General liability newsletter - April 2020
Welcome to the latest edition of our general liability newsletter, rounding up some the key cases from the last few months.
This month we look at recent cases involving: vicarious liability, witness statements, and fundamental dishonesty. We also consider the liability issues arising from Covid-19, and how these can be mitigated in order to reduce the risk of future claims. We also provide news about the eagerly awaited Court of Appeal hearing in Swift v Carpenter considering calculation of future accommodation claims.
Below is an overview of each article in this month's issue. To read the full articles please download the pdf below.
Covid-19
The recent outbreak of Covid-19 poses a number of issues for employers and their liability insurers. We expect to see litigation arising from this in the future. Its extent will likely be dependent on steps taken now to minimise risk.
Swift v Carpenter – Court of Appeal hearing adjourned
The Covid-19 situation has caused the adjournment of this long awaited Court of Appeal hearing dealing with the calculation of future accommodation claims in the context of a negative discount rate.
Swift v Carpenter (CA case ref. B3/2018/2189) was due to be heard on 24 March 2020, with provision for it to be live-streamed. It has been adjourned to a date in the last week of June this year, and will be a remote hearing.
Supreme Court decision reins in the scope of employers’ vicarious liability
In April 2020 the Supreme Court handed down two judgments on the issue of vicarious liability. The Court decided that Barclays Bank was not vicariously liable for the acts of its independent contractor, and Morrisons was not vicariously liable for the acts of a disgruntled employee.
Setting off costs in QOCS allowed, but the Court of Appeal urges a re-think
The contentious issue of setting-off costs against costs in cases governed by QOCS will be heard by the Supreme Court after the Court of Appeal allowed it.
Qualified one-way costs shifting (QOCS) was introduced in April 2013 as part of the Jackson Reforms. Under this regime, defendants will generally be ordered to pay the costs of successful claimants, but will not be able to recover their own costs if they are successful in defending the claim (subject to certain exceptions).
Dishonesty does not need to be sustained in order to be fundamental
In a sensible decision, the High Court has determined that for a finding of fundamental dishonesty, a claimant need not be persistent with that dishonesty.
A significant consideration when defending personal injury cases can be whether a claimant is bringing a claim that is fundamentally dishonest. This is where a claimant’s dishonesty goes to the root of the whole or a substantial part of his claim. Where fundamental dishonesty is proved, pursuant to CPR 44.16 a defendant is entitled to argue that the QOCS protection should be removed from the claimant (this will be considered on the balance of probabilities). Furthermore, pursuant to section 57(2) Criminal Justice and Courts Act 2015, where fundamental dishonesty has been proved, the court must dismiss the primary claim, unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed.
Witness statements
Two recent cases highlight to all litigators the importance of getting the content of witness statements right.
Statements by solicitors on behalf of clients:
The importance of solicitors’ witness statements was highlighted in Punjab National Bank (International) Ltd v Techtrek India Ltd [2020] EWHC 539 (Ch), a decision with ramifications for all litigators.
The Third Defendant had allegedly provided a personal guarantee for a £6.9m loan provided to a company of which he was a director.
Costs disputes procedure following a Part 36 acceptance depends upon whether a claim proceeds under the low value personal injury protocol
In Panayo Ivanov v Steven Lubb (County Court at Central London 17 January 2020) the District Judge determined that the procedure for resolving costs disputes following a Defendant’s acceptance of the Claimant’s Part 36 offer depends upon whether the claim was subject to fixed costs.
To read the full newsletter please download the pdf.