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News | Mon 6th Apr, 2020
Cases:
Barclays Bank v Various Claimants [2020] UKSC 13; VW Morrisons v Various Claimants [2020] UKSC 12
BXB v Watch Tower and Bible Tract Society of Pennsylvania (2) Trustees of the Barry Congregation of Jehovah’s Witnesses [2020] EWHC 656 (Admin)
DSN v Blackpool Football Club Limited [2020] EWHC 670 (QB)
FZO v London Borough of Haringey [2020] EWCA Civ 180
FXF v Ampleforth [2020] EWHC 791 (QB)
Barclays Bank v Various Claimants; Morrisons v Various Claimants
Barclays Bank was represented in the Supreme Court by Lord Faulks QC and Katie Ayres of 1 Chancery Lane, and Nick Fewtrell of Dean’s Court, instructed by Keoghs LLP. See the full article relating to this case here.
The judgment in Barclays Bank v Various Claimants [2020] UKSC 13 (‘Barclays’) examines ‘Stage 1’ of the test for vicarious liability (is the relationship capable of giving rise to vicarious liability). The parallel judgment, handed down at the same time, in VW Morrisons v Various Claimants [2020] UKSC 12 (‘Morrisons’) addresses ‘Stage 2’ (is there a sufficiently close connection between the employment and the tort).
Barclays
The issue before the Court was whether Barclays Bank was vicariously liable for the alleged sexual assaults committed between 1968 and 1984 by the late Dr Gordon Bates. The claim was brought as a group action on behalf of 126 claimants.
The decision in Barclays is a welcome clarification to the law of vicarious liability. It provides a definitive ‘book-end’ to the expansionary decisions in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 (‘Christian Brothers’), Cox v Ministry of Justice [2016] UKSC 10 (‘Cox’), Armes v Nottinghamshire CC [2017] UKSC 60 (‘Armes’). The brevity and concision of the judgment itself indicates the common-sense and pragmatic approach to be taken in the future: If an individual is carrying on a business on their own account (i.e. they are an independent contractor or acting under a contract for services) then no vicarious liability arises and that is the end of the enquiry. As Lady Hale states, this was, and always has been, the law.
It is only in ‘doubtful cases’ where recourse can, if necessary, be made to Lord Phillips’ ‘five factors’ (Christian Brothers) but in any event what is required in such cases is a ‘searching enquiry’ looking at ‘the detailed features of the relationship’ and the five factors are not the only matters to consider. Doubtful cases are those such as examined in Christian Brothers, Cox and Armes and may include workers in the gig economy.
The judgment should give reassurance to those engaging independent contractors that they are unlikely to be held vicariously liable for their actions. However, the Court also stressed that a searching enquiry into the reality of the relationship will be undertaken in less ‘clear-cut’ cases where the nature of the relationship is perhaps that of an independent contractor in name only.
Morrisons
Although not strictly an abuse case itself, the judgment might have application to abuse claims.
The successful appeal means it is now 1 : 1 for Morrisons in the Supreme Court on the issue of vicarious liability (see also Mohamud v VW Morrisons [2016] UKSC 11 (‘Mohamud’)).
The Appellant, Morrisons, employed Andrew Skelton on its internal audit team. In July 2013, Skelton received a warning after disciplinary proceedings for minor misconduct and bore a grievance against the Appellant thereafter. In November 2013, Skelton was tasked with transmitting payroll data for the appellant’s entire workforce to its external auditors, as he had done the previous year. He did so, but he also made and kept a personal copy of the data. In early 2014, he used this to upload a file containing the data to a publicly accessible filesharing website. Skelton later also sent the file anonymously to three UK newspapers, purporting to be a concerned member of the public who had found it online. The newspapers did not publish the information and the authorities were alerted. Skelton was soon after arrested and has since been prosecuted and imprisoned.
The Respondents, some of the affected employees, brought proceedings against the appellant personally and on the basis of its vicarious liability for Skelton’s acts. Their claims were for breach of statutory duty under the DPA, misuse of private information, and breach of confidence.
The Supreme Court allowed the appeal. The Court found that Lord Toulson’s earlier Supreme Court judgment in Mohamud was not intended to change the law of vicarious liability but rather to follow existing precedents. The Court found that on long-established principles, the fact that his employment gave him the opportunity to commit the wrongful act is not sufficient to warrant the imposition of vicarious liability. An employer is not normally vicariously liable where the employee was not engaged in furthering his employer’s business, but rather was pursuing a personal vendetta. The “close connection” test was not satisfied.
It remains to be seen how Morrisons will be applied to abuse cases which do appear to have now arguably created their own separate line of authority stemming from the decision in Lister v Hesley Hall. The decision in Lister is, however, central to the reasoning in Morrisons, which suggests that once again the Supreme Court is emphasising that cases involving abuse should not be treated any differently and are determined by the application of normal common law principles. It is difficult, however, to square the decisions in Lister and Morrisons despite the former forming the basis of the reasoning for the latter.
BXB v Watch Tower
The claimant was a member of a congregation of Jehovah’s Witnesses who was raped by an elder, S, one of the spiritual leaders of the congregation, following a morning of evangelising door-to-door and a lunch at his home. The claimant brought an action against the defendants, the governing body of the Jehovah’s Witnesses and the trustees of the particular congregation, claiming damages for psychiatric injuries, alleging, inter alia, that the defendants were vicariously liable for the rape
The claim was allowed and damages were awarded.
The Court held that any organisation which conferred on its leaders power and authority over others created a risk that those leaders would abuse that power and authority, which was as true of a religious organisation as a secular one. An organisation which made rules for all aspects of its adherents’ lives and set them up as moral and spiritual exemplars imbued those leaders with power and authority even outside the confines of their religious activities.
The evidence demonstrated that an elder, such as S, was as integral to the “business” of a congregation of Jehovah’s Witnesses as a priest was to the “business” of the Catholic Church. The commission of the rape was a risk created by the congregation by assigning those activities to S and that therefore, the relationship between the defendants and S was capable, in principle, of giving rise to vicarious liability for acts of sexual abuse perpetrated by him on members of the congregation.
Whilst the rape had not occurred while S was performing any religious duty, that was not a necessary ingredient of liability in a case such as the present. The test was more open-textured and required an analysis of all aspects of the relationship between the tort and the abuser’s status. Having regard to all relevant features of the relationship, the rape was sufficiently closely connected to S’s position as elder to make it just and reasonable that the defendants should be held vicariously liable for it.
Clearly, this case relies heavily on the well-established principles in Lister but it is again hard to discern why Morrisons should not instead apply here.
DSN v Blackpool Football Club
The Claimant, known as DSN at trial, was sexually abused when on a football tour led by Frank Roper to New Zealand. The claim alleged that the club was vicariously liable for Roper’s actions because his activities as a scout represented a sufficiently close connection so that liability should properly be imposed.
The Court considered the two stage test for vicarious liability:
Stage 1: Was the relationship between the Defendant and the tortfeasor such that the Defendants can be liable for his assault of the Claimant?
Whilst Roper was an unpaid volunteer, various other non-playing staff were in the same position and were akin to employees (albeit not receiving a wage). The club was unable to run an effective youth programme without Roper, and he was “very much doing the work of the Club.” The Defendant gave him credibility with young footballers by “lavishing tickets and access on him.” Accordingly, Stage 1 was satisfied.
Stage 2: Was there a close connection between the assault of the Claimant and the relationship between the tortfeasor and the Defendant?
The Claimant considered the trip to New Zealand “a chance to further [his] prospects of a career” playing for the Defendant. One of the parents found the manager’s son attending the trip as evidence that this made “the trip legitimate and reassured [him] that the trip was endorsed” by the Defendant. There was accordingly a sufficiently close connection to satisfy Stage 2.
Mr Justice Griffiths found that the relationship between Roper and the Defendant was capable of establishing vicarious liability. “[Roper] was as dependent on Blackpool’s favour and on his integration into Blackpool FC as an employee would have been: he was working for them, and they could have fired him at any time.” And that he “used and misused” this position to create the circumstances in which he was able to abuse the Claimant.
The Court also considered limitation and concluded that it was equitable to allow the action to proceed by disapplying limitation per section 33 of the Limitation Act. Mr Justice Griffiths noted that the “cogency and abundance of the evidence,” amongst other issues, meant that “no real risk of substantial prejudice [was] caused by the delay in the defendant receiving notice of the claimant’s claim.”
The Defendant is applying to appeal this decision.
FZO v London Borough of Haringey
The claim involved the alleged grooming and sexual abuse of the Claimant whilst at a School operated by the Defendant. The abuse continued for several years after the Claimant had left the School.
There were five grounds of appeal in FZO: (1) Limitation: Correct application of s33; (2) Limitation: Prejudice; (3) Consent; (4) Vicarious Liability; (5) Causation. All grounds of appeal were dismissed by the Court of Appeal.
Ground 1: The Defendant/Appellant argued that the judge had misdirected herself as to the proper application of section 33 of the 1980 Act. Appellant argued that it is only adverse findings against a claimant that are material in this respect. It was argued that the judge had committed the (Bowen v JL) logical fallacy of proceeding from a finding, on necessarily partial evidence, that the claimant should succeed on the merits to the conclusion that it would be equitable to disapply the limitation period. Contrary to the Appellant’s submissions, the Court of Appeal dismissed this ground and found that it was ‘wholly unrealistic…that the judge could not properly consider the respective credibility of both the Respondent and the First Defendant when dealing with the limitation issue’.
Ground 2: The Appellant asserted that the judge wrongly failed to find that the Appellant was exposed to the real possibility of significant prejudice by the delay. The Court of Appeal dismissed this ground noting that the Appellant had failed to identify any evidential deficiencies that would have been cured had the claim been brought earlier. The Court concluded that, ‘[t]he judge was right…to take into account that the Appellant had done little or nothing to make up the evidential deficiencies about which they then vigorously complained. The Appellant protests too much, given its inactivity in this respect.’
Ground 3: This ground explored the nature of consent in sex abuse cases. The Judge had found that, “A person consents to sexual activity with another if they have the freedom and capacity to consent. Submission is not the same as consent.” The Judge found as a matter of fact that the Respondent’s consent was not genuine in that it had been overridden by psychological coercion, derived from the grooming and abuse during the period at the School even when the abuse continued after this time. The Court of Appeal declined to interfere with this finding of fact and so the Judge’s determination was upheld. (On this issue see also the decision of HHJ Saggerson in XXX v YYY, handed down on 13 January 2020, which reached the opposite conclusion on the issue of Consent and provides obiter comments on the issue of vicarious liability).
Ground 4: The Appellant argued that the School was not vicariously liable for the assaults that continued after the Claimant left the School. The Court of Appeal refused to interfere with the Judge’s determination that vicarious liability did persist after the Claimant had left. The Judge had found that the control over the Claimant, which had been created by virtue of the position of trust whilst at the School, continued to operate over the Claimant after he had left. The Court of Appeal concluded that: “Given the judge’s findings on the issue of consent, which I would uphold, I consider that her conclusion on vicarious liability must also be upheld.” It is not clear whether this aspect of the claim would survive in light of the recent Supreme Court judgment in Morrisons.
Ground 5: The Appellant argued that the Judge failed to have proper regard to the underlying concept of “simple” PTSD (to which CPTSD, the Claimant’s diagnosis, is a “bolt-on”). It was said that the evidence of the Respondent was that the sexual activity perpetrated was not violent in nature, but rather non-forceful and sympathetic in character, which would negate any form of PTSD, complex or otherwise. The Court of Appeal declined to interfere with the Judge’s evaluation on the expert evidence and dismissed this ground also.
In concluding comments Lord Justice Simon and Lady Justice Nicola Davies, rather surprisingly, expressed significant “disquiet” about some of the Judge’s findings of fact but felt unable to interfere as, “is not for this court to attempt to substitute its own evaluation of evidence without any of the advantages of a trial judge”.
FXF v Ampleforth
The claimant alleged that she had been a victim of sexual abuse by Fr Webb in the late 1960s when she was around five or six years old. Fr Webb was the assistant parish priest at the claimant’s local parish.
In July 2016 the claimant commenced a civil claim for compensation alleging that the defendant was negligent and vicariously liable for the alleged assaults. The claim in negligence was denied but the defendants accepted that they would be vicariously liable for any assaults the claimant proved to have been committed by Fr Webb. Limitation was in issue. Fr Webb died in July 1990. There had been several other complaints of abuse since his death, these complaints were first raised in 2013 and there was no record of any complaints being made before his death.
The trial was heard before Mrs Justice Lambert. The claim in negligence was abandoned and proceeded in vicarious liability only. The Judge dismissed the claim on Limitation. The delay was extremely long (some 32 years after the claimant’s 21st birthday) and this was not a case where the claimant did not realise that the abuse was wrong at the time it occurred. The Judge considered that Fr Webb’s death had seriously prejudiced the prospects of a fair trial and she did not consider it equitable to exercise her discretion to allow the claim to proceed. This is a further example of the significance that the Courts continue to attach to the availability of the alleged abuser to respond to a claimant’s allegations on all issues (see also the decision of Nicol J in Peter Murray v Fr Martin Devenish [2018] EWHC 1895 (QB) in which the Court also found that the death of the alleged abuser had “undeniably disadvantaged” the defendant).
