DOLMANS INSURANCE BULLETIN

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1 DOLMANS INSURANCE BULLETIN Welcome to the March 2018 edition of the Dolmans Insurance Bulletin REPORT ON In this issue we cover: Fundamental dishonesty, summary strike out and displacement of Qualified One Way Costs Shifting - Darius Creer v BMW UK Limited FOCUS ON Civil Liability Bill RECENT CASE UPDATE Costs - Part 36 offer - withdrawal Employers liability - mesothelioma Employer s liability - mesothelioma - foreseeability Human rights - police - Article 3 ECHR Qualified One Way Costs Shifting - additional claims Retrospective validation of defective service - rule 6.15(2) CPR Vicarious liability A DATE FOR YOUR DIARY Dolmans Defendant Litigation Team s ever popular Key Note Seminar will be held on Thursday, 14 June 2018 at the Vale of Glamorgan Resort Should you require details and/or a registration form for this seminar, please contact kerenj@dolmans.co.uk If there are any items you would like us to examine, or if you would like to include a comment on these pages, please the editor, Justin Harris, Partner, at justinh@dolmans.co.uk 1

2 DOLMANS REPORT ON FUNDAMENTAL DISHONESTY, SUMMARY STRIKE OUT AND DISPLACEMENT OF QUALIFIED ONE WAY COSTS SHIFTING Darius Creer v BMW UK Limited Dolmans has recently achieved an extremely successful outcome for a major Insurer in connection with a claim involving substantial damages and a proven allegation of fundamental dishonesty. To our knowledge, this is the first case of its kind in that it involved a summary strike out of a claim (pursuant to section 57 of the Criminal Justice and Courts Act 2015 and/or CPR 3.4) based on a finding of fundamental dishonesty, rather than a strike out following a trial involving oral evidence for one or both parties (cf. the case of Sinfield v LOCOG discussed in the February 2018 edition of the Dolmans Insurance Bulletin). Darius Creer, a former employee of the Defendant, claimed damages against BMW Manufacturing UK Limited in excess of 1 million (NB : before the recent discount rate adjustment, the current valuation of the claim could be more like 2-3 million) for an alleged accident at work in April Dolmans were instructed in February 2016 following service of proceedings. Mr Creer alleged that he was electrocuted by the remote control of an overhead pendant crane, and effectively lost the use of his right arm as a result of the incident. Damages for personal injury, past and future loss of earnings, and cost of ongoing care and assistance, were claimed in the proceedings in an action brought, initially, via Mr Creer s Union Solicitors. Extensive medical evidence was supplied in support of this position from a number of experts, including orthopaedic expert evidence, psychiatric evidence, pain management evidence and nursing care evidence. A Provisional Schedule of Loss (settled by Counsel) signed by the Claimant personally, accompanying the proceedings, totalled over 860,000. However, our Insurer client, being suspicious of the claim from the outset, had, by then, already subjected Mr Creer to several periods of covert surveillance from the initial presentation of the claim; the video footage from those periods of surveillance appeared to show that there was little, or nothing, physically wrong with him and he was seen engaging in various activities, including driving and what appeared to be working at a local car repair workshop, which included footage of him pushing a broken down car off the forecourt using his injured arm, and other similar activities. At no point was he seen to be wearing a sling on his right arm, contrary to his medical reports (see overleaf). 2

3 DOLMANS REPORT ON We noted that one of Mr Creer s medical experts (his Pain Consultant) had made reference in his medical report to having filmed his examination of the Claimant. We requested, and obtained, a copy of this video footage. This showed the Claimant being examined, and displaying obvious signs of apparent pain and severe limitation of movement in his right arm. This footage was taken shortly after one of the covert video films obtained by our Insurer client, which, as above, showed a radically different picture in terms of physical disability (specifically, in that film, the Claimant was shown providing what appeared to be roadside assistance to a member of the public from the aforementioned motor repair business, and was seen engaged in an animated conversation with this person, making full use of his right arm). In July 2016, Mr Creer was examined by a Neurologist, instructed for the Defendant, in Bristol. We also arranged for covert surveillance on that occasion, and he was seen, for the first time (in such footage), wearing a sling on his right arm and, moreover, for the first time, his wife was seen driving him around in his vehicle. He had claimed travelling expenses to that appointment by train, but then was driven by his wife in what was considered to be an anti-surveillance tactic. Directions and Costs Budgets were dealt with by Oxford County Court in September 2016, and, by agreement, provided for disclosure of Witness Statements in December 2016 and exchange of medical evidence on 9 March A Final Schedule of Loss was due to be served by the Claimant on or before 30 March Thereafter, a further Case Management Hearing was to be held on the first open date after 30 March We deliberately included both the provision of an updated Schedule of Loss, and a further Case Management Hearing, shortly thereafter, for reasons which will be obvious from later comments in this article. The witness evidence on behalf of the Claimant (from Mr Creer and his wife) confirmed extensive disability and major impact on their lives arising out of the incident. We obtained, and disclosed, a number of Witness Statements on behalf of the Defendant from former work colleagues of the Claimant who confirmed that the incident in April 2013 was very minor in nature and all were surprised (to say the least) at the nature of the claim now put forward on his behalf. 3

4 DOLMANS REPORT ON Medical evidence was carefully assembled on behalf of the Defendant, from a number of eminent experts, concluding that there was no medical basis for the alleged disability reported by Mr Creer. The medical experts, with the exception of the care expert instructed, deliberately, were not shown the surveillance footage until after their initial examination and report was available. Supplemental reports from all relevant experts, thereafter, concluded that the Claimant was exaggerating his symptoms for financial gain. The care expert was able to report the Claimant s demeanour during a home visit in detail by reference to the surveillance footage provided in advance of that home visit. On 9 March 2017, we couriered (so there could be no doubt over receipt) 8 medical reports and 5 discs of surveillance footage to the Claimant s Union Solicitors in Oxford. Receipt of this evidence, therefore, would have been before the deadline for exchange of medical evidence, expiring at 4pm the same day. This approach was carefully considered in advance and a view was ultimately taken that given the power of this material, it was tactically more advantageous to ensure disclosure within the timetable (and, therefore, prevent any argument as to late disclosure and possible Denton v TH White arguments) rather than wait to see if yet further (damning) expert evidence was produced on behalf of the Claimant following further (up-to-date) examinations of him since the date(s) of his original reports. sign here... It remains unclear, to this day, whether such material (updated medical evidence) exists. Regardless, no further medical evidence was disclosed by the Claimant s Solicitors on 9 March Following disclosure of the aforesaid evidence, on 15 March 2017, Dolmans wrote to the Claimant s Solicitors indicating that they explicitly expected the Claimant to produce his Final Schedule of Loss (verified by a Statement of Truth), failing which an Application to the Court to strike out the claim would be made. The Claimant s Solicitors were also explicitly informed, at that stage, that the Defendant considered this to be a claim involving fundamental dishonesty and appropriate steps would, in due course, be taken in respect of the same. The Claimant s Solicitors promptly requested disclosure of the entire (unedited) surveillance footage obtained of the Claimant, which was compiled, reviewed and then disclosed. The edited footage in this case spanned several hours worth and so this process was very laborious, but necessary to ensure that there was nothing missed in the unedited footage which could arguably paint the situation differently. 4

5 DOLMANS REPORT ON In April 2017, an Application was made to strike out Mr Creer s claim on grounds of fundamental dishonesty. This Application was made pursuant to section 57 of the Criminal Justice and Courts Act 2015 (considered in detail in the context of the case of Sinfield v LOCOG in the February 2018 edition of the Dolmans Insurance Bulletin) and/or CPR 3.4 (the general power to strike out claims which constitute an abuse of process). The Application was initially to be heard at a Case Management Hearing listed on 25 April 2017, however, this hearing was adjourned, at short notice, to 24 July 2017, at the request of the Claimant s Solicitors on the basis that they had not had sufficient time to deal with the evidence disclosed on behalf of the Defendant. Having failed to comply with the 30 March 2017 deadline for a Final Schedule of Loss, the Claimant s Solicitors, before that adjournment, issued two Applications, one for an extension of time and then a later Application for relief from sanctions pursuant to CPR 3.9. Both those Applications were adjourned to be heard at the adjourned Case Management Hearing on 24 July On 7 July 2017, we served a 56 page Witness Statement (excluding exhibits which ran to an additional several hundred pages) from the conducting Partner (Peter Bennett, Dolmans) setting out in detail the reasons for striking out the case at an interlocutory stage. This Witness Statement made extensive reference to the medical evidence and surveillance evidence obtained on behalf of the Defendant, and contrasted the same with the Claimant s own witness evidence. Moreover, it made reference to the fact that, at that point, not one iota of contradictory expert evidence had been disclosed by the Claimant following initial disclosure of the Defendant s evidence on 9 March 2017, 4 months earlier. In essence, we argued that the weight of evidence in the case was so overwhelming that it would be unjust to allow the matter to proceed to an expensive trial to determine what was already obvious. To our knowledge, it is the first time that such an Application has been made ie - to summarily strike out such a case, rather than to proceed to trial for findings of fundamental dishonesty to be made following evidence and cross examination in the usual manner. As above, power exists (and has existed for some time) for such summary determination of issues within CPR 3.4; the question was whether the Court would be prepared to use that power in the context of a fundamental dishonesty situation. Arguably, this power has been strengthened by section 57 of the Criminal Justice and Courts Act 2015; hence our explicit reliance upon the same. 5

6 DOLMANS REPORT ON On 21 July 2017, the Union Solicitors removed themselves from the record as acting on behalf of the Claimant. The hearing on 24 July 2017, therefore, proceeded with Mr Creer acting in person (as he did until the conclusion of the case see below). At that hearing, Mr Creer was ordered (on the basis of a strike out if he failed to comply) to provide a full and comprehensive response to the Defendant s Solicitor s Witness Statement by 4 September The substantive strike out Application was then adjourned to a hearing before the Circuit Judge in Oxford County Court on 24 November Mr Creer ultimately produced (on the last day of the relevant period) a 2 to 3 page manuscript statement contending that his claim should not be struck out. As above, the adjourned Application was heard before the Circuit Judge at Oxford County Court on 24 November 2017, with Judgment being delivered on 29 November Counsel represented the Defendant at both this hearing and the earlier hearing in July Having considered the evidence and submissions of the parties, the Circuit Judge ordered that Mr Creer s claim be struck out on the grounds that the same was, on balance of probabilities, fundamentally dishonest. In light of that finding, the Judge has ordered Mr Creer to pay the Defendant their costs of defending his claim in full. Qualified One Way Costs Shifting was, therefore, displaced in favour of the Insurers. Comment The importance of this decision cannot be overstated. Although it is a decision of a Circuit Judge, it represents the first known decision of a Court in England and Wales to strike out a claim for fundamental dishonesty summarily. The concept of fundamental dishonesty has achieved considerable attention in recent months and there have been a number of reported successes for Insurers in that regard. However, the distinguishing feature of this case is that the result was achieved without the cost of a multi-day trial to determine (having heard oral evidence in the usual way, in this instance, from a number of experts) that the claim was fundamentally dishonest. This is an extremely important decision/development because it demonstrates that summary strike out is possible in these cases, thereby, in the right case, saving considerable outlay in terms of avoiding a future (costly) trial of the issues. Strike out of a claim, inevitably, regardless of when it takes place, entails a significant saving for a Defendant Insurer. For further information regarding this article, please contact Peter Bennett at peterb@dolmans.co.uk or visit our website at Peter Bennett Partner Dolmans Solicitors 6

7 DOLMANS FOCUS ON CIVIL LIABILITY BILL On 20 March 2018, the Civil Liability Bill was introduced to the House of Lords dealing with two contentious issues in the personal injury compensation system of England and Wales, being compensation for whiplash injuries and the personal injury discount rate. Readers may well recall that the then Chancellor, George Osborne, proposed reform to tackle the rising cost of motor insurance as long ago as Subsequently, there was the introduction of the Prisons and Courts Bill which, amongst other provisions, set out proposals for whiplash reform, but proceeded no further due to the announcement of the general election. In June 2017, the Queen s speech announced that the Government would be tabling a Civil Liability Bill. In the interim, on 27 February 2017, Liz Truss, the then Lord Chancellor, changed the discount rate from 2.5% to %, effective from 20 March The insurance industry was very critical of the change and, in particular, criticised the fundamental basis on which the discount rate was based on very low risk investment behaviour. The Civil Liability Bill, unlike the Prison and Courts Bill, does not deal with the proposed changes to increase the small claims limit in road traffic related personal injury claims from 1,000 to 5,000 and for all personal injury claims from 1,000 to 2,000. Those issues are still being considered by the Civil Justice Committee. Whiplash Reform The Bill provides for the following: The introduction of a tariff of compensation for pain, suffering and loss of amenity for whiplash injury as defined within the Bill. The tariff itself has yet to be detailed and will be set out in secondary legislation in due course. The introduction of a regulatory ban on settling or offering to settle whiplash claims without medical evidence. Provides the judiciary with discretion to exceed the tariff for pain, suffering and loss of amenity in exceptional circumstances. There will be a limit for exceptional payments, which is to be set out in secondary legislation in due course. Readers would be correct in concluding that the foregoing is nothing more than a repackaging of the provisions set out in the previously abandoned Prison and Courts Bill. 7

8 DOLMANS FOCUS ON Discount Rate The change in the discount rate was made by Liz Truss under the powers conferred on her by the Damages Act 1996, guided by the 1999 case of Wells v Wells in which the Court determined that the discount rate should be based on the yields of Index Linked Government Stock. When the discount rate was reduced in February 2017, the Government appreciated this would lead to higher levels of compensation for those with future losses, and that not only would this impact negatively on insurers, but also on public services with large personal injury liabilities, particularly the NHS. Thereafter, there followed a consultation launched in March 2017 resulting in the Civil Liability Bill setting out measures to: Establish a new basis for the calculation of the discount rate that continues to support the principle of 100% compensation, but also reflecting the reality of how Claimants actually invest damages. Putting in place a process of setting the discount rate on a statutory footing with the Lord Chancellor to review the rate at least every 3 years. Establish an independent expert panel to advise the Lord Chancellor so as to ensure that the rate set is fair and transparent. It is clear that the MOJ and Justice Committee have agreed that the discount rate should reflect real-world Claimant investment behaviour. The MOJ maintains that research by the Actuary Department indicates average awards may exceed the expected return by about 35%, although after an allowance is made for necessary expenses on tax and investment management, this figure may fall to between 20 to 25%. This is largely due to the way the current discount rate is calculated, making unrealistic assumptions about investment and returns. The MOJ have previously indicated that utilising the new proposed methodology may result in a discount rate of between 0 and 1%. The Justice Committee, on the other hand, has called for further evidence in relation to this issue before the draft legislation is progressed. The introduction of the Bill is a clear indication that the Government remains committed to reforming the personal injury compensation system in England and Wales. For further information regarding this article, please contact Simon Evans at simone@dolmans.co.uk or visit our website at Simon Evans Partner Dolmans Solicitors 8

9 DOLMANS RECENT CASE UPDATE Costs - Part 36 Offer - Withdrawal Gemma Ballard v Sussex Partnership NHS Foundation Trust [2018] EWHC 370 (QB) The Claimant brought a claim for damages for personal injuries sustained during her employment at a hospital operated by the Defendant. Liability was admitted. During the course of the proceedings, the Defendant had made two offers of settlement which were headed Part 36 offer to settle. Without prejudice save as to costs. The Claimant rejected the first offer and made her own Part 36 offer. The Defendant then withdrew its first offer and rejected the Claimant s offer. The Defendant made a second offer, which stated that This is a Part 36 offer and all previous offers in this matter are withdrawn. The Claimant did not accept the Defendant s offer. At Trial the Claimant failed to beat either of the Defendant s offers and the Trial Judge was required to consider the appropriate costs order. The Judge exercised his wide discretion in relation to costs and ordered the Claimant to pay the Defendant s costs from the expiry of the Defendant s first Part 36 offer and found that the second offer was irrelevant. The Claimant appealed. On appeal the Claimant did not dispute that they were liable for the Defendant s costs from the date of expiry of the Defendant s second Part 36 settlement offer, but submitted that the Judge was wrong in awarding the Defendant their costs from the expiry of their first Part 36 settlement offer. The Court held that it was clear that the Judge had been heavily influenced by the fact that the Claimant could have saved a great deal of expense by accepting the first offer. Whilst that was true, it was not right to regard the Defendant s second offer as irrelevant. The Defendant could not escape from the precise terms of the second offer and, as a result, it was really the first offer that became irrelevant. The Court, therefore, held that the Judge had misdirected himself and the previous Costs Order was replaced by an Order that the Claimant was entitled to her costs up to and including the commencement of the Trial. The Defendant was entitled to their costs thereafter. 9

10 DOLMANS RECENT CASE UPDATE Employers Liability - Mesothelioma Heynike v (1) Birlec Ltd (2) Ministry of Defence (3) Special Metals Wiggin Ltd [2018] EWHC 303 (QB) The Claimant claimed damages for personal injuries sustained by the deceased, H, who died from mesothelioma which had developed as a result of his exposure to asbestos at work in the early 1970s. H had been a specialist bricklayer and his work included maintaining and refurbishing industrial furnaces in factories occupied by the Second and Third Defendants. H worked inside the furnaces stripping out brickwork, fibreglass and asbestos before relining them. The work involved large quantities of dust being released into an enclosed working space. H s labour had been supplied to the Second and Third Defendants by the First Defendant, an agency. The Judge found that H was not employed by the First Defendant. The claim was brought, inter alia, under s.63(1) of the Factories Act The Second and Third Defendants contended that the provisions of s.63(1) were replaced in their entirety by the Asbestos Regulations 1969, which did not apply to them. The Judge rejected this, holding that the obligations in s.63(1) did survive the 1969 Regulations in part. S.63(1) created two obligations : to protect workers from any foreseeably injurious dust and to protect them from substantial quantities of any kind of dust. Whilst the first obligation had been replaced by the 1969 Regulations, the second survived. On the facts of the case, the Judge found that the Second and Third Defendants were in breach of their statutory duties under s.63 and s.29 of the 1961 Act. They were also in breach of their common law duty of care. An obvious risk to health and safety was being created by the First Defendant within the Second and Third Defendants factory premises. It was no defence for the Second and Third Defendants to say that they had engaged the First Defendant as specialist independent contractors. Employers Liability - Mesothelioma - Foreseeability Bussey v Anglia Heating Ltd [2018] EWCA Civ 243 The deceased, who had developed mesothelioma, had worked for the Defendant between 1965 and In 1970, regulations came into force which imposed obligations on employers to adopt safeguards against their employees exposure to asbestos. In the same year, a technical data note (TDN13) was published containing guidance for assessing whether asbestos levels were such as to present a danger to health. 10

11 DOLMANS RECENT CASE UPDATE The joint medical evidence was to the effect that mesothelioma could occur after low level asbestos exposure and there was no minimum risk threshold. The claim was dismissed at first instance as the Judge held that the deceased s exposure was close to, but within, the levels set out in TDN13 and he was, therefore, bound by Williams v University of Birmingham [2011], which he interpreted as meaning that in relation to periods before 1970, a Claimant could not succeed if his exposure was below that provided in TDN13. The Court of Appeal allowed the Claimant s appeal. The overall test of an employer s duty was that of the reasonable and prudent employer taking positive thought for the safety of its workers in the light of what it knew, or ought to have known, and keeping reasonably abreast of developing knowledge. In Williams it was held that the employer had only breached its duty of care if it was reasonably foreseeable that the levels of asbestos to which the employee had been exposed led to an unacceptable risk of asbestos related injury. TDN13 was said to be the best guide as to what levels were acceptable in However, the Court of Appeal held that Williams was not formulating a principle of law and that case should not be read as making TDN13 a universal test of foreseeability in mesothelioma cases. The Judge had erred in treating Williams as determinative and the Judgment in favour of the employer, therefore, had to be set aside. As the Defendant had not adduced factual evidence as to the state of its knowledge in the 1960s, it was not possible for the Court of Appeal to determine liability, and the case was remitted on that issue. Human Rights - Police - Article 3 ECHR Commissioner of the Police of the Metropolis v DSD & NBV [2018] UKSC 11 The Claimants were two victims of John Worboys, known as the black cab rapist. The Claimants alleged that police failures in the investigations of the crimes committed by Worboys constituted a violation of their rights under Article 3 of the ECHR. The Trial Judge had found that there had been systemic and operational failures by the police which amounted to a breach of the Claimant s Article 3 ECHR rights. That decision was upheld by the Court of Appeal. The Commissioner appealed. The Supreme Court dismissed the appeal, confirming that the state is obliged under Article 3 to conduct an effective investigation into crimes involving serious violence to persons, whether committed by the state or by third parties. For the right to be practical and effective, an individual who had suffered ill-treatment had a right to claim compensation against the state where there had been a failure to conduct a sufficient investigation. To succeed in a claim a Claimant had to establish that there were serious defects in the investigation. The Supreme Court noted that the Courts recognise no common law duty of care on the police in relation to the manner in which officers prevented and investigated crime, but held that this did not extend to claims advanced under the HRA

12 DOLMANS RECENT CASE UPDATE Qualified One Way Costs Shifting - Additional Claims Jacob Corstorphine (A Child by his Mother and Litigation Friend, Laura Ellis) v Liverpool City Council [2018] EWCA Civ 270 The substantive claim arose out of serious personal injuries which were inflicted on the Claimant due to an allegedly defective tyre swing in the Defendant s playground. The Claimant entered into a CFA on 23 August 2012 which covered the claim against the Defendant local authority and an ATE policy which also named the local authority as the Defendant. On 28 August 2012, the Claimant served a Notice of Funding which reflected this arrangement and proceedings were issued on 18 November 2012 against the local authority. On 1 April 2013, the QOCS regime came into effect. On 21 October 2013, the Defendant issued a Part 20 claim against other parties who became Second and Third Defendants within the proceedings. The Claimant s claim and the Part 20 claim were ordered to be tried together. At Trial in July 2015, the Claimant s claim against all of the Defendants was dismissed. A Judgment on costs in February 2016 ordered the Claimant to pay the Defendant s costs in the primary claim and those of the other Defendants in the additional claim, the reasoning being that because there was a Pre- Commencement Funding Arrangement in place the 2012 CFA applying to the claim against the local authority QOCS could not apply to the additional claim, notwithstanding that two of the Defendants had been joined into the proceedings after the regime had come into effect. The Claimant appealed. The Court of Appeal overturned the decision. It held that r was a transitional provision which provided that QOCS did not apply where the Claimant had entered into a Pre- Commencement Funding Arrangement (PCFA), which was a Conditional Fee Agreement or After The Event insurance policy entered into before 1 April The proceedings involved claims against additional parties which were commenced after the QOCS regime came into effect. The CFA and ATE policy did not apply to the claims against the Second and Third Defendants. 12

13 DOLMANS RECENT CASE UPDATE The essential issue was the meaning of the matter that is the subject of the proceedings in which the costs order is to be made within r.48.2(1) (a)(i)(aa). The matter that is the subject of the proceedings meant the underlying dispute. At the time of the inception of QOCS, the Claimant had no vested rights or expectations in respect of claims against the Second or Third Defendants. At the time of the PCFA the underlying dispute was the claim against the local authority, which was the only existing claim at that time. Similarly, it alone was the subject of the retainer. In those circumstances, the correct construction of r.48.2 was that the relevant matter in the instant case was the claim for damages for personal injury against the local authority. It followed that the Judge should have concluded that the QOCS regime applied to the claim made against the Second and Third Defendants. The QOCS regime, therefore, applied to the additional claim and the Claimant was entitled to QOCS protection in response of adverse Costs Orders in respect of those claims. Retrospective Validation of Defective Service - Rule 6.15(2) CPR Barton v Wright Hassall LLP [2018] UKSC 12 The Claimant, a litigant in person, had brought a negligence action against the Defendant law firm. The Claim Form was issued on 25 February The time for its service expired on 25 June On 24 June 2013, the Claimant purported to serve the Claim Form on the Defendant s Solicitors via . Service via had not been agreed. It was common ground that it was not good service. The Claimant applied for service to be validated under r.6.15(2), but his Application was refused by a District Judge and later by a County Court Judge and the Court of Appeal. Before the Supreme Court it was argued on the Claimant s behalf that his attempted service of the Claim Form by had been effective in bringing to the Defendant s attention the fact that he had issued proceedings and was seeking to serve them; that he was entitled to assume from the fact that earlier communication had been by that service would also be accepted in the same manner; and that the failure to inform him otherwise in the 24 hours before his Claim Form expired amounted to technical game-playing. The Supreme Court concluded that there was no sufficiently good reason on the facts of the case to justify retrospective validation of the defective service. Successfully bringing a Claim Form to the attention of a Defendant was a necessary component of valid service, but was certainly not sufficient in itself. 13

14 DOLMANS RECENT CASE UPDATE In general, the relevant factors were likely to be (1) whether the Claimant had taken reasonable steps to effect service in accordance with the rules; (2) whether the Defendant was aware of the content of the Claim Form by the time it expired; and (3) what, if any, prejudice the Defendant would suffer as a result of retrospective validation, bearing in mind what he knew about the contents of the Claim Form. Regarding the status of the Claimant as a litigant in person, the Court held that their lack of representation would not usually justify applying to them a lower standard of compliance with rules or orders of the Court. The rules provided a framework within which to balance the interests of both parties. That balance would inevitably be disturbed if an unrepresented litigant were given greater indulgence than his represented opponent. The Claimant had made no attempt to serve in accordance with the rules. All he did was employ a mode of service which he should have appreciated was not in accordance with the rules. Having issued the Claim Form at the very end of the limitation period and opted not to have it served by the Court, he then made no attempt to serve it himself until the very end of its period of validity. It was held that a person who courted disaster in that way could have only a very limited claim on the Court s indulgence in an Application under r.6.15(2). By comparison, the prejudice to the Respondent was palpable. Appeal dismissed. Vicarious Liability Frederick & Others v Positive Solutions (Financial Services) Ltd [2018] EWCA Civ 431 The Claimants were induced by a Mr Quereshi, Q, to invest in a property development being carried out by Mr Quereshi and his business partner, Mr Warren, W. Q explained to the Claimants that the monies for the investment could be raised by the Claimants remortgaging their properties, which W could arrange. W was an agent of the Defendant, a financial advice company and, as such, had access to an online portal operated by a bank. W used the portal to arrange the remortgages. W used false income and employment information to obtain the remortgages. When the bank advanced the loan monies, each of the Claimants passed a proportion to W, which was misappropriated and lost in the development scheme. The Claimants brought a claim against the Defendant alleging it was liable in negligence on the grounds, inter alia, that it owed them a direct duty of care and/or was vicariously liable for W s wrongdoing 14

15 DOLMANS RECENT CASE UPDATE The Defendant applied for Summary Judgment on the claim. At first instance, this was granted, save in respect of the claim for vicarious liability. Both parties appealed. The Appeal Judge allowed the Defendant s appeal, but dismissed the Claimants appeal. The Claimants appealed to the Court of Appeal in respect of both the decision that the Defendant was not vicariously liable for W and that the Defendant did not owe a direct duty of care. The Court of Appeal dismissed the appeal. The Claimants could not satisfy the two stage test for a finding of vicarious liability set out in Cox v Ministry of Justice [2016]. W had been engaged in a recognisably independent business (the property investment scheme). W s use of the portal had simply been a means by which he was able to obtain funds from the Claimants to invest in the scheme. Further, not all of the acts and omissions which would be necessary to make W personally liable in tort had taken place within the alleged course of his employment or agency. The Claimants had been induced to invest by Q who was not the Defendant s employee or agent. The Claimants had not suffered loss through the remortgaging or their receipt of monies from the bank. It was the handing over of the monies to W which had caused the Claimants loss and this was not undertaken in the course of W s relationship with the Defendant. In allowing the use of their online portal, the Defendant was merely presenting the opportunity for fraud to be committed, and that was not sufficient to establish vicarious liability. No direct duty of care was owed. There was a complete absence of any relationship between the Claimants and the Defendant, and the Defendant was unaware of W s acts. For further information on any of the above cases, please contact: Amanda Evans at amandae@dolmans.co.uk or Judith Blades at judithb@dolmans.co.uk 15

16 DOLMANS TRAINING OPPORTUNITIES training seminar At Dolmans, we want to ensure that you are kept informed and up-to-date about any changes and developments in the law. To assist you in this, we can offer a whole range of training seminars which are aimed at Local Authorities, their Brokers, Claims Handlers and Insurers. All seminars will be tailored to make sure that they cover the points relevant to your needs. Seminars we can offer include: Apportionment in HAVS cases Bullying, harassment, intimidation and victimisation in the workplace personal injury claims Conditional Fee Agreements and costs issues Corporate manslaughter Data Protection Defending claims the approach to risk management Display Screen Regulations duties on employers Employers liability update Employers liability claims investigation for managers and supervisors Flooding and drainage duties and powers of landowners and Local Authorities for drainage under the Land Drainage Act Common law rights and duties of landowners in respect of drainage Flooding and drainage duties and powers of Highway Authorities for drainage and flooding under the Highways Act Consideration of case law relating to the civil liabilities of the Highway Authority in respect of highway waters Highways training Housing disrepair claims Industrial disease for Defendants The Jackson Reforms (to include : costs budgeting; disclosure of funding arrangements; disclosure of medical records; non party costs orders; part 36/Calderbank offers; qualified one way costs shifting (QWOCS); strikeout/fundamental dishonesty/fraud; 10% increase in General Damages) Liability of Local Education Authority for accidents involving children Ministry of Justice reforms Pre-action protocol in relation to occupational disease claims overview and tactics Public liability claims update If you would like any further information in relation to any of our training seminars, or wish to have an informal chat regarding any of the above, please contact our Training Partner, Melanie Standley at melanies@dolmans.co.uk 16