Kenny Johnston v Giving.Com Limited

The renewed application for permission to appeal was refused. The judge concluded that, on the evidence, the services provided by the defendant (Giving.com Limited) were to the claimant's charitable company CLASP and not to the claimant in his personal capacity. Accordingly, the discrimination claim under Part 3 of the Equality Act 2010 (notably section 29(1) and the section 31(5) factual exception) did not arise and the County Court lacked jurisdiction under the statutory route relied upon. The judge also concluded there was no arguable common law duty of care owed by the defendant to the claimant; the Caparo/Robinson analysis did not support imposition of a duty in the circumstances found. The application failed on grounds of fact, statutory interpretation and negligence.

This is a renewed application for permission to appeal from a decision given after a trial of preliminary issues. The claimant (Mr Johnston) sued Giving.com Limited (trading as JustGiving) for discrimination under the Equality Act 2010 and for negligence, alleging the defendant had failed to make reasonable adjustments and had treated him unfavourably as a consequence of his mental health disability. The claim arose out of the claimant's role as trustee, chief executive officer and sole employee of a registered charity company, CLASP, which was a charity customer of the defendant.

The preliminary issues were (i) whether the claimant's claim related to a contravention of Part 3 of the Equality Act 2010 such that the County Court had jurisdiction under the statutory route, and (ii) whether the defendant owed a common law duty of care to the claimant. HHJ Melissa Clarke heard evidence, observed witnesses and found that since CLASP's incorporation in 2013 all interactions with the defendant related to charity customer services provided to CLASP and not to the claimant personally. The judge accepted that the claimant was an honest witness but concluded he had conceded that he personally had not been provided with services since 2013.

The claimant advanced multiple grounds on appeal: that material evidence had been overlooked, errors in the interpretation of section 31(5) of the Equality Act 2010, that the judge wrongly concluded the claim was outside the County Court's jurisdiction, that the claimant sought personal services, and that a duty of care arose. The Single Judge previously found those grounds not arguable. Mr Justice Goose reviewed the written record and oral submissions and concluded the trial judge's factual findings were open to her after observing witnesses, the statutory analysis was correct (section 29(1) did not apply because the service was provided to CLASP not to a person in the public or a section of the public, and the section 31(5) exception did not assist), and the common law duty of care did not arise applying Caparo Industries plc v Dickman and Robinson v Chief Constable of West Yorkshire Police. The renewed permission to appeal was refused because no arguable grounds or compelling public importance were shown.

The renewed application for permission to appeal is refused. The court upheld the trial judge's factual findings that the defendant's services were provided to the registered charity CLASP and not to the claimant personally, so Part 3 of the Equality Act 2010 did not give rise to a discrimination claim in the County Court and section 31(5) did not assist. The court also found no arguable common law duty of care owed by the defendant to the claimant applying the Caparo/Robinson duty analysis.

Claim issued in the County Court Business Centre 19 July 2021 and transferred to Reading County Court. HHJ Melissa Clarke gave judgment on preliminary issues on 20 May 2022 dismissing both claims and refused permission to appeal. A Single Judge refused permission on the papers. This renewed application for permission to appeal was heard and refused on 22 March 2024 ([2024] EWHC 944 (KB)).