Micro Anvika Ltd & Ors v TNT Express Worldwide (Euro Hub) NV & Ors [2006] EWHC 230 (Comm)

[2006] EWHC 230 (Comm)Case No 2004/301
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/02/2006
Before
THE HON MR JUSTICE MORISON
Between
Micro Anvika Ltd. & OthersClaimantTNT Express Worldwide (Euro Hub) NV and OthersDefendant
Mr Guy Morpuss (instructed by Clyde &Co) for ClaimantsMr Charles Priday (instructed by Waltons & Morse) for NinatransMr Nigel Jacobs (instructed by Hill, Taylor & Dickinson) for TNTHearing Hearing dates: 6 and 7 February 2006
JudgmentThe Hon Mr Justice Morison :Introduction
[1]This is a claim which arises out of a theft of valuable electronic equipment on 9 October 2003. At the time of the theft the goods were in transit pursuant to a contract of carriage governed by the CMR. The goods were consigned to the claimants who had a warehouse at 31-32 Alfred Place, a street in WC1, parallel to and just off the Tottenham Court Road. It is a two-way street with a central divide which had breaks in it. The warehouse in question is below ground, accessed from a bay at street level. The loading and unloading bay is set back from the pavement, and there is enough room for two transit vans to back up into the bay [at right angles to the road] without causing obstruction to pedestrians walking along the pavement on that side of the road. The goods arrived at Alfred Place and the lorry driver, a Belgian national, Mr Branson was intercepted by crooks and persuaded to deliver the load elsewhere. It is not suggested that Mr Branson was involved in the dishonesty.[2]The claimants are retailers of electronic equipment with shops on Tottenham Court Road and elsewhere. There is no dispute between the parties that both TNT as first carriers and Ninatrans as last carriers are, under the Convention, liable for the loss of the goods up to the Convention limit (calculated by weight) provided in Article 23 of approximately £21,000. The true value of the goods was £672,500 approximately and the difference between these amounts is what is in issue in these proceedings. The issue in law is whether the Claimants have succeeded in proving that the carriers were guilty of wilful misconduct under Article 29: if yes, they succeed; if not, they fail. This is an allegation made essentially against the driver of the lorry.

The Law

[3]The wilful misconduct provision is as follows:
“The carrier shall not be entitled to avail himself of the provisions of this chapter which … limit his liability … if the damage was caused by his wilful misconduct or by such default on his part as, in accordance with the law of the court or tribunal seised of the case, is considered as equivalent to wilful misconduct.”
[4]It is obviously a serious allegation to make that a person has been guilty of wilful misconduct and therefore the facts must be examined with particular care. There has been a bookful of reported decisions on the meaning of wilful default and this is not the occasion to seek to add to the learning on the subject. As usual in cases such as these, the question is not what principles are applicable but, rather, how well- known principles are to be applied to the facts of the case. I set out here what I believe to be the relevant principles as they emerge from the decided cases. I start with the distillation of the authorities helpfully and, accurately, compiled by Cresswell J. in Thomas Cook v Air Malta [1997] 2 Lloyd’s Rep. 399 at 405-8:
“1. The starting point when considering whether in any given circumstances the acts or omissions of a person entrusted with goods of another amounted to wilful misconduct is an enquiry about the conduct ordinarily to be expected in the particular circumstances. 2. The next step is to ask whether the acts or omissions of the defendant were so far outside the range of such conduct as to be properly regarded as “misconduct”. (An important circumstance would be a deliberate disregard of express instructions clearly given and understood.) 3. It is next necessary to consider whether the misconduct was wilful. 4. What does not amount to wilful misconduct? Wilful misconduct is far beyond negligence, even gross or culpable negligence. 5. What does amount to wilful misconduct? A person wilfully misconducts himself if he knows and appreciates that it is misconduct on his part in the circumstances to do or to fail or omit to do something and yet (a) intentionally does or fails or omits to do it or (b) persists in the act, failure or omission regardless of the consequences or (c) acts with reckless carelessness, not caring what the results of his carelessness may be. (A person acts with reckless carelessness if, aware of a risk that goods in his care may be lost or damaged, he deliberately goes ahead and takes the risk, when it is unreasonable in all the circumstances for him to do so.) 6. The final step is to consider whether the wilful misconduct (if established) caused the loss of or damage to the goods.”
[5]I cite these further well known observations from the cases:
“Wilful misconduct in such a special condition means misconduct to which the will is a party as contradistinguished from accident and is far beyond any negligence, even gross or culpable negligence, and involves that a person wilfully misconducts himself who knows and appreciates that it is wrong conduct on his part in the existing circumstances to do, or to fail or omit to do (as the case may be) a particular thing and yet intentionally does or fails or omits to do it, or persist in the act, failure or omission regardless of the consequences.”
Per Johnson J. in Graham v Belfast and Northern Counties Railway [1901] 2.I.R. 13, which was cited with approval by Lord Alverstone in Forder v GWR [1905] 2 KB 532, who added “or acts with reckless carelessness, not caring what the results of his carelessness may be.” “Wilful misconduct, to put it most shortly, as it has often been put in the past, is misconduct to which the will is a party, and it is something which is wholly different in kind from mere negligence or carelessness, however gross that negligence or carelessness may be. I think the first thing for you to remember is that the will must be party to the misconduct, and not merely a party to the conduct of which complaint is made. Let us take an example: if the pilot of an aircraft knowingly does something which subsequently a jury find amounted to misconduct, those facts alone do not show that he is guilty of wilful misconduct. To establish wilful misconduct on the part of this imaginary pilot it must be shown not only that he knowingly (and in that sense wilfully) did the wrongful act, but also that when he did it he was aware that it was a wrongful act – that is to say, he was aware that he was committing misconduct.”per Barry J. in Horabin v BOAC [1952] 2 Lloyd’s Law Reports 450 at page 459. “If I summarise the principle in my own words, it would be to say that for wilful misconduct to be proved there must be either (one) an intention to do something which the actor knows to be wrong or (two) a reckless act in the sense that the actor is aware that loss may result from his act and yet does not care whether loss will result or not or, to use Mr Justice Barry’s words in Horabin’s case, ‘he took a risk which he knew he ought not to take’ per Longmore J. in National Semiconductors v UPS [1996] 2 Lloyd’s Reports 212 at 214. “Further, a person could be said to act with reckless carelessness towards goods in his care if, aware of a risk that they may be lost or damaged, he nonetheless deliberately goes ahead and takes the risk when it is unreasonable in all the circumstances for him to do so.” per Beldam LJ. in Laceys Footwear (Wholesale) Ltd v Bowler International Freight Ltd [1997] 2 Lloyd’s Reports 369, at page 374.[6]Counsel in this case have sensibly distilled the test this way: The claimants must show:(1) Misconduct on the part of Mr Branson;(2) That he was aware of a risk that the cargo might be stolen, but deliberately and unreasonably went ahead and took that risk;(3) That that misconduct caused the loss of the cargo. The facts These are my findings of fact:

The facts

[7]The cargo comprised numerous boxes of ipods and Apple computers, which were palletised and sealed in plastic. There were some 29 pallets in all. TNT took the cargo over on 3 October 2003 in Luxembourg and transported it to their depot in Belgium. For the journey from Belgium to London, TNT sub-contracted the carriage to Ninatrans.[8]Mr Branson, a Ninatrans driver, drove to the depot in Belgium on 8 October 2003 in an articulated lorry and trailer. It was a five axle arrangement: three on the trailer and two on the lorry and its overall length was approximately 40 feet. At TNT’s depot, the trailer was loaded with the pallets. Mr Branson said that he was neither involved in the loading itself nor was allowed into the depot; he said he waited outside. I accept his evidence on this point: it seems inherently plausible and probable. But, whether or not this was so, I am satisfied that he knew that he was carrying a valuable consignment of Apple electronic products although he probably did not know precisely what the load comprised. Mr Branson’s partner, Ms Logist, was with him at the time. She had travelled on his lorry before. As I understand the evidence, this was Mr Branson’s first trip to England as a driver and she came with him. Mr Branson told me that he thought that her command of English was not as good as his. Because of what was written in a document there is a suggestion that hers was better than his. Nothing turns on this as will become plain. She was unable to give oral evidence as she is not medically fit to travel as she has just given birth. Mr Branson had a good command of English and felt able to answer questions with only the occasional use of an interpreter.[9]After the pallets had been loaded, Mr Branson drove to Calais, passed through the Channel Tunnel and stopped for the night at a secure lorry park in Ashford, Kent. He had been told of this facility by his employers. Although he had an expensive cargo on board he told me that it was his practice to stop at a secure lorry park whenever he had to stop. In other words, he was telling the court that stopping at the secure lorry park at Ashford was not dictated by the need to protect a particularly valuable cargo. Again, I accept that evidence. They left the lorry park for London at about 6.10 am.[10]CCTV cameras were in operation in the street adjacent to the consignee’s premises. The film has been produced and this has been of considerable assistance in reconstructing what happened because it not only pictures what is going on but has the time of each frame. On the other hand, I was not provided with a ‘to scale’ plan of the area in question, which would have been helpful. From the pictures it can be seen that the lorry arrived at about 9.17 am. At that time there were two vans parked in the Micro Anvika bay: a red and a white vehicle. The white van was parked up against the entrance to the premises and was being loaded at the time. Mr Branson brought his lorry to a halt on the offside of his carriageway, where car parking was permitted, and as close to the bay as it was possible to get from his direction of travel. Immediately in front of his stationary lorry there was a gap in the central ‘reservation’ which is directly in front of the loading bay and was used by vans from the bay to turn right into Alfred Place, rather than always having to turn left About a minute after his arrival Mr Branson is seen moving in front of his lorry walking towards the claimants’ premises. His driver’s door was, of course, on the left of the lorry. Ms Logist was, on the evidence, at this stage sitting in the front passenger seat, closer to the premises. As he is rounding the front of his vehicle, a man can be seen moving towards him and they arrive together at the break in the reservation, a few feet only from the front of the lorry. It can be seen from the film that the man, a crook, had started walking towards the lorry as it was drawing to a stop. He was walking towards the traffic, on the same side as the claimants’ premises, in the roadway [I suspect that he was not in either rear view mirror] and starts to cross the road, at an angle, so that he arrives and meets Mr Branson, opposite the Claimants’ premises. I doubt whether Mr Branson had seen the crook much before they met, as his view would have been obstructed by the lorry and, as would be likely, he seems to be looking towards his left no doubt with a view to judging when it would be safe to cross the carriageway for traffic coming from his left [that is, in the opposite direction to the way his lorry was facing]. The film showed that he crossed the road with the crook and continued conversing with him just a few yards from the bay and the two parked vans. A second crook arrives and joins them. That crook had also come from down the road from where they were standing. The CCTV appeared to show, and Mr Branson agreed, that he went off with crook 2.[11]Mr Branson’s account of what happened is principally derived from the evidence he gave in court, along with his witness statement which stood as his evidence in chief, in the usual way. But there were other sources of evidence as to what he said at the time or is reported as having said. I should therefore identify those other sources.[12]Mr Branson was taken to the police station very quickly after the incident was discovered. He was not asked to make a formal statement on that occasion; he returned to England to do so after he had been interviewed by private investigators in Belgium. What he had done was to look at photographs and from them he thought he was able to identify one of the crooks. There has been no prosecution brought because such would have depended upon identification evidence only: the crooks were careful to avoid leaving any forensic evidence to be analysed. The circumstances in which he came to make his police statement 9 days after the incident, were not entirely satisfactory because he made the statement to an interpreter who had not been briefed about the incident and, therefore, knew nothing about the sequence of events. The statement was in Flemish and Mr Branson signed every page, and for the purposes of this hearing it has been translated. It was made more contemporaneously than his witness statement and I have looked at it with care.[13]Before he gave a statement to the police, Mr Branson was interviewed in Belgium by a firm of private investigators who were apparently instructed by the Ministry of Public Affairs. There is what purports to be a statement from him taken by Jan Klaus, one of the investigators, on 13 October 2003. This statement appears to be unsigned and the investigator has “deleted some points” [email dated 14 October] “because I am not sure if they really happened or were speculation afterwards. The driver has told his story several times and after that it has been added to by circumstances he has known about after the incident from the police, his employer, from TNT, his wife etc.” I can place little reliance on it both because it has been not been signed by the driver as accurate and because it has been edited. It does not provide reliable evidence on the basis of which I could draw adverse inferences against Mr Branson. In fact this statement is very much in accordance with Mr Branson’s oral evidence.[14]In addition there is a report by the Claimants’ loss adjusters dated October 29 2003. I am not sure on what basis this report was compiled; the maker of it has not been called. I am not at all sure that this report was based upon any direct contact with Mr Branson. I think that it was probably not, because Mr Branson recalls only speaking to the police and to the private investigators and there is no evidence to contradict that.[15]Finally, there is a report prepared by TNT, by whom Mr Branson was not employed, which has a date stamp on it of 16 October 2003. How this statement came to be prepared is unknown. Mr Branson says that he was not spoken to by anyone from TNT so far as he is aware. The report contains statements as to what the driver purportedly said. I have heard no evidence about this statement or the circumstances in which it came to be written and do not feel able to draw any adverse inferences from it against the driver. Mr Branson was not asked, contemporaneously, to confirm what was written in either of these two reports.[16]In fact, the important evidence was what he told the court during his evidence at the trial. I was able to observe him in the witness box and felt able to assess his credibility both on the basis of his manner and demeanour and on the probabilities and likelihood of what was going on, assisted as I was by the CCTV footage.[17]On his account, and this is confirmed by the CCTV evidence to which I referred, what happened on his arrival at Alfred Place was this. He said he saw three or four people standing in front of the Micro Anvika’s premises, as he turned into Alfred Place, and as he got out of his cab and walked towards the shop “a man came to me and asked if I had a delivery. I said ‘yes’ and showed him my CMR note. .. The man said that he had not expected such a large lorry .. and he suggested that I move the lorry a little further up the road. … I then went with the man on foot so that we could make sure the goods could be discharged at the warehouse” [witness statement]. “I took my (CMR) consignment note, someone came up to me and asked if I had a delivery, I said yes and the man said he had not expected such a big lorry and that there was no room to park it. He asked me to park the lorry a little further up but I didn’t because my wife was in it. I then went with the man on foot to look if perhaps there was another depot further down the road. … We turned left and left again and got to the entrance to a garage where there was a Mercedes Sprinter parked on the right. There I met a second man. … Man [1] said I could park there, but I told him it was too narrow. Then the man said we have another depot that is suitable for delivery two miles from here” [police statement made on 22 October 2003].[18]As they walked round the corner, the crook (2) bought Mr Branson a cup of coffee. He felt entirely comfortable with the contact which had been made. He was sure that the person he was dealing with was from the consignees. The film shows him talking to the crook in front of his lorry and Mr Branson appears to have papers in his hand. At that time he was in full view of Micro Anvika’s premises. After a short period, having disappeared from the camera’s view as they go into Store Street [the road running in a west east axis to the south of Alfred Place] they returned, after Mr Branson had ruled out the practicality of driving round the corner as suggested and unloading in yet another narrow street.[19]It is clear from the CCTV images that Mr Branson’s lorry was causing an obstruction for traffic wishing to travel north down Alfred Place in the direction of Chenies Street [in the direction his lorry was pointing]. It can be seen from the CCTV cameras that there was a small white van parked on the nearside kerb adjacent to the parked lorry. It looks from the film as though it was possible for cars to fit through the gap between the van and the lorry but not for a sizeable box van because such a van can be seen travelling along the wrong carriageway in Alfred Place. Waiting to get into the bay on the same side as the warehouse but just to the north of the bay was a TNT van which was due to make a delivery there. The front of that van can be seen in that position as the lorry arrives.[20]The film shows that at about 9.26 am the white van in the claimants’ bay moved off and is replaced by the red van which had been parked alongside it, making room for the waiting TNT van to pull into the bay alongside the red van. Shortly afterwards, a post office van parks, half on the pavement, just to the south of the bay, but leaving enough room for the red van to get out of the bay and turn right across the front of the lorry at about 9.32 am.[21]By 9.32 am Mr Branson is back at his lorry with one of the crooks; the nearside door of his lorry is partly open; at this time it is probable that Ms Logist is in the front passenger seat. So far as Mr Branson was concerned the unloading was going to take place at a different depot some two miles away and he was going to be shown the way by one of the two people to whom he had been speaking. For this purpose his partner needed to get out of the passenger seat and move to the centre of the cab to sit on the bed which is located there. In such a position she would be sitting higher up than either the driver or passenger.[22]In charge of the warehouse activities was Mr Surinder Patel, Warehouse Manager. Assisting the security side of the business was a security guard, who appears briefly on the film. Mr Patel’s responsibilities are “to look after everything to do with warehouse deliveries. When a delivery arrives, the pallets are unloaded from the truck and taken into the loading bay, so that they can be seen by our security cameras” [witness statement]. He told the court that he arrived at work at just after 7.30 in the morning. He said that he knew that “we were expecting a large delivery from Apple/TNT that day, as I had been told it was arriving by our Accounts Department. However, I did not know what time the consignment was arriving.”[23]He told the court that one of his first tasks was to load “one of our vans with goods to be delivered to one of our Stores. It was when I was engaged in this task that I noticed that a truck had drawn up outside the warehouse. As it was a large truck, I immediately assumed it was our delivery. … Although the road in question is marked by a single yellow line (and the truck was in fact causing a blockage), vehicles are allowed to wait there for the purposes of unloading up to 20 minutes at any one time. As soon as I saw the truck, I left the warehouse and walked up to the passenger side of the truck’s cab. The truck was facing Store Street.”[24]The film shows Mr Patel walking across the southbound carriageway, looking to his right for oncoming traffic, at 9.32 by which time the lorry had been parked for 15 minutes. The lorry was parked facing Chenies Street and not Store Street as he said in his witness statement. By the time he arrives at the nearside of the cab Mr Branson is seen going round the front of the lorry, presumably to get into his driver’s seat. It is common ground that Mr Patel said nothing to Mr Branson; indeed they did not see each other. However, the crook who was to accompany Mr Branson to show him the way to a more convenient unloading point ‘2 miles away’ was the person to whom Mr Patel first spoke. From the film it can be seen that Mr Patel arrived at the nearside of the lorry at 9.32.19 and left to walk back to the warehouse at 9.32.31 so he was there for some 12 seconds only. His evidence was that “As I approached the cab, a man walked up to me and complained that the truck was causing a blockage in the road. He had been driving a white van, and had had to drive on the wrong side of the road in order to pass the truck. It is correct that the truck was causing a blockage but that was not unusual in that area. Although I do not recall speaking to the man, I see from the statement which I gave to the police at the time that I apparently said to him that I would move the truck on. After dealing with this man, I walked up to the open door of the cab, showed the lady my Micro Anvika I.D. (which I carry round my neck) and told her to wait where she was. I said that we would take delivery here only within about 15 to 20 minutes (I wanted to complete the loading of our truck and also to unload a small TNT van which had arrived). … I assumed the lady was the driver, although I now know that she was the companion of the driver. Having spoken to the lady in the cab, I returned to the warehouse to complete the loading of our van and to start the unloading of the small TNT van.”[25]In his statement to the police he said that he stood in front of the lorry and told her [the lady whom he assumed was the driver] to wait. “I then noticed that the lorry was large and was blocking the road. Other motorists were shouting. I told the female driver to come back in 10 to 20 minutes time. She did not speak so I do not know if she understood what I was saying. … I would add that as I initially approached the large red lorry, a male who was in a white lorry, parked in front of the red lorry got out and walked up to me telling me that I had to move the red lorry. … I told this male that I would move the lorry ..”. In fact, from the film it can be seen that the man to whom he spoke was already by the lorry when Mr Patel started to cross the road and he could not have seen him come from another vehicle parked in front of the lorry. Indeed, there is no other vehicle within the camera’s view parked in front of the lorry. Further, as can be seen from the film, the warehouse staff had completed their work in relation to both the white and red vans in the bay.[26]In his evidence he said that he saw the lady sitting in the driver’s seat of the lorry. That seems most unlikely. At the end of the day, it is clear that if he did speak to her she showed no signs of having heard him, let alone of having understood what he was saying. Indeed, it would be very difficult to understand precisely what he wanted the lorry to do because he appears to have been giving conflicting orders: stay and go. It is obvious, I think, having seen Mr Patel as a witness that he is quite confused about the sequence of events. I am sure that he could not have seen the crook to whom he spoke at the side of the lorry either driving the white van as it came down the wrong side of the road or getting out of the van as he walked across the road. As to the first part, he can only have had at best a fleeting glimpse of the driver of the white van, as the film shows, and as to the second part, the man in question did not come from the direction of Chenies Street as Mr Patel was suggesting. Further, it simply would have made no sense to have told the ‘driver’ to wait, when the lorry was causing an obstruction and he did not intend to try and unload it for 20 minutes or so. I am sure that if he had given instructions to Mr Branson’s partner she would have passed them on. Whether he tried to speak to her at all is doubtful: she certainly was not in the driving seat at the time: she would either have been in the front passenger seat or in the middle or in the process of moving from the one position to the other.[27]I reject any suggestion that Mr Branson and his partner disobeyed an instruction given by one of the Claimants’ employees. Further, I am not persuaded that Mr Patel showed his pass to Mr Branson’s partner as he alleges. If he did try and show it to her, and the film is not clear on this issue, there is no certainty [or probability] that she would have seen it. So far as Mr Patel is concerned he is unable to say that the lady either heard or understood what he was saying to her: she made no reply and did not look at him. In my judgment, on the facts, Mr Patel never gave any instructions to anyone that the lorry should stay where it was. That is inherently improbable, because it was causing an obstruction and on Mr Patel’s case people were complaining about it. I think he intended to say that the lorry should move and return later but I very much doubt that he communicated such a message to either Mr Branson or Ms Logic. If he had told the driver, as he thought, to come back in about 20 minutes, his subsequent behaviour is difficult to explain because he did not raise any alarm when the lorry failed to turn up at 10.00am or until notified of the theft at 12.30 at the earliest. Furthermore, Mr Patel could not have told anyone at the warehouse that the vehicle was coming back shortly or within any time period. The evidence shows that at about 10.00 am the managing director of the company, who worked upstairs on the first floor, telephoned the warehouse to find out if the delivery, which he knew to be a large one, had arrived and what he was told was that “the courier company had gone away and would be coming back”. Micro Anvika had been the victims of two round the corner thefts in the past. Yet neither Mr Patel nor the managing director were concerned enough to wonder why the lorry had not returned. This strongly suggests, as I find on the evidence, that Mr Patel never told the ‘driver’ to come back shortly or within 20 minutes or anything to that effect. Had such been said it would have been reported to the managing director and both he and Mr Patel would have become anxious when the lorry did not return as allegedly expected. Further, I doubt whether Mr Patel’s evidence that he thought the woman was the driver can be right because of the position she had in the cab. He was confused during his evidence and I cannot place any credence on what he told me absent confirmation from the film.[28]The lorry drove off with one of the crooks inside giving Mr Branson directions, not, I think, because of Mr Patel’s instructions but because the crook had suggested the unloading should take place elsewhere. In order to unload the lorry into the bay, Mr Branson would have had to drive into Chesnies Street and make a U turn; but such a manoeuvre was probably not possible with a forty foot truck. But even had Mr Branson been able to get his vehicle facing south on Alfred Place so that it could be brought alongside the loading bay, it would have been obstructing the highway and people on foot. The film shows a flow of pedestrians walking past and across the bay. Contrary to Mr Patel’s evidence, the only way to unload the lorry would be by using the tail lift which could take two pallets at a time. The lorry did not carry a pump lift device but Micro Anvika had several. Using a pump lift inside the lorry, two pallets could be moved at a time onto the tail lift and then lowered to the ground where one or two pump lifts could gather them and take them into the premises. The tail lift would be brought up to the base of the lorry and the process repeated. The whole unloading process [even assuming all hands to the deck] was likely to take over an hour, possibly as much as two hours. And during this time, obstruction and inconvenience would be caused. The crook’s statement that they were not expecting such a large vehicle and the suggestion that the load were better taken off elsewhere must have seemed to Mr Branson sensible and reasonable. He was fooled; as it was put in argument, his belief was suspended.[29]With directions from the crook, Mr Branson was directed to drive to and down (in a westerly direction) a one way street, Guilford Street. This street is to the north of Queen’s Square and is linked to it by two alley ways, either side of a building on the south side of the road. Mr Branson parked his lorry outside a hotel just to the west of the western alleyway. There is no CCTV film in this area [no doubt the crooks knew that]. The crook who had accompanied him assisted in parking the vehicle and when Mr Branson and Ms Logist got out there were four men standing there. He described the men as smartly dressed with white shirts, black trousers and ties ‘having the appearance of uniformed workers’. They did not have a pallet truck available but they did have small hand trucks. Mr Branson was told that a pallet truck would arrive shortly but that its operator was having a tea break. Such a truck arrived about 15 minutes later [police statement]. The crook who had greeted the lorry at Alfred Place [but who had not accompanied the lorry to Guilford Street] suggested that they started the unloading process so as to avoid any delays. Mr Branson’s statement continues:
“As I was keen to help, my partner and I became engaged in stripping the pallets and handing over the smaller boxes to the four men. We remained inside the trailer and goods were wheeled out of sight. I never got out of the back of the trailer other than … to go to the bathroom. By that time there were only two pallets left in the trailer. I asked [one of the crooks] where I could find a toilet. He accompanied me and we went into a hallway on the other side of the building and I noted that I appeared to have entered a hospital. I was told by a security guard at the hospital that I had gone the wrong way and should go to the ground floor. I went outside and the [crook] showed me the way to street level and we re-entered the hospital through the main entrance. When I came back from the toilet, the [crook] was no longer there. I returned to the lorry and found that everybody was gone apart from my partner. She told me that the [crook] had asked for the documents but she did not have them. The men had told her that it was their “tea time” and they were taking a break. The [crook] came back to my lorry a short time thereafter and asked me to hand over the documents for him to check. I gave him copies of the CMR notes.”
Mr Branson and his partner than had lunch sitting in the front of the lorry, with the tail gate open but raised to the level of the floor of the lorry and as none of the men had returned to the lorry he thought he had better go and find them and he walked down the alley down which the goods had been taken, and near to the hospital there was a pallet lying in the footpath which was only half emptied. “I went inside the hospital but could not see any of the men I had met before. I then ran back to the lorry and called the dispatching service of Ninatrans on my mobile phone; it dawned on me that something untoward had happened and that I had been duped.”[30]The account in his police statement is not very different. He said that everyone was very kind and brought us drinks. “They were going backwards and forwards through the narrow alleyway and I thought they were taking it to a depot somewhere but the only thing I could see was a sort of gate at the end of the alleyway.” When he went to the main entrance to the hospital “I didn’t see anything suspect, just a few delivery vans stopped by the entrance to the hospital.” When he went to check he saw one half-loaded pallet and two empty pallets stacked against the hospital wall. He said that when he telephoned Ninatrans and told them what had happened they suggested that he waited “another while perhaps these people have gone for lunch”. “I waited a further 15 minutes and then my wife and I walked back to the goods entrance, but there was nobody there. We then went into the hospital and I told the receptionist the whole story. He had seen people loading goods into a van. .. He came outside with us to look at the boxes. He noted the name of the firm from a box, rang directory inquiries for the number, rang that number and I spoke to them. The man on the line was rather angry and reproached me that I should ask people for their ID card before making a delivery.” By the time he had got to his lorry Micro Anvika personnel were there and the police were called, but took rather a long time in coming.[31]Apart from Ms Logist’s witness statement, there was no other evidence as to what took place at Guildford Street.[32]Mr Morpuss, on behalf of the Claimants, challenges Mr Branson’s credibility and conduct. In relation to what happened at Alfred Place he submitted that Mr Branson’s evidence as to seeing 3 – 4 men standing adjacent to Micro Anvika’s loading bay as he turned into Alfred Place is not credible, because there was no sign of them on the film at the relevant time. I am of the view that the men must have been lurking quite close by but that they were not as close to the premises as Mr Branson thought. There were quite a number of people about, including innocent pedestrians. It is his case that this was a deliberate untruth to try and justify his belief that he was dealing with Micro Anvika personnel. I have to say that I do not consider Mr Branson to be other than a careful witness of truth. He was certainly duped [and it is not suggested otherwise] and was shocked to find this out in Guildford Street. He had not been made aware of the risk of ‘round the corner’ delivery scams in marked contrast to the awareness of Micro Anvika and, I think, TNT who had adopted special instructions to their drivers. Mr Branson’s employers, Ninatrans, provided driver instructions/guidelines which did not alert him to the risk of this type of scam nor suggest that a driver should check the identity of anyone purporting to represent the consignee. Whether or not there were in fact three or four people by the Claimants’ premises, the important fact is that the first crook who approached him could well have come from the premises, looking at the film. There was nothing about the ‘position’ of this man which should have alerted Mr Branson to any risk that he was being duped. This was a highly sophisticated operation, by relaxed crooks operating under the noses of the Claimants. Mr Patel was equally taken in by one of the crooks whom he thought to have come from the white van which claimed it was being obstructed.[33]It was submitted that in agreeing to leave Alfred Place with suspects who had produced no identification “and had no apparent connection with Micro Anvika, Mr Branson was taking a deliberate risk that the cargo would be stolen (consistent with his later attitude to risk). The instructions given by Mr Patel were ignored, whether to stay or to come back in 20 minutes.” It is highly unlikely, submitted Mr Morpuss on behalf of the Claimants, that Ms Logist did not pass the instructions on and the most probable explanation is that Mr Branson simply ignored what he had been told, through Ms Logist. “If such instructions were ignored there is an overwhelming case of wilful misconduct. Mr Branson accepted that in those circumstances it would not have been right to drive away.” This criticism simply does not work on the facts as I have found them. With the benefit of hindsight, it would have been better had Mr Branson asked for identification. He was not alone in failing to do so. In the papers there is a list of London postal codes where ‘round the corner’ scams have been reported to the police between April 2003 and May 2005. There are over 120 of them. Either identification tags were forged or the drivers were duped just as Mr Branson was on this occasion. Mr Morpuss is wrong to suggest that Mr Branson was taking a deliberate risk; so far as he was concerned he was taking no risk at all. Furthermore, if anyone was to blame for what happened, blame must rest with his own clients. Mr Patel knew of ‘round the corner’ scams and had been a victim of them. I would have expected him or the security guard, who appears to have done nothing, to have gone to the lorry as soon as it had arrived and spoken to the driver and given instructions about unloading and how and when it was to be done. The lorry containing a valuable cargo had been parked for 15 minutes or so before he went out. Someone [and there are twelve warehousemen] should have been detailed to keep their eye out for this large delivery. Speaking to the driver at the earliest time after arrival is a good way to avoid such scams. Yet Mr Patel never checked to see who was driving, nor did he communicate at all with the driver: he simply assumed that Ms Logist was the driver; yet he never asked whether she was. Leaving the lorry in a place where it was causing an obstruction whilst he dealt with a much smaller vehicle was going to expose the lorry to a ‘round the corner’ scam since there was a good reason to entice the lorry away.[34]As to the events in Guilford Street, the TNT report gives a different version of what happened than Mr Branson gives in either of his two statements [witness statement and police statement]. In the TNT report it is written:
“Towards the end of the off-loading process, the driver accompanied [a crook] to [Queen’s Square] and on his arrival there, he noted the loading of the products into a white van. He told [the crook] that he urgently needed a toilet, and walked into the reception of the adjacent hospital. It is believed that [the crook] followed him into the premises, and that CCTV evidence exists of this. On returning to [Queen’s Square], he was advised that there was not enough room on the vehicle being loaded, and that another was to follow to the scene to assist. It is unclear whether he immediately returned to his vehicle, or followed shortly afterwards, but following a lengthy delay and no other vehicle turning up, he returned to Queen’s Square to find a number of boxes at the scene, the pallets against nearby railings and none of the suspects in sight.”
[35]As I have said, the circumstances in which this report came to be made are not known. If it purports to be an account of the incident given to someone from TNT we do not know who that person was nor when he allegedly saw Mr Branson nor the circumstances in which what he said was noted or recorded and checked for accuracy with the driver. Mr Branson denies ever speaking to anyone from TNT, so how does this report come about? In the absence of any evidence it would be unsafe to speculate, although there is evidence from Mr Branson [police statement] that the receptionist had seen a van being loaded and that there were vans parked around the entrance to the hospital when he used the toilet there. Mr Branson thought that there was a storage place which was accessed through the passageway down which the goods had been wheeled. He did not think that the goods were being transferred to a smaller van (or vans). I am not confident that the makers of the report, whoever they are, are recording what Mr Branson told them, or have confused what they were told by the receptionist. Mr Branson was cross-examined about this report. In my judgment he convincingly denied any part in its preparation or content and I believe his evidence on this point. Further, it is not satisfactory to seek to accuse a person of wilful misconduct on the basis of a document whose maker has not given a witness statement.[36]Because this was a sophisticated scam, I can well understand that the crooks needed to ensure that Mr Branson’s suspicions were not alerted before the theft was complete. When he was taken down the alley by the hospital, the crook who accompanied him must have been hoping that he would not go into the square, where, presumably, the goods were being loaded into a vehicle. The story that had been put forward was that the Claimants had another depot more conveniently situated; they had not told him that the goods would be transhipped in a smaller vehicle and that, presumably, is why their van was parked in Queen’s Square rather than in Guilford Street itself. Therefore, the crooks must have tried to prevent Mr Branson knowing that they were transferring the goods to another van. He accepted in cross-examination, as was to be expected, that he would have thought something was wrong had he known that that was what the crooks were doing. Whether the crooks tried to stop him from seeing their van by taking him to the basement door to the hospital is unknown but probable and when he entered the main entrance with the crook he could well have had his attention diverted from what was going on in the square, although he did see some vans there. I reject, therefore, the attack on Mr Branson’s credibility on this issue based as it was upon a document whose provenance is unknown.[37]The next point that counsel made is that Mr Branson was reluctant to admit that he knew what a valuable cargo he was carrying. In my view this submission arose out of a failure to understand what Mr Branson was saying. I do not take him to have denied that he knew that the cargo was valuable; rather he did not know precisely what it contained. There is nothing in this point.[38]Mr Morpuss relies on the fact that Mr Branson left the tailgate of his lorry open whilst he and his partner ate their lunch. The suggestion was that this showed a reckless attitude to risk. The assumption underlying this point was that someone could get at one of the boxes still in the lorry whilst they were in the cab, without them knowing. The assumption is false because I accept that Mr Branson would have heard and felt anyone trying to access the back of the trailer. Finally, in this connection, he relied on the fact that both Mr Branson and his partner left the lorry to investigate what was happening. He should have shut the lorry up before he left it and this is a fair criticism. But by then the theft had occurred and even if this could be described as negligent it falls well short of what might be called misconduct. At this stage he was concerned about the whereabouts of the men and what had happened to the bulk of the cargo; in the circumstances he can be forgiven for abandoning his vehicle, which was nearly empty, to find out what was going on.[39]Mr Branson noticed that the four well dressed men were wearing gloves apart, I think, from one of them who lifted the boxes with his clenched fists. This is a detail which he recalled when recounting what had happened. At the time he thought that the men were simply trying to keep themselves from being dirtied whilst handling the boxes. The suggestion is that he should have appreciated that the men were trying to avoid leaving their prints on the boxes and this should have sounded alarm bells. I reject this analysis since it leaves out of account the fact that since the very beginning he thought he was dealing with Micro Anvika personnel and that there was nothing fishy about the delivery process. In that frame of mind it is unfair, I think, to suggest that his sense of disbelief which had been suspended should have changed by this one detail.[40]It was also submitted that Mr Branson should have realised that something was ‘wrong’ when he was shown to a toilet in a hospital rather than in the warehouse or store to which he believed the goods were being delivered. At the time, this did not strike Mr Branson as odd. He had never been to England before; the man who accompanied him appeared to know the location of the toilet when they got to the main entrance. Not all warehouses or stores would have toilets in them and the crooks’ familiarity with the place must have been reassuring. It is suggested that when he was in the square as he went in and came out of the toilet, there was loading of the goods into one or more vans going on. If there was, Mr Branson did not see it and no doubt the crooks took good care to make sure that he did not.[41]For present purposes I am content to accept Mr Morpuss’ submission that the test in law that I should apply is that the Claimants must show that Mr Branson was guilty of misconduct; that he was aware of a risk that the cargo might be stolen but deliberately and unreasonably went ahead and took that risk and that the misconduct caused the loss of the cargo.[42]In my view the behaviour of Mr Branson when he arrived to make a delivery to the premises in Alfred Place falls well short of behaviour which could be described as misconduct. There is no doubt that he was deceived into believing that he was making a lawful delivery. His lorry could not easily be unloaded at the bay. Mr Patel wrongly thought that the load could be taken off from the side of the lorry. The only access to the contents was via the tailgate lift, operated by controls on the side of the lorry at the back.

Conclusions

[43]The high water mark for a case where a court was satisfied that wilful misconduct had occurred bears superficial similarities to the present case, namely the decision in Laceys Footwear. It was another example of a ‘round the corner’ delivery. It is this authority upon which the claim in this case has, I think, largely been based. There is an obvious distinction between using an authority to establish the principles of law, on the one hand, and using it to show how the principles were applied in that case, on the other. I set out the findings made by

the Judge in the Footwear case upon which the majority in the Court of Appeal relied:

“Mr Royo (the driver) showed Mr O’Kerwin [the agent’s import manager] the CMR documentation and, as the principal delivery was the consignment of 269 cartons of shoes for Laceys in Hackney Road, Mr O’Kerwin contacted Bowler [the carriers] so that he could give instructions to Mr Royo. Mr O’Kerwin was told expressly by Bowler that Lacey’s consignment was not to be off-loaded anywhere but 263-265 Hackney Road E2. These express instructions were then given to Mr Royo, both by Mr O’Kerwin and by a Spanish-speaking employee of CIT, Ms Anna Garcia…Mr O’Kerwin said that he and Ms Anna Garcia both told Mr Royo that the delivery to Laceys was very urgent and that under no circumstances was he to permit off loading of the goods anywhere other than 263-265 Hackney Road E2. There is no doubt that Mr Royo was given the plaintiff’s address and the Judge accepted that the instruction was given to him in Spanish and he acknowledged that he understood it.” “According to Mr O’Kerwin, Mr Royo told him that he had been to Laceys’ premises and that Laceys were not ready to take delivery of the goods. He told Mr Royo to tell Laceys that they must accept the goods or else it would not be possible to redeliver until a much later date. Mr O’Kerwin told Mr Royo to go back to Laceys’ premises and to telephone again in about half an hour.” (page 372) “The basis of the Judge’s finding [of wilful misconduct] was that the clear instructions that the goods were to be delivered to the plaintiff’s premises and nowhere else were passed on to Mr Royo.”
(p. 374) “I attach considerable significance to the Judge’s finding that Mr Royo had been given clear and express instructions which he had understood and that he had disobeyed them.” (p. 375) “In my judgment it was open to the Judge to draw the inference that by disobeying clear instructions and departing so far from the ordinary duty and responsibility of a driver to protect his load the actions of Mr Royo amounted to misconduct.” (ibid)[44]There are obvious factual distinctions between that case and this. Mr Branson has, in my judgment, given an honest account of what happened; in that case the driver gave no evidence at all. No-one instructed Mr Branson that he was only to deliver the goods to the premises in question. The CMR note gave the address for delivery but it would have been permissible for the consignee to change the instructions and Mr Branson was obliged to deliver the goods as directed by the consignees (assuming the change of address was reasonably close by). He had been given no training about ‘round the corner’ thefts and broke none of his employers’ written guidance or instructions Thus, there is a clear, essential distinction between this case and that.[45]My overall conclusion is that Mr Branson was certainly not guilty of any misconduct and, in the light of my findings, I do not consider that he was guilty of any negligence. He was the victim of a sophisticated scam, by crooks who were immensely cool and calm. In my judgment the Claimants are miles away from establishing their case and I dismiss the claim.