England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Gibbs)

		Royal Courts of Justice Strand London WC2 Friday, 15th March 2002

1. LORD JUSTICE MANTELL: The defendant in the original action, Peter John Fowler, seeks the permission of this court to appeal against an order of Gibbs J given on 18th January 2002. He has been refused on paper by Sir Anthony Evans and now renews the application orally through counsel, Mr. Parker.
2. The facts may be shortly stated in view of the decision at which I have arrived. Carford Catering Equipment Limited, as their name might suggest, are suppliers of catering or kitchen equipment. At one time they employed a number of people as part of their sales force, but the time came in the first half of 1995 when they thought that there might be advantages in having their salesmen engaged on rather different terms. The result would be that, if the individuals concerned were agreeable, they would be for all intents and purposes self-employed. There were savings to be made for Carford Catering by means of that arrangement and also advantages might flow to the salesmen or women themselves.
3. To that end one of the salesmen, Mr. Green, re-negotiated his contract with Carford Catering so as to achieve that result, namely to convert his relationship with Carford Catering from one under which he was an employed sales person to one where he was in effect an agent. Before entering into that arrangement the employer, Carford Catering, took the advice of Mr. Peter John Fowler, who was at that time practising as a solicitor near Bournemouth. He did not have any experience or expertise in employment law. It seems that he was unaware at the time of the possible effect of the Commercial Agents (Council Directive) Regulations 1993 which had, so it seems, become a part of domestic law. The consequence of that Directive and its application in any particular case might be that the agent would have certain rights upon termination of his agreement with his principal. In entering into the agreement which they did with Mr. Green, Carford Catering did so in ignorance of the possible effects of the Directive upon its relationship with its agents.
4. The time came, approximately 12 months later, when it was considered desirable to terminate that agreement and enter into a fresh one, still on the basis that Mr. Green would be an agent rather than an employee. At that time Carford Catering sought the advice of a quite different solicitor, Mr. Martin Dancey, who also, so it appears, was unaware of the existence of these regulations. Accordingly, after an interval of some months, a second agreement was entered into on an agency basis. That in turn was eventually terminated by Carford Catering, with the consequence that Mr. Green sued, relying, among other things, upon the provisions of the Directive.
5. Arising out of that background Carford Catering sued Mr. Fowler. It was in consequence of that action that Gibbs J found Mr. Fowler to have been in breach of his retainer and/or negligent, and further that his breach of retainer and/or negligence had been a cause of the eventual loss to Carford Catering. It is against that decision which Mr. Fowler wishes to appeal and seeks the permission of this court.
6. The short point taken by Mr. Parker on behalf of Mr. Fowler is that the judge misdirected himself in focusing upon the question of foreseeability rather than causation, and neglected to deal adequately in his judgment or to direct his mind to the question of whether or not there had been, on the basis of the history of this matter, a break in causation, so that it could no longer be said that the breach of retainer and/or negligence of Mr. Fowler, something which is not contested, had been a cause of Carford Catering's loss. He invited my attention to a passage in the judgment at pages 24 and 25 of the transcript. He refers me to the decision of the House of Lords in Transportation Agency(?) [1992] AC 22. I have, after some hesitation, come to the conclusion that this is not only an arguable point raised on behalf of the applicant but also one which has more than a fanciful prospect of succeeding on appeal. I am far from saying, in reaching that conclusion, that I foresee the applicant or appellant, as he now becomes, succeeding on the appeal. It may be that he will, but it is entirely possible that he will not. Permission is granted.
Order: Application for permission to appeal allowed; three judge court, one of which may be a High Court judge; time estimate one day.