Mitchell and Others v United Co-Operatives Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ward |
| Judgment Date | 25 May 2011 |
| Neutral Citation | [2011] EWCA Civ 781 |
| Date | 25 May 2011 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2010/0100 |
[2011] EWCA Civ 781
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM STOCKPORT COUNTY COURT
(HIS HONOUR JUDGE ARMITAGE QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Case No: B3/2010/0100
Mr Peter Harrison (instructed by Messrs Walker Smith Way) appeared on behalf of the Appellant.
The Respondent did not appear and was not represented.
This is a renewed application for permission to appeal against the dismissal of their claims for damages against their employer made by the order of HHJ Armitage QC on 10 November 2010. Leveson LJ refused permission, taking the view that the judge's conclusions were open to him on the evidence he had. Leveson LJ may well prove to be correct in his analysis of this case but nonetheless, having heard Mr Harrison, I am persuaded that there is a real prospect of success in the sense that those words have to be interpreted, i.e. that success is not fanciful. It is a judgment which one reads in a way that suggests a favourable conclusion to the claimants until at the very end the judge dismissed the claim in the concluding sentence at paragraph 34, saying that he was "not satisfied that failure to provide full time guarding amounts to a failure to take reasonable care for the safety of the claimants".
There had been many passages highlighted by Mr Harrison which suggested that the judge was in his favour; thus we see when the judge dealt with the two experts that he recorded in paragraph 22 that the claimants' expert was of the view that to be effective, a guard should be outside to prevent access, and the judge said:
"I was attracted by that proposition. It seemed to me that such a person, especially if they had the means to lock a door by remote control, the door being generally unlocked, had the best chance of distinguishing between a shopper and a group of robbers."
In paragraph 24 he dealt with the defendant's expert, who said that guards can be an effective deterrent but are most useful in identifying and screening offenders. In paragraph 25 he recorded the clearest agreement between the experts concerning the potential efficacy of a guard. His...
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