Cercato-Gouveia v Kiprianou & Anor

Permission for a second appeal may be granted where the proposed appeal raises a substantial question of law or another condition in rule 52.13(2) is satisfied. A recent higher-court decision altering the approach to vicarious liability may create a sufficiently strong case for permission, particularly where the facts require a trial before the legal issue can properly be determined. The question is whether the employee’s wrongful act is closely connected with the employment. Permission does not determine the merits of the vicarious-liability claim.

The claimant, an employee, brought claims for wrongful dismissal and damages for an assault allegedly committed by his manager, for which he said the employers were vicariously liable. A district judge refused to strike out the assault claim. On appeal, Judge Brandt reversed that decision and entered summary judgment for the defendants under Rule 24.2, holding that the claim had no real prospect of success.

The claimant renewed his application for permission to appeal. The issues were whether the appeal procedure had been properly applied and whether the recent decision in Lister v Hesley Hall Ltd materially altered the law governing vicarious liability.

1. Permission granted. The renewed application concerned a proposed second appeal. The court had initially refused permission on paper because the conditions in rule 52.13(2) did not then appear to be satisfied.
2. The recent decision of the House of Lords in Lister v Hesley Hall Ltd materially affected the second ground. It established, in summary, that vicarious liability depends on the closeness of the connection between the employee’s wrongful act and the employment. The court noted that the decision had rejected the approach in Trotman v North Yorkshire County Council.
3. In light of Lister v Hesley Hall Ltd, there appeared at first sight to be a strong case that the facts could support vicarious liability. The district judge had considered that the facts should be tested at trial before the legal conclusion was reached. That view could properly be reconsidered by the full court.
4. The first ground, concerning the lower appellate judge’s reasons and his approach under the relatively new appeal procedure, was allowed to be argued because it might affect how the second ground was approached. In substance, however, it was closely connected with the vicarious-liability issue.
5. The court made no final determination of liability. The varying emphases in the House of Lords judgments might require close analysis on the substantive appeal. Permission was granted, with costs in the appeal.

• Court of Appeal (Civil Division): On 17 July 2001, permission to appeal was granted on both proposed grounds, following renewal of an application previously refused on paper.
• Colchester County Court: Judge Brandt allowed the appeal from the district judge and entered summary judgment for the defendants under Rule 24.2.
• District Judge: District Judge Silverwood-Cope dismissed the defendants’ application to strike out the assault and vicarious-liability claim.