Highways England Company Limited v BG Rodwell Ltd & Ors

Strike-out and summary judgment are appropriate only where the claim is legally untenable or has no real prospect of success, and there is no compelling reason for a trial. The court must assess the case as a whole without conducting a mini-trial. A question concerning a public authority’s duty of care may require trial where its resolution depends on factual findings. A transferred cause of action remains capable of being pursued by the transferee. An amendment correcting or particularising title to sue does not introduce a new cause of action where it arises from the same pleaded facts. Relief from sanction may be granted where the default is minor and the application is unopposed, subject to an appropriate costs order.

The claimant sought damages for damage to a bridge caused by an HGV driven by the second defendant in the course of employment by the first defendant. The third defendant was sued under regulation 3(2) of the European Communities (Rights Against Insurers) Regulations 2002.

The defendants applied to strike out the claim or obtain summary judgment, arguing that the claimant did not own the bridge when the collision occurred and was not entitled to sue. The claimant applied for relief from sanction after serving its costs budget one day late and sought permission to amend its Particulars of Claim. The central issues were whether the claim was bound to fail, whether title and causes of action had transferred to the claimant, and whether the proposed amendment introduced a new cause of action after expiry of the limitation period.

1. Strike-out and summary judgment. The application was dismissed. Under CPR Part 3.4 and CPR Part 24, the court must consider whether the claim discloses reasonable grounds and whether there is a real, rather than fanciful, prospect of success. The court must assess the case as a whole, consider evidence reasonably expected at trial, and avoid conducting a mini-trial. Summary judgment is discretionary and requires consideration of any compelling reason for trial.
2. The defendants had misstated the fundamental issues. The relevant questions were whether duties were owed to the owners of the bridge at the time, whether those duties were breached, and whether the claimant had title to sue in respect of them. Questions concerning a public authority’s common-law duty of care may require full factual consideration at trial, although a case may be decided summarily where, even assuming the pleaded facts in the claimant’s favour, the claim must fail.
3. The claimant’s response to the request for further information explained that the bridge and the relevant causes of action had transferred to it on 1 April 2015 under a Transfer Scheme made pursuant to the Infrastructure Act 2015. The claim was therefore sufficiently pleaded. The remaining issues were factual and should be determined at trial.
4. Amendment. Permission to amend was granted. The existing claim was in negligence, with a vicarious-liability claim against the first defendant and an insurance claim against the third defendant. The proposed amendment clarified the claimant’s standing and did not substitute a new cause of action.
5. The amendment arose from the same collision and therefore the same or substantially the same factual basis. The defendants would not need to investigate matters outside the original claim. The amendment would cause no material delay, and refusal would risk satellite litigation.
6. Relief from sanction for the one-day delay in serving the costs budget was granted. The claimant was ordered to bear its own costs of that application. The amendment application was allowed and the defendants’ strike-out application was dismissed.