Personal Injury Brief latest decisions – November 2018
A roundup of recent court decisions raising issues in relation to vicarious liability, a stay in proceedings, litigant in person sanctions, and some limitation decisions.
Vicarious liability imposed for employee’s deliberate data leak
Various Claimants v WM Morrison Supermarkets Plc [22.10.2018]
The Court of Appeal confirmed that an employee was vicariously liable for the criminal actions of its employee in posting almost 100,000 of its personal data on the web.
The case concerned a class action for breach of the Data Protection Act 1998, breach of confidence and misuse of private information. The High Court held that there was sufficient connection between the acts committed by the employee and his role, for vicarious liability to attach. This was despite the act happening outside of working hours, from the employee’s home and by use of personal equipment.
The defendant appealed, but the Court of Appeal upheld the High Court’s decision. The Defendant has, however, confirmed that they will now seek leave to appeal to the Supreme Court.
Contact: James Shrimpton
Related item: Court of Appeal upholds vicarious liability claim in data breach class action
EL portal claim - a stay does affect the obligation to serve the claim form
David Grant v Dawn Meats (UK) Ltd [16.10.2018]
If a stay is lifted, or expires, the position between the parties is the same as it was at the moment when the stay was imposed and the claim will proceed from where it was left.
The claim was for personal injury sustained at work and liability was admitted. However, limitation arose before the parties were able to complete Stage 2 in the Claims Portal, as medical evidence had not been obtained. The claimant issued Stage 3 proceedings and a stay was granted. During the stay, the claimant did not serve the claimant form on the defendant. The defendant argued that failure to serve within four months meant that the claim had lapsed.
The Court of Appeal upheld the decision made at first instance: the stay applied to every step and that the claimant form had been served in time. In general terms, no steps need to be taken by either side during the course of the stay.
Contact: Paul Bedford
Vicariously liability for managing director’s assault on employee during after-party
Bellman v Northampton Recruitment Ltd [11.10.201]
The Court of Appeal confirmed that a senior manager is likely to be acting in his official capacity, even at social occasions.
The respondent had held a work Christmas party, followed by drinks at a local hotel. During the after-party, when most of the drinks were paid for by the respondent, an argument started about internal company politics, resulting in the respondent’s managing director (MD) assaulting another employee. The High Court found the incident was too far removed from the MD’s duties to make the respondent vicariously liable for his actions.
The Court of Appeal disagreed, largely due to the unusual facts of the case, including with regard to the remit of the MD’s authority over the respondent and its employees.
Contact: Kathy Dwyer
Related item: Vicarious liability - is the party now over?
Litigant in Person disclosing ‘without prejudice’ offer sanctioned
Ogiehor v Belinfantie [10.10.2018]
A litigant in person (LiP) who disclosed a ‘without prejudice’ offer during trial had been warned not to and the judge was right to sanction him, the Court of Appeal ruled.
At trial, citing surveillance evidence, the defendant accused the claimant of fraud. The claimant then revealed the ‘without prejudice’ offer he had received, questioning why the defendant would offer money if it was a fraudulent claim. Following his action, the trial was adjourned and he was ordered to make an interim payment for the defendant’s costs thrown away. The judge also recused himself from the case.
The Court of Appeal dismissed the claimant’s appeal. Whilst judges will assist LiPs, they “must enforce the rules, and have a proper eye to the legitimate interests of the other parties.”
Contact: Alan Dury
Discretion exercised on limitation despite being nine years out of time
RSL v CM [04.10.2018]
The court exercised its discretion under the Limitation Act 1980 s.33 and allowed a claim for damages in respect of abuse inflicted by the claimant’s adoptive father between 1993 and 2000.
A police investigation led to her adoptive father’s conviction in 2009 and the claimant issued a civil claim in 2016. Limitation for the claim had expired on 1 September 2007. The court confirmed that despite being nine years outside of limitation, the defendant was aware of the claimant's case and it was difficult to see what significant effect delay had upon the prospects of defending that claim. The degree of prejudice to the claimant far outweighed any to the defendant and the claim proceeded.
Contact: Helen Snowball
Scottish court takes strong line on limitation
Kriss Spencer v Richard Cruddas and others [25.09.18]
The court maintained a strong line on the defenders’ statutory protection under the Prescription and Limitation (Scotland) Act 1973.
The original proceedings were re-issued after limitation expired. In her decision, the judge noted that the court has very wide discretion to disapply the time-bar. However, but she decided not to use this discretion and dismissed the claim, confirming that the prejudice to the defenders outweighed that of the pursuers.
The reasoning focussed on the important protection limitation gives to wrongdoers, where defenders comply fully with the rules of procedure. A further consideration was the pursuer’s remedy by way of a professional negligence claim.
Contact: Peter Demick
Related item: Scottish court takes strong line on limitation