Burke v Lancashire County Council & Anor

On an oral renewal of an application for permission to appeal, a proposed ground merits permission where it raises a material challenge to the evidential basis of a factual conclusion. A discrepancy between tests may be material where they differ in the duration and nature of the alleged collapse and in the number of chairs used. Permission was granted on that ground, with costs reserved to the appeal.

Burke v Lancashire County Council & Anor was an oral renewal of the defendants’ application for permission to appeal from Blackpool County Court before His Honour Judge Appleton. The underlying issue concerned whether a stack of chairs presented an unusual danger requiring a warning. The defendants challenged the factual basis for a conclusion that the stack remained upright for six minutes and 50 seconds before collapse. They contended that the longest collapse shown by the evidence was 21 seconds and that the longer test involved five chairs and slippage rather than collapse. Grounds 1(b) and 2 were abandoned. Ground 1(a) remained for decision.

1. Permission granted. The application for permission to appeal was granted on ground 1(a). Grounds 1(b) and 2 had been formally abandoned. Costs were reserved to the appeal.
2. Basis for granting permission. The court had previously approached the case on the basis that a stack of chairs remained upright for six minutes and 50 seconds before collapsing. That period appeared capable of indicating an unusual danger warranting a warning.
3. The defendants identified an evidential challenge to the applicability of that test. They submitted that the longest period before collapse was 21 seconds. They also pointed out that the longer test used five chairs rather than four and resulted in slippage rather than the stack falling.
4. The court considered that this challenge had substance. Permission was therefore justified. The order concerned permission to appeal and did not determine the merits of the underlying warning issue.

• Court of Appeal (Civil Division): On oral renewal, the court granted permission to appeal on ground 1(a), with costs reserved: [2001] EWCA Civ 219.
• Blackpool County Court: The underlying proceedings were before His Honour Judge Appleton. No citation for that decision was stated in the judgment.