Latest Court of Appeal Credit Hire Judgment:McBride v UK Insurance Ltd [2017] EWCA Civ 144

James MarwickJames Marwick, a member of our Personal Injury team, provides an analysis of the latest credit hire case before the Court of Appeal.

Judgment has been handed down in the latest appellate skirmish between credit hire providers and insurers. The Judgment at first blush looks like it will have a significant impact on the day to day determination of credit hire matters in the County Court.

In its judgment the Court of Appeal has held that the question of the cost of a nil excess is a separate and distinct question to assessment of a basis hire rate. Thus, the potential knockout blow for a Claimant where the BHR evidence comes with an excess (particularly a significant one) has been nullified. Further, the Court of Appeal has upheld the judicial tinkering with BHR evidence to allow a 28 day rate provided by a Defendant to be uplifted (by 15%) to reflect the disparity between 7 day and 28 day rates where a 7 day rate was more appropriate. Again, the typical Claimant argument had been that the Defendant’s BHR evidence ought simply to be rejected in those circumstances with the burden not discharged.

McBride v UK Insurance Ltd [2017] EWCA Civ 144 (reported, 15th March 2017) concerned conjoined appeals in the cases of claimants named McBride and Clayton relating to the consideration of BHR evidence.

Challenges were made by the Claimants to, inter alia, (i) the approach to be taken where the BHR evidence did not allow for a nil excess, (ii) the adjustment upwards by a percentage figure to allow for the differential between 7 day and 28 day rates where the Defendant had relied upon 28 day hire evidence and (iii) a finding that certain providers were mainstream suppliers within the meaning of the established test. There was also a bold challenge to whether Stevens v Equity was good law in so far as it provided that the test was one of “the lowest reasonable rate quoted by a mainstream supplier.”

The Court gave short shrift to the challenge to Stevens v Equity which was presented on the basis that there was conflicting authority which provided that the top of the range of BHR evidence should be looked to rather than the lowest rate. It will have to have to be seen whether the case will be pursued to the Supreme Court (permission to appeal was granted on this issue before its dismissal to allow for this possibility).

The Court dealt equally quickly with the suggestion that certain high end providers of hire vehicles were not mainstream suppliers refusing to interfere in the findings of fact of the first instance judge. This is consistent with other reported decisions which allow for a wide interpretation of mainstream or local reputable supplier encompassing brokers.
The more relevant issues for everyday purposes were the challenges in respect of a nil excess and 28 day rates evidence.

The argument is often raised at first instance that where the BHR evidence adduced by a Defendant includes an excess that the Defendant has failed to discharge the burden upon it if the claimant has hired a credit hire vehicle with a nil excess, particularly where the excess is a significant one. There have been County Court appellate decisions which suggest that the question will be one of reasonableness in the particular circumstances of the case. For example, HHJ Freedman in Lawson v Mullen in Newcastle CC, unreported, dated 12th June 2015 found no error in a DJ’s decision to allow BHR evidence which carried a £500 excess as the credit hire rate was so much more significant regardless of its nil excess.

In the Court of Appeal, the claimants argued that where a nil excess had been obtained in relation to the credit hire vehicle, the appropriate comparator was BHR evidence with a nil excess. The Court of Appeal found that the correct approach was to treat the nil excess separately from the comparison exercise as to the BHR with the relevant question being how much additional cost should be recoverable as the cost of purchasing a nil excess. The Judgment goes further and endorses the use of freestanding products offered by entities such as often relied upon by Defendants but dismissed as non-mainstream products by Claimants.

Another argument typically taken in the County Court is that where the Claimant reasonably believed the hire period to be short or unascertainable he would be entitled to hire on a daily or short term, say, 7 day rate. Thus, if hire proves longer and the Defendant adduces 28 day rates or for some other period, the Claimant will argue that the Court is comparing apples with oranges given it is well known that the longer the period of hire the lower the average daily rate. This argument will be used to urge the Court to reject the Defendant’s evidence.

In Clayton the Judge below had adjusted the Defendant’s BHR evidence upwards by a 15% percentage to allow for the fact that it was 28 day rate evidence and not 7 day evidence (the Claimant’s evidence in re-examination was that he understood repairs would take about 7 days; in fact they ultimately took over 50 days).

This approach was challenged in the Court of Appeal but the decision was upheld on the basis that the Judge was entitled to use his considerable experience to reach that decision with particular regard to the fact that the task at hand was one of reasonable approximation.

This is undoubtedly another blow for credit hire providers and it appears for now that the grounds for challenging BHR evidence at trial are further diminished.

James has a nationwide credit hire practice and regularly acts for both Claimants and Defendants in high value and test cases.

View profile: James Marwick

If you would like to instruct James on a related matter please contact his clerks via email on

5 Quick Hits from Ilott v Mitson [2017] UKSC 17

Oliver WoodingOliver Wooding, a member of our Wills, Trust and Tax team provides 5 quick hits from the case of Ilott v Mitson.

10 years after the first instance judgment of the district judge, and five reported judgments later, the case of Ilott v Mitson today came to a conclusion as the Supreme Court handed down judgment on the appeal of the defendant charities against the July 2015 decision of the Court of Appeal ([2015] EWCA Civ 797) to award Mrs Heather Ilott £163,000 from her late mother’s estate on her claim under Inheritance (Provision for Family and Dependants) Act 1975. Her mother had left her entire estate worth £486,000 to three charities to which she had no connection during her lifetime.

The Supreme Court unanimously allowed the appeal and re-instated the original award of DJ Million of £50,000. Lady Hale provides an additional judgment in support. The district judge did not fail to take into account Mrs Ilott’s tax position nor did he give inadequate reasons for his decision.

This appeal is the first time either the 1975 Act or its predecessors has been considered by the highest court in England and Wales. More detailed analysis of the judgment will follow from many practitioners and commentators but here are five quick takeaway points from a review of this morning’s judgment.

1. Sadly, authoritative guidance on claims by adult children remains lacking. As Lady Hale states at [58] and [66], the state of the present law is “unsatisfactory… giving as it does no guidance as to the factors to be taken into account in deciding whether an adult child is deserving or undeserving of reasonable maintenance.”

2. The court’s task in the 1975 Act is to decide whether the outcome of the will is unreasonable and if so, what provision would be reasonable. That is a value-judgment [24] which is difficult to challenge on appeal and it is very broad indeed. DJ Million’s first instance decision was not made in error. But had his decision been to either reject the claim entirely [35], or make provision for housing whether identical to the Court of Appeal [65(2)] or by way of life interest [44], then those approaches would also have been legitimate. It remains difficult to advise clients on the merits of a claim when the range of outcomes is so broad, so long as the value-judgement is conducted properly.

3. “Housing is undoubtedly one of the first things that anyone needs for her maintenance” – Lady Hale at [65(2)]. But the main judgment at [15] re-emphasises that maintenance “is by definition the provision of income rather than capital” and that the power under the Act is “to provide for maintenance, not to confer capital on the claimant.” So, “If housing is provided by way of maintenance, it is likely more often to be provided by…a life interest rather than by a capital sum” (see also [44] and [65(2)]). How this will work in practice, particularly where relations between the parties is poor or the value of the Estate or property is such that the costs and effort of administering a life interest trust are not negligible, remains to be seen.

4. The list of items which “could properly be described as necessities for daily living” and therefore fall within the meaning of maintenance include “essential white goods, basic carpeting, floor covering and curtains, the replacement of worn out and broken beds”, repairs to a house already owned, a reliable car and a holiday. Items which are needed to make the household function properly can perfectly sensibly fit within the concept of maintenance. [40]. Claimants will wish to ensure their schedules of needs and resources properly provide for such items even if they might be considered a “wish list”.

5. “Benefits are a part of the resources of the claimant and is relevant to consider whether they will continue to be received” [45] In this case, DJ Million did so on the information before him. Although the award of a £50,000 lump sum exceeded the means tested ceiling for Housing and Council Tax Benefits, “how the Claimant might use the award…was up to her”. The Court assumed that it would be spent on necessary items and therefore fall below the limit. Advisors of claimants will continue to have to consider the benefits position and advise appropriately; advisors of defendants are not going to be able to avoid an award being made even if it simply replaces what the claimant obtains through the public purse.

View profile: Oliver Wooding

If you would like to instruct Oliver on a commercial or chancery matter please contact his clerks on: or 0117 923 4740

Fundamental dishonesty: blind men and elephants?

Patrick WestPatrick West, a member of our personal injury team reviews QOCS cases and what is ‘fundamental dishonesty’?

To date, there is no guidance from either the White Book or from the Court of Appeal to help us with the definition of “fundamental dishonesty” leaving District and Circuit Judges to find their way in the dark.

We still await a tour de force judgment from the senior courts on fundamental dishonesty. The latest slew of county court judgments on fundamental dishonesty is reminiscent of the old Indian story of the blind men describing an elephant. What is fundamental and what is dishonest in one case is not necessarily passing the test in another apparently similar claim.

It is useful to consider the matter as a two-limb test considering dishonesty first (albeit there will be liability cases where dishonesty and fundamentality are two sides of the same coin see Menary/Creech) and fundamentality second:

• Dishonesty
1. Is there dishonesty?
2. Can the “dishonesty” be explained by confusion or mistake (Meadows)?
3. Is it a “black or white” type of dispute – i.e. the claimant must have realised he was lying (Creech).
4. Dishonesty may attach to the claim not just to the claimant.

• Fundamentality
1. Is the dishonesty peripheral to the claim (Rayner/Menary)?
2. Is the dishonesty of a “very serious” kind (Bain)?
Is there dishonesty notwithstanding the fact that the claimant is a generally honest person otherwise (Bain)?

Download the full article: Fundamental dishonesty: blind men and elephants?

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Important update: The Lord Chancellor has changed the discount to MINUS 0.75%

You did not read that incorrectly. The discount rate has moved by a huge 3.25% downwards to -0.75%, writes Matthew White of our personal injury team. It has not moved down by 0.75% (to 1.75%, which many would probably not have been surprised by), rather it has dropped to -0.75%.

The practical effect of that is that rather than awards of damage being discounted for accelerated receipt, they will now be uplifted for accelerated receipt.

By way of example, a 40-year old man losing £20,000/ year until retirement age 65 (25 years) would previously have used an unadjusted working life multiplier of 18.09 (loss £361,800). Now his multiplier will be about 26.5! His loss will be c.£530,000, a difference of £168,200 (or about 46% extra on those facts). That is in a relatively simple example (and reduction factors will make a difference), but imagine that multiplied across the field of personal injury cases, the impact will be vast.

Perhaps periodical payments will become more attractive to insurers.

The Lord Chancellor’s announcement can be viewed here

For further example calculations, click here

For the Lord Chancellor’s statement of reasons, click here

View profile: Matthew White

St John’s family team host Annual Children’s Conference 2017

This month our family team hosted their Annual Children’s Conference 2017 at the Hilton Doubletree, Bristol, kindly sponsored by Wesleyan. The day began with an introduction from Abigail Bond, Head of our children’s team.

Kathryn Skellorn QC began with a discussion of scientific testing and strategy for family lawyers, items were addressed such as equality within the sampling considerations for melanin content and challenging hair strand test results.
This talk was followed on by Beth Tarleton from the University of Bristol who presented an in depth look at supporting parents with learning difficulties. She covered many areas such as good practice, changes in professionals’ views and level of concern for the babies as well as certain specific needs in relation to safeguarding procedures for the children of learning disabled parents.

Delegates were then treated to an introduction from Australia born Anna Rickards, Head of Practice and Learning at Pause Project; Pause – creating space to change. Anna began with a pause film telling the real story of one of Pause’s women in her own words.
Following Anna, DNA Legal’s, Dr Breidi gave an introduction into the companies’ diverse means of testing to include alcohol hair testing and fingernail testing, primarily used to aid criminal matters in the family courts. This talk was followed by an update on recent developments in public law from Judi Evans, Head of our Family Practice Group.
After the lunch break Julia Belyavin, covered the recent developments in private law which included specific relocation cases. Lucy Reed then highlighted guidance on practical ways to secure a child’s anonymity for judges whilst addressing the changing perspectives on transparency in the family court.

Concluding the day, Asha Pearce-Groves focused on the law and procedure relating to the Human Rights Act which included some of the most recent updates. And Abigail Bond provided a useful guide on the Court of Protection for children lawyers.

The Conference was a huge success, attended by over 50 delegates and received fantastic feedback; you can review the live tweets from the day by searching #childrensconf2017 on twitter. “Good value for money”, “Informative, well run course”, “Very successful event”.

Downloadable notes: care proceedings and damages for breach of human rights 

Qader incorporated into the CPR

Matthew White, a member of our Personal Injury team, updates his article “Qader v Esure Court of Appeal decision:- fixed costs do not apply to ex-protocol cases that are allocated to the multi-track” in light of subsequent amendments to the CPR.

The Civil Procedure (Amendment) Rules 2017
amongst other things (most notably automatic strike out for failure to pay a trial fee) will put the effect of Qader into the CPR. Fixed costs will now apply “for as long as the case is not allocated to the multi-track”.

The amendment to the rules has also removed the “but not more than £25,000” part of the tables in CPR45 part III (which made it appear that fixed costs would “top out” at £25k). The consequence of that is that if the case is an ex-portal claim worth over £25k but allocated to the fast track, only fixed costs are recoverable, but it is clear that the percentage of damages awarded as costs can exceed the prescribed percentage of £25,000.

The amendments to the CPR have not dealt with the other main problem in the rules addressed in Matthew’s article, repeated here for ease of reference:-
Suppose that a claim is in the portal and it becomes apparent relatively early that it will exceed £25,000 in value. It is not hard to imagine a case in which the claimant’s solicitor would want/need to spend a reasonable amount pre-issue. What of those costs? Is that solicitor compelled to issue to secure allocation to the multi-track to recover those costs? That will pressure such a claimant solicitor into an unwanted court timetable and into doing more work after the budget is set than claimant solicitors generally like (given the common approach of getting a good part of the preparatory work done before budgeting). Or can that solicitor expect the court to award pre-allocation costs as though the allocation were to the multi-track (even though the language added to the rules by the Court of Appeal does not seem to suggest that)?

Download the previous article: Qader v Esure Court of Appeal decision:- fixed costs do not apply to ex-protocol cases that are allocated to the multi-track

View profile: Matthew White

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UK competition authorities step up their enforcement acitivity against cartels and other anti-competitive agreements

Matthew O'ReganMatthew O’Regan, a member of our competition team reviews the CMA’s recent civil and criminal investigations into cartels and other anti-competitive agreements, as well as the first Competition Act investigation by the Civil Aviation Authority.

Compliance with competition law remains an important factor for businesses large and small. On 9 February 2017, the UK’s principal competition authority, the Competition and Markets Authority (“CMA”), announced that it suspected a Poole-based distributor of lighting products of having broken the Competition Act 1998 by preventing retailers from freely determining their prices when selling online.

The CMA’s investigation is on-going. However, it forms part of an increase in enforcement activity by it. In its draft annual plan for 2017/2018, the CMA made clear that it intends to step up the rate of its enforcement of UK competition law, both in terms of the number of investigations it undertakes and the time each one takes. Businesses large and small will therefore see a significant increase in CMA enforcement activity against cartels and other anti-competitive practices, using both its civil and criminal powers.

These investigations have covered a wide range of products, including bathroom fittings, pharmaceuticals, furniture drawers, steel tanks, wall posters, airport car parking, fashion modelling and golf equipment. They have also covered many different types of conduct, including price-fixing cartels, market-sharing, bid-rigging, exchanges of commercially sensitive information, restrictive rules of trade associations and restrictions on on-line sales and price advertising.

The CMA has imposed significant fines on companies; others have avoided fines by informing the CMA of their illegal conduct. One individual has been disqualified as a company director and another awaits sentence after pleading guilty to having entered into a hardcore cartel agreement.

It is clear from recent cases and the CMA’s commitment to increased enforcement that business will remain under considerable antitrust scrutiny. Investigations can start in all sorts of ways: leniency applications, whistleblowing by employees, complaints by customers or competitors, and the CMA’s own intelligence-gathering activities.

Businesses, large or small, should therefore not be complacent and think that a CMA investigation will not happen to them. They should ensure that their commercial agreements and practices are compliant with UK and EU competition law. This includes past agreements and practices, which the CMA can also investigate. If there is any doubt as to compliance, legal advice should be taken. In appropriate cases, where there is evidence that a business has engaged in an illegal ‘hardcore’ cartel or resale price maintenance, making a leniency application to the CMA could gain it immunity from, or at least a reduction in, fines.


Download the full article: UK competition authorities step up their enforcement activity against cartels and other anti-competitive agreements

View profile: Matthew O’Regan

If you would like to instruct Matthew on a commercial or chancery matter please contact his clerks on: or 0117 923 4740

Important ruling on Seychelles company law – case note from David Fletcher

Interim Executives (Guernsey) LTD & Others v. Positive Approach Services LTD & Others [2016] EWHC 2867 (Ch)

David FletcherDavid Fletcher, of our Commercial Dispute Resolution Team acted for the trustees of a Guernsey-based offshore pension scheme in this complex Chancery pension action. The scheme sought to recover pension assets wrongfully removed by a pension-holder.

The pension-holder had executed a Deed agreeing to invest his shareholding in PAS Ltd, a UK company valued at £1m, in a Guernsey pension scheme in order to gain the tax advantages of an offshore pension. The trustees of the scheme took action when they discovered that the shares had been improperly re-registered in the name of the pension-holder and members of his family.

The principal defence to the claim was that there had been mis-selling of the tax advantages of the scheme by marketing agents. This defence failed. In addition a series of technical legal defences were raised asserting that the Trustees, who were Seychelles companies, lacked legal capacity to carry out trust business under Seychelles law, and that the scheme was not properly regulated under Guernsey law. After considering expert evidence on foreign law, these defences failed. The court ordered reimbursement to the trustees of the cash equivalent of the pension assets (£1M).

In giving judgement Richard Spearman QC, sitting as Deputy Judge of the Chancery Division, gave a ruling on a disputed and troublesome issue of statutory interpretation of Seychelles company law, an issue on which there is as yet no ruling from the Seychelles courts, and a point of considerable importance to those carrying on international trust business through the vehicle of a Seychelles-registered International Business Company.

The circumstances which gave rise to this issue of Seychelles corporate law were that in 2011 1XG Ltd, the principal employer for the purposes of the IXG pension scheme, exercised powers to remove the trustees, a dispute having arisen with the Guernsey-based trustees then acting. For the sake of convenience IXG appointed as new trustees two limited companies registered in the Seychelles (“the Seychelles trustees”). The Seychelles trustees continued to act as trustees and, together with other parties were claimants in the Chancery case and sought, amongst other remedies, reimbursement to the pension-holder of the value of the shares which he had wrongly re-registered in his own name. In the course of the litigation the Defendants discovered that the Seychelles trust companies had a limitation in their Memoranda of Association which precluded them from carrying on “trust business”. This was a standard limitation imposed on the registration of all International Business Companies (“IBCs”) in accordance with s.5(1)(c) of the International Business Companies Act 1994 (the “IBCA 1994”) and required to be inserted in all companies’ memoranda by s.12 of that Act.

The Defendants relied on this limitation as a defence to the claim, their case being that it precluded the Seychelles companies from acting as trustees, and that representations ought to be implied from representations made to the pension holder that the trustees would have legal trust powers.

It was contended for the Claimants that there was a complete answer to this defence, namely that s.10(1) of the IBCA 1994, being based on similar provisions in the UK Companies Acts 1985 and 2006, abolished the “ultra vires” rule for the purpose of Seychelles law. The effect of this provision, it was argued, was that a limitation on the powers in a company’s memorandum did not invalidate any act of the company in relation to a third party. The judge’s view however was that the abolition of the ultra vires rule did not completely answer the defence raised, so that it was necessary to determine, as a matter of Seychelles law, the proper meaning of the phrase “trust business”.

The interpretation of the exclusion of “trust business” required a careful analysis of Seychelles legislation since 1994 in relation to international business and trusts. In 1994 the Seychelles emerged as a democracy, and the Seychelles Parliament passed a number of laws designed to promote the Seychelles as a provider of international business and financial services, and to cater for the offshore business sector. Notably, the Seychelles Parliament established the Seychelles International Business Association (“SIBA”), with the objects of monitoring, supervising and ensuring that international business activities are transacted in conformity with the laws of the Seychelles and in such a manner as to maintain the good repute of the Seychelles as a centre for international business activities.

In 1994 the Seychelles Parliament passed a raft of business legislation, in particular (a) the International Business Companies Act (“IBCA”) which established the International Business Company (“IBC”) as the corporate vehicle for all offshore business activities (b) the SIBAA, which as stated established SIBA as the regulatory authority (recently renamed the “FSA”) (c) The International Trusts Act (“ITA”) which introduced the concept of an “international trust” into Seychelles law for the first time. Since the Seychelles legal code was based on the Napoleonic Code Seychelles law prior to 1994 did not recognise the concept of a trust, and a precise definition of the split between legal and beneficial ownership was therefore given in the ITAA

The Claimants contended that having regard to the scheme of the 1994 legislation as a whole, the intention of the Seychelles Parliament in imposing an exclusion on “trust business” in the case of all IBAs, must have been to preclude IBAs from carrying on activities for which they would require a licence from SIBA, namely providing trust services for the formation, registration and administration of international trusts. This construction of s.5(1)(a) the Claimants contended was supported by the following propositions:

  1. A construction that meant that IBAs could not act as trustees of an international trust would be inconsistent with the provisions of the ITAA, since that Act expressly provided that an international trust must have either a resident trustee or an IBC authorised by SIBA to act as trustee. Furthermore s.22(1) of the ITAA also expressly provided that international trusts could be administered by a corporate trustee. It followed that the construction of s.5(1)(c) contended for by the Defendants would be directly in the conflict with the provisions of the ITAA. As a matter of construction this legislation should be considered having regard to the legislative scheme overall and to the context of the legislation. (see Sawyer v R [2016] SCCA15 Seychelles Court of Appeal).
  2. Regard could properly be had to subsequent amending legislation in considering the proper construction of the 1994 Act. In 2009 the IBCAA was enacted, being an Act amending the IBCA. The reference to “trust business” was then replaced by a provision that IBCs should not engage in “international corporate services, international trustee services or foundation services”. “International trustee services” means the business of setting up, administering and organising international trusts. Thus, following the 2009 amendment it became clear that the purpose of the “trust business” exclusion was simply to preclude IBAs when carrying on international trust business from providing trustee services for which a SIBA licence was required, and which were required to be provided by domestic Seychelles companies operating within the Seychelles jurisdiction. It was successfully argued that the 2009 amendment could properly be taken into account in construing the 1994 legislation on the basis that the purpose of that amendment was to clarify the existing law, not to amend it.
  3. The final point relied on by the Claimants was that there could be no discernible purpose in the Seychelles Parliament legislating in 1994 to preclude the newly created IBCs from carrying on international trust business as trustees. This would be counter to the entire purpose of the new legislative regime.

In the result therefore the Chancery court accepted the above legal arguments and ruled that Seychelles IBCs did have capacity to act as trustees of international trusts. This ruling has clarified a point of Seychelles corporate law on which the Seychelles courts have never ruled. It is a helpful ruling in terms of the importance of international business to the economy of the Seychelles.

View profile: David Fletcher

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Court of Appeal decision in Crawley v. Barnsley MBC [2017] EWCA Civ 36

Mathew-WhiteThe Court of Appeal decides: a Highway Authority’s system was to inspect reported defects the next working day. Not good enough (in the circumstances), according to the Court of Appeal.

That’s right… the highway authority’s system was to inspect reported defects the next working day. Not good enough (in the circumstances), according to the Court of Appeal, writes Matthew White, member of our personal injury team.


At 4.20pm on Friday 27/1/12 a member of the public reported a carriageway pothole to the defendant highway authority (“D”).

D’s system was to look at reported defects the next working day unless they were reported by the emergency services and were in a sensitive location (in which event an emergency standby team would go out).

On the evening of the day after the report (i.e. on Saturday 28/1/12) C was out jogging when he fell in the pothole and was injured.

The court found the defect to be dangerous (i.e. a breach of Highways Act 1980 s.41).

D, having been notified of the defect on Friday afternoon, had not inspected it yet. It was inspected on the next working day (i.e. Monday – after the accident happened).


The District Judge dismissed the claim, finding that D’s system was reasonable (i.e. the s.58 defence was made out). The Circuit Judge allowed an appeal. His reasoning was that complaints received on Monday to Thursday were considered by a highway inspector the next day. If a complaint was made on a Friday there was a delay of at least 2 days (more if a bank holiday). The only justification for that would be lack of resources. Lack of resources is irrelevant (Wilkinson v. City of York Council [2011] EWCA Civ 207). D ought to have trained staff taking calls reporting defects to evaluate the level of danger, or all ought to have been forwarded to an “on-call” inspector.


D appealed. The Court of Appeal were divided. Jackson LJ would have found for the highway authority. Briggs and Irwin LJJ found for C.

What the court agreed on

All 3 judges in the Court of Appeal agreed that lack of resources is not a defence following Wilkinson (the contrary does not appear to have been argued). That said, it was held that the fact that most people do not work at the weekend is a feature which “goes beyond mere resources” and is relevant to “all the circumstances” (which must be considered under s.58).

The dissenting view

Jackson LJ’s view was that the system of inspection on the next working day (or immediately in a case of exceptional urgency) was reasonable.

The majority view

Briggs LJ (with whom Irwin LJ agreed) held that the system operated, which made no evaluation of defects reported out of hours (which might be serious), was insufficient for the highway authority to show that it had taken reasonable care.

What this case does not say

The decision was not that a highway authority must respond to all reported defects by inspecting immediately (even out of hours). Rather the decision was that in circumstances in which the highway authority usually inspected the next day, it was not reasonable to leave reported defects over the weekend with no evaluation of how serious they were.

Points for highway authorities

It will be interesting to see how highway authorities deal with this. Some might take the view that accidents happening between report of a defect and its examination by an inspector are sufficiently rare that they don’t need to do anything. I would worry about that in relation to false claims (albeit that it would take a fraudster rather more sophisticated than the usual to take advantage of such lacuna in a highway authority’s process).

Perhaps highway authorities will have to train staff to make an assessment of danger over the phone. Good luck with that! I would expect the common experience of highway authorities to be that most defects are reported by members of the public to be “huge”, and “obviously very dangerous”. Perhaps call handlers will need to be trained to assess the accuracy of the report and/or to test it with probing questions.

Matthew regularly litigates highway claims, usually for various highway authorities. Notable cases include:-

  • Devon County Council v TR [2013] EWCA Civ 418; [2013] PIQR P19 (Court of Appeal determined that codes of practice for highway maintenance should not be treated as mandatory standards which had to be adhered to unless there was a positive reason for departure). For a more detailed consideration of the case, click here.
  • Young v Merthyr Tydfil CBC [2009] PIQR P23 (no duty of care in relation to a highway which is not a highway maintainable at public expense).
  • Millard v Walsall MBC, unreported, 30/6/14 (despite Wilkinson v York a highway authority was entitled to suspend routine inspections on budgetary grounds in unusual circumstances (such as an extreme weather event)).  For a detailed consideration of the case, click here.

View profile: Matthew White

If you would like to instruct Matthew on a related matter please contact his clerks via email on



Clarification on Beddoe orders and protective costs – Pettigrew and others v Edwards [2017] EWHC 8 (Ch)

Natasha DzamehNatasha Dzameh, a member of our commercial and chancery team, provides a brief note on the recent case of Pettigrew and others v Edwards [2017] EWHC 8 (Ch). This matter was heard in the Chancery Division of the High Court of Justice at the Royal Courts of Justice by Master Matthews. Natasha was present at the first hearing in this matter. The trustees were represented by Guy Adams who is also a member of Chambers’ Commercial and Chancery team.

In this case the deceased left her residuary estate on trust to the first and second trustees beneficially in equal shares subject to an income to be paid to the life tenant. The trustees considered the life tenant owed the sum of £100,000 due to a loan which had been granted by the deceased. Repayment of the loan was not forthcoming so the trustees withheld the income from the trust fund. The life tenant issued a claim in relation to the income. The trustees filed a defence and counterclaim then applied for the relevant orders.

Natasha’s article pinpoints key considerations for practitioners when contemplating whether to apply for a Beddoe order and whether the circumstances also warrant an application for a protective costs order. A more detailed analysis of this case is expected to be published in the Trusts and Estates, Law & Tax Journal in the near future.

Download article‘Clarification on Beddoe orders and protective costs’
Download judgment: Pettigrew and others v Edwards [2017] EWHC 8 (Ch)
View profile:
Natasha Dzameh

If you would like to instruct Natasha on a commercial or chancery matter please contact her clerks on: or 0117 923 4740