Infolines Public Networks Ltd v Nottingham City Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Keene,Sir Andrew Morritt,Lord Justice Elias |
| Judgment Date | 11 June 2009 |
| Neutral Citation | [2009] EWCA Civ 708 |
| Docket Number | Case No: B2/2009/0061 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 June 2009 |
[2009] EWCA Civ 708
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM STOKE-ON-TRENT
(HIS HONOUR JUDGE RUBERY)
Before: Sir Andrew Morritt, Chc
Lord Justice Keene
And
Lord Justice Elias
Case No: B2/2009/0061
Mr T Gosling (instructed by DWF Solicitors) appeared on behalf of the Appellant.
Ms O Chaffin-Laird (instructed by Legal Services, Litigation Section) appeared on behalf of the Respondent.
Lord Justice Keene:
This appeal raises a short point on the interpretation of the New Roads and Street Works Act 1991 (“the 1991 Act”). Amongst other things, the 1991 Act deals with the relationship between the street authority which, in the case of a maintainable highway, is the highway authority, and those bodies which provide apparatus in the street such as telephone kiosks, the apparatus concerned in the present case. The appellant was such a body, an “undertaker”, in the statutory terminology, owning and operating a number of payphone kiosks in the City of Nottingham. The respondent was the relevant street authority. The appellant was under a statutory duty by virtue of section 81(1) of the 1991 Act to maintain the kiosks to the reasonable satisfaction of the street authority. Section 81(4) and (5) state as follows:
“(4) If an undertaker fails to secure that apparatus is maintained to the reasonable satisfaction of a relevant authority in accordance with this section —
(a) the road works authority may in such cases as may be prescribed, and
(b) any other relevant authority may in any case,
execute any emergency works needed in consequence of the failure.
(5) The provisions of this Part apply in relation to works executed by a relevant authority under subsection ( 3) or (4) as if they were executed by the undertaker; and the undertaker shall indemnify the authority in respect of the costs reasonably incurred by them in executing the works.”
What is meant by “emergency works” in that provision is covered by section 52, which provides:
“(1) In this Part 'emergency works' means works whose execution at the time when they are executed is required in order to put an end to, or to prevent the occurrence of, circumstances then existing or imminent (or which the person responsible for the works believes on reasonable grounds to be existing or imminent) which are likely to cause danger to persons or property.
(2) Where works comprise items some of which fall within the preceding definition, the expression 'emergency works' shall be taken to include such of the items as do not fall within that definition as cannot be reasonably be severed from those that do.
(3) Where in any civil or criminal proceedings brought by virtue of any provision of this Part the question arises whether works were emergency works, it is for the person alleging that they were to prove it.”
The present case concerns two telephone kiosks located in the City Centre of Nottingham: one on Clinton Street and one on South Parade. When inspected by an officer of the respondent's Highways Department in early 2007, they were found to be damaged in a number of respects; windows were broken, crossbars damaged, doors damaged and so on. The judge before whom this litigation came in December 2008, at Stoke on Trent County Court —HHJ Rubery —found that the respondent had sent a letter to the appellant, dated 20 April 2007, requiring it to make the kiosks safe and then to repair them. It may be that the appellant did not receive this letter, but in any event nothing was done to the kiosks to put right the defects. Eventually the council fenced the two kiosks off with plastic netting for safety reasons. This took place on 22 June and 8 June 2007 respectively. On 29 June 2007 the respondent's workmen removed the kiosks and their contents, and it seems that they were then disposed of. No notice of the proposed removal or of the proposed disposal was given by the respondent to the appellant. The respondent brought a claim under section 81(5) for the costs of executing these works and, although at trial the appellant sought to contend that the removal of the kiosks and contents was not required as emergency works, the judge found against it on that issue. He found that both kiosks were in a condition likely to cause danger to persons or property. Consequently, he gave judgment in favour of the respondent on its claim to recover its costs. There is now no dispute that the council was entitled to remove the kiosks by means of emergency works.
The issue on this appeal concerns the appellant's counterclaim, which arises out of the council's disposal of the kiosks and their contents after they had been removed from the street. The council returned to the appellant the money found in the coin-boxes of the telephone equipment within the kiosks. As I have said, it disposed of the kiosks and the telephone apparatus which had been contained therein. The appellant's counterclaim for the loss resulting from that disposal was dealt with briefly, perhaps surprisingly briefly, by the judge, who initially seems to have regarded it as covered by his finding that the kiosks were in a condition justifying emergency works. It was...
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