Legal Watch:Personal Injury24th July 2014Issue: 028

In This Issue:

• Public Liability/Highways

• Costs/Who is the true litigant?

• The effective use of witness summaries

Public Liability/HighwaysThe case of McCabe v Cheshire West and Chester Council and

another [Lawtel 24/07/2014] draws the distinction between the

power of a local authority to do something and its duty to do

so.

The following extract from S97 Highways Act 1980 is relevant

to this report:

(1) The Minister and every local highway authority may provide

lighting for the purposes of any highway or proposed highway

for which they are or will be the highway authority, and may for

that purposes —

(a) contract with any persons for the supply of gas, electricity

or other means of lighting; and

(b) construct and maintain such lamps, posts and other works

as they consider necessary.

(3) A highway authority shall pay compensation to any person

who sustains damage by reason of the execution of works

under this section.

The claimant had fallen down a flight of steps at a point

where a public footpath negotiated a steep drop in level. The

accident occurred at 23.00 and he claimed that it was caused

by the fact that a streetlight intended to illuminate the steps

had not been working at the time. The first defendant local

authority was responsible for the footpath and its lighting and

the second defendant had contracted with the local authority

to maintain the streetlights. It was accepted that the streetlight

had not been working. The issue was whether the defendants

owed a duty of care to the claimant.

The claimant submitted that S97(3) Highways Act 1980

expressly provided for compensation to be paid to anyone

who suffered damage by reason of the execution of works

under that section. The defendants submitted that they owed

no duty of care to the claimant because the first defendant

provided street lighting pursuant to a power contained in

Events

Plexus and Greenwoods hold a series of events which are open to interested clients. See below for those being held in the next few months:

The Major Bodily Injury Group | Spring Seminar |

28.04.15 | The Wellcome Collection, London

S97 of the Act, and its failure to repair the streetlight was

therefore a failure to exercise a power rather than breach

of a duty.

Finding in favour of the defendants the County Court judge

held that it was obvious that S97(3) was designed to protect

those who were directly affected by the carrying out of works

to provide streetlights. It was not intended to create liability

for nonfeasance in circumstances such as the instant case.

‘What was done was a failure to maintain the lamp, not an active step. That was nonfeasance, not misfeasance’Liability could be established against the first defendant

only if it performed some positive act that created a danger,

but it would not be regarded as having performed a positive

act where it undertook work to remove a hazard but failed

to do so completely. The circumstances of the instant case

amounted to nonfeasance. The inherent danger was present

as soon as the footpath was dedicated to the public when

it involved a sudden drop in level. To the extent that the first

defendant provided, adapted or maintained the steps, those

did nothing to add to the danger; indeed they reduced it

significantly, as did provision of the light.

The presence of the streetlight, if lit, reduced the danger

and, if unlit, did nothing to increase it. There was no

parallel with Bird v Pearce (1979) because the presence

of the lamp, if unlit, would not cause anyone to rely on it.

It would be perfectly obvious that it was not lit and that it

was not possible to see what was ahead. There could be

no doubt that had the local authority taken a conscious

decision to switch the light off or even to remove it, it would

not have been liable. It would merely have been exercising

its discretion under the statutory power. What was done

was a failure to maintain the lamp, not an active step. That

was nonfeasance, not misfeasance. No duty of care was

owed by the first defendant local authority or the second

defendant contractor.

Costs/Who is the true litigant?With qualified costs shifting (QOCS) defendants will take an

even greater interest in whether or not a third party is funding

and controlling the litigation brought in the claimant’s name.

That was the issue in the commercial case of Dunfermline

Building Society v Ghana Commercial Finance Ltd and

others [Lawtel 17/07/2014].

The defendant/applicant had previously obtained summary

judgment in proceedings that the third respondent, a

director of the two companies, had initiated on behalf of the

first and second respondent companies.

It submitted that although a third party costs order was

exceptional, the substantive case had been hopeless

and doomed to failure; the third respondent was the sole

director of the companies throughout and had filed witness

statements on their behalf; He did not have a bona fide

belief that the companies had had an arguable case and

had failed to file any evidence in response to the instant

application. The third respondent argued that he ought

not be made personally liable for costs as there was a

clear distinction between him and the companies and the

benefit of any litigation inured to shareholders and not to

him personally.

‘In reality there was no distinction between the third respondent and the (claimant) companies...’Allowing the application, the High Court judge held that

the only immutable rule in relation to costs was that there

were no immutable rules; a third party costs order was

always exceptional and called for a cautious approach.

Exceptional meant no more than outside the ordinary run of

cases. Although the third respondent’s decision to bring the

substantive matter in the Mercantile Court was procedurally

misconceived, it should not be held against him. He was

a hugely experienced litigant in person, in both the roles

of barrister and solicitor, who had actively represented the

companies with which he was closely connected. The more

important consideration was that he was inextricably bound

up with the companies’ fortunes; it was impossible to ignore

that the third respondent was connected with a number of

companies in all of which he had played much the same

role.

The substantive proceedings had been hopeless on the

merits and ought never to have been brought. In reality

there was no distinction between the third respondent and

the companies and if there was any distinction, it was not

sufficient to merit not making the order sought in all the

circumstances.

The effective use of witness summariesIn Legal Watch: Personal Injury 22 [11/06/2014] we reported

the decision in Scarlett v Grace. In that case, the Master

had given the defendant permission to rely on four witness

summaries but on the claimant’s appeal the High Court judge

restricted the defendant to just one. The judgment provides

a useful opportunity to review the circumstances in which

the use of a witness summary may be a vitally important

tool, legitimately to be used and the circumstances, as in

Scarlett, where its use is inappropriate.

Well before proceedings have been issued in a claim it may

be apparent that a witness has key evidence but is unlikely

to sign a witness statement. Is it worth going on because

what happens when there are proceedings and the date

comes for witness statements to be exchanged? The gist

of the witness’s evidence may be contained in an unsigned

statement; a witness questionnaire; a letter from the

witness; or even the file note compiled following a telephone

conversation with him/her (see CPR 32.9(2) below). In an

extreme case the same procedure may be used where it is

believed that the witness may have valuable evidence, even

where it is not certain that s/he has.

‘...the applicant must prove that it is not possible to obtain a statement from the witness...’

The key point, however, is that the applicant must prove that

it is not possible to obtain a statement from the witness.

CPR 32.9(1) states (with emphasis added):

(1) A party who –

(a) is required to serve a witness statement for use at trial;

but

(b) is unable to obtain one, may apply, without notice, for

permission to serve a witness summary instead.

(2) A witness summary is a summary of –

(a) the evidence, if known, which would otherwise be

included in a witness statement; or

(b) if the evidence is not known, the matters about which the

party serving the witness summary proposes to question the

witness.

(3) Unless the court orders otherwise, a witness summary

must include the name and address of the intended witness.

(4) Unless the court orders otherwise, a witness summary

must be served within the period in which a witness

statement would have had to be served.

Once this procedure has been followed, the rules apply as

if a witness statement had been served and, in particular,

the witness may be called to give oral evidence at the trial.

This will invariably involve serving the witness with a witness

summons immediately a trial date is known.

What went wrong for the defendant in Scarlett was that in

relation to three out of the four witnesses the appeal judge

found that CPR 33.9 was not satisfied. One of them had

refused to cooperate at all and the judge held that this

justified the use of the procedure. With the other three, the

judge took the view that they could have been interviewed

but no real attempt had been made to do so. There was no

evidence that any of them had refused outright to provide

a statement.

The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 8 Bedford Park, Croydon, Surrey CR0 2AP. Parabis Law LLP is authorised and regulated by the SRA.

www.plexuslaw.co.ukwww.greenwoods-solicitors.co.uk

Contact UsFor more information please contact:

Geoff OwenLearning & Development Consultant

T: 01908 298 216

E: gro@greenwoods-solicitors.com

To unsubscribe from this newsletter please email:

crm@greenwoods-solicitors.com

PublicationsIf you would like to receive any of the below, please

email indicating which you would like to receive.

Weekly:

• Legal Watch: Personal Injury

Monthly:

• Legal Watch: Property Risks & Coverage

Quarterly:

• Legal Watch: Counter Fraud

• Legal Watch: Disease

• Legal Watch: Health & Safety

• Legal Watch: Marine

• Legal Watch: Professional Indemnity

What are the lessons to be learned from this?

1. If a witness is known (or suspected) to have valuable

evidence, do everything possible to obtain a signed

statement from them. Save in the face of a complete

refusal to discuss the case, this means making more

than one attempt to arrange an interview.

2. If the witness provides the evidence in any form which

falls short of a signed witness statement, do not give

up, as the evidence can still be relied on in the form of a

witness summary.

3. If the witness has provided no indication of what they

may say, a very careful decision must be made as to

whether to serve a witness summary and summons

them to trial but with no certainty as to what their

evidence may be. This will rarely be a sensible course of

action.