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Court of Appeal dismiss employee’s appeal in Benyatov v Credit Suisse (Securities) Europe Ltd

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The Court of Appeal has dismissed an appeal in a long-running loss of earnings claim by a banker against his employer.

In 2006-7, the Appellant, Mr Benyatov, was arrested, prosecuted and then convicted in Romania for commercial espionage and membership of an organised criminal group for obtaining confidential bids placed in relation to the privatisation of a Romanian electricity distribution company.

In proceedings brought against his former employer, Mr Benyatov sought to recover the earnings he says he has lost as a result of his conviction. He argued that there was an indemnity covering all losses arising as a result of work for an employer implied as a matter of law into all employment contracts, or implied as a matter of fact into his contract of employment. He also alleged that there was a duty of care to protect him from conviction in Romania. This claims were all rejected at trial by Mr Justice Freedman ([2022] EWHC 135 (QB)).

On appeal, Mr Benyatov argued that Freedman J took the wrong approach to duty of care by failing to consider assumption of responsibility, that he was wrong to conclude that the negligence claims were time barred, and that he made material errors in his assessment and conclusions on the facts. He also argued that the Judge was wrong to conclude that there was not an implied indemnity for all losses suffered by an employee regardless of an employer’s lack of fault.

The Court of Appeal dismissed the appeal on all grounds. In a judgment by Lord Justice Underhill, the Court reviewed the authorities on the correct approach to duty of care, and concluded that it was unnecessary for the Judge to make any reference to the concept of assumption of responsibility. The Court found that the Judge’s conclusions were all open to him on the evidence and he was right to hold that the negligence claim was statute barred.

On the contractual indemnity claim, the Court agreed with the Judge and observed that the Appellant’s approach would cut across the law of negligence.

Paul Skinner and Emma Foubister acted for the successful Respondent (led by Paul Goulding KC).

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