One of the worst nightmares for any employer is when an employee goes “rogue” during the course of carrying out his duties, causing possible embarrassment but also potentially making him legally liable for the consequences of the wrongful act. The cases establish that the employer is only liable if there is a close connection between the wrongful act and an act which the employer authorised the employee to undertake. Two cases involving the supermarket chain, Wm Morrison provide useful and contrasting illustrations of the principle.
In Mohamud v Wm Morrison Supermarkets Plc  UKSC 11, Morrisons employed a petrol pump attendant who got into an altercation with a customer and, during the course of the row, assaulted him. The customer sued the supermarket upon the basis that they were vicariously liable for their employee’s act. They had authorised him to deal with customers of their petrol station and it was during the course of that authorised act that he carried out the wrong: there was a “close connection” between the two. The court held Morrisons to be liable to the customer.
However, the Supreme Court reached a different conclusion in the recently reported case of Wm Morrison Supermarkets (Appellant) v Various Claimants (Respondents)  UKSC 12.
Here, an employee in Morrisons’ accounts department became aggrieved with his treatment by his employers and decided to exact some revenge. The employee’s duties included the processing of data relating to employee earning and its supply to the company’s auditors. Having completed that task, he uploaded the data to a USB stick and then published the data on a file sharing site so that the earnings of nearly 100,000 employees were made public.
Various employees commenced proceedings against Morrisons for its breach of the statutory duty created by section 4(4) of the DPA, misuse of private information and breach of confidence upon the basis that they were vicariously liable for the wrongs of the rogue employee. They succeeded at first instance and on appeal. Morrisons took the case to the Supreme Court and were successful. The Supreme Court considered that the lower courts had drawn the wrong conclusions from the earlier authorities, including Mohamud.
The courts below had misunderstood the principles governing vicarious liability in the following respects:
The disclosure of the data on the internet did not form part of the employee’s functions or fields of activity-it was not an act he was authorised to do:
There was a close temporal link and an unbroken chain of causation linking the provision of data to the rogue employee and his abuse of that data but that was not, in itself enough to satisfy the close connection test established by authority.
The courts had treated the motive of the rogue employee as being irrelevant but, in fact, it was fundamental. In cases in which vicarious liability had been established, including Mohamud, the employee in question had not been acting out of any personal motive but was seeking to protect his employer’s interests, however wrongheadedly.
In conclusion, Morrisons was not liable because of the lack of close connection between the authorised act and the wrongful act although his motive seemed to play a significant part in the decision of the court. An employee who is on a frolic of his own and not simply carrying out his duties in a misguided or reckless manner, is far less likely to cause his employer to be liable. Employers can do their best to minimise the risks of employees going rogue, such as publishing clear and comprehensive training manuals and having proper security in place, in particular with computer systems but this will not prevent liability being imposed in circumstances in which the employees’ behaviour is closely connected to his duties.
After 6 years of campaigning, first of all to stop the construction of the Bridge and then to seek to make somebody accountable for the gross waste of £43 million of public money, it is time to archive the files. Recently, the eminent Q.C, Jason Coppel, acting on the instructions of Unity, has published his opinion to the affect that members of the public have no recourse by way of judicial review to attack the failure of The Charity Commission and TFL properly to supervise the actions of the Trustees of the Garden Bridge Trust. As the present Mayor, Sadiq Khan, has shown no inclination to call to account his predecessor or the management of TFL, there appears to be no prospect of anybody having to repay the public purse for its loss. At least the campaigners managed to stop the further waste of monies involved in actually building the bridge, which would no doubt have suffered the same fate as Crossrail-delayed and over budget.
One of the most troubling aspects of the case was the statement by Paul Morell on behalf of the Trust in January 2016 that all of the six conditions imposed by TFL to justify the next drawn down of Public funds by TFL had been met, including raising £145 million to pay for the construction of the bridge. In fact, this was plainly not the case as was evident from the Minutes of the Trustee’s December 2015 Trustees meeting. As a result of this misstatement, another £7 million of our money was flushed down the drain.
Unity is pleased to have worked pro bono on this with some dedicated people on this project who have given their time and energy to uncover some murky dealings.
We are pleased to report that the crowd funding website, CrowdJustice has raised over £5,000 to enable Unity to instruct Jason Coppel to investigate the culpability of various public bodies who seem to us to have failed in their job to protect public money in relation to the Garden Bridge issue. We will be asking him to advise on the possible liability of TFL, the Charity Commission and the former Mayor, Boris Johnson as well as the Trustees themselves. Unity's involvement has been reported in the attached article in the Architects Journal. Watch this space !
This was a headline from the Law Society Gazette from 23 July 2019. In a case called Timokhina v Timokhin, The Court of Appeal reduced counsel’s fees for a hearing about who should pay the costs of the substantive hearing. The Respondent husband, represented by Withers, turned up to the hearing mob handed with leading and junior counsel, charging £25k and £12.5k respectively whilst the appellant had junior counsel at a modest £1.5k. The Court of Appeal rightly disallowed leading counsel’s fees entirely and slashed the junior’s fees in half. Such behaviour gives lawyers a bad name. What were Withers doing turning up with leading and junior counsel for a costs hearing and why didn’t they negotiate a reasonable fee with the clerks. I have no doubt that Withers turned up with their own team, all busy scribbling superfluous notes! This is a particularly bad example but the number of times in my career, I have been confronted in court by leading and junior counsel, a partner, associate and trainee with somebody expected to pay for the charade!
It is very common for non-lawyers to use the term "without prejudice" on legal letters for no other reason than they feel they should. This is not surprising given the mystique that has surrounded the law for so long but it is often used wrongly by lay people and sometimes even by lawyers who should know better!
Without Prejudice is properly used in the course of negotiations between parties who are trying to settle a dispute, often in the course of litigation but not necessarily. It means that neither party to the without prejudice correspondence can refer it to the court at a hearing or use it for any other purposes. It is therefore useful because the parties to a dispute are free to make offers which they wouldn't want a judge to know about.
Just because something is marked "without prejudice" doesn't mean anything. The party writing a without prejudice letter or email has to justify why it is properly marked with those words. Please also note that there are occasions where someone makes an admission of wrongdoing in a letter when "without prejudice" will not prevent the other party relying on that admission.
Then there's "without prejudice save as to costs" which we will save for another day.
There is no doubt that litigation funding is beginning to revolutionise the litigation market but has still a long journey to make before there is anything like equality of arms between a wealthy litigant and a party with more limited means. There are obvious problems which may be difficult to overcome such as funding a defence or where the remedy is not primarily monetary. The other issue is the take by funders from the potential damages. Funders are right to point out that 50% of something is better than 100% of nothing but that argument should not be an excuse for greed or uncompetitive behaviour. It will be the case that the more competition there is in the market the more prices will come down but funders must be more prepared to think laterally, such as mixing no recourse funding with straight lending and taking equity.
It is such a shame that successive governments decimated civil legal aid. My company, Unity Legal Solutions is working on a report which will show how cost effective civil legal aid was in giving access to justice. However, it became an easy target at a time when there was public disquiet not about civil legal aid but the perception of criminal law silks getting rich on the back of legal aid given to apparently undeserving criminals. It may be some time before there is any return to state aid to litigants but the private sector must find ways of filling in the gap.
I note the initiative taken by Debenhams Ottaway to create of panel of funders in an attempt to reduce commission paid to brokers. This ignores the fact that such commission is a small part of the overall cost including mark up on solicitors fees when fees are deferred, the take of the funders and ATE premiums. It also does not take into account the non chargeable work that solicitors adopting this model will have to undertake in getting a case across the funding line. Unity overcomes this problem by procuring initial advice as to the merits of a case, putting together the right legal team for the case, negotiating the fees and the funding in return for remuneration which is payable directly by the client and consisting partly of upfront fees and commission on success.
One of my resolutions for 2018 is not to get so annoyed at bureaucracy or the behaviour of fellow professionals. It achieves nothing other than to increase my blood pressure. The worst blood pressure raisers for 2017 were:
The High court Master who transferred my client's claim valued in excess of £700k to the Central London County Court.
The Central London County Court who then sat on the fie for 2 months and then gave me a date for a case management conference 6 months off.
The firm of solicitors who conveniently forgot to pay the court trial fee leading to their client's case being struck off. The trial date was lost and they have now applied for relief against sanctions. If they get it, my client will have lost at least 4 months. If they don't get relief, the solicitors have threatened to issue new proceedings for the same thing. Have they not heard of abuse of court and res judicata. Probably not ! Happy New Year!
I am pleased to announce the public launching of Unity Legal Solutions, a company which offers a broad range of legal services other than actually giving legal advice, including finding the right lawyer for a client, project management, litigation funding, mediation and costs. meanwhile, I will continue in my existing role as consultant to Collyer Bristow. Check out Unity at:
One of the hats I wear is as Non Exec Director of Baird & Co, precious metals refiners and dealers. Big debate about gold and bitcoins , both of which are currency with no intrinsic value. Difference is that you can touch gold, store it in a safe place and know that your investment is properly regulated ! Interesting article on this in Business Insider today.