LA2001 Tort law Pre-exam Update 2021

The current edition of the module guide was published in 2020.

The following developments should be noted:

CHAPTER 3: TRESPASS TO THE PERSON AND TO LAND

3.1.3 False imprisonment
R (on the application of Jalloh) v Secretary of State for the Home Department [2020] UKSC 4
This case concerns the definition of false imprisonment and its relationship to deprivation of
liberty under Article 5 of the ECHR. The claimant had been subject to a night curfew for over two
years, which was monitored by an electronic tag. It was later established that there had been no
lawful authority for the imposition of the curfew and the claimant brought an action for
damages for false imprisonment.
According to Lady Hale, who gave the lead judgment, in this case there was no doubt that the
defendant had defined the place where the claimant was to stay between the hours of 23.00 and
07.00. There was no suggestion that he could go somewhere else during those hours without
the Secretary of State’s permission. Although the claimant broke his curfew from time to time,
this made no difference to his situation while he was obeying it. Although it was physically
possible for the claimant to leave, his compliance was enforced and not voluntary. He was
wearing an electronic tag, which meant that leaving his address would be detected. This is a
case of ‘classic detention or confinement’ under the common law. In ruling in favour of the
claimant, the Supreme Court firmly declined the opportunity to align the common law with the
more nuanced (and less generous) concept of deprivation of liberty under the ECHR.

CHAPTER 11: DEFENCES TO NEGLIGENCE

11.3.1 Illegality defence: recent developments
Stoffel v Grondona [2020] UKSC 42
This case illustrates a recent application of Patel v Mirza [2016] UKSC 42. The claimant brought a
negligence action against her solicitors for failing to register documents effecting a transfer of
property. The defendants argued that, because the transfer had been part of an illegal mortgage
fraud, the claim should be barred by the defence of illegality.
In holding that illegality should not bar the claim, the Supreme Court applied the new policy-
based approach to illegality set out in Patel. The claimant was engaged in mortgage fraud, which
is a serious criminal offence. However, denying her claim would not enhance the underlying
purpose of the prohibition on mortgage fraud. Fraudsters are unlikely to be deterred by the risk
that they will be left without a civil remedy if their solicitors prove to be negligent. Further,
denying the claim would run counter to the important policy that solicitors should perform their
duties to their clients diligently and without negligence, as well as with the policy that the
victims of solicitors’ negligence should be compensated for the loss they have suffered.

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Henderson v Dorset Healthcare University NHS Foundation Trust [2020] UKSC 43

A woman had killed her mother while suffering from severe mental illness and brought a
negligence action against the medical authorities claiming their lack of care had caused her to
commit the crime. The appellant argued that according to Patel v Mirza [2016] UKSC 42, it should
be possible to distinguish Gray v Thames Trains Ltd [2009] UKHL 33 and that defence of illegality
should not apply to her claim.
The Supreme Court held that, because the crucial factor in Gray was that criminal responsibility
had been established (rather the extent of personal blame), the two cases could not be
distinguished. Applying the policy tests from Patel, the following factors indicate
overwhelmingly that illegality should bar her claim:
i. the gravity of her criminal offence;
ii. the public interest in the proper allocation of NHS resources;
iii. the very close connection between her claim and her offence; and
iv. the public interest in deterring, protecting the public from and condemning unlawful
killing.
The appeal was dismissed.

CHAPTER 13: VICARIOUS LIABILITY

In early 2020, two significant Supreme Court decisions indicated that the limits of the recent
expansion of vicarious liability have been reached.
13.2.3 Relationships ‘akin’ to employment
Barclays Bank plc v Various Claimants [2020] UKSC 13
In 2018 the Court of Appeal held that the defendant bank was vicariously liable for the sexual
assaults against prospective staff committed by a doctor, who was an independent contractor. It
reached this conclusion by applying Lister’s ‘close connection test’ and Lord Phillips’s five criteria
established in Catholic Child Welfare Society v Various Claimants [2012] UKSC 56 to establish the
employment relationship.
The Supreme Court reversed the decision of the Court of Appeal, allowing the appeal by the
defendant bank. The five factors identified in the CCWC decision may help to identify a
relationship analogous to employment where is not clear whether or not the tortfeasor is
carrying on their own independent business. However, ‘where it is clear that the tortfeasor was
carrying out his own independent business’ it was not necessary to consider the five criteria. The
case re-established what is effectively an ‘independent contractor’ defence in relation to
vicarious liability.
13.3.9 Application of the ‘close connection’ test
WM Morrison v Various Claimants [2020] UKSC 12
In 2018, the Court of Appeal ruled that Morrisons Supermarket was vicariously liable to some
100,000 employees for a data breach caused by the deliberate malicious act of an employee. The
Supreme Court overruled the Court of Appeal in considering the application of the ‘close
connection’ limb of the two-stage test for establishing vicarious liability, it held that employers
will not be liable for an employee’s wrongful act where that act is not engaged in furthering the
employer’s business. Here it was an effort to deliberately harm the employer as part of a
vendetta. Consequently, no vicarious liability arose.

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CHAPTER 16: THE LAW OF NUISANCE

16.2.3 Factors determining reasonable use
Fearn v Board of Trustees of the Tate Gallery [2020] EWCA Civ 104
In the 2019 first instance decision, Mann, J ruled against the claimant tenants in respect of the
overlooking of their apartments from the viewing deck of the Tate Gallery. However, he
suggested that in some circumstances it would be appropriate to extend the law of nuisance to
support of breach of privacy claim under Article 8 right to private life.
The Court of Appeal upheld the ruling against the tenants and denied any further option of
taking the case to the Supreme Court. Significantly, it went on to reject the judge’s opinion on
the possible interdependence between nuisance and privacy law. For this, it set out five reasons,
among them the difficulty in creating ‘clear legal guidance’ on when overlooking constituted an
interference with amenity and also the inconsistent policy objectives of the law of nuisance
compared to those of the developing law on privacy.

CHAPTER 18: PRIVACY AND MISUSE OF PRIVATE INFORMATION

18.5.4 The criminal justice system
ZXC v Bloomberg LP [2020] EWCA (Civ) 611
The claimant, an American businessman, was under investigation by an unnamed UK law
enforcement body. The defendant had published an article about the investigation, having
obtained a letter that had been marked ‘Confidential’ and making clear that the investigation
was at an early stage and that the claimant had not been arrested. An attempt to obtain an
injunction failed and the action based on misuse of private information proceeded. The first
instance ruling in favour of the claimant was upheld by the Court of Appeal.
The leading judgement of Simon, LJ analysed the privacy claim according to the familiar two-
stage test set out in for example McKennitt v Ash [2008] QB 73 (CA):
1) did the claimant have a reasonable expectation of privacy here so as to engage his rights
under Article 8 ECHR; and
2) if so, did Bloomberg’s Article 10 rights outweigh the Claimant’s Article 8 rights?
The Court of Appeal, in finding for the claimant, concluded that in general, a person does have a
reasonable expectation of privacy about the fact, or details of, their being subject to a police
investigation, up to the point of charge. In relation to the second question, reporting about
alleged conduct is different from the information about that conduct. In relation to that the
information, here the balance tipped in favour of Article 8 and against publication.

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