Setting Aside a Part 20 Judgment
I was instructed to attend an application hearing on behalf of a highway authority that faced a Part 20 claim brought by a utilities company. The application was to set aside Judgment in the Part 20 claim under CPR 27.11 and have the matter relisted.
The utility company was facing its own claim by an owner of a vehicle, which was allegedly damaged by a missing utility cover on the A30. The owner of the vehicle brought the claim against the utility company via the Damages Claim Portal (‘DCP’). In its Defence, it had expressly stated that Part 20 proceedings had been sent for issue and repeated the same in its DQ.
In the Part 20 claim, the utility company sought an indemnity from Dorset Council under the Civil Liability (Contribution) Act 1978, contending that if the utility cover had become dangerous due to poor inspection or maintenance, responsibility lay with the Council.
The highway authority filed a Defence to the Part 20 claim by stating that it conducted reasonable monthly inspections, inspected the A30 the day before the incident without finding any defects, and argued that liability remained with the utility company or that it relied on the statutory defence under s58 of the Highways Act 1980.
However, there was a fatal procedural flaw. The utility company had to issue proceedings via the Civil National Business Centre because the DCP did not accommodate Part 20 proceedings. By the time the Part 20 claim had been issued and served, the DCP online civil court had issued directions and listed the matter for trial at Yeovil.
No directions had ever been issued in respect of the Part 20 claim and as my solicitors quite rightly recognised, CPR 20.13 required case management:-
“Where a defence is filed to an additional claim, the court must consider the future conduct of the proceedings and give appropriate directions.”
A few days before trial, my solicitors were provided with a trial bundle which included the Part 20 Particulars of Claim, but not the Part 20 Defence and understandably no evidence from the highway authority.
An email was sent to the utilities company’s solicitors saying:-
“Please can you send us the link as we were intending to appear at Yeovil County Court by way of a watching brief only, as the hearing on Thursday is to determine the issue of liability as between the claimant and your clients, if any. We take the view that whilst the Part 20 proceedings have been served and we have served a defence, there have been no directions from the Court to address the issues in the Part 20 claim.”
The following day, my solicitors advised the utilities company’s solicitors that they had decided not to attend the hearing as a watching brief and looked forward to hearing about the outcome of the claim. Given their previous email and CPR 20.13, my instructing solicitors presumed the main action would be heard and if the main Claimant succeeded, directions would take place regarding the Part 20 Claim.
A Judgment was received in favour against the utilities company by the Claimant, but also in the Part 20 claim, making my client liable for the claimant’s damages and costs. In the preamble, the DDJ had recorded “Upon [Counsel for the Defendant] advising that his instructing solicitors have received an email from the part 20 Defendant to the effect that they will not be attending the hearing”.
My instructing solicitors promptly made an application under CPR 27.11. I was instructed and I prepared a skeleton argument to assist the Court.
For my client to succeed in the application, they had to demonstrate the following:-
1. It was not present or represented at the hearing
2. It had not given notice under CPR 27.9
3. The application was made within 14 days of service of the judgment
4. There was a good reason for non‑attendance
5. There were reasonable prospects of success
At the hearing, I submitted that it could not be controversial that we were not in attendance, but I also submitted there was no evidence that Dorset’s solicitors had complied with CPR 27.9. Whilst they told the utilities company’s solicitors that they would not attend, no communication was sent to the Court and most certainly not before the 7 day period as required by CPR 27.9. It was also uncontentious that the application was made within 14 days of service (it had been made within 12 days of the actual Judgment).
The real battleground would be whether my client had a good reason for non-attendance and whether we had reasonable prospects.
We were able to argue that the reasons for not attending were genuine and justified, more importantly, because the Court must look at the case’s specific facts and not be too rigorous in their assessment. In this situation, whilst my client was aware of the hearing but chose not to attend, it was reasonable not to as the claim only dealt with the main action. The Court lacked jurisdiction to deal with it due to a breach of CPR 20.13. No directions were issued for the Part 20 proceedings, so any attempt by the Part 20 Defendant to participate would have been inappropriate.
I stated there was a reasonable chance of success. The Part 20 claim argued the utility company could rely on highway inspections, relying on Reid v BT [1987]. I submitted that there was an argument to be heard regarding this authority, which supported the proposition that the utility company could choose to rely on the inspections, but would be treated as having the same knowledge. I said it did not impose a duty of care, and unless there was a contractual responsibility, there was a reasonable prospect of success in defeating this point.
Further, Dorset enjoyed a s58 defence and that we did not have the evidence before the DDJ at the small claims trial. I also pointed out that, as my solicitors had identified, many of the documents in the trial bundle related to a different junction box compared with the one actually identified by the claimant and the utility company in their pleadings.
Overall, there was a reasonable prospect of success.
The DDJ, hearing the application, concluded that my client had met each of the statutory requirements of CPR 27.11.
Significant weight was on the mandatory nature of CPR 20.13 and it was found that the Court should not have determined the Part 20 claim at the main trial, that because the Part 20 had to be issued at the CNBC, the cause of the issue was the case management of the main action proceeding ahead of the Part 20 claim and with no directions for the Part 20 claim, the Part 20 proceedings were not engaged in this matter. The Judge therefore found that there was a good reason for non-attendance.
In assessing the prospects of success, the Judge focused solely on the basis that there would be a factual dispute over whether the correct junction box had been identified and that my client had no evidence before the DDJ through no fault of its own. It was entitled to present its arguments, and therefore the issues required a properly constituted hearing. Accordingly, the Judge allowed the application and set aside the Part 20 judgment, with directions for a small-claims trial to follow the exchange of evidence.
This was an unfortunate state of affairs, and realistically, what should have happened was that the small claims trial was vacated, and the parties were to file and serve draft directions, agreed if possible. This means the main action and Part 20 could have been dealt with together. However, the trajectory caused by the DCP and the inability to start part 20 proceedings on the same led to the small claims trial proceeding without any control.
It is important for parties to consider CPR 20.13, even if it’s on the small claims track. The Part 20 Claimant and Defendant could have joined forces to defend the Claimant’s action, even if the liability between the Part 20 parties is still an issue.
Thank you for Andrew West of Clyde and Co for the instruction.