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.

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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.”