B1/2001/0990 
Neutral Citation Number: [2001] EWCA Civ 1887
IN THE SUPREME COURT OF JUDICATURE 
CIVIL DIVISION 
ON APPEAL FROM COLCHESTER COUNTY COURT
(His Honour Judge Brandt)
The Royal Courts of Justice
The Strand
London
Friday 30 November 2001
Before:

LORD JUSTICE SIMON BROWN
President of the Court of Appeal, Civil Division
LORD JUSTICE WALLER
LORD JUSTICE DYSON

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Between:

ALBERTO FILIPE CERCATO‑GOUVEIA
Claimant/Appellant
and:

(1) ERMIS KYPRIANOU

(2) THE HEYBRIDGE HOTEL LIMITED
Defendants/Respondents
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Transcript prepared from the Steno Notes
of Smith Bernal Reporting Limited
190 Fleet Street  London EC4A 2HD
Tel:  0207 404 1400
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MR J RICH (instructed by Prestons & Kerlys, Security House Chambers, Shenfield Road, Brentwood, Essex) appeared on behalf of the Appellant

MR A PIPER (instructed by Wortley Byers, Berkeley House, Hambro Road, Brentwood, Essex) appeared on behalf of the Respondents
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JUDGMENT
Friday 30 November 2001 
1.	LORD JUSTICE DYSON: This is an appeal by the claimant from a decision of His Honour Judge Brandt sitting at Colchester County Court made on 18 April 2001, whereby he allowed the appeal of the defendants from a decision of District Judge Silverwood‑Coke of 13 February 2001 by which she had dismissed the defendants' application for summary judgment under CPR 24.2 of the Civil Procedure Rules in respect of part of the defendants' claim, or to strike out that part under CPR 3.4. In the result, the judge gave summary judgment on this part of the claim in favour of the defendants under CPR 24.2 on the ground that it had no real prospect of success. The claimant appeals with the permission of May LJ. 
2.	It is common ground on this appeal, as it was in both courts below, that the defendants' application should be decided on the assumption that all the material facts pleaded in the amended particulars of claim are true. It is necessary at the outset therefore to summarise those facts. The claimant is a Portuguese national. At the material time he was employed by one or other of the defendants as a waiter in the restaurant of the Heybridge Hotel. The restaurant manager was Dominique Mosconi. In the evening of 17 May 1998 the claimant was laying tables for dinner with one Tatou, another waiter. They were having a conversation about a barbecue to be held at the claimant's house. Mr Mosconi overheard the conversation and apparently said to Mr Tatou: “You are going to a Portuguese barbeque? What a misery! What is he going to offer you?” The claimant asked Mr Mosconi why he was being so horrible to him. Mr Mosconi told the claimant not to “mess” with him and then told him not to bother to come back to work two days later but to come to the office to get his P45. A little later the claimant and Mr Mosconi were in the kitchen. The claimant apologised in an attempt to keep his job, but Mr Mosconi refused to accept the apology, saying, “No, get your P45 and get the hell out of here.” Mr Mosconi then said, “You haven't seen what's messing with you yet” and lunged towards the claimant, kicking him in the thigh. The claimant blocked the blow with his right hand and was injured in his right little finger. Mr Mosconi then punched the claimant, grabbed a kitchen knife which had an 18‑inch blade and threatened him with it. At this point the claimant left. He went to hospital. He was found to have fractures to his knuckle and his little finger as well as bruising on the lower back. He underwent an operation to place two pins in his finger. 
3.	The claimant claims damages for wrongful dismissal. That claim was not the subject of the application which has given rise to this appeal. Unless settled, that claim will have to go to trial in any event. But the claimant also claims from the defendants damages for the injuries he suffered as a result of the assault by Mr Mosconi. The basis of this claim is that the defendants were vicariously liable for the assault. It is this claim that was the subject of the defendants' application to strike out or for summary judgment. A number of authorities were cited by the defendants to the district judge in support of the argument that the assault was in pursuance of a personal vendetta by Mr Mosconi against the claimant and therefore was not in the course of Mr Mosconi's employment, so that the defendants could not be vicariously liable for it. 
4.	Having recited the pleaded facts, the district judge referred to the fact that, supported by a number of previous decisions, the defendants argued that the assault was in pursuance of a personal vendetta which could not have been committed in the course of Mr Mosconi's employment. She then said (page 77 in the bundle):
“I do not propose to quote all of the cases before me, but I would say that all were old cases and referred to servant and master, and as the modern employment situation changes one ought to treat those cases with a degree of caution, as they may not in all the circumstances pertain to current employment conditions. 
I was referred to the recent case of Fennelly v Connex South Eastern which was a Court of Appeal decision, and although on the face of it the behaviour by the employee in Connex was outrageous, the employers were liable. Given the way I consider that the law may well have developed, the facts of the fight [in this claim] should be tested and it is not appropriate to strike it out, as there is a prospect that claimant could be successful.” 
5.	She gave permission to appeal. 
6.	In his judgment the judge recited the facts pleaded by the claimant and characterised the assault as “wholly gratuitous and wholly unjustified.” He said this:
“ ... I have to consider what happened on the 17th and consider it when exercising my powers under either Part 3 or Part 24. I am a little reluctant to exercise my powers under Part 3.4. The trend of authority, it seems to me at the moment, is very much against applications to strike out. But in my judgment Part 24.2 does entitle a judge to look at the facts at least as they appear at best from the point of view in this case of a claimant, and ask the question whether it is not the case that he really has no real prospects of succeeding on his claim.”
7.	The judge then mentioned that a number of authorities had been cited to him, although he did not refer to any of them. He said that since the matter had been fully pleaded he had the material which was necessary to enable him to reach a conclusion. He was entitled to take a ”broad” approach. It was impossible to say that Mr Mosconi was acting in the course of his employment. The assault was “simply a piece of personal violence and viciousness”. It could not be said that Mr Mosconi was exercising some sort of disciplinary power and going too far. He then said this: 
“It seems to me judges really need to take a firm view of their powers under Order 24.2 and I do need to ask the question, 'Has the claimant no real prospects of succeeding?' and answer that question. In my judgment not only has he no real prospects of succeeding, I do not think he has got a prospect of succeeding at all. It seems to me quite wrong that further time, money and expense should be incurred in relation to this aspect of the claim. The appeal succeeds and I will dismiss the claim in so far as it relates to assault.”
8.	There are essentially two grounds of appeal. The first is that the judge did not conduct a review of the decision of the district judge but wrongly conducted a rehearing, exercising his own discretion afresh. The second is that in any event he reached a wrong conclusion. 
9.	We did not hear argument on the first ground, although the matter has been covered fully in the skeleton arguments that have been placed before the court. For the reasons that I shall shortly explain, I do not consider that it is necessary to reach a concluded view about the first ground. Nevertheless, since the point has been put in issue in the notice of appeal and in the skeleton arguments, I shall deal with it relatively briefly.
10.	CPR 52.11(1) provides that:
“Every appeal will be limited to a review of the decision of the lower court unless ... 
(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a rehearing.” 
11.	It is clear, therefore, that the general rule is that appeals are to be by way of review and not rehearing. It is not suggested that there was any unusual feature of the present case such that the interests of justice required the appeal to be by way of rehearing. It is submitted by Mr Piper that the judge did in fact conduct a review of the decision of the district judge. Mr Rich, on the other hand, submits that the judge did not conduct such a review.
12.	It seemed to me at first blush, on a reading of the judgment, that it had all the hallmarks of a decision taken afresh, as such decisions always were on interlocutory appeals in the pre‑CPR era. But when refusing permission to appeal the judge said this:
“So far as leave to appeal is concerned, I take the view that the district judge is clearly and plainly wrong. It is not a question of my exercising a decision in a different way from her simply because I do not entirely agree with it. I take the view that the way she exercised her discretion was clearly and plainly wrong when exercising the discretion given under 24.2. I do not see that this appeal has got any real prospects of success and leave to appeal be refused.”
13.	In these circumstances it seems to me that it is extremely difficult to hold that the judge did not in fact conduct a review. The sole question was whether there was a real prospect that the vicarious liability claim would succeed at trial. If the answer was that there was, then the application would fail: if not, then the application would succeed. The judge took the view that it was clear that the claim had no real prospect of success and that the district judge was plainly wrong. In his remarks after giving judgment he said that the district judge's exercise of discretion was “plainly wrong”. In those circumstances I do not consider that it is reasonable to hold that the judge conducted a rehearing rather than a review. 
14.	Even if I were satisfied that the judge did not conduct a review, the question would remain what this court should do. Neither party has suggested that the matter should be remitted to a judge for reconsideration. If the judge had not, therefore, conducted a review, it would have been necessary for this court to conduct the review that the judge ought to have done. It follows that, whether the judge had conducted a review or a rehearing, we would have been obliged to consider the second ground, to which I now turn.
15.	The question in what circumstances an employer is vicariously liable for a tort committed by an employee when the employee's act has not been authorised by the employer has vexed the courts for a very long time. On 3 May 2001 ‑ that is, after the judge gave judgment in the present case - the House of Lords gave judgment in Lister v Hesley Hall Limited [2001] 2 WLR 1311, and they reviewed the authorities and to some extent restated the relevant principles. In that case the question was whether the employers of the warden of a school boarding‑house, who had sexually abused the boys in his care, were vicariously liable for the torts of their employee. The speeches of their Lordships require a close and careful analysis which is not necessary, in my view, for the purpose of deciding this appeal. I propose to summarise them very briefly. 
16.	Lord Steyn said that the basis for holding an employer vicariously liable for the unauthorised acts of an employee is that the employer owes a duty to the victim which he has entrusted to the employee and that there is a close connection between the tort of the employee and his employment ‑ paragraphs 20‑24. The question is whether the employee's tort is so closely connected with his employment that it would be fair and just to hold the employer vicariously liable ‑ paragraph 28. Lord Clyde expressed himself in similar terms (paragraph 37):
“What has essentially to be considered is the connection, if any, between the act in question and the employment.”
17.	A broad approach has to be adopted in considering the scope of the employment. It is inappropriate to concentrate too closely upon the particular act complained of ‑ paragraphs 42 and 43. Lord Hutton agreed with Lord Steyn. 
18.	Lord Hobhouse agreed that the appeal should be allowed both for the reasons he gave and for the reason given by Lord Steyn. In his own reasons he concentrated on the relationships between the parties. Thus the correct approach to the question whether the tortious acts of the employee fell within the scope of his employment was to ask what was the duty of the employee towards the victim of the tort and what was the contractual duty of the employee towards his employer. The fundamental criterion was a comparison of the duties respectively owed by the employee to the victim and to his employer ‑ paragraph 60. Lord Millett adopted a similar approach to that of Lord Steyn. What is critical is that attention should be directed to the closeness of the connection between the employee's duties and his wrongdoing ‑ paragraphs 69 and 70. 
19.	In the light of the guidance given in Lister it seems to me that the following points are of relevance in the present case. The defendants owed the claimant the usual duties of care owed by an employer to his employee and entrusted some of these to Mr Mosconi. It was the duty of Mr Mosconi to manage the restaurant staff. That included maintaining discipline and, it seems, dismissing staff where necessary. In this connection it is worthy of note that at paragraph 24 of the defence it is pleaded on behalf of the defendants that:
“the Claimant was indeed sacked by Mosconi on 17th May 1998 for insubordination and gross misconduct, namely swearing at Mosconi (his manager) in front of other restaurant staff.”
20.	Thus the assault was committed at Mr Mosconi's place of work and during working hours. It was committed during an episode in which, however unreasonably, Mr Mosconi made it clear that he thought that the claimant had misbehaved and acted in a way which merited dismissal. Immediately or very shortly before the assault occurred, he had purported to dismiss the claimant. In other words, the assault, as it seems to me, can at least arguably be described as incidental to what Mr Mosconi was employed to do. 
21.	One of the authorities referred to by Lord Millett in Lister was Deatons Property Ltd v Flew (1949) 79 CLR 370, a decision of the High Court of Australia. In that case the owner of a hotel was held not to be vicariously liable for an unprovoked assault by a barmaid who threw a glass of beer into a customer's face. The basis of the decision was that the barmaid was not in charge of the bar and she did not throw the glass in the course of maintaining discipline or restoring order. In paragraph 81 of his speech, Lord Millett quoted the following passage from pp 381‑382 of the judgment of Dixon J: 
“'[It was] an act of passion and resentment done neither in furtherance of the master's interests nor under his express or implied authority nor as an incident to or in consequence of anything the barmaid was employed to do. It was a spontaneous act of retributive justice. The occasion for it and for administering it and the form it took may have arisen from the fact that she was a barmaid but retribution was not within the course of her employment as a barmaid' ([Lord Millett’s] emphasis). 
In other words, the barmaid's employment gave her the opportunity to wreak some personal vengeance of her own; but that was all; and it was not enough to make her employer liable. Had she been in charge of the bar and authorised to maintain order, the result might well have been different. It would not, in my opinion, have been enough in itself to exclude the employer's liability that she had been paying off a private score of her own.”
22.	On behalf of the defendant respondents, Mr Piper submits that the facts pleaded by the claimant indicate that this assault was committed by Mr Mosconi when he was acting on a frolic of his own and acting outside his role as a restaurant manager. He emphasises the fact that Mr Mosconi was making inflammatory racist remarks and submits that, even on the claimant's own case, what happened here was all one incident which it is proper to characterise, and to characterise only, as being a racist incident, with Mr Mosconi acting entirely outside his employment. He submits that the case cannot properly be characterised as amounting to an assault arising from Mr Mosconi's exercise of his disciplinary function. Rather it was a gratuitous attack in pursuance of a personal vendetta inspired by racism.
23.	As was pointed out in the course of argument, cases of this kind are peculiarly fact sensitive. It is possible that the characterisation suggested by Mr Piper is one that would ultimately appeal to a judge who had heard all the evidence and considered the submissions made in the light of that evidence. It is possible that a judge would take the view that what happened here was that Mr Mosconi took the opportunity presented to him by his employment to act in an entirely personal manner outside the scope of his employment. But in my judgment it cannot be said that the claimant has no real prospects of proving that the defendants are vicariously liable for the assault. The question of whether there is a sufficiently close connection between the assault and Mr Mosconi's employment to make it fair and just to hold the defendants vicariously liable, to use the language of Lord Steyn, is one of fact and degree. The legal principles to be applied have now been authoritatively explained by the House of Lords, but their application will in some cases be difficult and will depend on the precise findings of fact, which may have to be quite subtle and nuanced, made by the judge after a trial. It seems to me that, except in a very clear case, that exercise can be undertaken only after a trial and is not susceptible to being dealt with by summary process.
24.	Mr Piper has referred to a number of authorities, of which Deatons Property is one. I do not propose to refer to the others. First they are, as it seems to me, no more than illustrative of the difficulty of deciding on which side of the line an unauthorised act by an employee falls. Secondly, it should no longer be necessary in most cases to travel outside Lister itself. It may well be that some of those earlier authorities would have been decided differently in the post Lister era. In my judgment the decision of the district judge was plainly right. It is true that the judge did not have the benefit of the decision in Lister, but the decision of this court in Fennelly was cited to him. I have considered that authority and have very considerable doubts as to whether, even in the light of Fennelly, it was right for the judge to take the course that he did; but, having regard to the authoritative guidance now given by the House of Lords in Lister, I do not find it necessary to examine the facts of Fennelly or the principles stated by Buxton LJ in his judgment in that case. It seems to me, in fact, that his judgment in many ways anticipated the speeches of Lister. I have in mind particularly his emphasis on the need to take a broad view of the scope of the employee's employment. However that may be, for the reasons I have given, I would allow this appeal and restore the decision of the district judge. 
25.	LORD JUSTICE WALLER: I agree.
26.	LORD JUSTICE SIMON BROWN: I also agree. 
ORDER: Appeal allowed. The order of the judge below set aside and the order of the district judge restored. The appellant to have his costs in the Court of Appeal and below, with a detailed assessment.
(Order not part of approved judgment)