Plymouth College of Art and Design v Hart

Permission for a second appeal requires an important point of principle or practice, or another compelling reason for the Court of Appeal to hear the case. The test is not whether the first-instance judge may have reached an arguably wrong conclusion of fact. A police caution withdrawn because there was no clear and reliable admission to a criminal offence does not determine civil tort liability. Civil liability may arise from negligently damaging property even where the criminal elements are not established. A property owner may recover expenditure incurred in replacing damaged property irrespective of its position with insurers. Internal procurement procedures do not affect liability where replacement has been found reasonable.

Plymouth College of Art and Design v Hart concerned a claim for the cost of replacing a car-park barrier which the applicant admitted manually lifting. The college succeeded in the small claims court. His first appeal to the Plymouth County Court was dismissed on liability, quantum and the VAT issue.

The applicant renewed an application for permission to bring a second appeal. He relied on alleged unreliability or tampering with CCTV evidence, expert evidence, the college’s procurement procedures, the withdrawal of a police caution, and the college’s insurance position. The central questions were whether these matters raised an important point of principle or practice or otherwise supplied a compelling reason for a second appeal, and whether they affected civil liability.

1. Application refused. The renewed application for permission to bring a second appeal was dismissed. The applicable test was whether the proposed appeal raised an important point of principle or practice, or whether there was some other compelling reason for the Court of Appeal to hear it. That test did not invite a further examination of whether the trial judge had reached an arguably wrong conclusion of fact.
2. The applicant accepted that he had manually lifted the barrier. The lower court had found that it was not designed to be operated in that way and that the manner of lifting it could reasonably foreseeably cause damage. The alleged defect in the CCTV evidence could not affect the basis of that finding or provide an important point of principle.
3. The withdrawal of the police caution was irrelevant to the civil claim. The withdrawal reflected the absence of a clear and reliable admission to a criminal offence. Criminal and civil proceedings involve different standards of proof and different mental elements. The caution therefore did not determine whether the applicant was liable in tort for negligently causing damage.
4. The college’s insurance position also had no bearing on the applicant’s liability. The college was entitled to bring a claim in its own right for expenditure it had incurred, regardless of whether it could recover that expenditure from insurers.
5. Once the lower court had found that replacing the irreparable barrier was reasonable, alleged non-compliance with the college’s internal accounting or procurement procedures had no relevant bearing on the recoverability of the replacement cost.

1. Court of Appeal (Civil Division): on 24 January 2012, refused permission for a second appeal: [2012] EWCA Civ 186.
2. Plymouth County Court: HHJ Cotter dismissed the first appeal on liability on 10 October 2010, on quantum on 21 November 2010, and on all remaining grounds on 2 February 2011.
3. Plymouth County Court small claims court: Deputy District Judge Williams gave judgment for the college on 13 May 2010, awarding damages and costs, and dismissed the counterclaim.