Brinks Global Services Inc. & Others v Igrox Ltd and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick,Lord Justice Wilson,Lord Justice Longmore |
| Judgment Date | 27 October 2010 |
| Neutral Citation | [2010] EWCA Civ 1207 |
| Date | 27 October 2010 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2009/2466 |
[2010] EWCA Civ 1207
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (COMMERCIAL COURT)
(Mr. Martin Mann Q.C.)
Before: Lord Justice Longmore
Lord Justice Moore-Bick
and
Lord Justice Wilson
Case No: A3/2009/2466
Mr. Jeffrey Terry (instructed by DWF LLP) for the appellant
Mr. Tim Marland (instructed by Waltons & Morse LLP) for the respondents
Hearing dates: 14 th July 2010
Approved Judgment
Lord Justice Moore-Bick:
The respondents, Brink's Global Services Inc., Brink's (UK) Ltd and Brink's Ltd, are members of a group of companies which provides a worldwide door-to-door service for the carriage of goods. Since for the purposes of this appeal nothing turns on the identity of any individual respondent, it is convenient to refer to them collectively as “Brink's”. The appellant, Igrox Ltd, provides fumigation services, including the fumigation of goods packed in containers for carriage abroad.
In May 2007 Brink's entered into a contract with a London bank for the carriage from London to Ahmedabad, India of 627 bars of silver. The silver, which was packed on wooden pallets, was put into a standard shipping container provided by the ocean carrier, Hyundai Merchant Marine (Europe) Ltd (“Hyundai”), at the bank's vaults, from which it was collected by Brink's. The container was sealed before leaving the bank. The silver itself did not pose any risk of insect infestation, but the wooden pallets on which it was carried had to be fumigated to eliminate any danger of that kind before the container could be put on board the vessel for carriage to India.
The container was taken to the Thamesport container terminal on the Isle of Grain, Kent, where it was placed in the secure fumigation compound. Brink's instructed Hyundai to arrange fumigation and Hyundai gave corresponding instructions to Thamesport, which in turn engaged Igrox to carry out that task for its own account. At the trial Brink's contended that it had entered into contractual relations with Igrox through the agency of Thamesport, but the judge rejected that argument and his decision on that point is not challenged. Nonetheless, it is accepted that as bailee of the goods Brink's had a sufficient interest in them to entitle it to pursue a claim for any loss or damage that might be caused to them by a third party.
Thamesport and Igrox had established a detailed procedure for fumigating containers which is set out in full in the judgment below. It involved the removal of the original seal, visual inspection of the goods, the application of fumigant, closure of the container and re-sealing with a red warning notice, the subsequent removal of the seal and ventilation of the container after the fumigant had had time to work and finally re-sealing for onward carriage.
Igrox instructed two of its employees, Mr. Timothy Belsey and Mr. David Renwick, to carry out the fumigation of the container. On 11 th May 2007 they arrived in separate vehicles at the container at 8.25 am. One or other of them removed the seal and they then made a brief visual inspection of the contents. They should then have gassed the container, but they failed to do so. They did, however, re-seal it with the red warning seal, thus giving the impression that it had been treated. They both then drove away soon after 9.00 am. At about 9.41 am Renwick returned but left again after only a few minutes. At about 10.34 am he returned to the container again, entered it and stole 15 bars of silver. The final steps in the fumigation process were subsequently carried out as if the container had been treated and it was re-sealed. The theft was discovered on 14 th May by Brink's in the course of carrying out a security check. The silver was never recovered.
The Deputy Judge held that Renwick had committed the theft in the course of his employment and that Igrox was therefore vicariously liable for the loss of the silver. In reaching that conclusion he applied the principles developed in Lister v Hesley Hall Ltd [2001] UKHL 22, [2002] 1 A.C. 215, Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48, [2003] 2 A.C. 366, Mattis v Pollock [2003] EWCA Civ 887, [2003] 1 W.L.R. 2158 and Bernard v Attorney General of Jamaica [2004] UKPC 47, [2005] I.R.L.R. 398.
The judge's findings about the circumstances leading up to the theft played an important part in his decision. He reached the conclusion that at a relatively early stage in the procedure Renwick had conceived a plan that would enable him to return safely to the container to commit the theft once Mr. Belsey was out of the way. On behalf of Igrox Mr. Terry submitted that the judge's findings in that respect were flawed because he had overlooked certain uncontroversial parts of the evidence which made it clear that it had not been Renwick's decision not to gas the container and that in any event he had protective equipment that would have allowed him to enter the container even if it had been gassed. All that was designed to reinforce his primary argument that when Renwick returned to the container and stole the silver he was acting outside the scope of his employment. It is convenient to deal with the appeal on the facts first.
The circumstances surrounding the theft
The fumigation compound at Thamesport is a secure area covered by closed circuit television cameras. As a result, the actions of Mr. Belsey and Renwick in the immediate vicinity of the container were recorded and provided detailed and incontrovertible evidence of their movements. It is not surprising, therefore, that the judge concentrated on that part of the evidence. What the CCTV evidence could not show, however, was what had gone on elsewhere in the compound and why the container had not been gassed.
The judge made the following findings:
“27. It is important at this point to examine Renwick's conduct a little more closely, since this is not a case in which an employee's duty simply provided him with an opportunity to steal of which he took advantage. He would have known he could safely open the container doors if the container had not been gassed, and he could therefore judge that he could safely steal the silver bars if he returned as a time when Mr. B. was taking a coffee or tea-break, which, as it happened, he seems to have been. It is a ready inference, which I draw, that this, or something very like it, was his state of mind. The only precaution he had to take was to ensure that the container was not gassed, and this he clearly did albeit the evidence did not reveal whether it was his or Mr. B's decision not to gas the container. It would not assist Igrox had the evidence revealed that Mr. B. was responsible for the omission to gas the container because it was equally open to Renwick to ensure that it was gassed, as it should have been. The fact that he plainly did not ensure that it was gassed is, in my judgment, strong circumstantial evidence that he had conceived a dishonest design, perhaps there and then, which his omission to carry out [the gassing] would enable him to bring to fruition when Mr. B was out of the way and he was alone.
…
33. In my judgment, it is beyond argument that the failure to gas the container facilitated the theft and that the theft was the fruition of Renwick's dishonest design (see paragraph 27)…. It was not Renwick's employment which made the theft possible. On the contrary, it was Renwick's improper performance of his duty as an employee as part of his dishonest design which made the theft possible…“
The thrust of these findings is that at some point prior to the stage at which the container should have been gassed Renwick decided to ensure that it was not gassed so that he could return safely and steal some of the contents when Mr. Belsey was out of the way. Although he did not think that the evidence enabled him to decide who had taken the decision not to gas the container, the judge found that Renwick had ensured by some means or other that it had not been gassed and had done so in order to enable him to carry out the theft.
Mr. Terry submitted that in making those findings the judge had overlooked the evidence of Mr. Belsey, who as supervisor bore primary responsibility for ensuring that the fumigation was properly carried out. Mr. Belsey had provided a statement to the police describing his part in the matter on which Igrox sought to rely at the trial. In it he said that after opening the container he had marked the pallets using paint and a stencil to show that they had been treated and had gone to the Igrox store on site to fetch the necessary chemicals. He found that there were none in stock, so he took the decision not to gas the container after all, but to carry out the rest of the procedure as if it had been gassed.
Igrox had served a notice of its intention to rely on Mr. Belsey's statement and since his evidence was not challenged it was thought unnecessary to call him to give evidence in person. I think it clear, therefore, that his evidence was before the court, but in view of his finding that the evidence did not reveal who had taken the decision not to gas the container, the judge must have overlooked it. In the circumstances it seems unlikely that any emphasis was placed on it in the course of counsel's final submissions, but that in turn may be because Brink's had not suggested that the failure to gas the container had been part of a dishonest design on the part of Renwick.
Mr. Belsey's evidence makes it clear that the failure to gas the container was not itself part of a dishonest plan by Renwick, so the judge's inference that he deliberately made preparations for the theft in the course of carrying out...
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