Hi everyone, I need some advice on behalf of a friend.

He started working as a self-employed DPD franchise driver last year.

It means you get the title as self-employed but essentially you drive their van,

you wear their uniform,

they tell you what hours to work

& theres little say on your part in this.

During the course of his working day, he got into an accident.

The insurance companies stated that they could find nobody to be at fault for the collision and any damages were paid for.

I believe the other guy who was involved in the crash had quite a high excess and as such is looking to claim this back

- by taking DPD to court.

This is where things get complicated.

The claimant wants to sue DPD to recover costs.

As such,

the case is being heard in the claimants local county court because DPD are a business.

DPD have told my friend he is to travel some 300 miles to this court and represent himself.

My friend has had nothing from any court come through summoning him to court.

We believe DPD have all the paperwork.

We think DPD is trying to make him go to court on behalf of them to deal with this claim.

DPD do have solicitors working on this case - we have yet to establish if they will be present on the court date.

My question is,

if the case is against DPD the company,

does my friend need to go?

when essentially he was a self employed franchise worker and not an "actual worker".

Has anyone got any advice for a situation like this?

I think this problem has some very interesting implications.

Your friend is apparently an independent contractor and that means that in theory he/she is liable for any torts – negligence, in this case – which are perpetrated while he is carrying out his duties as a delivery driver.

If your friend was employed, then any negligence committed while in the course of his duties – working for DPD – would almost automatically be the liability of DPD.

I suppose that the claimant here is suing DPD – maybe because he doesn't realise that the driver is meant to be self-employed, or else he has decided that DPD is the better-loss-bearer – has deeper pockets – and is therefore the more useful party to sue.

What concerns me is that DPD may attempt to defend this claim on the basis that they are not liable and that it is your friend who should have been sued. If I was advising DPD, this is what I would tell them to do. Unfortunately you don't have any of the papers – but if it happened that this is DPD's position, and if it happened that the judge agreed and dismissed the claim then the next logical step for the claimant would be to start another action directly against your friend.

I think your friend urgently needs to get all the papers so that he can find out exactly what is being said.

This means he needs to get a copy of the claim form and needs to get a copy of DPD's defence. This may be tough to do because as far as I know there is no obligation on anyone to show him the documents.

If he does find himself in a position where the finger is pointed at him, then in addition to him saying that he did not cause the accident – in other words, the accident was not caused by his negligence, he would probably be advised also to claim that his self-employed status was a sham and that in fact he was "employed".

Of course this would run shivers up the backs of DPD because if this happened, DPD would be liable to pay all of the Social Security, holiday pay, minimum hours – everything else that comes with full employment.

I think it will be useful to give us the full details of the accident – and frankly rather than starting to do Chinese whispers which is always unsatisfactory – especially on a forum, I think that you should get your friend to start taking a bit of responsibility and come onto the forum, begin his/her own thread and lay space out the story.

Yes, on paper although the "tools" utilised during the accident i.e the van are the property of DPD, and are under the insurance of the DPD company.

Also under negligence and the integration test

- the work is not an accessory to the business but a vital part of their business model.

Under the control test,

my friend has no control over the hours worked.

So on paper yes but in theory they fulfill the conditions of employee.

I agree they are going after DPD as its likely easier to enforce and of course, deeper pockets

- and also easier as its then listed at the claimants local court instead.

I will request he gets copy of the claim forms and what the defence is.

Unfortunately he does not have a computer so I am helping him as best I can.

Very good advice above from Bankfodder, please ask your friend to heed it carefully.

In order for your friend to be allowed to give oral evidence at the hearing he will need to file a witness statement, and in all likelihood, DPD's solicitors will be in the throws of preparing this on his behalf, which for the reasons set out above, is not a desirable state of affairs.

If he is non-cooperative in making a witness statement, a witness summons could be requested, which is effectively an official request by the Court to attend the trial. There can be consequences for ignoring a witness summons.

Just a thought to back up whether he would be considered an employee. Check out the guidance on IR35. Unless the contract has specific terms then it could be for TAX and NI purposes that he is considered an employee. It's not a definitive thing but it would add credence to his argument that he is employed.

Hi

Could you just clarify for us as you mention 'self-employed DPD franchise driver' was this via DPD's 'Owner Driver Franchise'.

The reason I ask is if you look at this DPD link: https://drivers.dpd.co.uk/

Go down the webpage to 'Read all about becoming an Owner Driver Franchise' (please note when you click on it automatically downloads a PDF) seems similar to what you describe in post#1 but we would need you to clarify this.

Many thanks for all the replies, apologies for the lateness as christmas has been hectic.

He has been sent a witness statement, so the solicitors can prepare a defense, but has yet to fill it in. Is he advised to NOT fill it in? If he fills it in, is this going down the route of him being an employee? or is this going down the route of him being solely responsible for any costs/damages?

@stu007 - yes that is the same scheme.

DPD are asking your friend to be a witness in this matter.

Is the witness statement loaded with questions for your friend to provide answers to? If it is, he must not fill it in. If he is to be a witness then his witness statement must be in his own words and based on facts which he has personal knowledge of.

DPD are vicariously liable for the claim, the relationship between your friend and DPD is employer and employee relationship.

You have already said that insurance company has found no-one to be at fault, therefore your friend is not liable for the claim.

Your friend is not a party to the proceedings, therefore he is not privy to the same and not entitled to a copy of the court documents.

If your friend does act as a witness, he must keep in mind that he is a witness for the court, as all witnesses are.

If he is served a witness summons, he must attend the trial otherwise he will be in contempt of court and can face a prison sentence or a fine or both!

Haunter

Many assumptions there:

a) is DPD vicariously liable?. Was the driver an employee of DPD, or a franchise owner?.

b) Just because the insurers "found no-one to be at fault", doesn't mean that a court will find the same ..... the insurers may have decided "50/50" rather than "100/0" or "0/100", but the court can

i) decide blame, allocating it to any party,

ii) adjust for blame in other proportions, by adjusting e.g. for contributory negligence.

c) See a), we don't know for sure if the driver is a party to the proceedings, or is likely to be joined to the proceedings.

d) I agree that if he is served a witness summons by the court he must attend, but we don't know if he has been served a witness summons, or merely asked to provide a statement!.

I haven't made any assumptions, my post is based on the facts posted by cupid07.

The claim has been made against DPD and not the driver (the friend), the friend is being asked to fill out a witness statement.

A person does not have to be 'employed' as in PAYE on the payroll of a company for that company to be vicariously liable for any wrongful act of its employee,

a main contractor can be held vicariously liable for any wrongful act of his sub-contractor,

see the legal policy underlying the principle vicarious liability and the substantive case law on the point.

upid07, your friend will not be held liable for the claim if he makes a witness statement, as long as his witness statement is based on the truth of what happened, how the accident occurred.

Haunter

DPD are asking your friend to be a witness in this matter.

 

Is the witness statement loaded with questions for your friend to provide answers to? If it is, he must not fill it in. If he is to be a witness then his witness statement must be in his own words and based on facts which he has personal knowledge of.

 

DPD are vicariously liable for the claim, the relationship between your friend and DPD is employer and employee relationship.

 

You have already said that insurance company has found no-one to be at fault, therefore your friend is not liable for the claim.

 

Your friend is not a party to the proceedings, therefore he is not privy to the same and not entitled to a copy of the court documents.

 

If your friend does act as a witness, he must keep in mind that he is a witness for the court, as all witnesses are.

 

If he is served a witness summons, he must attend the trial otherwise he will be in contempt of court and can face a prison sentence or a fine or both!

 

Haunter

Yes it was questions on the witness statement,

that were framed in their words

- no blank space to write freely but already pre-filled questions.

To clarify, this is just a solicitors witness statement - not a witness summons from the court.

He has asked several times now,

if he goes to court on the day if he will be represented by these solicitors

- they have failed to provide any response/dodged the question.

He was also told that he will not be reimbursed as a witness for any travel costs or loss of work for the day

(he works elsewhere now so would need time off from another employer).

Given this, I think I will advise he doesn't fill it in and instead they can file through the courts for a summons

- at least this way, he will be able to claim some travel costs if he goes to court?

Your friend should inform the solicitors that he is not filling out that witness statement as it is loaded with questions designed to procure the particular answer/response that they want him to say to the court, and that he is aware of cases where the witness and the solicitor who drafted such witness statements have ended up in a lot of trouble, including witnesses who have been given prison sentences in relation to such witness statements.

As they are not willing to cover his reasonable expenses he should refuse the witness statement.

Also, even if your friend does act as a witness, whether voluntarily or by witness summons, he will not be represented by the solicitors or anyone else, he will simply be a witness to the facts of the case before the court.

Haunter

They wanted him to answer the questions verbally,

fill it in on behalf of him and have him sign it!

Unfortunately they've been unreasonable with helping him get there (since its near 300 miles away, and a 4 hour drive) and tried to force the witness statement the way they have.

They will have to apply for a summons now.

Many thanks for your help.

EDIT to add: I've noticed from the correspondence that these solicitors are the solicitors of the insurance company and not DPD.

The court claim is between the claimant and DPD, so where do the insurers come into this?

They claim liability is in dispute?

Between DPD and the insurance company/my friend?

if its not under the directions of the court to fill it in then you tell him to ignore it.

they are trying to box him in

if its not under the directions of the court to fill it in then you tell him to ignore it.

they are trying to box him in

Perhaps.

The policyholder on the Insurance would be DPD and they would cover drivers working for DPD providing the drivers met qualifying conditions e.g age, points on licence.

Before a witness statement is refused, suggest the driver checks their terms of self employment/contract regarding any Insurance/accident requirements placed on them. It might say that refusal to assist with the Insurance company or DPD, in defending any third party claims, might lead to the driver being required to reimburse the costs of the claim.

More research required before any decision is made whether to provide a witness statement and if there is such a requirement by contract placed on drivers, then it is a case of deciding how to provide the statement. If the form supplied by the Solicitors is not acceptable, then just draft a simple statement.

Your friend is not obligated to answer the leading questions posed by the solicitors.

DPD are most likely using the same insurance company and their solicitors, and they are most likely relying upon the insurance company's investigation into the accident and its findings.

The claimant appears to be contesting the findings of the insurance company and he is holding DPD liable for the accident.

Haunter

accident....:ohwell:

The first posts says the friend got into an accident.

Haunter

In the first post you said "the insurance companies", did both insurance companies find that no party was liable, or, is the claimant's insurance company disputing liability?

Haunter

I was trying to make a joke...

its a collision now is it not...