1 Legal Watch: Personal Injury February 2014 Issue 007
2 Civil Procedure/Compliance with Directions 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 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 reinstructed on 27 November The claimant had brought two actions. They had been ordered to be heard together at a trial fixed for February In This Issue: Civil procedure/compliance with directions Vicarious liability 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 Wellcome Collection, London, NW1 2BE 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
3 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 noncompliance 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 any previous road traffic accidents and a signed mandate for the release of his clinical records, among other things. In accordance with the robust approach required under the new form of CPR 3.9 this was not an appropriate case for relief. 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 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. 03
4 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 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....there were no grounds on which it would be proper to grant an extension or relief... 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. Comment This 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 04
5 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. The logical consequence of the defendant s argument was that every irregularity would make the budget a nullity. 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
6 Vicarious Liability 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. He had specific instructions not to confront angry or abusive customers... 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. In 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 06
7 There was nothing to bring the case within the close connection test so as to enable a finding of vicarious liability. 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 Other Publications If you would like to recieve any of the below, please 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 Contact Us For more information please contact: Geoff Owen, Learning & Development Consultant T: E: 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: OC Registered office: 8 Bedford Park, Croydon, Surrey CR0 2AP. Parabis Law LLP is authorised and regulated by the SRA.