egyptian lawyers

responded, asserting that the accident was caused by

the car company and the driver only, and that the driver

was never employed by the hotel, whose role had been

merely to relay the claimant’s request for a tour to the car

company. The claimant failed in her further attempts to

obtain clarification from the defendant as to what corporate

entity or entities were involved. She issued proceedings

and obtained permission to serve the defendant in Canada.

The defendant applied successfully for that to be set aside

and for a declaration that the court had no jurisdiction to

try the claim. The master decided that it was clear that the

defendant did not own or operate hotels and in particular

did not own the hotel in Egypt, and that the claimant had

contracted with the hotel not the defendant for the tour.

Allowing the claimant’s appeal, the High Court judge held

that it was not appropriate for the court, on an application

for permission to serve out of the jurisdiction or to set aside

permission when given, to try the merits of the claim; yet

the master had made findings of fact on issues that would

have to be determined at any trial. Moreover, his findings as

to the ownership and/or management of the hotel and as

to the party with whom the claimant contracted for the tour

were based on defective witness statements and/or were

unsupported by evidence. There was no evidence that any

company had been established in Egypt for the purpose of

managing the hotel. Contrary to the master’s findings, the

claimant had a strongly arguable case that the other party

to the contract for the tour was most probably an entity with

whom the proprietor of the land and buildings had entered

into agreements; agreements which were likely to have

provided for a licence to use intellectual property including

the defendant’s logo and its name and for management and

advisory services.

‘…the claimant heard (the) acceptance in England, so the contract was made in England’As to whether a contract was made by the claimant with

the defendant, the brochure was the most important

evidence, because it alone purported to identify the

concierge’s principal. It would lead a reasonable person to

understand, as the claimant did, that she was contracting

with an international company known to trade under the

defendant’s name and logo. No specific company fitting that

description was or could have been known to the claimant

at the time, because those responsible for the hotel chain

chose not to tell their guests who or which company was

responsible for the management of the hotels, including, in

particular, the guests’ safety. However, the defendant fitted

that description. The claimant had a strongly arguable case

that the defendant was the other contracting party. No other

07

company had been identified as a possible defendant. The

defendant could have no complaint if the court did not take

into account points it might make or evidence it might call

at any trial, but which it chose not to mention at this stage.

Contrary to the master’s view, the most probable analysis

of the evidence regarding the claimant’s conversation with

the concierge was that, after some discussion about the

details of the tour she wanted, she told him that she wished

to make a firm booking, which comprised her offer, he then

accepted the booking, and therefore the claimant heard

that acceptance in England, so the contract was made in

England. However, it was hard to say that either party had

much the better of the argument.

Although in light of the preceding findings it was

unnecessary to decide, given the finding that the claimant

had a good arguable case that the defendant was the party

to the contract, the applicable law pursuant to Article 4(1)(b)

Regulation 593/2008 (Rome I) was not that of England.

The claimant had a good arguable case that her claims in

tort disclosed a serious issue to be tried and on which she

had a real prospect of success.

As the most likely live issue at any trial was the amount of

special damages, and because people with knowledge of

the claimant’s late husband’s professional practice and his

health were likely to be in England, it was clearly the most

appropriate jurisdiction.

Two witness statements made by solicitors in support of

the defendant’s application were plainly not compliant with

PD 32. They failed to say either that they were speaking

from their own knowledge or what the source of their

information or belief was; and the substance of one was

drafted as a submission rather than a statement of fact. It

was unacceptable that solicitors should breach the rules in

that way. If their instructions did not enable them to make

a compliant witness statement, then it was their duty to

the court to ask for permission under paragraph 25.2 of the

Practice Direction to file a defective witness statement, or

not to file a statement at all. In the instant case, it might

have been better if the court had simply refused to admit the

statements pursuant to the underused power in paragraph

25.1.

Brownlie v Four Seasons Holdings Inc (2014) EWHC 273

(QB)

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.

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