Highways England Company Ltd v B.G. Rodwell Ltd (First Defendant) Robert Cheadle (Second Defendant) Allianz Insurance Plc (Third Defendant)
| Jurisdiction | England & Wales |
| Judgment Date | 04 January 2017 |
| Neutral Citation | [2017] EWHC 118 (QB) |
| Docket Number | Claim No. HO15X0380 |
| Court | Queen's Bench Division |
| Date | 04 January 2017 |
[2017] EWHC 118 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION CENTRAL OFFICE MASTER KAY QC
Claim No. HO15X0380
Appearances:
For the Claimant: Miss Hitching instructed by the Government Legal Service
For the Defendants: Mr. Jason Evans-Tovey instructed by Keoghs
Hearing date: the 4 th January 2017
Factual background / the claims
On the 16 th September 2009 an HGV driven by the Second Defendant, Mr Cheadle, whilst acting in the course of his employment by the First Defendant, collided with a bridge over the A14 between Stowmarket and Stowupland ('the bridge') The Claimant contends that the collision resulted in damage to the overbridge.
The Defendants admit that the HGV collided with the bridge. The extent of the collision and of the damage is in dispute.
Repairs were carried out to the bridge in August 2011 at a cost of £551,612.43. The Claimant acknowledges that some of the repairs were not attributable to the damage caused by Mr Cheadle's collision and accepts that an allowance must be made to reflect that.
The Claimant alleges that these matters give rise to a claim in negligence by the First and/or Second Defendant. It also alleges that the First Defendant is vicariously liable for negligence of the Second Defendant.
Negligence is denied by the First and Second Defendants. It seeks to cast the blame for the collision on the local police, unidentified 'appropriate local bodies' or 'others' contracted to 'attend along' the route. It is asserted that advice in relation to the route for the HGV as loaded had been taken from local police and use of the A14 was advised. It is also alleged that the First Defendant gave 'notice' to unidentified 'appropriate local bodies' of the proposed route and dimensions of the HGV and such bodies did not warn that the HGV would not pass under the overbridge. As to the contractor, the plea appears to be that it did not point out that the overbridge was an obstacle.
As to the Third Defendant, it is asserted that a direct right of action arises under regulation 3(2) of the European Communities (Rights Against Insurers) Regulations 2002.
The Claimant is a company wholly owned by the Secretary of State for Transport to carry out functions on behalf of the Secretary of State including maintenance of motorways and major A roads and, inter alia, the bridge. Prior to 1 st April 2015 this function was carried out by the Highways Agency.
At the time of the collision the bridge was owned by the Secretary of State for Transport. At the date of the collision therefore duties of care in negligence were owed by the First and Second Defendants to the Secretary of State for Transport. In these circumstances the Defendants contend that the present Claimant does not have a claim.
The Procedural history
The procedural background to the claims is:
a. Proceedings were commenced on 9 th September 2015.
b. A Part 18 Request in relation to the Particulars of Claim settled by counsel was served in January 2016.
c. A Defence was served on 4 th February 2016.
d. Replies to the Part 18 Request were served on 4 th February 2016.
e. The Claimant served a Part 18 Request settled by previous counsel on 15 th March 2016.
f. The same was answered in a letter of 4 th April 2016.
g. Directions questionnaires were lodged by the Defendant on 13 th March 2016 and the Claimant on 18 th March 2016.
h. On 31 st March 2016 the matter was listed for a CMC on 4 th July 2016.
i. On 14 th June 2016 the Defendants applied for strike out or summary judgment in relation to the claim.
j. On 24 th June 2016 the Claimant applied for relief from sanctions for having filed its costs budget a day late.
k. On 5 th July 2016 the Claimant issued an application to amend.
l. On 30 th June 2016 the CMC was adjourned to be heard together with the applications to 4 th January 2017 with an increased time estimate of 21/2 hrs. m. A substitute draft amended Particulars of Claim (settled by present counsel) was served on 7 th December 2016.
The Applications
There were three applications for consideration
a. By the Application Notice dated the 14 th June 2016 the Defendant has applied for the claim to be struck out pursuant to CPR Part 3.4(2)(a) or for summary judgment pursuant to CPR Part 24. This application is based upon the contention that no duties were owed to the Claimant at the date of the incident.
b. By the Application Notice dated the 24 th June 2016 the Claimant has sought an order for relief from sanction for filing its Precedent H one day late.
c. By the Application Notice dated the 5 th July 2016 the Claimant has sought permission to amend its Particulars of Claim.
Consideration
The Claimant's application to serve its costs' budget out of time
a. The Claimant served its costs' budget on the day after it was due. The explanation for the default is set out in the witness statement of Andrew Turek.
b. The application for relief from sanction, and permission to serve the costs budget out of time is not opposed subject to the Claimant bearing its own costs in relation to making the application.
c. In my view, and in the present circumstances, it is appropriate to order relief from sanction providing the Claimant bears its own costs of making the application.
The Defendant's Application to strike out dated the l4 th June 2016
a. The only evidence in support of this is contained in the Application Notice itself signed by Ms Jill McVerry. This raised the contention that the Claimant did not have any legal interest in the bridge at the time of the incident on the 16 th September 2009 and therefore no obligations were owed in law to the Claimant at that time, and further that the Claimant was not an entitled party under the European Communities (Rights against Insurers) Regulations 2002.
b. Mr. Jason Evans-Tovey, for the Defendants has argued that the claim is bound to fail and therefore the application should be allowed. Further he has submitted that the Claimant should not be allowed to amend the Particulars of Claim to remedy the deficiency in the original Particulars of Claim because the amendment seeks to introduce a new cause of action after a period of limitation has expired which is not permissible by s. 35(3) of the Limitation Act 1980 and CPR Part 17.4 made pursuant to s. 35(4) of the Act.
c. The principles with respect to striking out and summary judgment. These are well known but the following points may be made
(i) It is well established by the decision in Taylor v. Midland Bank Trust Co. Ltd (No.2) [2002] WTLR 95 that, in a suitable case, an application for summary judgment may be combined with an application to strike out under CPR Pt 3.4 or the court may treat a defendant's application to strike out as if it were an application for summary judgment and that the principles to be applied with respect to each aspect are very similar.
(ii) CPR Part 3.4(2) provides: "The court may strike out a statement of case if it appears to the court — (a) That the statement of case discloses no reasonable grounds for bringing or defending the claim; (b) The that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; (c) That there has been a failure to comply with a rule, practice direction or court order."
(iii) With respect to this rule the White Book contains the following guidance: "The statements of case which are suitable for striking out on ground (a) include those which raise an unwinnable case where continuance of the proceedings is without any possible benefit to the respondent and would waste resources on both sides ( Harris v Bolt Burdon [2000] L.T.L. Feb 2, 2000, C.A.). A claim or defence may be struck out as being not a valid claim or defence as a matter of law ( Price Meats Ltd. v Barclays Bank PLC [2000] 2 All ER (Comm) 346, ChD. However, it is not appropriate to strike out a claim in an area of developing jurisprudence, since, in such areas, decisions as to novel points of law should be based on actual findings of fact ( Farah v. British Airways, The Times, January 2000referring toBarratt v. Enfield B.C. [1989] 3 W.L.R. 83, HL, [1999] All E.R. 193). A statement of case is not suitable for striking out if it raises a serious live issue of fact which can only be properly determined by hearing oral evidence ( Bridgeman v. McAlpine-Brown [2000] LTL January 19, CA). An application to strike outshould not be granted unless the court is certain that the claim (or defence) is bound to fail ( Hughes v. Colin Richards & Co. [2004] EWCA Civ. 266; [2004] P.N.L.R. 35, CA)."
(iv) On Summary judgments. CPR Part 24.2 provides: "Grounds for summary judgment — The court may give summary judgment against a claimant or defendant on the whole of a claim or a particular issue if-(a) it considers that-(i) that claimant has no real prospect of succeeding on the claim or issue; or (ii) that defendant has no real prospect of successfully defending the claim or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial."
(v) There are a number of authorities which provide guidance on how CPR Pt 24 is to be applied which are set out in the 2016 Edition of the White Book. They include: Swain v Hillman [2001] 1 All E.R. 91 (CA), Royal Brompton Hospital NHS Trust v Hammond (No.5) [2001] EWCA Civ 550 (CA), Three Rivers DC v Bank of England (No.3) (Summary Judgment) [2001] UKHL 16; [2003] 2 A.C. 12; [2001] All E.R. 513; [2001] Lloyd's Rep. Bank. 125 (HL), ED&F Man...
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