News Category 3
JD Wetherspoon Plc v Burger & Risk Solutions BG Ltd [2025] EWHC 1259 (KB) - Philip Matthews, Temple Garden Chambers
11/06/25. The Claimant sustained a serious hip injury after being forcefully restrained by two door supervisors outside a JD Wetherspoon (JDW) pub in August 2018. The supervisors were employed by Risk Solutions BG Ltd., which was contracted by JDW to provide security services. The Claimant initially sued both JDW and Risk Solutions for personal injury. However, Risk Solutions failed to participate in the proceedings, and so the case proceeded against JDW alone.
At first instance, Recorder Shepperd held JDW vicariously liable for the actions of the door staff and awarded the Claimant £71,308.67.
The Law
The law in relation to vicarious liability has developed considerably in recent years, not least in response to historic sexual abuse claims. In essence, the Court’s must undertake a two-stage enquiry to determine vicarious liability: stage-one is concerned with the relationship between the defendant and the tortfeasor; and stage-two is concerned with the link between the commission of the tort and that relationship. Both stages must be satisfied.
Appeal
JDW appealed Recorder Shepperd’s decision, submitting that they were not vicariously liable for the acts/omissions of Risk Solutions staff.
High Court Decision
Sweeting J referred to the recent Supreme Court authorities of Barclays Bank, Cox and BXB, which cumulatively emphasise that vicarious liability does not extend to true independent contractors. These cases stress the need to start with the contract and only move to a ‘close connection’ analysis (stage-two) if stage-one is satisfied (i.e., if the relationship is akin to employment).
Turning to the facts, Sweeting J found that the contractual relationship between JDW and Risk Solutions was a standard commercial agreement for outsourced services, not a quasi-employment relationship. It was noted that Risk Solutions controlled, hired, trained and disciplined its own employees; and JDW had no authority over how the doormen performed their duties (only the ability to request replacements if standards were breached). Sweeting J found that, instead of focusing on these contractual realities, the fist-instance court had placed undue weight on peripheral factors of control (e.g., uniforms and log books).
Ultimately, Sweeting J held that JDW engaged Risk Solutions as a genuine independent contractor providing a specialist service. The relationship lacked the characteristics of employment required to impose vicarious liability. The appeal was therefore allowed, and the finding of liability against JDW was reversed.
Analysis
This case confirms that the specifics of the contractual relationship between subcontracting parties is central to the determination of whether vicarious liability exists. The courts will be slow to impose liability on a party engaging a true independent contractor.
https://caselaw.nationalarchives.gov.uk/ewhc/kb/2025/1259#download-options
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Costs budgeting can be retrospective: BDW Trading Limited v Ardmore Construction Limited [2025] EWHC 1063 (TCC) - Andrew Ratomski, Temple Garden Chambers
21/05/25. Date of judgment: 2 May 2025
Andrew Mitchell KC sitting as a Deputy Judge of the High Court was required to decide whether the court had the power to make a costs management order retrospectively and to consider the reasonableness of budgets filed almost a year prior at a Costs and Case Management Conference (“CCMC”) held in June 2024.
Procedural history
A number of issues were determined at the first CCMC but it appears that remaining disagreement as to costs issues was not brought to the attention of the judge at that hearing and neither were costs budgets provided. As a result a costs management order was not made at that stage.
Subsequent to the CCMC the Claimant applied to amend its June 2024 budget and this application in almost mid 2025 brought to light unresolved costs budgeting issues.
The issues
The matter was referred to the costs judge and he directed that the parties provide him with the relevant documents, including those that should have been before him at the original CCMC. The judge proceeded to resolve the disputed items in the budgets as filed in June 2024 and would put the parties in a position where those were considered in their proper context. It was also essential to establish the June 2024 position in order to assess the increase now sought by the Claimant as it was a very substantial revision upwards of the position previously filed with the court.
The Claimant argued that the court had alternatively no power to or otherwise should not make a costs management order in respect of an earlier date as that would be “retrospective”, it sought an order for its increased budget as it was now. Alternatively it applied to vary its budget under rule 3.15A of the CPR on account of “significant developments” since the original CMC.
The decision
The judge rejected the Claimant’s argument and held the court was able to set out its view as to the reasonableness of the budgets as at June 2024. The judge referred to the provisions under rule 3.15(2) that a costs management order can be made at any time and the general discretion of the court as to what to approve. The judge held the court was recording its views as to estimates when submitted on a particular date and this approach was said to be the “disciplined” one even where revisions were made.
The judge therefore made the order based on the materials available in June 2024 before considering the application to vary the Claimant’s budget (which was allowed).
Discussion
This decision indicates that costs budgets may be determined retrospectively where, for whatever reason, items of dispute were not resolved at the time those were filed. Practitioners would be wise to ensure that at a CCMC the court is invited to determine all of the issues it needs it to. However, in this case, the retrospective determination of costs budgeting was not a barrier to the Claimant being granted the subsequent revisions it was seeking.
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Doroudvash v Zurich Insurance Plc [2025] EWCC 10 - Philip Matthews, Temple Garden Chambers
19/05/25. In Doroudvash, the Court determined a claimant’s application to join an additional defendant into an action after the expiry of the primary limitation period.
Background
Two police constables – PC Sehmi and PC Doroudvash – were responding to an emergency call. PC Sehmi was driving; PC Doroudvash was his passenger. The police car was travelling at 87mph in a 30mph zone when it came into collision with a third-party vehicle driven by a Mr Tarnowski. Both he and PC Doroudvash sustained personal injury. PC Sehlmi was later convicted of causing injury by dangerous driving.
Mr Tarnowski brought an action against the Commissioner of Police for the Metropolis, who admitted liability under section 88 of the Police Act 1996. No argument of contributory negligence was raised. The case settled without trial.
Separately, PC Doroudvash pursued a claim under the European Communities (Rights Against Insurers) Regulations 2002 directly against Mr Tarnowski’s insurer, Zurich Insurance. Zurich initially admitted full liability but later successfully applied to resile from that admission (and to bring a contribution claim against the Commissioner).
Consequently, PC Dorouvadash made an application to join the Commissioner as a Second Defendant (after the primary limitation period had expired). It is on this application that the judgment focused.
The Rules
The Civil Procedure Rules draw a distinction between applications to add/substitute a party...
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The 'Relevant Period' in a Part 36 offers means what you think it does - Andrew Ratomski, Temple Garden Chambers
18/04/25. Henderson and Jones Limited v Salica Investments Limited and Others [2025] EWHC 838 (Comm)
Date of judgment: 4 April 2025
This case is an illuminating decision on the construction of alleged defects in a party’s Part 36 offer in relation to timing. The underlying claim concerned a claim by a litigation funder, the Claimant, for a breach of confidence against the First and Fourth Defendants. The Claimant was awarded damages in the sum of a little over £2 million after an eight day trial. A number of consequential issues then arose including the validity of the Claimant’s Part 36 offer and were it were found valid, whether the judge should award the usual Part 36 consequences.
The issue
On 31 October 2023 the Claimant made a Part 36 offer by letter. Para. 2.1 provided: “If the Defendant accepts this Part 36 Offer after the end of the Relevant Period, they will be liable for the Claimant’s Costs…”but the letter did not otherwise define “Relevant Period”. The Defendants argued that as a result the offer was defective and did not comply with rule 36(5)(1)(c), namely that an offer must specify a period “of not less than 21 days within which the defendant will be liable for the claimant’s costs…”.
The arguments
The Defendant’s argument was that “Relevant Period” absent definition could have been any period of time and it could not be assumed to mean 21 days. The Defendants relied on the dicta of Moore-Bick LJ in Gibbon v Manchester City Council [2010] 1 WLR 2081 which emphasised the need for parties to comply with the formal rules of Part 36.
The Claimant contended that whilst the definition was missing from the relevant offer letter, a relevant period of 21 days was defined in a previous Claimant’s Part 36 offer made on 26 May 2023 and by a Defendant’s Part 36 of 3 May 2023. It was said the meaning of the term could be inferred, the Claimant intended to make a valid Part 36 offer and it was submitted there was no reason to offer a longer period. The letter also contained the usual provision that the Defendants were to notify the offeror if it considered the offer to be defective or non-compliant. The Claimant also relied on the White Book commentary at rule 36.2.4 along with the Court of Appeal’s decision in C v D [2011] EWCA Civ 646 and argued that the court should prefer the construction if possible that gives effect to the stated intention and allows the offer to be effective.
Decision
The judge upheld the offer. He relied on the earlier without prejudice save as to costs correspondence, it was relevant that both parties had made offers where a Relevant Period was expressly defined as being one of 21 days. The offer the Claimant now relied on was the last offer in that exchange of offers. Relevant Period was defined with capitals. The judge considered that a reasonable reader would fully understand what was meant by the term in the 31 October 2023 offer. It was also significant that the Defendants had not raised an issue as to what the term meant at the time and was now taking the objection later, this point underlined that the parties were in no real doubts as to the construction of the offer.
The judge also rejected the Defendants’ argument that principles of contractual construction had little role to play in this context. The offer was therefore held to be valid.
Discussion
On one hand this case is an encouraging decision for the principled policy of the courts to promote settlement and uphold valid Part 36 offers where that construction is possible. However, plainly the previous correspondence saved the day in this particular case and it is far from certain that a similar interpretation would apply to a single isolated Part 36 offer that did not define a “relevant period”. It is always advisable to adopt the Part 36 standard form when making an offer, to ensure that all procedural requirements are met, otherwise there is no good reason not to define common terms even where the courts accept their meaning is unlikely to be ambiguous.
https://caselaw.nationalarchives.gov.uk/ewhc/comm/2025/838?query=Salica+Investments
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Wagatha Costie - Philip Matthews, Temple Garden Chambers
16/04/25. The judgment in Rebekah Vardy v Coleen Rooney [2025] EWHC 851 (KB) arose from an appeal concerning the costs associated with the highly publicised defamation proceedings between Rebekah Vardy (Claimant / Appellant) and Coleen Rooney (Defendant / Respondent). The Claimant’s original claim was unsuccessful, resulting in an order for her to pay 90% of the Defendant's costs on an indemnity basis. The appeal focused on whether the trial judge, Steyn J, erred in declining to find that the Defendant or her solicitors acted improperly or unreasonably as per CPR 44.11(1)(b).
At First Instance
The essential issue arose in relation to the Defendant’s Precedent H document, which detail both incurred and predicted costs. The Claimant contended that the Defendant's legal representatives provided misleading figures, failing to clarify that the costs listed were estimates deemed reasonable and proportionate for a standard basis assessment, rather than actual incurred costs. The Claimant argued that this misrepresentation skewed the comparison of incurred costs between the parties.
The trial judge concluded that, whilst the Defendant's solicitors should have been more transparent about the basis for their Precedent H figures, the failure to do so did not amount to unreasonable or improper conduct. The judge noted that the Defendant's legal team might reasonably have assumed that the Claimant's figures were also based on a similar interpretation of ‘reasonable and proportionate costs’.
On Appeal
The Claimant asserted two grounds of appeal: (i) that the trial judge was incorrect in finding that the Defendant's solicitors could have believed the Claimant had understated her costs; and (ii) that the judge wrongly dismissed the Defendant's conduct as unreasonable or improper despite acknowledging misleading presentations.
Mr Justice Kavanagh dismissed the appeal. His decision highlighted that, without clear evidence of deliberately misleading behaviour on the part of the Defendant’s legal team, their actions did not cross into the realm of misconduct as defined by CPR 44.11.
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