General Liability newsletter – July 2025

Welcome to the latest edition of our general liability newsletter. In this edition we look at Court-ordered ADR, and the recent cases Attersley v UK Insurance Limited and JD Wetherspoon PLC v (1) Burger (2) Risk Solutions BG. Ltd.

JD Wetherspoon PLC v (1) Burger (2) Risk Solutions BG. Ltd [2025] EWHC 1259

This recent decision addresses the issue of vicarious liability for the actions of an independent contractor, following an appeal by JD Wetherspoon Plc ("JDW").

In August 2018, Mr Burger was restrained by two door supervisors outside a pub operated by JDW with such force that he suffered a dislocated hip, which required emergency surgery, and a three-night hospital stay. The door staff were employees of Risk Solutions, who had been engaged by JDW to provide door security, three nights a week at the pub, pursuant to a Security Services Agreement.

A claim for personal injury was issued on 1 April 2021 against both JDW and Risk Solutions. The latter failed to acknowledge service or file a defence and judgment was entered in default. The claim proceeded against JDW alone, and at first instance, the Central London County Court ruled that JDW was vicariously liable for the actions of the door staff and awarded £71,308.67 in damages.

This decision was appealed by JDW, who argued that the door supervisors were independent contractors employed by Risk Solutions rather than JDW itself. On appeal, Mr Justice Sweeting ruled that it was wrong to find JDW liable because the relationship between JDW and the door supervisors was not akin to an employment relationship. In particular, Mr Justice Sweeting highlighted that JDW had engaged Risk Solutions under a security services agreement, which explicitly stated that it would retain control over its door supervisors, as well as responsibility for their hiring, training and disciplining. By engaging a specialised contractor to provide trained personnel, JDW were not attempting to evade liability but instead were looking to minimise risk, and therefore on the facts, the relationship was not akin to employment. 

Comments and Analysis:

This decision reinforces the importance of having appropriate and specific liability exclusions and indemnity clauses in contracts with third-party providers, particularly in circumstances where businesses are engaging the services of security contractors. It will not always be the starting point that the business is automatically responsible for the actions of these contractors. Rather than mainly focusing on the extent of control, as was the test in the factually similar case of Hawley v Luminar Leisure Ltd [2006] EWCA Civ 18, the Court will also consider whether the contractual and working relationship points to a relationship "akin to employment" or that of a "true independent contractor", who is carrying on their own business. The contracts will therefore be central to establishing the true nature of their relationship and whether a true employment relationship exists for the purposes of a finding of vicarious liability.

Court-ordered ADR

Following the Court of Appeal's decision in Churchill v Merthyr Tydfil Borough Council [2023] EWCA Civ 1416 where the Court of Appeal held that the courts could stay proceedings and require parties to attempt non-court-based dispute resolution, the CPR has been updated to strengthen the court's powers to order ADR and consider non-compliance when assessing costs.

The courts have now started to embrace this new approach to ADR and in the recent case of DKH Retail and Others v City Football Group Ltd [2024] EWHC 3231, despite the Defendant's arguments that mediation was unlikely to succeed given the imminent trial and substantial legal costs already incurred, the High Court utilised its new powers under the amended CPR to reject the Defendant's objections and order the parties to mediate. 

In rejecting the arguments, the court noted that; " Experience shows that mediation is capable of cracking even the hardest nuts. The process sometimes succeeds in cases where the parties appear at first to have intractable differences."  Following the mediation order, the court's approach was successful; the parties engaged and were able to ultimately settle their dispute outside of court.

Comments and analysis:

This is the first time where the court has exercised its new powers to compel ADR in circumstances where a party has raised objections, highlighting the court's willingness to encourage the use of ADR to facilitate the settlement of disputes. For parties who are seeking to oppose any such ADR order, it appears that they will need to present more justification for their position beyond the mere assertion that there is no realistic prospects of success. It is not yet clear in what circumstances, an ADR order will be successfully opposed, and it is likely that future cases will provide more insight into the court's exercise of these powers.

Attersley v UK Insurance Limited [2025] EWHC 884 (KB)

This recent case dealt with the procedural issues surrounding costs recovery in a multi-track personal injury claim, as well as the interaction between CPR 45.29B and CPR Part 36, following the Claimant's late acceptance of a Part 36 settlement offer.

The Claimant sustained injuries following a road traffic accident in March 2018. A claim was initially submitted under the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents ("the RTA Protocol") but later exited the Protocol at the Claimant's request, on the basis that liability was disputed.

The Claimant subsequently issued Part 7 proceedings in January 2021, claiming damages of up to £150,000 due to ongoing physical and psychological injuries arising from the accident. In March 2021, the Defendant filed a Defence and made a Part 36 offer of £45,000. The claim was then allocated to the multi-track in January 2022 before the Part 36 offer was accepted in July 2022.

Given that the Defendant's Part 36 Offer had been made before the matter was allocated to the multi-track but accepted after allocation, the primary issue before the Court was whether the Claimant was entitled to recover either fixed costs pursuant to CPR 36.20 or costs assessed on the standard basis up to the expiry of the relevant period of the Part 36 offer, pursuant to CPR 45.29B.

At first instance, the Circuit Judge held that the Claimant was entitled to recover fixed costs, however on appeal, Mr Justice Stacey held that on construction of the rules, once a case is allocated to the multi-track, the fixed costs regime is automatically disapplied retrospectively, meaning that the Claimant was entitled to standard basis costs up to the expiry of the offer. The Defendant's argument that Part 36.20 should apply was rejected and the court affirmed the principle arising from Qader v Esure [2017] 1 WLR 1924 which excludes fixed costs for multi-track cases.

Comments and Analysis:

• This judgment resolves questions surrounding the interaction between CPR 45.29B and CPR 36.20. It confirms that CPR 36.20 does not override the multi-track allocation and therefore fixed costs do not apply once a case is allocated to the multi-track.
• Personal Injury lawyers will therefore need to be aware of this case and the potential costs implications for their clients, particularly in circumstances where a case is initially submitted to the RTA Protocol, but subsequently exits the Protocol and escalates in terms of value and complexity. Early case assessment will therefore become increasingly important as lawyers assess whether there is the potential for a claim to escalate beyond the fixed costs regime and will need to adjust their strategies accordingly.
• The timing of Part 36 offers may also become more strategic. Defendants may look to adjust their strategy to make earlier Part 36 offers to keep claimants within fixed costs, whilst claimants may delay acceptance to secure standard basis costs.