Cammack v Ashby  EWCA
Compromise – Privilege – Costs
Following determination of a contested issue at a hearing, Judges are regularly confronted with submissions based on discussions and/or correspondence in an attempt to persuade the court that a costs order ought to be made in favour of one party or the other in light of the content of that letter or discussion.
That issue came before the Court of Appeal recently in Cammack v Ashby (2016) CA 01/03/2016. The Judge was referred to a note of what C claimed were discussions outside court leading to a compromise of the dispute, save for the issue of costs. On the basis of the content of the Note the Judge determined that D should bear C’s costs after that point.
The issue on appeal was privilege and whether it had ever attached to the document at all (C claimed it was ‘without prejudice save as to costs) and if so, whether that privilege had been waived.
The CA was uncompromising; where the privilege applied, there was no general discretion to admit it into evidence and communications made for the purpose of a genuine attempt to compromise a dispute could not be admitted into evidence. The CA upheld the long-established rule that privilege attached to such communications, irrespective of whether the words ‘without prejudice’ were used or not.
Privilege could be waived, but only with the consent of both parties. In this instance there was no such agreement, either to it being adduced or even to the content. The CA accordingly overturned the decision on costs at first instance.
The CA has said on more than one occasion that a failure by the parties to agree costs may mean that the court declines to approve a compromise at all, and the action must proceed: see Hutchin v Grant (2016) and BCT Software Solutions Ltd v C Brewer & Sons Ltd .
Privilege as regards offers is nonetheless a slightly moveable feast, in certain instances. A Part 36 offer is not to be disclosed to the trial judge (r.36.16) but may be disclosed to a (different) Judge at an interlocutory hearing. The size of a Part 36 offer may indicate what percentage of an interim payment on account of damages is reasonable; and even whether a denial of liability is realistic or simply tactical. A Protocol Offer, by distinction, may not be communicated ‘to the court’ until after determination of the claim and any other offer to settle cannot be communicated to the court at all (r.26.28).
Knauer v Ministry of Justice  UKSC 9
Fatal Accidents – Multipliers
On a leapfrog appeal from the QBD, the Supreme Court finally overturned Cookson v Knowles  AC 556 and the precedent set by that case that multipliers in fatal accident claims should be calculated from the date of death. In a unanimous decision the Supreme Court said that the correct date as at which to assess the multiplier when fixing damages for future loss in claims under the Fatal Accidents Act 1976 should be the date of trial and not the date of death. This decision is likely to favour claimants and the difference it made in Knauer was an increase of £52,808 which was about a further 8.2% of the claim as assessed by the QBD at £642,972.
Kennedy v Cordia (Services) LLP  UKSC 6
Employers’ Liability – Risk Assessments – Negligence – Expert Evidence
The claimant was a carer who claimed damages from her employer when she suffered a wrist injury as a result of slipping and falling on an icy and snowy footpath while making her way to see a house-bound individual. She succeeded at first instance but lost on appeal in the Scottish courts. The Supreme Court allowed the claimant’s appeal.
The Court considered the Management Regulations, the PPE Regulations and the relevant EU Directives and found that there had been a breach of both regulations with regards to risk assessments.
Although this case concerned events pre-Enterprise Act amendment to remove a right of action for breach of statutory duty, the Supreme Court helpfully addressed common law negligence and causation arising out of these issues [paragraphs 107 to 121 of the judgment]. The Supreme Court said that the employer’s duty is no longer confined to taking such precautions as are commonly taken and a negligent omission can result from a failure to seek out knowledge of risks which are not in themselves obvious.
In addition to dealing with negligence, Supreme Court also give valuable guidance [paragraphs 34 to 73 of the judgment] as to expert evidence, particularly non-medical experts, including: admissibility; making sure the expert performs his role; policing performance of an expert’s duties; and economy in litigation.
Cox v Ministry of Justice  UKSC 10
Employers’ Liability – Vicarious Liability
The claimant was employed by the defendant as a catering manager when one of the prisoners who worked in the kitchen negligently dropped a sack of rice on her back. The claimant lost at first instance on the basis that the defendant was not vicariously liable for the prisoner. The prisoner was not an employee of the defendant and the Judge considered the law on vicarious liability and the various tests to establish whether the relationship was one akin to employment.
The claimant succeeded on appeal to the Court of Appeal. The Supreme Court heard the defendant’s appeal and dismissed it. The Supreme Court referred back to the words of the Court of Appeal in Various Claimants v Catholic Child Welfare Society  UKSC 56 that ‘the law of vicarious liability is on the move’ and said “It has not yet come to a stop.” The Supreme Court considered Various Claimants and the five factors set out by Lord Phillips to determine whether there was a relationship that gave rise to vicarious liability. The Supreme Court said that the five factors were not of equal significance and the fifth factor – control – no longer has the significance that it was sometimes considered to have in the past.
In applying the factors set out in Various Claimants the Supreme Court found that the defendant was vicariously liable to the claimant.
Mohamud v WM Morrison Supermarkets PLC  UKSC 11
Employers’ Liability, Vicarious Liability, Assault
The claimant, a customer, was assaulted by the defendant’s employee, a petrol station attendant. The claimant lost at first instance and before the Court of Appeal but succeeded before the Supreme Court.
The Supreme Court analysed the history and development of the doctrine of vicarious liability in some detail. The two main issues were: what functions or field of activities had been entrusted by the employer to the employee (and this question must be addressed broadly); and whether there was sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable.
The Supreme Court found that the employee was giving an order to stay away from the defendant’s premises, which he reinforced by violence. Although a gross abuse of his position it was in connection with the business in which he was employed to serve customers. His employer trusted him with that position and it was just that it should be held responsible for its employee’s abuse of it.
Although Dyson LJ agreed that there had been developments in the law of vicarious liability as to the relationship that gives rise to vicarious liability, his opinion was that the law on vicarious liability was not on the move in relation to the circumstances in which an employer should be held liable for a tort committed by his employee. However this decision would appear to be at odds with other recent vicarious liability decisions by the Court of Appeal in Graham v Commercial Bodyworks  EWCA Civ 47 and the decision of the Inner House in Vaickuviene v J Sainsbury PLC  CSIH 67. The Supreme Court was keen to not overcomplicate matters and said simplification of the essence is more desirable with regards to the test of whether there was a sufficiently close connection. It seems likely that such simplification will increase the size of the vicarious liability net in the future.
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