Berry v Ashtead Plant Hire Co Ltd & Ors

An interim payment on the basis of alternate liability requires the court to be satisfied that the claimant would obtain substantial judgment against at least one of the defendants against whom the application is made. The insurance condition in CPR 25.7(1)(e)(ii) concerns those defendants, not every defendant in the action. An employer’s duty to provide a safe place and system of work at premises controlled by another is fact-sensitive. Duties under the Electricity at Work Regulations 1989 apply only to matters within the duty-holder’s control, and the reasonably practicable qualification prevents regulation 4(3) from imposing an absolute obligation. Where liability remains uncertain, an interim payment cannot be ordered against the particular defendant.

Donald Berry suffered catastrophic injuries when a crane on a lorry delivering accommodation units to a music festival contacted an overhead power cable. He brought claims against Star Autos, Kendal Calling, Ashtead and, later, Piper Event Services, alleging negligence, failure to provide a safe system of work and breaches of the Electricity at Work Regulations 1989.

His application for interim payments was made against Star Autos, Ashtead and Piper. His Honour Judge Platts ordered further payments of £75,000 by Star Autos and £175,000 by Ashtead, but considered it too soon to order payment by Piper. Ashtead appealed. The issues were whether the court could be satisfied that either Star Autos or Ashtead must be liable, and whether the insurance condition applied to every defendant in the action or only to defendants against whom payment was sought.

Appeal allowed. Lord Justice Longmore gave the reasons, with Lord Justice Rimer and Mr Justice Warren agreeing. The judge below was not entitled to be satisfied that either Star Autos or Ashtead would necessarily be liable.

1. For an interim payment based on alternate liability, the court must be satisfied that the claimant would obtain judgment for a substantial amount against at least one of the defendants against whom the application is made, while being unable to determine which. The material did not establish that threshold. The agreed formulation was whether, disregarding the identity of Berry’s employer, he would obtain summary judgment on the material then available.
2. The insurance issue did not succeed. The reference to the defendants in CPR 25.7(1)(e)(ii) means the defendants against whom the interim-payment application is made. An uninsured defendant to the action, against whom no order is sought, is irrelevant. The court would therefore have rejected Ashtead’s second ground.
3. A common-law negligence claim was unsuitable for an interim payment because breach depended on facts that remained unresolved. There was no evidence that either defendant had failed to train Berry or ought to have known that he was entering an unsafe environment.
4. An employer’s duty to provide a safe place and system of work at premises controlled by another is fact-sensitive. Relevant matters include the site, the nature of the work, the employee’s experience, the degree of control reasonably available to the employer and the employer’s knowledge of danger. The previous use of a safety form did not make liability clear.
5. The Electricity at Work Regulations 1989 applied only to matters within the relevant person’s control. Power and control were not identical. There was no evidence of a breach of regulations 4(1) or 4(2). Regulation 4(3) was not an absolute obligation because its reasonably practicable qualification introduced considerations comparable to common-law negligence. Stark v Post Office [2000] ICR 1013 was distinguishable because the relevant provision there lacked that qualification. Similar uncertainties affected regulation 14, including Berry’s possible de facto control of the crane.

The appeal was accordingly allowed on the first ground.

• Court of Appeal (Civil Division): [2011] EWCA Civ 1304. Ashtead’s appeal against the interim-payment order was allowed.
• Manchester District Registry, High Court: His Honour Judge Platts, sitting as a Deputy High Court Judge, ordered Star Autos to make a further payment of £75,000 and Ashtead to pay £175,000. The application against Piper was refused as premature.