Nassir Kafagi v JBW Group Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lord Justice Singh,Lord Justice Irwin |
| Judgment Date | 18 May 2018 |
| Neutral Citation | [2018] EWCA Civ 1157 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2016/0479 |
| Date | 18 May 2018 |
[2018] EWCA Civ 1157
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
Recorder Steynor
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
Lord Justice Irwin
and
Lord Justice Singh
Case No: B3/2016/0479
The Appellant appeared in person
Mr David R White (instructed directly by the Defendant under the Public Access Rules) for the Respondent
Hearing date: 18 April 2018
Introduction
This is an appeal from the County Court at Central London (Recorder Steynor), which, in a decision dated 12 January 2016, dismissed the Appellant's appeal against the decision of the County Court at Croydon (DJ Coonan) dated 23 April 2015. By that decision the District Judge dismissed the Appellant's claim for various torts alleged to have been committed by two bailiffs (Sean Boylan and Craig Fenwick) for whose actions, it was argued, the Respondent company was vicariously liable.
Permission to appeal to this Court was granted on the papers by Floyd LJ. Permission was restricted to one ground of appeal, namely whether the courts below erred as a matter of law because they held that, for there to be vicarious liability, there had to be a relationship of employment between the Respondent and Mr Boylan and Mr Fenwick.
Before this Court the Appellant appeared in person, having received some assistance in drafting a succinct and eloquent submission, which was read out at the hearing before us. On behalf of the Respondent we heard from Mr David White, who also appeared below. We express our gratitude to both Mr Kafagi and Mr White for their submissions.
Background
The underlying claim in the County Court alleged that on 13 March 2012
“… Sean Boylan (‘SB’) and Craig Fenwick (‘CF’), employees or agents duly appointed or engaged by D under contracts of service/for services and acting on the specific and direct authority and instructions of D, forcibly and unlawfully entered C's home … assaulted and battered him and proceeded to execute an unlawful levy in the sum of £792-04 by way of fraudulent misrepresentations.” (Para. 3 of the Particulars of Claim)
Various torts were alleged, including trespass to property and trespass to the person. There was also an allegation of fraudulent misrepresentation.
In its Amended Defence, at paras. 5–9, the Respondent denied that it had ever been Mr Boylan's employer. It averred that Mr Boylan was at all material times a certificated self-employed bailiff. It also stated that it had no record of having engaged Mr Fenwick at all.
The judgment of the District Judge
The claim was allocated to the fast track and came on for trial on 23 April 2015. At the start of the hearing the District Judge suggested that it would be helpful for there to be a trial of a preliminary issue and the parties agreed. That issue was defined by her as follows at para. 1 of her judgment:
“Is the Defendant vicariously liable for the actions of Mr Boylan and Mr Fenwick? This will depend on whether Mr Boylan and Mr Fenwick were employees of the Defendant, or merely subcontractors. If Mr Boylan and Mr Fenwick were subcontractors, the liability of the Defendant would have to be found in breach of a non-delegable duty. No such duty, or breach of it, has been pleaded.”
Having considered all the evidence before her, DJ Coonan concluded, at para. 11, that the contract was one for services, and not one of service. At para. 12 she observed that there “is indeed no contract at all exhibited in relation to Mr Fenwick covering the requisite period of time.” In the same paragraph she went on to state that:
“in my judgment the evidence quite clearly shows that the reality was that Mr Boylan was employed at the relevant time on a self-employed basis, and Mr Fenwick was not employed, or in any form of contractual relationship with the Defendant at the relevant time.” (Emphasis added)
Accordingly, at para. 13, she concluded:
“… It therefore follows inevitably that the claim brought by Mr Kafagi must be dismissed.”
The first appeal
Strictly speaking, the grounds of appeal did not raise any issue concerning the correctness of the District Judge's decision about Mr Fenwick. The grounds on their face related only to Mr Boylan.
The appeal from the District Judge was considered by Mr Recorder Steynor sitting at the County Court at Central London. At para. 6 the Recorder noted that it was common ground that the legal basis on which the claim was brought was that the Respondent was alleged to be vicariously liable for the acts and omissions of Mr Boylan and Mr Fenwick. He said:
“This depended firstly on whether these men were employees of JBW or whether they were independent contractors who were self-employed.”
At para. 9 of his judgment the Recorder said:
“… The distinction which matters in the present case is between an employee of JBW and a person who may carry out work for JBW under some other relationship. This is the important distinction to make, as JBW can only be vicariously liable for torts of their employees, although there are exceptions to this rule.”
At para. 10 the Recorder observed that, although earlier before the District Judge it had been contended that Mr Boylan and Mr Fenwick were indeed employed by the Respondent, at the hearing before the Recorder it was conceded that they were not employees of the Respondent.
At para. 11 the Recorder said that the District Judge had rightly held that her decision meant that the claim brought by Mr Kafagi must be dismissed.
At para. 15, in summarising the submissions that were made by Mr White on behalf of the Respondent, the Recorder noted that there were three questions to be considered: (1) has a tort been committed; (2) was the tortfeasor an employee “or in a relationship with D akin to employment”; and (3) was the tort committed in the course of the tortfeasor's employment? Mr White emphasises the words I have quoted in setting out question (2) because it is clear that the Recorder was aware that there can be vicarious liability even where there is not a relationship of employment in the strict sense but a relationship which is “akin” to it.
At para. 18 the Recorder concluded that:
“… In my judgment DJ Coonan applied the correct legal test to the evidence before her and the conclusion that she reached, that neither SB nor CF were employees of JBW at the material time and therefore D cannot be vicariously liable for the alleged torts they committed, cannot be faulted.”
Although therefore he gave permission to appeal, he dismissed the appeal itself.
Permission to appeal to this Court
In an order sealed on 6 February 2017 Floyd LJ granted permission to appeal to this Court but limited that permission “to the issue of whether the District Judge directed herself to the correct question”.
The only issue on which permission to appeal was granted related to an issue which was raised in the supplementary/amended grounds:
“In the light of the decision in E G Cox v Ministry of Justice [2016] UKSC 10 the question of whether a tortfeasor was an employee or an independent contractor can no longer be regarded as dispositive of vicarious liability. Attention needs to be focussed on three questions identified in paragraph 24 of Lord Reed's judgment in that case. Although the judgment in Cox was delivered after the District Judge and Recorder gave their judgments in this case, it does not appear that their attention was drawn to earlier relevant Supreme Court authority, namely Various Claimants v The Catholic Child Welfare Society and others [2012] UKSC 56. In consequence they appear to have adopted too narrow a focus.
Although the law on this topic must now be regarded as broadly settled, its application to the activities of bailiffs and others involved in enforcement is of potentially wider significance. I also take account of the strength of the argument identified above as it appears to me at the moment, and the fact that this was the sole basis on which the action was dismissed. I consider these to be sufficiently compelling reasons for granting permission to appeal.”
Recent authorities on vicarious liability
Historically the common law has imposed vicarious liability on a person where there was a relationship of employment between that person and the tortfeasor. That has required the courts to consider the distinction between a relationship of employment and the relationship that may exist with an “independent contractor”. That in turn has required the courts to draw a distinction between a contract of employment (or contract of service, as it was described in the Particulars of Claim in this case) and a contract for services.
In recent years the courts have had to address the question whether there can be vicarious liability even where there is no relationship of employment in the strict sense but where there is something “akin to employment”. However, it is important to note that this development has not undermined the conventional distinction between a contract of employment and a contract for services, which continues to be relevant in the vast majority of situations.
The first of the main authorities to which it is necessary to refer is the decision of the Supreme Court in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56; [2013] 2 AC 1. That case is sometimes called the “Christian Brothers” case and concerned an institute which was a lay Roman Catholic Order, whose mission was to provide a Christian education to children. Its members took vows of chastity, poverty and obedience. They renounced any salaries payable for their teaching work. In return the institute met all of the Brothers' material needs. In the 1990s evidence emerged...
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