Forbes at Court - Successful strike out at early stage leads to exception to QOCS ruling

Forbes, representing a house building construction company, recently successfully applied to strike out a claim brought on behalf of a child who it was alleged had tripped outside his newly built home. Whilst the home was complete there were some works ongoing on the estate and it was alleged that the accident occurred due to a defective path.

The claim was brought under the Occupiers Liability Act 1957, which imposes a duty of care on occupiers of land to ensure the reasonable safety of visitors on that land. There was no question about the right of the child to be where he was.

The estate roads and paths were in a semi-finished state, but the path had a base tarmac layer in place at the time. However, it was alleged on behalf of the claimant that the path was uneven and dangerous as a result. The defendants denied this saying that it was usual to have a base coat only on paths and roads whilst construction was ongoing, and that photographs taken very shortly after the accident did not show any danger or hazard or foreseeable risk of injury.

The claimant was invited, following proceedings, to discontinue his claim and when that was refused, we successfully applied to strike out the claim on the basis that the claim had no real prospect of success pursuant to CPR 24.2 and for summary judgment in the Defendant's favour. The court was invited to consider the issue of dangerousness at this interim stage based on the clear photographic evidence. This was a factual matter that could be dealt with at this early stage and so avoid unnecessary expenditure in taking that issue to court.

Forbes Comment:

You do not always need to wait for trial to determine issues. Some issues, even in the absence of witness evidence, are factual and can be determined by the Judge on application. Here the judge was simply asked to review the photos and consider whether they showed something that was dangerous (and therefore actionable) or not. There are costs advantages for a defendant in dealing with the matter in this way for appropriate cases. Had the matter been successfully defended at trial there would have been further costs incurred by the defendant in doing that as the claimant would have had the advantage of qualified one-way costs shifting (QOCS), meaning they do not have to pay the successful defendant's costs. However, an added bonus to defendants in obtaining a strike out of an action pursuant to CPR 24.2 is that QOCS is overturned pursuant to CPR 44.15(a) and so the defendant was awarded its costs.