Download - Legal Watch - Personal Injury - Issue 8
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
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
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)
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