Irvine v Commissioner of Police for the Metropolis
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE SCOTT BAKER,LORD JUSTICE JACOB |
| Judgment Date | 03 February 2005 |
| Neutral Citation | [2005] EWCA Civ 129 |
| Docket Number | A2/2004/1111 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 February 2005 |
[2005] EWCA Civ 129
Lord Justice Peter Gibson
Lord Justice Scott Baker
Lord Justice Jacob
A2/2004/1111
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN's BENCH DIVISION
(HER HONOUR JUDGE KIRKHAM
(sitting as a deputy judge of the High Court))
MR WILLIAM FEATHERBY (instructed by Messrs Russell Jones & Walker, London WC1X 2DH) appeared on behalf of the Appellant
MR RICHARD NUSSEY (instructed by Messrs Ponsford Devenish, London SW19 5EE) appeared on behalf of the Respondent
This appeal gives rise to an issue on costs. The claimant sued three defendants variously in negligence, the first defendant also being sued for breach of statutory duty. The claimant succeeded on breach of statutory duty against the first defendant, but failed in his claims in negligence against all three defendants. The question which then arose was whether the costs of the successful second and third defendants should be borne by the claimant, or by the first defendant by means of what is known as a Bullock order (see Bullock v London General Omnibus Company [1907] 1 KB 264) or a Sanderson order (see Sanderson v Blyth Theatre Company [1903] 2 KB 533). In a Bullock order the claimant would be ordered to pay the successful defendants' costs, but the court would give liberty to the claimant to include those costs in the costs of the action recoverable by the claimant from the unsuccessful defendant. In a Sanderson order the court would order that the unsuccessful defendant pay the costs of the successful defendants directly.
The judge, Her Honour Judge Kirkham, decided not to make a Bullock or Sanderson order, but, applying the general rule that the unsuccessful party pays the costs of a successful party, ordered the claimant to pay the costs of the second and third defendants.
The facts so far as relevant are these. On 23rd August 1999 the claimant, Michael Irvine, then a police constable in the Metropolitan Police, was injured when walking upstairs to the first floor of Trinity Road Police Station where he was stationed. He caught his left foot in the stair carpet and fell awkwardly sustaining injury. He had to retire from the police on medical grounds.
The first defendant is the Metropolitan Police Commissioner. He is deemed to be the employer of the claimant, pursuant to section 1 of the Police (Health and Safety) Act 1997. The second defendant, Carillion Plc, manages the first defendant's property services under an agreement made in 1998 between the Receiver for the Metropolitan Police District and Tarmac Facility Services Ltd, to whom the second defendant succeeded.
On 8th July 1999 the second defendant instructed the third defendant, Town and Country Flooring Ltd, a sub-contractor, to repair the stair carpet. Work was carried out by the third defendant on 9th and 12th July. The accident occurred six weeks later. The claimant through his solicitors wrote to the first defendant's solicitors, making a claim for damages. On 30th August 2001 the first defendant's solicitors wrote to the claimant's solicitors enclosing a number of documents, including the 1998 agreement. They drew attention to the second defendant's responsibilities under the agreement, and to the fact that the second defendant had arranged for the third defendant to effect the repair to the carpet. The first defendant's solicitors suggested that the claimant's claim should be directed to the second defendant.
On 6th August 2002, shortly before the expiry of the limitation period, the claimant commenced proceedings in the Queen's Bench Division against the first, second and third defendants. By the claim form the claimant claimed damages for personal injuries sustained and financial losses incurred as a result of his accident, which he said was caused by the negligence and/or breach of statutory duty of the first and/or second and/or third defendants. However, when the particulars of claim were served, the case of the claimant was not put in the way indicated in the claim form. It was pleaded in paragraph 3 that the police station where the accident occurred was subject to the Provision and Use of Work Equipment Regulations 1998 and the Workplace (Health, Safety and Welfare) Regulations 1992. It was also averred in paragraph 2 that the first defendant owed the claimant a non-delegable duty of care at common law to provide him with a place of work which was reasonably safe. In paragraph 5 it was said that the accident was caused by the breach of statutory duty and negligence of the first defendant. Particulars are there given which link the negligence with duties under the Occupiers' Liability Act 1957. In paragraph 6 it was pleaded:
"Further the accident was caused by the fault of the Second and Third Defendants. The Claimant has no knowledge of their precise involvement in the inspection, maintenance and repair of the carpet. The Second Defendant has been blamed by the First Defendants and the Third Defendant has been blamed by the Second Defendant. The Claimant will plead full particulars against them once such knowledge is available."
By the prayer, damages were claimed against all the defendants.
On 30th October 2003 the particulars of claim were amended. A new paragraph 5A was inserted in this form:
"Further or in the alternative the accident was caused by the negligence of the Third Defendant, its servants or agents acting in the course of their employment.
PARTICULARS OF NEGLIGENCE
The Third Defendant was under contract to the First Defendant for the installation and maintenance of floor coverings. The covering on the stairs had originally been laid by the Third Defendant. On 8 July 1999 the Third Defendant was instructed to carry out repairs to the carpet on the stair where the Claimant's accident took place. An employee of the Third Defendant, Mr Wayne Harvey, attended the premises on 9 and 12 July 1999 and restuck the stair risers. By the time of the Claimant's accident on 23 August 1999 the riser on the stair where he fell had become detached again. The Third Defendant had failed to secure the riser with sufficient care and skill, alternatively with adequate materials, both when they originally laid it and on the 9 and 12 July 1999."
Paragraph 6 was amended to delete references to the third defendant. Despite what is said in paragraph 6, no particulars were ever provided of the negligence of the second defendant.
Each of the defendants put in a defence. By paragraph 11 of the first defendant's defence it was averred that if there was any liability for the accident it lay with the second defendant and/or the third defendant. The first defendant brought Part 20 proceedings against the second defendant.
The trial of both liability and quantum came before the judge. On 30th April 2004 she held that the claimant succeeded against the first defendant for breach of statutory duty under regulation 5 of the 1992 regulations, but dismissed the claim in negligence against the first defendant. She also dismissed the claims against the second and third defendants, and the first defendant's Part 20 claim. In her reserved judgment, delivered on 7th May 2004, the judge said this about the claim against the second defendant:
"60. Mr Harris, for the second defendant, submits that the absence of a particularised claim against the second defendant means that the claim against them must necessarily and without more fail. No evidence has been adduced that the second defendant failed to do anything they should have done or that they did something which they should not have done. The first defendant passed on to the second defendant the complaint concerning the carpet. The second defendant immediately alerted the contractor, engaged before the second defendant assumed obligations under the October 1998 agreement. In my judgment, there is no basis for concluding that the second defendant is liable to the claimant and the claimant's claim against the second defendant fails."
The judge then turned to the claim against the third defendant. She said this:
"61 … His case is that the third defendant failed in July 1999 to secure the carpet riser with sufficient care and skill; alternatively with adequate materials on the 9th and 12th July. That is the pleaded case. I accept Mr Gallagher's submission that the claimant has not made out a case in negligence against the third defendant. There is no cogent evidence to demonstrate that the repair to the tread in July was defective or negligently done. Indeed the evidence from Inspector Davis is that upon completion of the repair, the repair was apparently effective. There was no trouble with the carpet until the morning of 23rd August. There is no evidence as to how the carpet was laid, whether badly or otherwise, what materials were used, whether improper materials or otherwise. No investigation was made to determine what had caused the carpet to rise. It is curious that it was apparently only this one stair on which the tread was affected. Mr Gallagher submits that there may have been some quirk in the stairs. Inspector Davis' evidence was that the stairs were springy. The inspection carried out recently, following which the strip of carpet was lifted to bring to court, appears to show that the carpet has a tendency to rise at its leading edge.
62. These are matters of conjecture,...
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