What is "wilful misconduct"?

From the Bench:

["There have, over the years, been many attempts to define wilful misconduct. In National Semiconductors (UK) Ltd v UPS Ltd [1996] 2 LL Rep 212 at 214, Longmore J, as he then was, having cited various authorities said:-“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 (1) an intention to do something which the actor knows to be wrong or (2) 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 Horobin’s case, “he took a risk which he knew he ought not to take” [1952] 2 Lloyd’s Rep. at p.460

In Forder v Great Western Railway Co [1905] 2 KB 532 at 535-6, Lord Alverstone CJ adopted the following definition given by Johnson J in Graham v Belfast and Northern Counties Railway Co [1901] 2 IE 13:- “Wilful misconduct . . . means misconduct to which the will is 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 in his part in the existing circumstances to do, or to fail or to omit to do (as the case may be), a particular thing, and yet intentionally does or fails or omits to do it, or persists in the act, failure or omission, regardless of the consequences.” Lord Alverstone continued:- “The addition which I would suggest is “or acts with reckless carelessness, not caring what the results of his carelessness may be.”

Beldam LJ, in Lacey’s Footwear v Bowler International [1997] 2 LL Rep 369 at 374 put it this way:- “Further a person could be said to act with reckless carelessness towards goods in his care if, aware of the risk that they may be lost or damaged, he nevertheless deliberately goes ahead and takes the risk, when it is unreasonable in all the circumstances for him to do so.”

As regards the burden and standard of proof, there was no issue between the parties and the judge correctly directed himself by reference to a passage from Brooke LJ’s judgment in Lacey’s Footwear at p 381 where he said that the trial judge:- “should also have directed himself that since a charge of wilful misconduct was a serious charge to make, the evidence ought to have satisfied the degree of probability appropriate to the seriousness of the charge before it was appropriate to find it proved (Hornal v Neuberger Products Ltd [1957] 1 QB 247 and Khawaja v Secretary of State for the Home Department [1984] AC per Lord Scarman at pages 113-114).”

The judge also quoted a useful passage from the judgment of Andrew Smith J in Datec Electronic Holdings Ltd v UPS Ltd [2005] 1 LR 470 at 481 where he said:- “I should add that I was properly reminded by counsel that the principle set out in such cases and as in Re H and others (Minors) Sexual Abuse: Standard of Proof [1996] AC 563 where Lord Nichols observed that “built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation” (at p 596f), however Lord Nichols explained that this simply means that the inherent probability or improbability is itself to be taken into account when weighing the probabilities in deciding whether, on balance, the event occurred. Although in this case the allegation is one of theft from an employer I do not regard this possibility as so improbable that there is a particularly heavy burden upon the claimants to prove their case. I have simply concluded that there is not proper evidence to support the claimants’ allegation . . .”] per Lord Justice Waller in TNT Global SPA v Denfleet International [2007] EWCA Civ 405