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Clare
Clare, Solicitor
Category: Law
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Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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If I wish to make a money claim on somebody with regard to

Customer Question

If I wish to make a money claim on somebody with regard to a matter in which their Employer is vicariously liable am I OBLIGED to sue the Employer, please?
Submitted: 2 years ago.
Category: Law
Expert:  Jo C. replied 2 years ago.
Hi.
Thank you for your question. My name is ***** ***** I will try to help with this.
No. You can sue the employee as you choose.
Generally speaking people prefer to sue the employer because they are more likely to be able to pay the award but there is no more to it than that. Suing the employer does create an extra hurdle to overcome as you have to prove that the employee was acting within the course of his employment.
Can I clarify anything for you?
Jo
Customer: replied 2 years ago.

Thank you for that and I understand the financial argument.

The person I wish to sue is the head of HMCTS SE Regional unit and I rely, in part, on Slesser LJ

I claimed on him personally, by name, through MCOL but they have struck out my Claim stating it does not comply with CPR7 PD7E 4(5)(a)

My claim makes no mention of HMCTS or the Crown - only the named individual...

Expert:  Jo C. replied 2 years ago.
If this is HMCT then they are the Crown.
If he was acting in the course of his employment at the relevant time then he is covered by the Crown's rights and duties.
The definition of the 'Crown' extends to people and entities who are acting as agents of the Crown. That is why the BBC is sometimes covered.
Customer: replied 2 years ago.

Given his position (Head of HMCTS SE Regional Support Unit I would argue that he does not act as an Agent - see Slesser LJ

Expert:  Jo C. replied 2 years ago.
I am sorry but I cannot agree with that.
Suing an individual is not a way around the rights and duties of the Crown.
Customer: replied 2 years ago.

Did you read Slesser LJ, please?

Expert:  Jo C. replied 2 years ago.
I haven't. There isn't a citation above.
However, it doesn't escape the operation of the CPR I'm afraid.
If he is the head of an organisation which does the business of the Crown then he is the Crown.
Customer: replied 2 years ago.

Slesser LJ

"

It is well established as a general rule of English law that an employer is not liable for the acts of his independent contractor in the same way as he is for the acts of his servants or agents, even though these acts are done in carrying out the work for his benefit under the contract.

The determination whether the actual wrongdoer is a servant or agent on the one hand or an independent contractor on the other depends on whether or not the employer not only determines what is to be done, but retains the control of the actual performance, in which case the doer is a servant or agent; but if the employer, while prescribing the work to be done, leaves the manner of doing it to the control of the doer, the latter is an independent contractor”

I would have thought as head of the SE Unit his Employer (the Crown) leaves the manner of him doing 'his work' to him (or does she pop in from time to time (not a serious comment)

But my main question, assuming there is vicarious liability, am I OBLIGED to sue the 'Employer', please?

and, if so, what is the authority for that, please?

Expert:  Jo C. replied 2 years ago.
No. You can sue the employee as you choose.
However, it matters not here because the employee is still covered by the Crown.
The comments of Lord Justice Slesser above do not even comment upon that issue I'm afraid.
Customer: replied 2 years ago.

"However, it matters not here because the employee is still covered by the Crown. " - how and in in what respect, please?

"No. You can sue the employee as you choose."

So, was the Court wrong to strike out my claim clearly AGAINST the individual on the grounds of PD7E 4(5)(a), please?

Expert:  Jo C. replied 2 years ago.
If he was acting in the course of his employment at the relevant time then he is covered by the Crown's rights and duties.
The definition of the 'Crown' extends to people and entities who are acting as agents of the Crown. That is why the BBC is sometimes covered.
No, the court was very definitely right for the reasons above.
Customer: replied 2 years ago.

The definition of the 'Crown' extends to people and entities who are acting as agents of the Crown

(Slesser) "but if the employer, while prescribing the work to be done, leaves the manner of doing it to the control of the doer, the latter is an independent contractor”

Expert:  Jo C. replied 2 years ago.
I am really sorry but I will not be able to agree that a head of an organisation is an independent contractor.
Customer: replied 2 years ago.

Sorry, How does

"However, it matters not here because the employee is still covered by the Crown. " - how and in in what respect, please?

+ "No. You can sue the employee as you choose."

fit with

"No, the court was very definitely right for the reasons above."

Re " will not be able to agree that a head of an organisation is..."

he is not the head nor the Employer (that is surely the Crown) but a 'doer' - and if I bump into Slesser (of ''but if the employer, while prescribing the work to be done, leaves the manner of doing it to the control of the doer, the latter is an independent contractor”) shall I let him know your view?

but back to my basic question - what authority prevents me from suing an individual notwithstanding his employer may also be vicariously liable (given that, I think, the concept of dual liability has elsewhere been established), please?

Expert:  Jo C. replied 2 years ago.
You can sue the employee as you choose.
Generally speaking people prefer to sue the employer because they are more likely to be able to pay the award but there is no more to it than that. Suing the employer does create an extra hurdle to overcome as you have to prove that the employee was acting within the course of his employment.
Customer: replied 2 years ago.

am sorry to labour the point but given

"You can sue the employee as you choose. "

how is it therefore right that my Claim against the employee gas been struck out, please?

Expert:  Jo C. replied 2 years ago.
If he was acting in the course of his employment at the relevant time then he is covered by the Crown's rights and duties.
The definition of the 'Crown' extends to people and entities who are acting as agents of the Crown. That is why the BBC is sometimes covered.
Customer: replied 2 years ago.

Thank you - you have now stated this twice

- I asked, however,

"what authority prevents me from suing an individual notwithstanding his employer may also be vicariously liable (given that, I think, the concept of dual liability has elsewhere been established), please?"

Surely not

"If he was acting in the course of his employment at the relevant time then he is covered by the Crown's rights and duties."

but, if so, what authority states that prevents he cannot therefore be sued in his own name, please?

It appears to me that if someone causes harm in the course of his employment he is 'excused' that and the (financial) responsibility automatically (?) falls to his employer (regardless of the wishes of the harmed party)

whereas if self-employed he is held responsible

- if I have understood correctly?

Odd thing Justice?

Expert:  Jo C. replied 2 years ago.
I am very sorry but I really don't think I can add any more to this.
For clarity, you can issue against him for the reasons above. However, it is pointless because he is protected by the Crown's rights and duties for the reasons above.
I am very sorry.
Opting out.
Customer: replied 2 years ago.

One more try, please?

"For clarity, you can issue against him for the reasons above - such that it will be heard by a court in the normal way??? - or be struck out ???

"However, it is pointless because he is protected by the Crown's rights and duties for the reasons above." - quite why is it pointless, please?

Expert:  Clare replied 2 years ago.
Hi
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
For clarity you wish to sue an employee of HMCTS for an action taken within the course of his employment is that correct?
Are you saying that he deliberately acted in a way that was outside of his authority to cause you harm?
Clare
Customer: replied 2 years ago.

Thank you for that and I understand the financial argument. ... MCOL but they have struck out my Claim stating it does not comply with CPR7 PD7E 4(5)(a). ETC " ???????

Customer: replied 2 years ago.

Exactly - whilst I understand the matter of vicarious liability what I am trying to establish is if the potential of that precludes me from suing him in his own name

- am I allowed to choose to sue him or his employer, at my choice, please?

Expert:  Clare replied 2 years ago.
Hi
We need to be very specific here
Was what this person did outside of his authority as part of his employment?
For instance did he deliberately take an action or neglect to take an action outside of his authority that impacted on you in some way?
This is crucial to the issue
Clare
Customer: replied 2 years ago.

Sorry for the delay - Family Sunday!

He is the Head (Director, I think) of HMCTS, SE Regional Support Unit. I would believe, therefore, his remit is to ensure all functions of that Unit operate 'correctly'

However, on his 'watch' the unit has (in spite of being chased by my MP) failed to

1. Acknowledge, let alone reply, to a formal complaint addressed to a specific Judge

2. Acknowledge, let alone reply, to an Application to Appeal, necessarily addressed to the same Judge

3. Failed to allocate to track a number of Cases forwarded by MCOL - such as to permit Costs of £ 6,228 to be awarded to me in respect of (my) Claim for £ 5,000 - which should have been contrary to CPR 27.14.2

Although the previous respondent dismissed it out of hand I think the ruling and explanation of Slesser LJ is significant?

Thank you

Customer: replied 2 years ago.

After following message....!

His unit made a pigs ear of the processing of another Application to Appeal such as to (and admit to) finally loosing it........

Expert:  Clare replied 2 years ago.
Hi
I am sorry but no the reference you make is not relevant at all since the role this person holds is undoubtedly that of an Employee and not an Independent contractor.
The issue of Employee/independent contractor is one in which has given rise to much case law - but that is not relevant where matters are as straightforward as this
This person is a Civil Servant employed by the Crown and as such has the benefit of Crown immunity for anything done in the course of his employment - which is why it has been bounced back to you and what that specific practise direction quoted refers to.
Even if he is in fact an implant - brought in from industry to deal with the work - he woudl in fact tsill be covered by the same Practice Direction.
In this case it is the nature of the work not the role that is the problem
Clare
Customer: replied 2 years ago.

(http://www.lawteacher.net/PDF/tort-law/Vicarious%20Liability.pdf)

Have to say I also read

"The determination whether the actual wrongdoer is a servant or agent on the one hand or an independent contractor on the other depends on whether or not the employer not only determines what is to be done, but retains the control of the actual performance, in which case the doer is a servant or agent; but if the employer, while prescribing the work to be done, leaves the manner of doing it to the control of the doer, the latter is an independent contractor”

somewhat differently

but my question, that notwithstanding, is am I therefore legally precluded from suing him in his own name - and what authority dictates that, please?

Expert:  Clare replied 2 years ago.
Hi
You are precluded from doing so because he is covered by Crown Immunity and thus no claim can be made using money Claim online
https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part07/pd_part07e
However in more general terms you cannot simply pick and chose aspects of employment to determine wether someone is an Employee or an Independent Contractor.
The Civil Servant has a salary and a pension and set hours that must be worked.
He must work within those hours and cannot decide to work from a Coffee bar today or home tomorrow
He cannot decide that he is going to work all night instead of all day.
He is subject to a disciplinary process and cannot simply be let go
There is there fore no need for the court to look further an these obvious points in deciding whether or not he is an employee
Clare
Customer: replied 2 years ago.

OK, I give up although I find

"Proceedings against Crown Employees (HSWA s7 36(2)


Although the Crown is bound by the general duties of HSWA, S48(1) establishes that it cannot be prosecuted, nor can it be served with improvement or prohibition notices. This Crown immunity applies both to central government departments and to other Crown bodies such as the Forestry Commission. However S48(2) and (3) state that persons in the public service of the Crown can be prosecuted under HSWA, and are to be treated as employees of the Crown for such purposes, therefore coming within s7.

HSE has in the past given a number of reassurances against the possibility of the abuse of this wide power. It has said that it had no intention whatsoever of prosecuting an individual civil servant in substitution for his department.

****It has also said that it would only prosecute an individual civil servant in circumstances in which it would prosecute an individual employee person outside the Civil Service.****" of more than some interest?

Don't quite understand the 'fairness' of one Crown 'department' operating in a manner with regard to the law in an entirely contrary to another (actually, don't understand at all!!)

but thanks for your intervention

Regards ***** *****

Expert:  Clare replied 2 years ago.
Hi
You are free to try and sue him - you just cannot use Money Claim online - you have to do it the old fashioned way
Having said that the exceptions for the Health and Safety at Work Act cannot be used as an argument for any other action or lack of action
Clare
Customer: replied 2 years ago.

The trouble is, I sued him in his own name on MCOL - I guess they must have contacted the Court and the Court, as on their Order, changed the Defendant to HMCTS....(somewhat to my surprise........?).

I guess the same thing will happen if I try the 'old fashioned way' - guess I have to consider biting the bullet and going after HMCTS (or, more correctly, MOJ)

Anyway, Many thanks - Mike P

Expert:  Clare replied 2 years ago.
Hi
Good luck i hope it goes as well as it can
Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 33946
Experience: I have been a solicitor in High Street Practice since 1985 with a wide general experience.
Clare and other Law Specialists are ready to help you
Customer: replied 2 years ago.

Thanks for your Good Wishes - bye!

Mike P

Expert:  Clare replied 2 years ago.
Hi
You are welcome
Clare

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