18th May 2018
David R White successfully resisted the Claimant’s second appeal in Kafagi v JBW Group Ltd  EWCA Civ 1157.
David was instructed by Christine Eva, Legal and Compliance Manager, JBW Group Ltd.
The Claimant (C) alleged to have suffered trespass to his property, possessions, and person as a result of the unlawful actions of a bailiff enforcing a Penalty Charge Notice.
C further alleged he was unlawfully arrested, and convicted as a result of the bailiff’s false evidence.
C took no action against the bailiff directly, but instead sued the Defendant (D), asserting vicarious liability. D admitted engaging the bailiff on a ‘self-employed’ basis, but denied that it was vicariously liable for the bailiff’s actions, on the basis that there was no relationship of, or akin to, employment.
D succeeded on this dispositive preliminary point at trial, and on the first appeal. C was granted permission by the Court of Appeal for a second appeal on the basis of the potential social importance of the issues in the case, and the general movement in the law towards a wider understanding of the bounds of vicarious liability following cases such as Cox v MoJ  UKSC 10.
The Court of Appeal unanimously agreed with the Respondent’s submissions that the regulatory regime in place in this instance, and the structure of the relationship between D and the bailiff meant that vicarious liability could not be founded.
Whilst certainly not a volte face from the Court of Appeal on the issues, the judgment will provide some solace to businesses that sub-contract. It had appeared the higher courts were moving relentlessly towards near strict liability for the acts of others engaged by a larger business on almost any basis. There is at least some precedent now for establishing what the limits of vicarious liability are.