Legal Watch: Personal Injury February 2014 Issue 007
Civil Procedure/Compliance with Directions Almost every day brings more post Jackson/Mitchell cases. Although these are non-personal injury cases we report
In This Issue:
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
• Civil procedure/compliance with directions • Vicarious liability
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).
Events
The claimant had claimed sums due from the first
Plexus and Greenwoods hold a series of events which are open to interested clients. See below for those being held in the next months:
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
MBIG Seminar | 22.05.2014 | Wellcome Collection,
defaults on which the order entering judgment was based
London, NW1 2BE
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 reinstructed 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
on which the order was made had been misstated; that
any previous road traffic accidents and a signed mandate
there had been a manifest mistake on the judge’s part in
for the release of his clinical records, among other things.
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.
“In accordance with the robust approach required under the new form of CPR 3.9 this was not an appropriate case for relief.”
Relief from sanctions under CPR 3.9 would be granted in
Following his non-compliance with that order, an unless
respect of the second action, since the non-compliance in
order was made on 11 December 2012: it was provided
relation to disclosure and witness statements had occurred
that, if disclosure was not made by 3 January 2013, the
only in the first action.
claimant’s claim would be automatically struck out. By an
Relief from sanctions would be refused in respect of the
order of 9 April 2013, a district judge declared that the claim
non-compliance in the first action. The nature of that non-
stood struck out, having considered written representations
compliance was serious. The defaults in relation to disclosure
from the solicitors acting for the first defendant and from
and witness statements were matters of substance and
the solicitors acting for the second respondent insurer. The
importance, particularly bearing in mind the February trial
claimant then made an unsuccessful application to set
date. Further, there was no good reason for the defaults: any
aside the order of 9 April.
difficulties that had arisen as a result of the first defendant’s
He then appealed arguing that the automatic strike-out
loss of representation were foreseeable consequences of
provisions had not been triggered as there had been no
its not being prepared to pay fees which it was able to pay
breach, or no substantial breach, of the order of 3 August
but chose not to. In accordance with the robust approach
2012. First, his GP’s surgery had sent his records to the first
required under the new form of CPR 3.9 this was not an
defendant on 8 February 2013; had the judge’s attention
appropriate case for relief. If the first defendant was to have
been drawn to that fact, he should have inferred that the
any recourse in the first action, it would need to be by way
records were sent following a request under the mandate.
of appeal.
Second, although he had been involved in a previous
A second case on this topic is Wahid and another v Skanska
accident in 2005, he was not in breach of the order of 3
UK Plc and another (2014) EWHC 251 (QB).
August 2012, as his former solicitors had disposed of a
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
03
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.
Dismissing the appeal, the High Court judge held that the
not include such a statement regarding the medical report
judge who dismissed the claimant’s application to set aside
resulting from the 2005 accident.
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.
“...there were no grounds on which it would be proper to grant an extension or relief...”
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 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
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.
would apply to such an appeal or application. In any event,
The claimant argued that as the original budget was in breach
the claimant’s counsel had conceded before the judge
of CPR 3.13, the claimant’s solicitor required relief from the
that the claimant had not complied with the order to give a
sanction otherwise imposed by CPR 3.14 and that CPR
medical mandate. He was also in breach of the part of the
3.9 applied. It emphasised the importance of statements of
August 2012 order which required the provision of copies of
truth and asserted that there was no reasonable excuse for
any medical reports outlining injuries sustained in previous
the solicitor’s failure and that there should be no relief from
accidents. The requirement was for standard, not specific,
sanction.
disclosure.
Dismissing the application, the High Court judge held that
CPR 31.10(4) provided that the standard disclosure list had
there was nothing in CPR or the relevant practice direction
to indicate, among other things, those documents which
requiring each and every failure to comply with the formal
were no longer in the party’s control and what had happened
requirements for budgets as rendering the budget a nullity.
to them. The list of documents provided by the claimant did
The logical consequence of the defendant’s argument was 04
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 210
05
Vicarious Liability The case of Mohamud v Wm Morrison Supermarkets Plc
In his appeal, the claimant submitted that the assault had
(2014) EWCA Civ 116 sees the court placing a limit on an
arisen from his customer/sales assistant interaction with
employer’s liability for the actions of its employee.
the employee, and that it had therefore been committed
The claimant/appellant appealed against the dismissal of his claim that the defendant/respondent supermarket operator
within the parameters of the employee’s duties, fixing the defendant with liability.
was vicariously liable for an assault perpetrated by one of
Rejecting the appeal, the Court of Appeal held that the
its employees.
judge had correctly focused his attention on the test set out in Lister v Hesley Hall Ltd (2001). The question was whether
“He had specific instructions not to confront angry or abusive customers...”
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
The claim arose out of an incident at a petrol station kiosk
employee was on duty at his place of work was relevant,
run by the defendant and staffed by three of its employees.
but not conclusive. The mere fact that the employment
The relevant employee’s duties involved assisting customers
provided the opportunity, setting, time and place for the
and ensuring that the shop and petrol pumps were in good
assault was not necessarily sufficient to fix the defendant
running order. He had specific instructions not to confront
with liability. Moreover, the fact that the employee’s job
angry or abusive customers, and he had had training on that
included interaction with the public did not, by itself, provide
subject.
the necessary connection. Some factor or feature going
On the day in question, the claimant visited the kiosk as a customer and asked, politely, if there was a printing facility.
beyond interaction between the employee and the victim was required.
The employee responded by abusing and assaulting the
The decided cases examined the question of close
claimant, for no apparent reason and despite his supervisor’s
connection by reference to factors such as the granting of
attempts to stop him. The issue at trial was whether there
authority, the furtherance of an employer’s aims, the inherent
was a sufficiently close connection between the assault
possibility of friction or confrontation in the employment,
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.
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
“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
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been instructed not to engage in any confrontation with a
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There was nothing to bring the case within the close
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liability. The law was not yet at a stage where the mere fact of contact between a sales assistant and a customer,
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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
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from such an engagement. That was a step too far.
For more information please contact:
Mohamud v Wm Morrison Supermarkets Plc (2014) EWCA Civ 116
Geoff Owen, Learning & Development Consultant T: 01908 298 216 E: gro@greenwoods-solicitors.com
www.greenwoods-solicitors.co.uk
www.plexuslaw.co.uk
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.