England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		14 February 2008

Mr Justice Cranston:

1. This case raises the issue of liability within a corporate group. It is sometimes described as an issue of enterprise liability. Persons deal with a business, as in this case an international business, and do not necessarily distinguish between its different corporate members. From their point of view they are dealing with the enterprise as a whole. Something goes wrong and they seek to hold the group liable through its most convenient member or members. They are then met with the argument that as a matter of law each member of the group is quite distinct, that their dealings were with one member of the group only, and that other parts of the group have no legal responsibility to them. The context in which this issue arises here is a claim for personal injuries against three members of a corporate group.
2. This is not a trial of the action. The present application is by two members of a corporate group for an order for "reverse" summary judgment against the claimant, alternatively for an order that the claims against them be struck out. For the application to succeed on the summary judgment application the two members of the corporate group must prove that the claimant has no real prospect of success with any part of his claim and that there is no other compelling reason for a trial: CPR 24.2. On the strike out application the companies must prove that the particulars of claim disclose no reasonable grounds for bringing the claim against those two defendants or that the claims are an abuse of process: CPR 3.4(2) (a), (b). There is a well-accepted overlap between these two applications. In both the basic question is whether there is some real prospect of the claimant succeeding, something more than what has been termed fanciful: Swain v Hillman [2001] 1 All ER 91.

Background

3. Sometime around May 2003 the claimant was contacted by email through a specialist website for retired military personnel. As a result he went for an interview at the first defendant's London office with a view to being deployed as a watch keeper in Iraq. Ultimately he ended up signing a contract and providing security protection for civilians and engineers engaged on various reconstruction projects in Iraq. The engineers worked for a well-known United States multinational engineering and construction company called Bechtel. The claimant escorted the Bechtel engineers to and from the construction projects. In March 2004 the claimant sustained serious injuries when the Land Rover he was driving in a convoy rolled over. The details of how he says this happened is not for now except to explain that he was responding to what was thought to be a threat to the Bechtel engineers under his protection from an Iraqi vehicle. It is his case that although the driver of the unknown Iraqi vehicle was to blame for the immediate impact to his Land Rover, the defendants were responsible for the larger consequences. For example, one of the particulars in the claim is that the Land Rover, which had been adapted to fulfil its security function, was unstable.
4. The defendants are members of the ArmorGroup of companies. This is a leading provider of protective security services, security training and weapons and mine reduction services. Its experience goes back over 25 years and has involved providing those services in many countries including those suffering civil war, diminished law and order or a high risk of terrorist activity. The third defendant, ArmorGroup International plc, hereafter AG plc is the holding company of the group, and is incorporated in England and Wales with its headquarters and registered office in Buckingham Gate, London. The first defendant, ArmorGroup Services Ltd, hereafter AG (UK), is also incorporated in England and Wales, with its headquarters and registered office in Buckingham Gate, London. It is fair to say that it performs important functions for the group. The second defendant, ArmorGroup Services (Jersey) Ltd, hereafter AG (Jersey), is a Jersey company, with an office in St Helier, Jersey.
5. In taking up his employment of providing security protection in Iraq, the claimant signed a contract. He did that on the same day that he had his interview at the offices of AG (UK) and AG plc in Buckingham Gate. The contract that he signed was actually with the Jersey company, AG (Jersey). The claimant says that he did not appreciate that and that his dealings were with the London office. Of course he accepts that the contract he signed was in fact with the Jersey company. Notwithstanding that the contract he signed was with the Jersey company, AG (Jersey), he contends that, as a matter of law, the London companies, AG (UK) and AG plc are liable to him in contract and tort. There is no need to explore the reasons he wants to sue them, suffice to say that the Jersey contract and associated release contain wide exemption clauses for personal injuries which he says would not be valid in England. Moreover, the Jersey contract is expressly governed by Jersey law and has a non-exclusive jurisdiction clause in favour of the Jersey Court. On the other hand AG (UK) and AG plc contend that there is no prospect of his establishing that he has a contract with them, nor that they have assumed any duty of care in negligence towards him. His contract was with the Jersey company, AG (Jersey), and any claim he has must be brought against it.
6. The backdrop to the contract that the claimant signed with the Jersey company is a contractual network governing the performance of ArmorGroup's security responsibilities to Bechtel in Iraq. In outline a subcontract agreement, dated July 1999, is between what is now AG (UK) and AG (Jersey). Its general thrust is for AG (Jersey) to provide to AG (UK) security personnel, equipment or both. Under the agreement AG (Jersey) cannot enter an agreement with another party on behalf of AG (UK) without the latter's prior written authorisation. AG (UK) provides AG (Jersey) with advice on its requirements and has the sole right to approve or veto any personnel or equipment proposed by AG (Jersey). AG (UK) can require the termination of employment of personnel provided under the agreement. However, AG (Jersey) is solely responsible for the arrangement and administration of security personnel and their routine welfare and is responsible for administering the procurement and transport of equipment.
7. That 1999 contract was superseded by a "Technical Services Agreement" between AG (UK) and AG (Jersey) with effect from 5 January 2004. Under that agreement AG (UK) agrees to pay the Jersey company fees for the provision of personnel and equipment under the terms of the agreement. AG (Jersey) is responsible for managing the personnel provided. AG (UK) reserves the sole right to approve or disapprove personnel or equipment proposed by the Jersey company, and to require their replacement. There is a sub-clause enabling AG (UK) to provide timely written instructions to AG (Jersey) of its requirements for the Jersey company to provide resources sufficient for it to service the agreement effectively.
8. There are two recruitment contracts between AG (UK) and AG (Jersey), the first dated December 1998. Under the first AG (UK) employs the Jersey company for the recruitment of security personnel for its (AG (UK)'s) clients. The successor service agreement, dated 26 November 2003, may be in error in its preamble, which says AG (Jersey) wishes to employ AG (UK) for the recruitment of security personnel. In the substantive clauses AG (Jersey)'s employees carry out the service although AG (UK) provides protection equipment as is necessary and recommended. Schedule 1 of the service agreement sets out the standard form agreement to be entered between AG (Jersey) and security personnel. It is the Jersey company which under this provides their equipment and other materials for performing their duties.
9. Then there is the Bechtel contract: it is with Bechtel International Systems Inc and is headed "Iraq Infrastructure Reconstruction Programme. General Reconstruction Programme". The subcontractor is ArmorGroup Services Limited, AG (UK), with the address given as Vienna, Virginia, USA. Under that contract nothing in the contract, any lower tier purchase order, or subcontract that AG (UK) enters into creates any contractual relationship between Bechtel and the lower tier supplier or subcontractor. AG (UK) agrees to perform its obligations in accordance with its own methods subject to compliance with the contract.
10. Finally, reference should be made to two further documents. One is a certificate of insurance, issued by the Fidelity and Casualty Company of New York, which names AG (UK) as the insured. Apparently the policy was taken out to comply with US Defence bases' legislative requirements. Then there are payment slips where AG plc is named as the insured in relation to the same contract with Bechtel.

Contractual Duties

11. It is convenient to begin with the contractual duties which the claimant argues are owed to him by AG (UK) and AG plc. The claimant says that these arise because as well as being an employee of the Jersey company he also became what is known as a temporary employee of AG (UK) and AG plc. In essence he says that this situation arose firstly, because of the way he entered the contract with the Jersey company. The interview occurred in London, not Jersey, was conducted by an employee of AG (UK), also working for the group as a whole; during it no clear distinction was made between members of the ArmorGroup nor was he told he was to be employed by AG (Jersey); and the documentation given out at the time focussed on AG (UK), or the ArmorGroup as a whole, not AG (Jersey).
12. Secondly, he says he became a temporary employee of AG (UK) and AG plc because of the control which they exercised over him. The initial deployment orders he received on arriving in the Middle East, containing lists of security operatives in Iraq and their deployment, was on AG (UK)'s letterhead, under the ArmorGroup banner. It was an employee of AG (UK) who established the Iraq operation, coordinated and facilitated Bechtel's contract, and briefed personnel, including the claimant. While some of the senior personnel in Iraq, whose orders the claimant was obliged to follow, were employed by the Jersey company, they were directed by an employee of AG (UK). The Bechtel contract was with AG (UK) and it was AG (UK) which was responsible under it for supplying the personnel and procuring the equipment for use on the Bechtel contract. That AG (UK) had a role in equipment has some support in the contractual arrangements. Finally, when one of the ArmorGroup security personnel in Iraq died, it was an employee of AG (UK) and AG plc who gave evidence to a coronial enquiry.
13. It is hornbook law that to identify whether a person has a contract of employment, a range of factors need to be considered. As with any contract there must be contractual intention. Among the other factors to be considered are the degree of control exercised over the person, whether the person is properly regarded as part of the organisation, the provision of equipment and the parties' own view of their relationship: Chitty on Contracts, 29^th ed, 2004, v.2 (Specific Contracts) para, 39-010. None of these factors is determinative in itself: for example, control may be exercised over an employee by someone other than the employer such as a manager but that other person is not necessarily an employer.
14. There is no doubt that in some situations an employee with a contract of employment with one employer, the general employer, may also become what is known called a temporary employee of another. Gerrard v A E Southey & Co and Standard Telephones and Cables Ltd [1952] QB 174 is a case where the employers of an electrician lent his services for hire to temporary employers to assist in building a factory and it was held that the temporary employer was in a relationship of master and servant and thus liable for breach of the duty to take reasonable care. Although a second contract was not a prerequisite to imposing a duty of care on the temporary employer, on one reading it seems that this was the Court's conclusion. Parker J distinguishes between cases such as Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd [1947] AC1, where a complicated piece of machinery and driver were lent, and there was no intention that the hirer should control them, and situations when labour only, labour which is not very highly skilled, was being lent and it was possible to infer that the hirer was in control (p 179). However, Denning LJ subsequently pointed out that the notion of the temporary employee is a device designed to impose responsibility on the temporary employer who has control of the manner in which a person does his work: it does not necessarily mean that there is a contract between the temporary employer and temporary employee: Denham v Midland Employers Mutual Assurance Ltd [1955] 2 QB 437, 444. See also Viasystems (Tyneside) Ltd v Thermal Transfer (Northern Ltd) [2005] EWCA Civ 1151; [2006] QB 510, para 16, May LJ; para 76, Rix LJ.
15. Whether a contract of employment exists has been considered in a raft of cases involving agency workers. They have a contract with an employment agency which supplies their skills to one of the agency's clients (the end users). In that triangular relationship the worker may have a contractual relationship with the end user. Motorola Ltd v Davidson [2001] IRLR 4 is an instance where the Employment Appeal Tribunal upheld a decision of an employment tribunal that the worker was an employee of the end user for the purposes of an unfair dismissal claim. James v London Borough of Greenwich [2007] IRLR 168 went the other way, a decision which was upheld recently by the Court of Appeal: [2008] EWCA Civ 35. In the triangular relationship the worker may also have a contract of employment, rather than some other contract, with the agency itself. Dacas v Brook Street Bureau (UK) Ltd [2004] EWCA Civ 217; [2004] ICR 1437 decided that in the circumstances there the worker did not have a contract of employment with the agency because the agency was under no obligation to provide her with work, she had no obligation to accept it, and the agency did not exercise any relevant day to day control over her or her work as the employer. In that case it was recognised that the absence of an express contract does not preclude the possibility of implying an employment contract with, say, an end user, but the question is whether it is necessary to do this. "The totality of the triangular arrangements may lead to necessary inference of a contract between such parties, when they have not actually entered into an express contract, either written or oral, with one another," per Mummery LJ at [17].
16. As a matter of principle when persons have a contract of employment with some member of a corporate group it may be possible to imply a contract between them and other members of the group as well. It depends on the circumstances, including the contractual documents in existence. The totality of arrangements must be examined. Control by other members of the group over the employee is one factor to be carefully examined although it must be considered along with the mix of circumstances. Most important is whether, if there is an existing employment relationship with one member of a corporate group, it is necessary to imply a contractual relationship with other members of the group. It is not sufficient for a contract to be implied that the circumstances are no more than consistent with an intention to contract with those other members of the group; it must be necessary for the efficacy of the relationship to do so: The Aramis [1989] 1 Lloyd's Rep 213, 224, per Bingham LJ.
17. In my judgment there is no real prospect of the claimant in this case establishing a contract with AG (UK) or AG plc. The claimant may have been unsure as to which member of the ArmorGroup he was contracting with and which with him. He may simply have given it no thought or made certain assumptions because the interview was in London and by AG (London) and ArmorGroup staff. None of that can have a determinative effect on which members of the ArmorGroup were intending to contract with him. The claimant is not asserting that there were positive representations to the effect that he was contracting with other members of the group. The assertions of other security personnel, about whom they thought they were dealing with, provide no support to any contract this claimant may have.
18. Notwithstanding the other documentation the claimant was given at the time, the contract he signed was clearly with the Jersey company, AG (Jersey). It was signed on behalf of the company by Mr David Seaton, who at the time was the financial officer of AG (UK), later its chief executive officer, but who was also a director of the Jersey company, AG (Jersey). As required by the contract the claimant also signed a release. It is also clearly with AG (Jersey). It is witnessed, not signed, by Caroline Ruart, who is head of human resources at AG (UK) and its group of companies. There is also a letter to the claimant, while he was in Iraq, varying his employment conditions. It came on AG (Jersey)'s letterhead and the claimant signed it. The claimant's payslips were from AG (Jersey), the contact details being the payroll department being in St Helier, Jersey.
19. Moreover, in terms of efficacy there is no necessity to find a contract between the claimant and other members of Armorgroup when the claimant has his contract of employment with AG (Jersey). AG (Jersey) owed him a non-delegable duty of care to devise and operate a safe system of work. Although they might delegate the performance of their duty to others, they would not escape this legal duty they had towards the claimant: McDermid v Nash Dredging Ltd [1987] 1 AC 906. With its various exemptions the Jersey contract may well be removed from the ideal. But as a matter of law there is no need to make anyone else contractually liable to him when he can sue on his contract with the Jersey company.
20. Finally, nothing in the circumstances points to a contrary conclusion. Any internal arrangements between members of ArmorGroup as to who performs which function, and as to how responsibility is internally allocated, can have no effect in giving rise to any contractual relations with the claimant. They fail to generate the requisite contractual intention. As for control, under the claimant's contract with AG (Jersey) he had to comply with instructions, directions and regulations given to him by the board of AG (Jersey), by a manager assigned by AG (Jersey) for a client, or by authorised officers of Bechtel. He specifically undertook to obey the lawful commands of those placed in charge of him under the contract. Even were it to be established that he was under the control of officials of AG (UK) or AG plc, in daily briefings or otherwise, that would not be inconsistent with the contractual position: see Morris v Breaveglen Ltd [1993] ICR 766, 774. Conformably with the contract there was no reason that he should not receive deployment orders originating from AG (UK) or be briefed by one of its officials, even if that can be said to indicate control. That is a distinct issue from whether other members of the group owe him a duty of care, which may be captured by the concept of temporary employment. Any role which AG (UK) might have had in providing equipment is also consistent with the claimant's contract with AG (Jersey) and cannot be used to construct contractual relations between him and other members of the group. The Bechtel contract with AG (UK) and the obligations imposed under it on AG (UK), and AG (UK) alone, as briefly described above, does not go to the reality of control between the claimant and AG (UK). What was said, by whom, to a coronial inquiry into the death of another ArmorGroup security worker in Iraq has no relevance to this claimant's contractual relationship with members of ArmorGroup.
21. So far I have drawn no distinction between AG (UK) and AG plc. Even if I had found that there was some real prospect of finding a contract between the claimant and AG (UK), in my judgment there would be no possibility of finding a contract with AG plc. Indeed AG plc hardly featured in the claimant's arguments on contract. Perhaps this is not surprising since it was AG (UK) which was the main operational member of the group in relation to the Bechtel contract. At its highest the claimant's contention that there was a contract with AG plc was based on representations in the web-site. Since this was accessed well after the event it is impossible for it to have any bearing or contractual effect. The identification of AG plc in certain transactions related to the insurance, or a separate coronial inquest, do not take the matter further.

Duty of care

22. The claimant contends that AG (UK) and AG plc owed duties of care equivalent to those owed by his employer, AG (Jersey) and also that they owed duties of care in relation to the procurement of equipment. The issue fought out in the present action was the very existence of those duties of care although at trial it will be necessary not only to establish those duties but also their breach and causation between that and the loss suffered by the claimant. The claimant submits that he has a real prospect of establishing a duty of care on the part of AG (UK) and AG plc.
23. The first ground for a duty of care on the part of AG (UK) and AG plc rests, he submits, on the material used in his contentions about a contract with the members of ArmorGroup other than AG (Jersey), but he uses it for the different legal purpose of establishing a duty of care. Rice v Secretary of State for Trade and Industry [2007] ICR 1469 is invoked, where the Court of Appeal held that although the relationship of the claimant dock workers with the National Dock Labour Board did not equate to that of employers under a contract of employment, it had close affinities with it. In the light of that and the statutory background, the Court applied the Caparo approach to conclude that there was a specific duty of care on the board to protect individual workers against the risk to health of unloading asbestos sacks although the scope of the duty had yet to be determined.
24. Reference is also made by the claimant to authorities such as Denham v Midland Employers Mutual Assurance Limited [1955] 2 All ER 561, where an employee was held to be owed duties of care by an entity other than his employer. Particular reliance is placed on a passage in Morris v Breaveglen Ltd [1993] ICR, where Beldam LJ said at 773:

"There may well be cases in which an employee who suffers injury can show a breach by his general employers of a duty owed to him and at the same time that the work on which he is employed is so closely connected with work being done by another contractor that that contractor too owes him a duty to take care for his safety."

In this case, submits the claimant, the Jersey company, as employer, owes him duties, but the work on which he was engaged was so closely connected with the contract which AG (UK) had with Bechtel that AG (UK) owes him a duty of care as well.

25. In this regard the defendants referred me to Viasystems (Tyneside) Ltd v Thermal Transfer (Northern Ltd) [2005] EWCA Civ 1151, [2006] QB 510. There the Court of Appeal held that both the third defendant, the employer of the negligent employee, and the second defendant, the company which had "borrowed" the employee, were vicariously liable to the claimant for the clear negligence of the employee. The present case is not a case of vicarious liability. The approach adopted by May LJ was to ask what is the relevant negligent act and whose responsibility was it to prevent it (at [16]). May LJ then went on to identify control as the test of vicarious liability in the absence of a contract of employment: who was entitled and perhaps theoretically obliged to give orders as to how the work should or should not be done. Rix LJ acknowledged the importance of control but said it is just one factor in addressing the issue of the employer's degree of integration into the employer's enterprise (at [79] – [80]).
26. The fundamental issue is whether the law imposes on AG (UK) and AG plc a duty of care. It is not enough to establish a duty of care in general. What is demanded is a duty of care on their part in relation to the kind of damage which the claimant says he sustained. To put it another way, the issue is whether the relationship between the claimant and these two members of the ArmorGroup imposed on them a duty to take care to avoid or prevent the injuries the claimant has in fact experienced. Mr Dingemans QC for the claimant submitted that I should approach the question by applying the threefold test in Caparo Industries plc v Dickman [1990] 2 AC 605 – was the loss reasonably foreseeable, were the claimant and AG (UK) and AG plc in a relationship of proximity and was it fair, just and reasonable that those companies should owe a duty of care to the claimant? Mr Maskrey QC for the defendants, submitted that the better approach was to ask whether the two companies had voluntarily assumed a responsibility to the claimant to guard against the injury or loss for which he now claims. I would not anticipate it making any difference to the outcome which approach is adopted. In my judgment there is a real prospect of the claimant succeeding, either by establishing reasonable foreseeability by AG (UK) and AG plc and the proximate relationship between it and the claimant demanded by the Caparo approach, or the special type of relationship between the two sides necessary for a duty of care based on a voluntary assumption of responsibility approach.
27. The special relationship demanded both by the Caparo approach, and the voluntary assumption of responsibility approach, began with the claimant's initial interview. That took place at the head office of AG (UK) and AG plc. Although there is a dispute as to what happened and was said at the interview, there is a two page written summary, produced by the Head of Human Resources of AG (UK) and the group, as confirmation of what the claimant and the other recruits were to be told at their oral briefing ("Pre Selection Briefing – Human Resources"). It deals with the position, primarily, of the ArmorGroup as a whole. The first paragraph, "Background to the Company" is about AG (UK) and mentions its ownership by the holding company, AG plc. The only mention of the Jersey company is under paragraph 7, "Insurance", namely, "Details of Service Agreement/employer – AG Jersey."
28. The document "ArmorGroup Corporation Information Summary", given to the claimant during the recruitment briefing, continues in the same vein. It does not mention the Jersey company at all, although it includes a list of subsidiaries including AG (UK). ArmorGroup is said to be headquartered in London and wholly owned by Armor Holdings Inc, a New York listed public corporation. Its corporate policy is said to be to apply certain listed principles, globally. AG (UK) is said to be the cornerstone of the ArmorGroup's risk management business. Its uniqueness stems from its global footprint "coupled with high calibre operational personnel on the ground". On the next page the "Specialist Security Capabilities" are set out, including specialist manpower and guard for management. In sum, the claimant was given a clear indication from this document that he was dealing with ArmorGroup, acting primarily through AG (UK). Whatever the position with his contract of employment, the presentation of material was strongly suggestive of a special relationship with the group as a whole, acting through AG (UK).
29. Once the claimant arrived in the Middle East he was given what was called "Initial Deployment Orders". As already mentioned this contains a list of security personnel in Iraq and details of their deployment. It is on notepaper of ArmorGroup AG (UK). The claimant was briefed by an employee of AG (UK), as indicated earlier. All this is against a background of the Bechtel contract under which, as summarised earlier, AG (UK) undertakes to be responsible for the deployment of personnel in Iraq.
30. As to actual operations in Iraq, there is an evidential dispute as to where control of the claimant and other security personnel lay. As indicated earlier, it would have been consistent with the Bechtel contractual arrangements for such control to have been delegated to personnel of the Jersey company. Nonetheless the issue of control needs to be tested. For sake of completeness I shall say that the existence of a duty of care is not, in my judgment, advanced by any notion of temporary employment. It may be however, that the claimant will be able to establish that in carrying out his daily duties in Iraq, his work was closely connected with the work done by AG (UK) and AG plc.
31. In relation to equipment, the position is clearer compared with control because of a concession by the Jersey company's previous solicitors that AG (UK) was involved in the procurement of equipment for use by personnel on the Bechtel contract. It will be recalled that an important aspect of the claimant's case is based on a claim that the equipment provided to him was defective and unfit for its intended purpose. The contractual background is less helpful. The service agreements between AG (UK) and AG (Jersey) put the responsibility on the Jersey company to provide the personnel and equipment although AG (UK) had a veto on what was chosen, it may be that, properly read, the recruitment service agreements put the responsibility on AG (UK). But whether there is a duty of care depends on what happened in practice, which on some of the evidence belies what the contracts provided. Certainly I am not persuaded that the evidence from a senior Bechtel employee, that his company took all procurement decisions for security vehicles in Iraq, is dispositive of the issue of duty of care. The claimant's claim on breach of duty is not limited to the security vehicle, but extends to other equipment and to security procedures. In any event, it cannot be that someone who otherwise has a duty of care to a particular claimant can absolve themselves by pointing to others who claim to have taken certain key decisions. Whether a duty of care exists turns on an assessment of the totality of the relationship between the parties.
32. Finally the claimant points to certain matters occurring subsequent to the incident when he was injured. One is the coronial inquest into the death of another ArmorGroup security worker in Iraq. For that inquest a senior employee of AG (UK) and AG plc prepared documents which indicate that ArmorGroup as a whole is in a special relationship with its security personnel in Iraq such as the deceased, even though, as with the claimant, he was employed by AG (Jersey). The document "Reply to questions raised by the Northamptonshire Police" refers to ArmorGroup as a "British based company" and throughout the document contains references to "the company", it would seem AG (UK). ArmorGroup's business is said to be to provide security services outside the United Kingdom. The deceased is said to have been recruited to work for AG (Jersey), but the document points strongly to a relationship with ArmorGroup, acting through AG (UK). Thus the risk assessment is said to have been carried out in Iraq "by ArmorGroup country management in conjunction with the company's Director of Operations …" In relation to personal protection equipment ArmorGroup is said to have secured the agreement of the US Army to provide it and a licence from the Department of Trade to export it, and it was issued to all employees including the deceased. In relation to vehicles "the customer sanctioned the procurement of approved 4 x 4 vehicles".
33. A document entitled "Additional notes submitted to Her Majesty's Coroner of Northamptonshire" was sent under a letter on the letterhead of AG plc. Again it starts with a reference to "ArmorGroup" and contains the passage "… the company takes all reasonable steps to safeguard its employees in the circumstances …" In no sense, in my judgment, can this reference to "company" be to AG (Jersey). The document refers to "our employees" and in relation to vehicles says that given there are few serviceable vehicles in Iraq "we issue the best we can in the circumstances …" The document concludes that it would be unfortunate if the outcome of the inquest was an idea that "the first class team we have working to support the operational teams had failed to exercise sufficient care of our much valued employees". All this, in my judgment, bolsters the claimant's case that there was a special relationship between him, AG (UK) and AG plc.
34. The claimant also raises a separate duty which, he contends, is on those procuring equipment for specific situations and operates in favour of persons who might reasonably be foreseen to use that equipment. An analogy is drawn with the role of distributors of manufactured goods: Clerk & Lindsell on Torts, 19^th ed, 2006, para 11-12. The evidence about who procured the equipment used by the claimant is mentioned earlier. It seems to me that the best way of approaching the matter is by the application of general principle. In my judgment there are no special rules appertaining to the procurement, and allocation of, equipment, although in the particular context of equipment the general principles of negligence liability may have application.
35. In the presentation of the claimant's case, Mr Dingemans did not distinguish, in the main, between the position of AG (UK) and AG plc. Much of the argument highlighted the relationship with AG (UK). However, a proximate or special relationship with AG plc is not without foundation. With respect to AG plc, there was the fact of the recruitment interview occurring at its head office shared with AG (UK). The head of personnel of AG (UK) was also head of personnel of the group as a whole. One of the documents at the coronial inquiry was under the letterhead of AG plc. When the claimant refers to the website of the ArmorGroup, I am hesitant because this was accessed well after the event. However, the claimant was initially paid sick pay by AG (Jersey) but subsequently received payments which, on the payslips, are said to be under an insurance policy arranged by AG plc. It seems to me that in the light of this there is a real prospect of the claimant establishing a duty of care on the part of AG plc as well as AG (UK).

Conclusion

36. As with many corporate groups those at the top of ArmorGroup did not draw clear distinctions between the activities of its different corporate members. The contracts of employment which their security personnel entered were with AG (Jersey). The matter is not before me but it may be that this was because Jersey law allows employers to exempt themselves from liability for death and personal injury which the law of England and Wales will not countenance. In presenting itself to the world, however, and in their day to day activities the ArmorGroup executives adopted a broader perspective. It was the group as a whole they were concerned with and they were not constantly alive to the nice distinctions drawn by lawyers.
37. I cannot see any basis for concluding that ArmorGroup security personnel, in particular the claimant, entered into contractual relations with other members of the ArmorGroup, notably AG (UK) or AG plc. In my judgment it would stretch the principles of contract law to breaking point to reach that result. Quite apart from the absence of an intention to enter these other contracts, on both sides, it is difficult to detect any force in the well-known factors which might point to the existence of such contracts. The difficulty of the task is compounded by the documents: the claimant clearly had a contract of employment with one member of the corporate group. In that event, he must surmount the demanding test of necessity if he is to establish additional contracts with other members of the group. Control over the claimant by these other members of the corporate group is perhaps the high point of his case, but even if the evidence is there it is consistent with the contractual provisions, that his employer could delegate control. In my judgment there is no real prospect of establishing contracts with AG (UK) and AG plc and no other compelling reason for this aspect of the case to go to trial.
38. As in other areas, however, the law of negligence may impose liability when contract fails. The issue is simple, at base, are these other members of the group under a duty of care? In other words, despite a person having contractual relations with only one member of a corporate group, the question to be answered is whether other corporate members have acted in such a way as to be under a duty of care to him. That turns on an analysis of whether the claimant's loss was reasonably foreseeable by these other corporate members, whether they and the claimant were in a relationship of proximity, and whether it would be fair, just and reasonable for them to owe such a duty of care. Alternatively, did they have a specific responsibility to take care of the claimant, one identifying principle of which is whether there is a special relationship based on an assumption of responsibility by the other members of the group to the claimant. Either way, in my judgment, there is a real prospect of the claimant establishing that those other members of the corporate group owed him a duty of care.
39. In the present case there is no need to resort, in my judgment, to notions of temporary employment to find such a duty of care, that although the claimant had his contract with AG (Jersey) he somehow became a temporary employee of AG (UK) and AG plc. A duty of care can be founded directly on the general principles of negligence liability. The way the claimant was recruited, and the presentation of ArmorGroup in the process; his deployment in Iraq; the conduct of operations there, not least the supply of equipment; and his subsequent after-care – all these point to a duty of care on the part of ArmorGroup, acting through AG (UK) and AG plc. I have referred to ArmorGroup's submissions with respect to the coronial inquest into the death of one of its security personnel in Iraq, how there was no reference to AG (Jersey) in Iraq in those submissions, and to how the group referred to the steps taken there in relation to "our much valued employees". It seems to me that in these passages ArmorGroup as a whole is expressing the commendable sentiment that, notwithstanding the security personnel it had recruited and sent to Iraq had their employment contracts with AG (Jersey), other parts of ArmorGroup had a special relationship with and special responsibility for them. These coronial submissions underpin the claimant's case that AG (UK) and AG plc were under a duty of care to him.