Ahanonu v South East London & Kent Bus Company Ltd

Permission to appeal is appropriate where proposed grounds are arguable and have a real prospect of success. A challenge to first-instance apportionment may satisfy that threshold despite the usual reluctance to interfere, particularly where the relative causative potency of a large vehicle and pedestrian negligence is in issue. A costs challenge is also arguable where an unaccepted Part 36 offer was not beaten and may have deserved substantially greater, potentially determinative, weight in the exercise of the costs discretion.

The application concerned an intended appeal from a liability judgment and subsequent costs order made by His Honour Judge Peter Latham at the Central London Civil Justice Centre. The first-instance judge found the bus driver and claimant negligent, apportioned liability equally, and ordered the defendant to pay 50 per cent of the claimant’s costs. The proposed appeal challenged both the liability finding and the apportionment, and argued that an earlier Part 36 offer should have carried greater weight in the costs order. The central question was whether those proposed grounds were arguable and had a real prospect of success.

Permission granted. The Court of Appeal considered both the proposed liability appeal and the proposed costs appeal to be arguable. It did not determine the merits of either challenge.

1. Liability and apportionment. On the first-instance findings, the claimant had crossed behind the bus and moved to a position near a bollard at the apex of the corner, despite railings and warning signs. The bus made a sharp left turn and injured her. The trial judge found the driver negligent for failing to keep a proper lookout for pedestrians who might walk on the carriageway, and found the claimant contributorily negligent for jay-walking. Although the court seldom interfered with first-instance apportionment, the relative causative potency of a large bus compared with the pedestrian’s negligence made the proposed challenge arguable. It was also arguable that a driver focused on traffic ahead could not reasonably be expected to anticipate a pedestrian emerging from behind the bus into obvious danger.
2. Costs. The defendant had made a Part 36 offer proposing a 70:30 apportionment in the claimant’s favour. The offer was not accepted and was not beaten. After a further witness was traced, the defence was amended to advance that witness’s account. The claimant’s later application to accept the offer was refused. The judge ordered the defendant to pay 50 per cent of the costs. Although the trial judge had considered five factors, the Court of Appeal held that it was arguable that the unaccepted and unbeaten offer ought to have been given much greater weight, possibly being determinative of the costs order.
3. Lord Justice Rimer agreed. The formal order was: application granted.

• Court of Appeal (Civil Division): Granted permission to appeal in respect of liability, apportionment and costs.
• Central London Civil Justice Centre: His Honour Judge Peter Latham found negligence and contributory negligence, apportioned liability 50:50, and ordered the defendant to pay 50 per cent of the claimant’s costs.