Sandhar & Anor v Department of Transport, Environment & Regions [2004] EWCA Civ 1440

[2004] EWCA Civ 1440Case No B3/2004/0411
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
[2004] EWHC 28 (QB)
ON APPEAL FROM THE QUEEN’S BENCH DIVISION
Mr Justice Newman
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 05/11/2004
Before
LORD JUSTICE BROOKEVice-President of the Court of Appeal (Civil Division)LORD JUSTICE MAYLORD JUSTICE THOMAS
Between
JANE MARIANNE SANDHARAppellantJOHN STUART MURRAYAppellantDEPARTMENT OF TRANSPORT, ENVIRONMENT & THE REGIONSRespondent
John Ross QC and Sarah Paneth (instructed by Hawkins Russell Jones) for ClaimantsNigel Wilkinson QC and William Hoskins (instructed by Treasury Solicitor) for DefendantHearing Hearing dates : 5 TH October 2004
Judgment

Facts

[1]At about 7.19 a.m. on Sunday 22nd December 1996, the first claimant’s husband was tragically killed when he lost control of the car which he was driving round a slight right hand bend on the A428 trunk road in Bedfordshire. He had travelled about 1½ miles from his home. He was driving at 45 to 50mph. This was a speed at which the bend could be safely negotiated in dry or even wet conditions. He lost control because there was patchy hoar frost on the road and his car skidded on the frost or ice. He probably knew that it was generally frosty, because he would have had to scrape ice from his car windscreen before he left home. The road had not been salted over the night of 21st/22nd December nor on the previous day.[2]The Secretary of State, acting under section 6(1) of the Highways Act 1980, had delegated the performance of his functions relating to trunk roads in Bedfordshire to the Bedfordshire County Council under an agreement dated 22nd April 1991. The delegated functions included snow clearing and salting of motorways and trunk roads. Guidance was given about this in a document called the Trunk Roads Maintenance Manual (“TRMM”). This required that, during the winter maintenance season, there should be an experienced member of staff available at all times to monitor road weather conditions and to react to such conditions. The member of staff should have direct access to actual and predicted information about road conditions. It was emphasised that there should be close liaison with neighbouring highway authorities to ensure that no sections of main carriageway were left untreated when they should be treated. To be most effective, precautionary treatment should be undertaken before ice formed or snow settled. Precautionary treatment of all trunk roads should be undertaken within a maximum response time of 1 hour and a maximum treatment time of 2 hours. Details were given of precautionary treatment, including spreading rates.[3]The County Council drew up a Winter Maintenance Programme. This was framed on the common understanding before the decision of the House of Lords in Goodes v East Sussex County Council [2000] 1 WLR 1356 that highway authorities were under a duty to prevent the formation of ice and remove accumulation of snow on and from roads.[4]At the time of the accident in the present case, the duty engineer was Mr Chandler. He had access to information from the meteorological office, from 5 Icelert stations which gave details of road temperature and the dew point at each of their positions, and from neighbouring authorities.[5]The 24 hour forecast for Bedfordshire from the meteorological office from midday on 21st December 1996, which Mr Chandler had, predicted that the night would be dry with clear spells and relatively low air humidity. No ice problems were expected except where there was seepage. The entry for hoar frost was negative with a high confidence rating for that opinion. Mr Chandler did not order a salt run on the Saturday as the roads were dry.[6]Mr Chandler gave evidence in the present proceedings. The judge did not regard his oral evidence as reliable. In summary, the judge found that Mr Chandler took no other steps to obtain any information relevant to the condition of the trunk roads after the afternoon update from the meteorological office at 4 p.m. on 21st December. He did not make contact with the meteorological office again, nor did he obtain information from the Icelert system. He did not receive fax information from Northamptonshire County Council, which was in fact sent to his unmanned office, that they had salted their part of the A428. The judge in the present case found that, if Mr Chandler had accessed the Icelert system after 7 p.m. on 21st December, he would have learned of the conditions giving rise to the formation of hoar frost. He would have ordered a salt run including the A428 and in all probability the accident would not have happened.[7]There were other road accidents caused by ice on the road in Bedfordshire that night. Mr Chandler was informed by the police of at least two of these – on the B530 and B660 – at about 6.10 a.m. on 22nd December. His evidence was that he ordered a salt run on these roads and that, after a lot more reports, he ordered a full run at about 7.20 a.m. The judge was not satisfied that Mr Chandler ordered a salt run on the B roads at 6.10 a.m. He ordered a salt run on the A428 when he had heard of the fatal accident. The judge held that, if Mr Chandler had ordered a salt run to include the A428 at about 6.10 a.m., the stretch of road where the accident in this case happened would probably have been salted before the time of the accident, which probably would not then have occurred.

The proceedings and the appeal

[8]On 19th January 2004, Newman J dismissed the claimants’ claim for damages against the respondent arising out of this accident, holding that the respondent owed no relevant duty of care. The claimant appeals against this decision with permission of the judge. The judge also held that, if he were wrong in his main decision, so that the respondent was in breach of duty, he would hold the deceased one third to blame for driving at an excessive speed in known frosty conditions. The claimant seeks to appeal this finding also, contending that there should be no contributory negligence. My conclusion on the main appeal would make a decision on this unnecessary. But I record my view that the judge was fully entitled to reach the contingent decision on contributory negligence which he did. I do not consider however (contrary to a submission of Mr Ross QC., leading counsel for the appellant) that the decision on contributory negligence helps the claimant’s case on the existence of a duty of care.[9]The judge’s careful judgment contains greater detail of the facts of the case than my summary. Mr Ross spent considerable time showing us details of the evidence. In my view, a more extended account of the evidence is not necessary since, in my judgment, the facts would clearly sustain a case of breach of duty by the respondent, if the first appellant can establish that the respondent owed her husband a relevant duty of care. That is the only issue of substance in this appeal, to which I now turn.

Previous authority

[10]In Haydon v Kent County Council [1978] QB 343, a majority of this court (Lord Denning MR dissenting) had held that the duty to maintain the highway in section 44(1) of the Highways Act 1959 (now section 41(1) of the Highways Act 1980 and see also section 58) included removing snow and ice and taking such protective measures as would render highways and paths safe for vehicles and pedestrians in bad weather conditions. The law was thus understood – see for example Cross v Kirklees Metropolitan Borough Council [1998] 1 All ER 564 – until the House of Lords decision in Goodes v East Sussex County Council [2000] 1 WLR 1356. It was held in that case that a highway authority’s duty under section 41(1) of the 1980 Act to maintain the highway was a duty to keep the fabric of the highway in such good repair as to render its physical condition safe for ordinary traffic to pass at all seasons of the year. It did not include a duty to prevent the formation of ice or remove an accumulation of snow on the road. It was not contended in Goodes, as it is in the present appeal, that there was a liability at common law in negligence (see 1358a).[11]The effect of Goodes has been reversed by a statutory amendment to section 41 of the 1980 Act to add a particular duty on highway authorities to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice. The amendment came into force on 31st October 2003 and is not available to the present claimant. She is in the unfortunate position, shared, we are told, with a handful of other claimants, that her claim was not heard or settled before Goodes (when it would probably have been determined in her favour on the then understanding of the law), but that she does not have the benefit of the statutory amendment. Ms Paneth advanced a submission to the effect that delay in pre-action disclosure in the present proceedings might somehow be helpful to the existence of a duty of care. I do not see how this could possibly be so.[12]The leading authority upon which, in my view, this appeal largely turns is Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15, 1 WLR 1957. This was decided after Newman J gave his judgment in the present case, so that he necessarily did not have the benefit of it.[13]The judge first considered Goodes. He concluded that it is binding authority that no duty relating to ice on the highway arose under section 41(1) of the 1980 Act, but that the question whether there was a common law duty in negligence was not before the House. In my view, he was right about this, although it is, to say the least, odd that that possibility had not been considered if it was regarded as viable. The proper construction of section 41(1) was an open question in the House of Lords and Lord Denning MR’s dissenting view in Haydon was at least a possible outcome. The judge in the present case considered that the reasoning in Goodes was relevant to what he had to decide. I agree.[14]Mr Ross had submitted to the judge that the respondent had laid down a comprehensive and detailed scheme for preventing accidents due to the presence of ice and snow on roads. The question whether there was a duty of care in negligence depended on applying the tripartite test in Caparo v Dickman [1990] 2 AC 605. Accidents were foreseeable on unsalted icy roads. The deceased was one of the class of people whom the policy of salting roads was designed to protect. It was just and reasonable to impose a duty.[15]The judge said, with extensive reference to Stovin v Wise [1996] AC 923 at 952-953, that it was necessary to look at the statutory context. Where parliament has conferred a discretionary power, “… the minimum preconditions for basing a duty of care upon the existence of a statutory power, if it can be done at all, are, first, that it would in the circumstances have been irrational not to have exercised the power, so that there was in effect a public law duty to act, and secondly, that there are exceptional grounds for holding that the policy of the statute requires compensation to be paid to persons who suffer loss because the power was not exercised.”[16]The judge concluded that, in the absence of a duty under section 41(1) of the 1980 Act, the respondent had power under section 62(2) to promote the scheme to prevent ice on highways. Section 62(2) provides for work for the improvement of the highway. Improvement is partly defined in section 329. Mr Ross submits in this court that the power was, on the contrary, one of those referred to in section 62(3) and that sections 100(3) or 102(3) relevantly provide for the payment of compensation. I have no hesitation in rejecting this submission. The operations listed in section 62(3), and specifically in sub-subsections (g) and (h), do not in my judgment embrace salting or gritting the highway. The compensation provision in section 100(3) is for the benefit of owners or occupiers of land, not motorists. The compensation provision in section 102(3) is for the benefit of persons who suffer damage by reason of the execution of works on the highway by the provision of barriers or such like. This again would not include motorists, and failing to salt the highway cannot in the context constitute the execution of works on the highway.[17]I have some hesitation in agreeing with the judge that the power to salt the highway is to be regarded as encompassed within work for the improvement of the highway under section 62(2). But there is no issue in this appeal but that there is such a power (which I do not doubt) and I am content to adopt the judge’s conclusion that it may be found in section 62(2). Mr Ross accepts that there is no statutory duty and that, apart from his submission, which I have rejected, relating to sections 100(3) and 102(3), there was before the recent amendment to section 41 no relevant statutory provision for compensation.[18]The judge concluded from Lord Hoffmann’s analysis in Goodes of the common law origins and development of the statutory powers of highway authorities that there was no general common law duty on highway authorities to prevent the formation of ice on roads. The judge was, in my view, correct in this to the extent that the exercise of a statutory power alone does not give rise to a duty at common law. He was also, I think, correct to reject Mr Wilkinson QC’s submission that that was an end of the claim. He had to consider whether, in the present case, the common law duty had arisen from facts and circumstances arising in the context of the statutory framework. Mr Ross could not however escape certain consequences, including the fact that the statutory framework was built upon centuries of highway law with which the policy of the consolidating statutes was likely to conform, and the factors which leaned against the existence of a duty as part of the duty to maintain.[19]The judge, in further reference to Stovin v Wise, recorded that Mr Ross relied heavily on the speech in that case of Lord Nicholls. This is no longer available to him following Gorringe.[20]The judge said that the actions or inactions of the county council and Mr Chandler justified serious criticism of the way in which the winter maintenance scheme was carried out. However, the question whether the respondent was under a duty of care at common law to protect the deceased and all road users, in Bedfordshire and everywhere else, from the consequences of frost on the road, could not be answered by reference to the power he had exercised to improve the roads.[21]The core of the judge’s decision is in his paragraph 75, as follows:
“It has not been argued that had a scheme such as [that in the Trunk Roads Maintenance Manual] not been established the defendant could have been compelled by judicial review to establish it. The policy and substantial revenue issues involved in setting up the scheme would have presented insuperable obstacles to such a claim. In my judgment the claimants have not demonstrated why the legal position is changed by the fact that the relevant power has been exercised. Unlike X v Bedfordshire County Council and other of the cases referred to … above, the deceased was not drawn into a more proximate relationship with the defendant than any other road user or potential road user choosing to drive on the 22nd December 1996, either by the action of the defendant in exercising the power or by Mr Chandler acting on the defendant’s behalf in the way he did. There are no circumstances which distinguish the action of the defendant in acting so as to exercise his power and the circumstances which the exercise of power has created. I would lean strongly against the suggestion that by exercising powers which benefit the public at large, a legal path to the acknowledgment of the existence of a duty is to be created. Such a principle would be likely to inhibit the beneficial exercise of the power to improve in the general public interest and come close to denying the distinction between a duty and a power.”

The judge summarised his conclusions as follows:

“82. The policy of the Highways Act 1980 provides for the occasions when the exercise of a power give rise to compensation. The power under section 62(2) to improve does not give rise to a right to compensation. 83. There is no discernable policy in the 1980 Act that the transient hazards of nature from fog, ice or wind are to be provided against by highway authorities. They are matters which fall within the discretion of the authorities. 84. There are no exceptional grounds for concluding that the policy of the statute requires compensation to be paid to those who suffer loss because the power to prevent harm from frost was not exercised or, if exercised, not implemented to the full. 85. The mere existence of TRMM does not make it reasonable to impose a duty upon the defendant to pay compensation to those who suffer physical injury because the scheme was not properly implemented. The policy of the Act (as borne out by the cases) is to provided for an exhaustive range of powers giving rise to an entitlement to compensation and statutory duties which are based upon “centuries of highway law”
. There is no general obligation to be discerned from the statute that the defendant is under an obligation to render roads safe for users. 86. The mere existence of TRMM did not create a set of circumstances in which there was a sufficient relationship of proximity between the defendant and the deceased to require the defendant to act as he could have done through Mr Chandler on 21st and 22nd December 1996.”

Gorringe v Calderdale Metropolitan Borough Council

[23]In Gorringe, the claimant was severely injured when she lost control of her car as she approached a curve in the road at the crest of a hill. She collided with an oncoming bus, itself driven properly on its correct side of the road. She claimed that the respondent highway authority were in breach of a duty owed to her because they had failed to give proper warning of the danger posed by the crest in the road, in particular by failing to provide a slow sign. The House of Lords dismissed her appeal against the dismissal by the majority of this court of her claim. The House of Lords held that the obligation to maintain the highway in section 41(1) of the 1980 Act did not include the provision of information by means of street furniture or painted signs. They further held that the public law duties in section 39 of the Road Traffic Act 1988, which were not themselves enforceable by a private individual in an action for breach of statutory duty, did not give rise to a parallel duty of care at common law to take appropriate measures, including painting of warning signs on the road.[24]Lord Hoffmann explained that the general rule is that, even in the case of occupiers of land, there is no duty to give warning of obvious dangers. He referred to Tomlinson v Congleton Borough Council [2003] UKHL 47, [2004 1 AC 46. A highway authority is not the occupier of the highways. Its duties have been more narrowly defined both by common law and by statute. The common law duty to repair was the only duty of the inhabitants of the parish. It was a public duty enforceable only by a prosecution on indictment. In all other respects, the public had to take the highway as they found it. The users of the highway were expected to look after themselves. When the duty was transferred to highway authorities, the duty to take active steps to keep the highway in repair was special to the highway authority and was not a private law duty owed to any individual. It became a statutory duty in what is now section 41(1) of the 1980 Act enforceable by private action subject to the defence in section 58. But the duty to maintain the highway under section 41 did not extend to removing or guarding against ice or snow (Goodes).[25]It was accepted in Gorringe that, without assistance from the statute, a common law negligence claim would be hopeless. If the highway authority owed no duty at common law other than to keep the road in repair and even that duty was not actionable in private law, it was impossible to contend that it owed a common law duty to erect warning signs on the road. It was insufficient to justify the imposition of liability upon someone who simply does nothing: who neither creates the risk nor undertakes to do anything to avert it.[26]In Stovin v Wise, it had been contended that the highway authority was in breach of duty in failing to improve visibility at an intersection where a road accident occurred. The decision of the majority of the House of Lords was that the authority, which was under no statutory duty, owed no private law duty. Lord Hoffmann considered that it may have been ill-advised for the majority in Stovin v Wise to have speculated upon the suggestion that there might exceptionally be a case in which a breach of a public law duty could found a private law right of action. The majority rejected the argument that the existence of the statutory power to make improvements to the highway could itself give rise to a common law duty to take reasonable care to exercise the power or even not to be irrational in failing to do so. He found it difficult to imagine a case in which a common law duty could be founded simply upon the failure (however irrational) to provide some benefit which a public authority has power (or a public law duty) to provide. He noted by way of example that the majority reasoning in Stovin v Wise had been applied by the Court of Appeal in Capital & Counties plc v Hampshire County Council [1997] QB 1004 to fire authorities, which have a general public law duty to make provision for efficient fire-fighting services. He did not consider that the public interest in promoting road safety by taking steps to reduce the likelihood that even careless drivers will have accidents required a private law duty to careless drivers or any other road user.[27]Lord Hoffmann made clear, at paragraph 38 of his opinion, that the appeal in Gorringe was concerned only with an attempt to impose upon a local authority a common law duty to act based solely on the existence of a broad public law duty. I would add that the same must apply to a mere statutory power. The House was not concerned in Gorringe with cases in which public authorities had actually done acts or entered into relationships or undertaken responsibilities which gave rise to a common law duty of care. In such cases, the fact that the public authority acted pursuant to a statutory power or public duty would not necessarily negative the existence of a duty. Lord Hoffmann gave examples from decided cases. These included Barrett v Enfield London Borough Council [2001] 2 AC 550, where the council assumed parental responsibilities towards the plaintiff when he was taken into care. The plaintiff did not rely on a common law duty of care generated by the existence of statutory powers. It was true that the council only assumed parental responsibility because of its statutory powers or duties, but the fact was that it did so. Lord Hoffmann also referred to Phelps v Hillingdon Borough Council [2001] 2 AC 619, where a duty of care was owed by a local education authority, not because their powers derived from statute, but because their psychologist who was alleged to have been negligent had impliedly undertaken to exercise proper professional skill. Lord Hoffmann also referred to Bird v Pearce [1979] RTR 369 (to which I shall refer later in this judgment) which he described as a difficult case. He expressed no view about whether it was correctly decided. But he accepted the principle that if a highway authority conducts itself so as to create a reasonable expectation about the state of the highway, it will be under a duty to ensure that it does not thereby create a trap for the careful motorist who drives in reliance upon such an expectation. As will be seen, this principle now expresses the high point of the present appellant’s case in law.[28]Lord Scott of Foscote expressed Mrs Gorringe’s relevant contention as being that section 39 of the 1988 Act, although it could not be construed so as to justify the conclusion that a private action in damages could be brought for breach of the statutory duty, could nevertheless be used to jack up the council’s common law duty of care to a standard sufficient to enable the failure to provide suitable signage to constitute a breach of the duty. He referred to Bird v Pearce, saying that there were some difficulties in applying the Court of Appeal’s reasoning so as to justify the result of the case. But the principle that a highway authority may be liable if it introduces a new danger to the road is plainly unexceptionable.[29]Lord Scott said that section 39 did not impose a duty owed to any individual. He considered that the section could not contribute to the creation of a standard of care which, in the absence of the section, the common law would not impose. With reference to Stovin v Wise, he expressed the opinion, that, if a statutory duty does not give rise to a private right to sue for breach, the duty cannot create a duty of care which would not have been owed at common law if the statute were not there. He did not accept that a common law duty of care can grow parasitically out of a statutory duty not intended to be owed to individuals. He said that there were of course many situations in which a public authority with public duties had a relationship with a member of the public that justified imposing on the public authority a private law duty of care towards that person. He referred to Barrett and Phelps. But the council in Gorringe had no relationship with Mrs Gorringe that it did not have with every other motorist driving on the stretch of road in question.[30]Lord Scott concluded in paragraph 76 as follows:
“In summary, if a highway authority is in breach of its duty under section 41(1) (as amended by the 2003 Act) it can be sued if damage is thereby caused. If it is to escape liability it must bring itself within the section 58 defence. In addition, a highway authority may be liable at common law for damage attributable to dangers that it has introduced, or, in the case of dangers introduced by some third party, that it has unreasonably failed to abate. Members of the public who drive cars on the highways of this country are entitled to expect that the highways will be kept properly in repair. They are entitled to complain if damage is caused by some obstruction or condition of the road or its surroundings that constitutes a public nuisance. And they are, of course, entitled to complain if they suffer damage by the negligence of some other user of the highway. But an overriding imperative is that those who drive on public highways do so in a manner and at a speed that is safe having regard to such matters as the nature of the road, the weather conditions and the traffic conditions. Drivers are first and foremost themselves responsible for their own safety.”
[31]Lord Rodger of Earlsferry also referred to Bird v Pearce in terms which suggest that he may not have been convinced that it was a correct decision on its facts. But assuming that the council’s failure in that case to repaint signs had created a danger to motorists, on ordinary common law principles the council were liable to the plaintiff who suffered injury due to the danger they had created. The fact that the authority had been exercising a statutory power when they created the danger was irrelevant, since there was nothing in the statute to provide them with a defence against their common law liability. He said with reference to Larner v Solihull Metropolitan Borough Council [2001] RTR 469 that, on the reasoning of the majority in Stovin v Wise, there was nothing to show that the enactment of section 39 of the 1988 Act prompted the emergence of a common law duty of care on councils to replace warning signs. So the mere fact that, in a given case, a reasonable council would have exercised its powers by providing an additional sign did not alter the fact that they would have been under no common law duty to do so. Conversely, even if it would have been wholly unreasonable for the council not to provide an additional sign, this did not mean that they were in breach of a common law duty to do so. Lord Rodger disapproved this aspect of the reasoning of the Court of Appeal in Larner. In this, he was in agreement with other members of the House.[32]Lord Rodger concluded at paragraph 93 as follows:
“In the exercise of their public law powers and duties, highway authorities do often, even usually, warn of prospective dangers at junctions or crests in the road, but drivers cannot rely on them always having done so. Drivers must take care for themselves and drive at an appropriate speed, irrespective of whether or not there is a warning sign. By insisting that drivers always look out for dangers themselves and not rely on others, the common law supports the overall policy of promoting road safety.”
[33]Lord Brown of Eaton-under-Heywood agreed with Lord Hoffmann that the line of authority represented by X v Bedfordshire, Barrett and Phelps was to be distinguished. This was essentially because the common law duty of care in those cases was found or suggested to have arisen, not by reference to the existence of the respective authorities’ statutory powers and duties, but rather from the relationship in fact created between those authorities and the children for whom in differing ways they had assumed responsibility. He said that road users are entitled to rely upon the state of the road surface and accordingly the primary liability for any loss resulting from a breach of the section 41 duty rests on the authority. Road users are not, however, entitled to rely upon the highway authority with regard to the various other hazards of road use. They are not entitled to suppose that their journeys will be free from these, or that the need for care will generally be highlighted so as to protect them from their own negligence. Lord Brown found it difficult to contemplate a case in which a road accident could occur without negligence on the part of at least one of the road users involved, unless either it resulted from the physical state of the road, or the highway authority would be liable in a conventional common law negligence action, irrespective of any particular statutory power or duty, for having enticed the motorist to his fate by some positive act. Assuming that the road user is not to be regarded as negligent, he must inevitably have been misled into whatever danger precipitated his accident. Such cases might be expected to be few and far between, and Lord Brown would certainly not regard Bird v Pearce as one of them.[34]There seemed to Lord Brown to be no good reason for superimposing upon such general powers and duties as are conferred upon highway authorities a common law duty of care in respect of their exercise. Nor did it seem to him that Parliament could have intended a private law liability in damages to flow from a public law failure in the exercise of the authority’s powers or the discharge of its duties. Where with regard to highways Parliament does intend users to have a remedy for damages it says so, as initially it did in 1961 and again, by extending the section 41 duty to encompass the removal of ice and snow, in 2003. Even if, contrary to the conclusions arrived at by the Court of Appeal, Calderdale failed in its public law duty under section 39, that gave rise to no corresponding breach of duty of care actionable in private law.[35]Lord Steyn agreed with the detailed opinions of the other four members of the House in relation to the legal position in regard to highways. I agree with Mr Wilkinson that his subsequent observations do not modify that agreement. They are directed to causes of action in negligence and statutory duties and powers generally apart from those relating to highways. It is, however, relevant to the present appeal that Lord Steyn noted Lord Hutton’s exhortation in Barrett at page 586, that courts should decide the validity of a plaintiff’s claim against a public authority by applying directly the common law concept of negligence.

The law in the light of Gorringe

[36]It is necessary to draw together a synthesis of the opinions in Gorringe as they apply to the present appeal. Where a public authority acting under statutory duty or power is alleged to be liable for personal or physical injury, it is first necessary to determine whether the statute, properly construed, provides a relevant private law right of action. The 1980 Act does this in relation to the duty of highway authorities to maintain the highway (section 41 of the 1980 Act), but not relevantly otherwise. For accidents occurring before 31st October 2003, the duty to maintain the highway did not include a duty to prevent or remove ice or snow (Goodes). Before that date, therefore, there was no statutory duty giving rise to a private law right of action for failure to prevent or remove ice. Conversely, the statute did not exclude the possible existence in particular circumstances of a common law duty of care.[37]Although statutory duties or powers which do not give rise to a private law right of action may constitute part of the relevant factual background, the existence of those duties or powers cannot reinforce parasitically the existence of a common law duty of care in the public authority. In short, unless a statute on its proper construction provides a private law right of action or conversely unless the statute excludes it, the existence of a common law duty of care depends on unvarnished common law principles.[38]Personal or physical injury directly inflicted is the first building block of the law of negligence. Unless such injury is excused, it will almost always be a component of a breach of a duty of care owed by the person inflicting the injury to the person or the owner of the material object injured. For personal or physical injury which the defendant does not inflict directly or for economic loss, it is usual to look to Caparo v Dickman [1990] 2 AC 605 and Henderson v Merrett Syndicates [1995] 2 AC 145 for the unvarnished common law principles. For the reasons which I explained with reference to these cases in Merrett v Babb [2001] EWCA Civ 214, [2001] QB 1174 at 1192-3 (paragraph 41), reliance is an intrinsically necessary ingredient of a duty of care which appears in every formulation of a test. For the rest, it is very often a helpful guide in particular cases to ask whether the defendant is to be taken to have assumed responsibility to the claimant to guard against the loss for which damages are claimed.

Submissions

[39]Mr Ross refashioned his submissions to take account of the decision in Gorringe. He submitted that the evidence established a public expectation in 1996 whereby the county council assumed responsibility to perform properly the salting operations which it had undertaken to perform in its agreement with the respondent. The expectation derived, it is said, from(a) a general understanding, expressed in, among other places, the county council’s Winter Maintenance Programme, that they were under a statutory duty to clear ice and snow;(b) the arrangements for salting priority roads which the county council had publicly undertaken in their agreement with the respondent;(c) the fact that the county council had performed its salting operations for a substantial period of time;(d) evidence from police officers that they would expect trunk roads to be salted in the conditions which prevailed at the time of the accident, but that it was difficult to see whether salting had taken place; and(e) a pamphlet, entitled “Salting Routes in Bedfordshire”, which was widely distributed at, for example, petrol stations. This stated that salting was carried out when road temperatures were expected to drop below zero. It referred to the Icelert computer system and the information obtainable from it. It stated that all A and B roads were salted with other important local roads. It indicated how to get further information. I shall refer to this pamphlet in somewhat greater detail later in this judgment.[40]Mr Ross relied heavily on Bird v Pearce. In that case, a car emerging from a minor road collided with a car approaching from its near side along a major road. The highway authority was held one third responsible for the accident because it had, in the course of resurfacing works, obliterated road markings in the minor road and had not, pending their replacement, substituted any temporary warning signs. The Court of Appeal held that the authority owed a duty to all road users to ensure that obliteration of its road markings did not create a hazard. Mr Ross submitted that the highway authority in the present case similarly created a hazard by fostering a public expectation that the road would be salted and by then failing to salt it.[41]I do not consider that Bird v Pearce helps the present appellant. It is, I think, plain from passages to which I have referred earlier in this judgment that all members of the House of Lords in Gorringe were doubtful whether Bird v Pearce was correctly decided on its facts. The limits of any principle which it exemplifies were expressed by Lord Hoffmann in paragraph 43 of Gorringe to the effect that if a highway authority conducts itself so as to create a reasonable expectation about the state of the highway, it will be under a duty to ensure that it does not thereby create a trap for the careful motorist who drives in reliance on such an expectation – see also Lord Scott at paragraph 66.[42]Mr Ross also relied on Mercer v South Eastern and Chatham Railway Companies’ Managing Committee [1922] 2 KB 549, a first instance decision in which a claimant was knocked down by a train when he went through an unlocked gate onto the railway line. The defendants were held liable, because it was their practice, known to the plaintiff, to keep the gate locked when trains were passing, but the gate was left unlocked on this occasion. I do not consider that this decision contains or exemplifies any principle which goes beyond those in Gorringe.

Discussion

[43]In my judgment, the claimants do not establish the existence of a relevant duty of care in the present case for two principal reasons. First, I do not consider that the respondent can properly be taken to have assumed a general responsibility to all road users to ensure that all or any trunk roads would be salted in freezing conditions. It is the primary responsibility of motorists to take care for their own safety and that of their passengers and other road users. The existence of the delegation agreement, the Trunk Roads Maintenance Manual and the highway authority’s Winter Maintenance Programme does not, I think, predicate an assumption of responsibility by the respondent to motorists generally that the system for salting roads will always be carried out without fail. As cases such as Barrett and Phelps indicate, an assumption of responsibility sufficient to create a duty of care normally requires a particular relationship with an individual or individuals. There is no evidence that the details of the system which the respondent put in place with highway authorities were known to the deceased or the motoring public generally. A general expectation, such as the police witnesses spoke of, cannot alone support an assumption of responsibility.[44]Second, I do not see how the appellant’s case sustains the necessary element of reliance. There is no evidence that the deceased in fact relied on an expectation that the road had been salted. The judge’s contingent finding as to contributory negligence does not, contrary to Mr Ross’ submission, predicate or support such a finding. Such a finding would be entirely speculative. He may have known or suspected that the road had not been salted. Further, the terms of the pamphlet to my mind make a case of reliance unsustainable. This was perhaps the one document most likely to achieve publicity for the highway authority’s salting intentions. It had a section containing advice for drivers. This included an injunction not to travel too fast and to reduce speed in possibly icy conditions. It also stated that even the most carefully organised procedures can suffer setbacks from mechanical breakdowns. Some roads that are normally treated may not be. The weather is unpredictable even with modern forecasting. Weather predictions can sometimes be wrong. Although the county council try to help, the onus is firmly on road users to drive according to the prevailing conditions. “You should never assume that a road has been salted.” In my judgment, the claimants established nothing to detract from this last statement. In 1996, motorists in Bedfordshire may have known in general, or even particular terms that the highway authority salted roads in icy conditions. But this did not, in my view, entitle a motorist to assume that a road had been salted. If they did, they were failing to take proper care for their own safety. Motorists could not therefore properly rely on the highway authority to have salted a potentially icy road. That negatives the existence of a duty of care.[45]In the absence of reliance and of positive action by the respondent whereby the respondent was to be taken as having assumed responsibility to the deceased, I do not see how the respondent could properly be said to have created a trap. The respondent relevantly did nothing. If, as I think, the deceased was not entitled to rely on the respondent to have salted the road, the fact that the road was not salted is not to be regarded as a trap. The deceased was not entitled to assume that the road had been salted. He had a primary duty to have regard for his own safety. This conclusion may seem harsh, when it was formerly thought that the highway authority did have a duty to salt the roads in icy conditions and when Parliament has subsequently imposed such a duty. But the fact that Parliament needed to do so is an indication that, without legislation, the common law did not, absent special particular circumstances, recognise such a duty.[46]The view which I have expressed is generally consonant with the law relating to rescue organisations – see for example Capital & Counties v Hampshire County Council and OLL v Secretary of State for Transport [1997] 3 All ER 897. In the Capital & Counties case, the fire authorities were held not to owe a general duty of care to answer a call nor to take care to do so, except to the extent that by positive negligent intervention they had created the danger which caused physical injury or made it worse. In OLL, the same principle was extended to the coast guard conducting rescue operations at sea. As in the present appeal, the claimant relied on an internal manual and orders intended and designed to ensure that the coast guard discharged its responsibilities properly, efficiently and effectively. As in the present appeal, it was said that the coast guard had encouraged an expectation in the minds of the public that they would respond promptly and appropriately to marine emergencies. It had thereby assumed responsibilities to the public for the execution of search and rescue missions in coastal waters. It was submitted that a duty of care arose from the expectation that the coast guard would act carefully, the expectation being created by ministerial pronouncement, published procedures and a common knowledge that the coast guard would act when it knows of an emergency at sea. In rejecting these submissions, I considered that they strained what Lord Hoffmann had said in Stovin v Wise at page 953 beyond breaking point. I read a passage in the judgment of Stuart Smith LJ in Capital & Counties [1997] 3 WLR 342 as in effect saying that in English law no duty of care arises from a general expectation. I further considered that a particular duty derived from a specific expectation publicly induced and relied on that a lighthouse authority will not withdraw an existing light without giving due notice – an example discussed by Lord Hoffmann in Stovin v Wise – was very different from a general duty on the coast guard to conduct any search and rescue operation they may undertake without negligence.[47]My view that there is no relevant duty of care in the present case also, I think, accords with decisions of this court in cases such as Kent v Griffiths [2001] QB 36 and Watson v British Board of Control [2001] QB 1134. In each of these cases, a duty of care was found to exist where the defendants in particular circumstances assumed responsibility to a particular plaintiff. In Kent v Griffiths, the ambulance set off to take the particular plaintiff speedily to hospital. As Lord Woolf MR said at paragraph 45, the only member of the public who could be affected was the claimant. It was the claimant alone for whom the ambulance had been called. In Watson, the Board of Control promoted a particular boxing match in which the plaintiff participated under rules set by the Board which stipulated medical attendance which was appropriate. Lord Phillips, said at paragraph 53, that a number of authorities show that an acceptance of the role (usually under statutory powers or duties) of protecting the community in general from foreseeable dangers does not carry with it a legal duty of care to safeguard individual members of the community from those dangers. He referred to the Capital & Counties case. As he read the judgment in Kent v Griffiths, the duty of care turned on the acceptance by the ambulance service of the request to provide an ambulance and thus the acceptance of responsibility for the care of the particular patient – see paragraph 55. He said at paragraphs 77-79:
“In my judgment there is a clear distinction between the role of the Board and the role of a fire service or the police service. The latter have the role of protecting the public in general against risks, which they play no part in creating. There is a general reliance by the public on the fire service and the police to reduce those risks. In these circumstances there is no close proximity between the services and the general public. There are also reasons of public policy for not imposing a duty of care to individuals in relation to the performance of their functions. These are explored in the authorities to which I have referred earlier. In contrast the injuries which are sustained by professional boxers are the foreseeable, indeed inevitable, consequence of an activity which the Board sponsors, encourages and controls. The conduct of the activity of professional boxing carries with it, for the small body of men who take part in it, the need for the provision of medical assistance to treat the injuries that they sustain and minimise their adverse consequences. … The Board, however, arrogates to itself the task of determining what medical facilities will be provided at a contest by (i) requiring a boxer and a promoter to contract on terms under which the Board’s rules will apply and (ii) making provision in those rules for the medical facilities and assistance to be provided to care for the boxer in the event of injury. … The Board assumes the responsibility in determining the nature of the medical facilities and assistance to be provided. These facts bring the Board into close proximity with each individual boxer who contracts with a promoter to fight under the Board’s rules. The comparison drawn by Mr Walker between the Board and a rescuer is not apt.”
[48]Thus, in my judgment, the respective claimants’ success in Kent v Griffiths and Watson were for reasons which do not detract from my view that the present respondents were not to be taken to have assumed responsibility to the deceased, and that the deceased cannot be taken to have relied on the respondents to see that the road had been salted. The same applies to such cases as Barrett and Phelps, as was indicated in Gorringe.

Conclusion

[49]For these reasons, I would dismiss this appeal.[50]I agree.[51]In Haydon v Kent County Council [1978] QB 343 all three members of this court allowed an appeal by the defendant council against a decision of O’Connor J to the effect that it was liable to pay compensation to a lady who had broken her ankle when walking down a steep, narrow, made-up footpath which represented the shortest way into the centre of Kemsing. Her accident occurred when she slipped on impacted snow and ice which had built up since a short wintry spell three days earlier.[52]Much of the argument on that appeal turned on the meaning of the highway authority’s statutory duty to “maintain” the highway. The majority of the court (Goff and Shaw LJJ) considered that the word embraced the removal of snow and ice and the provision of temporary protection by gritting. Lord Denning MR considered that it did not, and that the obligation of a highway authority to clear roads that are snowed up or ice-bound arose out of its duty to remove obstructions to the highway pursuant to what was then section 129 of the Highways Act 1959, and a breach of that duty did not give rise to a civil action for damages.[53]By chance, it was not until the House of Lords heard the appeal in Goodes v East Sussex County Council [2000] 1 WLR 1356 that it was given the opportunity for the first time of considering the meaning of the word “maintain” in the context of modern highway legislation, and Lord Hoffmann (who gave the leading speech) said at p 1360 that he found the judgment of Lord Denning MR so completely convincing that he wondered whether he really needed to add anything to it. In the meantime, between November 1977 and June 2000 everyone took the law to be what the majority of the Court of Appeal in Haydon had declared it to be, and no doubt appropriate budgetary arrangements were made within central and local government to ensure that public money was available to pay monetary compensation to those who had suffered injury due to a highway authority’s breach of duty in this respect.[54]Mr Sandhar died in the early morning of 22nd December 1996, nearly three and a half years before the House of Lords declared that the majority view in Haydon was wrong. All the evidence in the case shows unmistakeably that both the Department and the Bedfordshire County Council believed that their legal duty to maintain the highway encompassed the activities that were at the centre of this case. It also shows unmistakeably that their efforts to comply with this obligation were thwarted by the negligence of Mr Chandler, the engineer on duty in the night in question.[55]In the ordinary course of events this claim could have been settled without legal proceedings long before the House of Lords gave their decision in Goodes. Although the defendants did not have the opportunity of commenting on the detailed schedule which Ms Paneth gave us at the end of the hearing, there is no reason why we should doubt its main thrust. This was that from September 1997 onwards the defendants were maintaining, no doubt as a result of Mr Chandler’s version of events, that they had in fact carried out proper salting and gritting on the road in question before the accident took place (an assertion the judge found to be untrue), and that they delayed a very, very long time between September 1998 (when an application for pre-action disclosure was made) and May 2002 before disclosing for the first time the thermal map which showed that access to the Icelert system would have demonstrated a risk of hoar frost from 7 pm on the evening before the accident took place.[56]There was no suggestion that the defendants had been deliberately withholding documents. It is quite clear, however, that the combination of Mr Chandler giving a version of events which was not true, the defendants’ inability to produce obviously relevant documents until five and a half years after the accident, and the curiosity of our common law system that the House of Lords’ decision in Goodes had immediate retrospective effect (so far as outstanding claims were concerned) has led to a result with which nobody could feel at all happy. When Mr Sandhar died, Mrs Sandhar was 30 years old. Although her marriage to him had ended in divorce three years earlier, they had only lived apart for six months after the decree absolute, and at the time of his death they had two children aged eight and seven, and a baby less than three months old, all of whom depended on him for financial support.[57]Like May LJ, I do not see how this court can remedy what appears to be a significant injustice, because we have to administer justice in accordance with law, and it is a quirk of our legal system that judgments like those delivered by the House of Lords in Goodes have retrospective effect. But since the origins of Mrs Sandhar’s plight appear to be founded in the matters Ms Paneth set out in her schedule (whether or not one or more of them might have been re-worded if the defendants had had a proper opportunity to comment on them), I for one would welcome it if some administrative means could be found of assisting Mrs Sandhar out of public funds given that maladministration seems (and I stress the word “seems”) to have been the reason why this claim was not settled long before June 2000.[58]There is one other matter which I wish to add to May LJ’s comprehensive judgment, with which I agree. Mr Sandhar left his home shortly after 7 am on that cold Sunday morning in December. The judge recorded that it was agreed that he would have had to clear his car of frost before he could drive it on the road. There was evidence before the judge about this stretch of road from a witness who lived in Turvey. She said that in her experience the series of bends from Station Road, Turvey (where she lived) rising up to the top of Picts Hill were a hazard because in the winter the road was particularly prone to ice. Like other witnesses she attributed this phenomenon to the presence of mature trees which overhung the bends. This was the stretch of road on which Mr Sandhar sustained his fatal accident when he was travelling at a speed of 45 mph. Another witness, who was travelling down the A6 from Rushden a little earlier that morning, could not control her car even though she had reduced her speed to 20 mph. Her accident occurred a few miles to the north of the site of Mr Sandhar’s accident.[59]In these circumstances I regard the claimant’s challenge to the judge’s finding of 33% contributory negligence (on the assumption that negligence was proved) to be wholly devoid of merit. Although Parliament has now imposed on highway authorities the new statutory duty to which May LJ has referred (see para 11 of his judgment) this change must not be understood by anyone to water down what Lord Scott of Foscote said in Gorringe v Calderdale MBC [2004] UKHL 15 at 176, [2004] 1 WLR 1057:
“…[A]n overriding imperative is that those who drive on public highways do so in a manner and at a speed that is safe having regard to such matters as the nature of the road, the weather conditions and the traffic conditions. Drivers are first and foremost themselves responsible for their own safety.”
[60]Sadly, it was obviously not safe to drive along that stretch of road on that frosty morning at 45 mph when it had clearly not been gritted, and the law does not allow a driver to divest himself of his own responsibility for his personal safety (and for the safety of others he may hit if he cannot control his car) in the manner suggested by this part of the appeal.[61]I, too, would therefore dismiss this appeal.

Post Judgment Discussion

LORD JUSTICE BROOKE:

For

[1]the reasons set out in the judgment of the court, copies of which have been made available to the parties, this appeal is dismissed.[2]MR HOSKINS: My Lord, I appear today on behalf of the respondent to the appeal.

LORD JUSTICE BROOKE: Yes.

[4]MR HOSKINS: I sent over yesterday afternoon - I hope your Lordships have had a chance to look at it - a draft order in relation to this matter.

LORD JUSTICE BROOKE: Yes.

[6]MR HOSKINS: My Lord, I would seek an order in those terms today, your Lordships having dismissed the appeal.

LORD JUSTICE BROOKE: Yes, certainly. Yes, Mr Ross?

[8]MR ROSS: My Lord, there is only one issue we seek to raise before your Lordships today and that will be done briefly, it is the issue of costs.

LORD JUSTICE BROOKE: Yes.

[10]MR ROSS: My Lord, Mr Sandhar died intestate. Mrs Sandhar received nothing from his estate. She therefore qualified for Legal Aid and paid a capital contribution of about £1,000. She had no property against which a Legal Aid charge could be applied, and if she were now to follow the maladministration route, which as a result of your Lordship's judgment is a course which, understandably, she would wish to consider, and were she to secure some compensation having followed that route, there remains the prospect that this defendant, who represented the interests of Bedfordshire County Council in this case, would seek to enforce the order for costs which my learned friend in his draft order invites your Lordships to make against us today.[11]Accordingly, she would end up with nothing, even if she were to be successful in following that route. In those circumstances, we have invited the defendants to consider whether it would be appropriate in this case that there should be no order for costs here and below. They have declined that suggestion. My Lord, we therefore invite your Lordships to consider the provisions of the Civil Procedure Rules, Part 44.3, White Book at page 1066.

LORD JUSTICE BROOKE: Yes.

[13]MR ROSS: 44.3.4, my Lord:
"In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including - (a) the conduct of all the parties."
[14]Conduct of the parties is further defined in sub-paragraph 5:
"The conduct of the parties includes - (a) conduct before, as well as during, the proceedings, and in particular..."
[15]As your Lordship has made clear in your Lordships' judgment, there are issues concerning the relevant documents which it was always the duty of the Highways Department to collate and to maintain on a day-to-day basis. It is those documents which were not disclosed to us, and for which no explanation has yet been given as to why that which should have been a day-to-day task was not capable of being either fulfilled, or if it was fulfilled why those documents were not released to us from the very outset.[16]The documents that would have enabled us to establish liability in this case, on the findings of the judge down below, did not have to be a wide ranging number of documents. They were documents which were solely and exclusively in the possession of the Highways Department throughout the material period. They include, for example, the faxes from Northamptonshire which would have revealed what Northamptonshire would have asked Bedfordshire to do, and they would have included the documents setting out what salting was carried out upon which the judge relied in concluding that Mr Chandler had not ordered a salt run after receiving the police call at 6 o'clock in the morning.[17]If either of those two matters had been taken into account at the time, on the state of the law as it was then understood to be, the respondent, had it been acting in the way it was acting in relation to all other cases, would have conceded liability.[18]So, my Lord, that is the first factor. We also invite your Lordships to bear in mind an additional issue and that this appeal was in effect, in effect, a test case. Your Lordship knows that there are other cases that are on hold, whether they are formally stayed or not I cannot say, but they are on hold pending the outcome of your Lordships' ruling in this matter. Therefore these defendants have secured a benefit which extends beyond the ruling in this case, because undoubtedly they will now deploy your Lordships' judgment in order to defeat those outstanding claims.[19]In short, the clarification of the law for which this appeal was debated has resulted in a substantial saving in costs to these defendants if one looks beyond the parameters of this individual case. It would be a strange irony, in our respectful submission, if this claimant, particularly given the misfortune she has suffered already, were to recover any sums from maladministration that the defendants were able to claw back that same sum, the money merely moving from one pocket to another and then back to them again. That, obviously, would apply to an order for costs both in this court and in the court below.[20]Your Lordships have a whole range of powers in our respectful submission, by virtue of these rules, which would empower your Lordships to say, on the special circumstances of this particular case, that it is not appropriate that there should be an order for costs.[21]Just in order to invite your Lordships to consider all matters, your Lordships can also, of course, order that any order for costs that the other side, in your Lordships' view, might be entitled to, should not be enforced against any sum by way of compensation which this lady might receive from an extra judicial route, namely the maladministration route; that that should be a factor that should be ignored for the purposes of an ultimate decision now that she is in funds, were this to come about, that she should be allowed to retain whatever compensation --

LORD JUSTICE MAY: That last submission would effectively be covered by the form of order proposed because at (ii) it says, "...such liability not to be enforced without further order." So there would have to be an application to the court to achieve it and the argument you have just suggested could then be deployed.

[23]MR ROSS: Well, it could then be deployed. Obviously, so far as the lady is concerned, it is imperative that she knows where she would stand before she embarked upon this potential route, because if she is to proceed in the uncertain knowledge as to whether that would be the view of the court at the end of the day, then it would be something which might deter her from pursuing that route. She has been disappointed already, I am not sure she needs another disappointment.[24]If your Lordships are of the view, as we submit your Lordships should be, that you are charged and informed sufficiently to resolve this matter now, it would be advantageous to all parties, and in particular to Mrs Sandhar, if that could be resolved today. Unless I can assist your Lordships further.

LORD JUSTICE BROOKE: There is one thing I should have pointed out when I delivered the judgment. Something has gone wrong with the numbering and Thomas LJ ought to have paragraph 50 against his name and everything else should be numbered one further.

[26]What do you say about this? It is now paragraph 56 of my judgment where I say:
"It is quite clear, however, that the combination of Mr Chandler giving a version of events which was not true, the defendants' inability to produce obviously relevant documents until five and a half years after the accident, and the curiosity of our common law system that the House of Lords' decision in Goodes had immediate retrospective effect... has led to a result with which nobody could feel at all happy."
[27]Now what are your instructions?[28]MR HOSKINS: My instructions are that at this stage the Department does not wish, in these proceedings, to give any undertaking. I entirely appreciate the force of your Lordship's observation there, and I do not seek to, as it were, go behind that observation for the present, but, effectively, as May LJ has observed, if the claimant in this case wishes to pursue some form of remedy through an application to some kind of ombudsman based on maladministration, inevitably the circumstances of that claim would then be properly explored in evaluating that. It is, one would have thought, inconceivable that if she were to be awarded a sum of compensation arising out of maladministration in those circumstances, that the Department would then seek to enforce an order of costs against her so as to take that away. Effectively one hand of the Crown would be giving and another hand would be taking away.

LORD JUSTICE BROOKE: What Mr Ross says is that this lady has been battered enough up until now. She is not going to embark on anything like this if there is any danger at all that there is going to be ...

[30]MR HOSKINS: My Lord, I follow that, but your Lordship has to consider whether it is an appropriate rider to add to this order. May I make some submissions in relation to that?

LORD JUSTICE BROOKE: Yes.

[32]MR HOSKINS: Those submissions are that since Goodes was determined in June of 2000, this was always, on any view, a very difficult claim to substantiate given the state of the law as it then stood. I think I can fairly say that was the view taken almost at the outset by Newman J when the case came before him, and he referred to a mountain of authority which Mr Ross had to get past. That position became even more apparent, in my submission, when Gorringe was determined. Indeed, we wrote to the claimants then inviting them to withdraw this appeal. Now that in fact the claim has failed, in these circumstances I would seek the court to hold that the normal order for costs should follow.[33]I should add, of course, that because the claimants are publicly funded, no costs order could be enforced against them without a further hearing in any event. If that situation were to arise, one of the matters which the costs judge would have to take into account would be precisely the conduct of the parties in relation to the litigation. So at this stage the court is being asked to consider, as it were, a contingent finding of maladministration, because this has not been gone into fully, and this is not the place to do so. But there are things, as my Lord Brooke LJ acknowledged, that might well put matters in a somewhat different light.[34]Certainly throughout these proceedings no one has ever made an interlocutory order for indemnity costs against the Department. If the matter were to be found, then it could be considered at that stage. But I would say that this is too early now to reflect the allegations that have been made in anything other than the normal costs order. Those are my submissions.

LORD JUSTICE BROOKE: It is perfectly obvious that you have the law behind you in relation to these submissions, but remembering the days long ago when I used to advise government departments at a high level, I very often advised them of other matters they ought to take into account apart from the law.

[36]MR HOSKINS: Certainly, my Lord, of course I accept that. But in addition in this case, of course, my Lord I am sure will recognise, that the Department was in receipt of evidence from not its employee but the employee of Bedfordshire, which appeared to suggest that there was a defence on the merits as well.

LORD JUSTICE BROOKE: I am inclined to say, "So what". Your agents were carrying out your duty.

[38]MR HOSKINS: I accept that. That can be said, my Lord.

LORD JUSTICE BROOKE: Anything else you want to say?

[40]MR ROSS: No, my Lord, other than that your Lordships are alive to the fact that -- in response to my friend's suggestion that following Goodes this was a difficult claim to sustain, there was a specific application to strike out this claim. It was fully heard and ruled against. Additionally, we would submit that your Lordships are uniquely well placed to resolve this issue today.

LORD JUSTICE BROOKE: We will retire for a moment.

LORD JUSTICE BROOKE: In this matter the claimant lost before the judge and lost before the Court of Appeal. The Secretary of State has asked us to make an order in the normal form in those circumstances. The particular feature of the order which has given rise to debate is that there should be a direction that the appellants pay the respondents costs of their appeal, subject to a detailed assessment on the standard basis if not agreed, such liability not to be enforced without further order, the appellants being in receipt of services funded by the Legal Services Commission.

[43]In paragraph 56 of my judgment, based on matters which were drawn to our attention at the very end of the hearing, which the defendants did not have the opportunity of commenting on in detail, I said:
"There was no suggestion that the defendants had been deliberately withholding documents. It is quite clear, however, that the combination of Mr Chandler giving a version of events which was not true, the defendants' inability to produce obviously relevant documents until five and a half years after the accident, and the curiosity of our common law system that the House of Lords' decision in Goodes had immediate retrospective effect (so far as outstanding claims were concerned) has led to a result with which nobody could feel at all happy."
[44]The point of this being that the accident in question took place in December 1996, and for the next three and a half years the understanding of everybody was that the law on the matter was as stated by the majority of this court in the case of Haydon.[45]In those circumstances Mr Ross has asked us to make a very unusual order which, in effect, would direct that the appellants under no circumstances should have to pay the respondents costs of the appeal. What he is concerned about for his client is if she were to set out on the route of seeing if she could obtain some compensation in these circumstances from maladministration, she might then be faced, even if successful, by a demand by the Department that she should now pay them their costs, and so the whole purpose of going down the maladministration route would be of no avail at all.[46]Council for the Secretary of State in this court has told us that it would be inconceivable if an ombudsman were to make an order against the Department reflecting the matters to which I referred in my judgment, that the Department would ask for this order for costs to be enforced.[47]We direct that a transcript of what counsel said be made available to the claimants' solicitors at public expense so that they will have a permanent record of what was stated by counsel for the Secretary of State on instructions.[48]In those circumstances it seems to us that there can be no reason not to make the order in the standard form on that basis. Although it is not an undertaking to the court, which the Secretary of State was unwilling to give, it gives a very clear indication of future intention and the court is content with that.[49]MR HOSKINS: I am grateful, my Lord.

Cited in 1 later judgment