Case Alerts

Life expectancy evidence granted in Mays v Drive Force (UK) Limited [2019] EWHC 5 (QB) (04 January 2019) in which Deputy Master Hill QC was not persuaded by the ‘floodgates’ arguments of the Claimant.

Anthony Bushell (Partner in our Evesham office) was adamant that in order to achieve the best result for our client (QBE) at trial, permission to rely upon statistical life expectancy evidence (from Professor Bowen-Jones) in addition to the parties’ clinical evidence, was essential.

Ronald Walker QC (from 12 Kings Bench Walk, acting on our behalf) argued that to ensure that the Claimant’s plethora of co-morbid conditions were fully considered, and to assist the Court in understanding how these co-morbid conditions would have a bearing on the Claimant’s life expectancy in any event (Professor Bowen-Jones assessed the Claimant’s life-expectancy, ignoring epilepsy risk, to age 73.5 which would represent a reduction of approximately 11 years), statistical life expectancy evidence was necessary. This was particularly important where the parties’ clinical evidence remained unclear on the issue.

Anthony comments: “It was noted by the Court that the current case law confirms in appropriate cases consideration should be given to whether factors other than the accident itself have impacted an injured person’s life expectancy, and if so, the Court will be assisted by expert evidence which can be statistical as well as that given by clinicians”.

This is a high value multiple million pound claim where the statistical evidence may make a significant difference to quantum, specifically future losses. Deputy Master Hill QC made the point in his summary that it is thereafter the decision of the trial judge as to how much emphasis is placed on the statistical evidence and the credibility of the same.

Read here for the official transcript and detail as to why District Master Hill QC agreed with Anthony’s approach.

If you would like to know more about this matter, please speak to your contacts at Plexus Law:

Anthony Bushell, Partner

T: 01386 578 886  |   M: 07866 634 085  |   E: anthony.bushell@plexuslaw.co.uk

Vale Chambers  |  110 -112 High Street   |  Evesham  |   WR11 4EJ

Nadia Nahapiet, Partner

T: 0161 244 6925  |   M: 07977 008 772  |   E: nadia.nahapiet@plexuslaw.co.uk

City Tower  |  Piccadilly Plaza  |  Manchester  |   M1 4BT

 

Whilst we take care to ensure that the material in this Legal Update is correct, it is made available for information only, and no representation is given as to its quality, accuracy, fitness for purpose, or usefulness. In particular, the contents of this Legal Update do not give specific legal advice, should not be relied on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may arise from reliance on information or materials published in this Legal Update.

 

Issue

The decision concerned the approach to be taken and the reasonable success fee to be arrived at in regard to an application by the Claimant to escape the fixed success fee provisions within Civil Procedure Rule 45 as in place prior to 2013. The Court below had allowed a success fee for the Claimant Solicitor and Counsel at 65% in place of the fixed level of 12.5%.

Facts

The Claimant was a passenger in a car that was involved in an accident on 14th May 2010. The Claimant sustained severe injuries to include a brain injury resulting in a lack of capacity and thus was a protected party in the context of the proceedings. A Conditional Fee Agreement (CFA) was entered in to as between the Claimant Solicitor and litigation friend in July 2010 with a claim intimated against the Defendant. The Defendant was convicted of dangerous driving arising from the accident in June 2011 with liability formally admitted in December 2011. Following a change of litigation friend a second CFA was incepted 20th August 2012, such crucially being post the criminal conviction and formal liability admission. This agreement provided that a success fee would be payable of 25% if the matter settled three months before Trial and would be 100% thereafter. The matter settled within the three month period before Trial such that a success fee of 100% was sought.

Decision below

The learned Judge acknowledged the lead authority of C v W [2008] EWCA Civ 1459 but concluded that case was not a template for all such matters and there was scope for cases to fall outside the usual, this being one such case. The learned Judge went on to find that the Claimant’s concession to a success fee of 67% was not appropriate having regard to the features of the case, the weighing of liability against causation and the impact upon Part 36 offers. It was held that a success fee of 65% was appropriate to be allowed. That decision was subject to Appeal by the Defendant.

Decision

The Appellate Court considered the decision of C v W, acknowledged to be the lead authority on the issue, and the subsequent case authorities in which that decision had been applied. Notably some of those authorities involved the same legal representative for the Claimant, Irwin Mitchell, as was involved in this decision. It was held that a success fee of 100% (as pleaded) could never be justified in a case like the present where liability was admitted with no Part 36 offer made prior to the CFA. It was held there were two fundamental risks in this matter, the risk from the timing of a Part 36 offer (as only costs post 21 days from such an offer would be at risk) and the risk of failing to beat that offer at Trial.

The Appellate Judge considered that the decision below was “plainly wrong” as no attempt was made to analyse the risks which should reasonably have been taken in to account by the Claimant Solicitor when assessing the success fee at inception of the CFA. The decision was therefore to be exercised afresh.

It was held that there was nothing about the case to remove it from the category of standard high value personal injury cases. It was often the position in such cases there were difficult questions of causation or divergent medical opinion.

As to the timing of an offer it was decided that the Claimant could have anticipated the Defendant making an offer relatively late in the proceedings as was the case and is common in such high value litigation. As a result it was considered that even conservatively no more than 25% of the Claimant’s costs would be estimated to be at risk.

As to the risks of beating an offer it was said that given the involvement of an experienced Solicitor and Leading Counsel the risk could not be said to be high and in any event would also be mitigated by the fact that such only applied to 25% of the costs.

The Appellate Court suggested a possible success fee may “at a pinch” have been assessed at 20% but no higher and more likely lower. To escape the fixed success fee the Claimant required allowance of a success fee of 21% or more and therefore the success fee of 100% was reduced by the Court to the fixed level of 12.5% only. Such decision applied to the CFA of Solicitor and Counsel.

Comment/Conclusion

This issue continues to have relevance with success fees still being recovered in many catastrophic injury cases owing to their duration and thereby inception of pre 2013 CFAs.  Often it is those cases where the damages value permits the Claimant, as here, the ability under the Rules to apply to escape the fixed provision and recovery of a higher success fee. This case re affirms that when approaching the quantification of a success fee the same must be done by analysing the risks to the costs being recovered. Also that complexity should not be confused with risk and that such cases are inherently complex but not necessarily risky.

This is a claim handled by the costs team within Plexus. The decision on the success fee alone results in a reduction of the costs liability to the firm’s client of circa £376,000.

 If you would like to know more about this matter, please speak to your contacts at Plexus Law:

Chris White, Technical Director

T: 0113 4681 659  |   M: 07557 430 241  |   E: chris.white@plexuslaw.co.uk

Joseph’s Well  |  Hanover Walk   |  Leeds  |   LS3 1AB

Whilst we take care to ensure that the material in this Legal Update is correct, it is made available for information only, and no representation is given as to its quality, accuracy, fitness for purpose, or usefulness. In particular, the contents of this Legal Update do not give specific legal advice, should not be relied on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may arise from reliance on information or materials published in this Legal Update.

 

The Civil Liability Act received Royal Assent on 20 December 2018. The review will commence by 20 March 2019 and be completed no later than 7 August 2019. Since this is the first review the Lord Chancellor only has to consult the Government Actuary although he/she will have to consult a panel of experts on any subsequent review.

In February 2017 the Lord Chancellor changed the discount rate from 2.5% to -0.75% although she also announced a period of consultation to review whether the current legal framework setting the rate is fit for purpose or whether changes are necessary.

The Discount Rate was set with reference to returns on index-linked gilts (or ILGS) on the grounds that this type of investment represents virtually “risk free” investment, specifically designed to keep in place with inflation. However, as the Government Actuary’s Department noted in July 2017 “risk free” portfolio is likely to be only a theoretical construct and even a portfolio invested in 100% ILGS would not lead to “risk free” Claimant outcomes. The rate is currently set on the basis that Claimants have an almost zero tolerance for risk of their investment. In fact, recipients often invest in a range of securities which have some risk attached and which derive greater returns on the investment. In reality Claimants do not behave as very low risk investors; they invest in diversified low risk portfolios and on average achieve higher returns than is assumed under the present law. This results in inflated payments for claims which overly penalise Defendants.

The Discount Rate in the UK is one of the lowest in the world. In Germany, it is 4%; in France it is 1.2% and in Ireland it is 1%. As Lord Keene pointed out in the debates relating to the Bill, the current rate consistently compensates for injury at more than 100% required by law. Awards currently average 120-125% even after management costs and tax. This is putting huge pressure on the National Health Service in claims for clinical negligence.

Under the Civil Liability Act the determination of the rate must now be based upon a rate of return that, in the opinion of the Lord Chancellor, a recipient of relevant damages could reasonably be expected to achieve based upon:

1. More risk than a very low level of risk, but;
2. Less risk than would ordinarily be accepted by a prudent and properly advised individual investor who has different financial aims.

There is provision for the Discount Rate to be reviewed every five years following consultation with a panel of experts. It is clearly envisaged that the Discount Rate must be set by reference to the prevailing economic conditions including inflation and tax.

Unfortunately Claimants, practitioners, Insurers and the NHSLA are still in the dark about what the actual Discount Rate will be. The Government has issued a further call for evidence which seeks up to date data and information as to how Claimants invest their damages, investment advice provided to Claimants and model investment portfolios. The deadline for the response to the call for evidence is 30 January 2019. In September 2017 the Justice Secretary David Liddington stated:

“While it is difficult to provide an estimate, based on currently available information if the new system were to be applied today the rate might be in the region of 0% to 1%.”

The Discount Rate is also under reform north of the border and in the Channel Islands.

There is pending legislation in Scotland to set the Discount Rate by reference to a notional investment portfolio being suitable for a hypothetical investor. The rate will be set by the Government actuary or the Deputy. This legislation is expected to come into effect in 2019. It has been suggested the Discount Rate in Scotland will be 0%.

In Jersey draft proposals have been published with a view to change the discount rate and is expected to come into effect in 2019. Dual Discount Rates are proposed where the rate will be 0.5% for a period of 20 years or less or 1.8% where the award covers a period of more than 20 years.

The draft legislation in Jersey is interesting because the rate of 0.5% has been set having regard to the inflationary difference between Jersey and the UK which is currently 0.5%. On that basis, if the Lord Chancellor and Government actuary work from the same assumptions we could be looking at a rate of 1%.

The question arises how practitioners and Courts will resolve the discount issue in Joint Settlement Meetings/mediations or trials over the next 140 days. One approach might be for the parties to settle on the basis of the current Discount Rate with an agreement to review if the Lord Chancellor changes the rate. Alternatively Defendants may seek to stay/adjourn claims pending the completion of the review.

If you would like to know more about this matter, please speak to your contacts at Plexus Law:

Anthony Baker,  Partner

T: 0113 4681 702  |   M: 07811 545 321  |   E: anthony.baker@plexuslaw.co.uk

Joseph’s Well  |  Hanover Walk   |  Leeds  |   LS3 1AB

Philip D’Netto,  Partner

T: 0161 2457 929   |   M: 07970 318 434  |   E: philip.d’netto@plexuslaw.co.uk

Daniel Clegg,  Partner

T: 0161 2457 911   |   M: 07890 590 188  |   E: daniel.clegg@plexuslaw.co.uk

City Tower  |  Piccadilly Plaza   |  Manchester  |   MI 4BT

Whilst we take care to ensure that the material in this Legal Update is correct, it is made available for information only, and no representation is given as to its quality, accuracy, fitness for purpose, or usefulness. In particular, the contents of this Legal Update do not give specific legal advice, should not be relied on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may arise from reliance on information or materials published in this Legal Update.

On 11^th December the Court of Appeal handed down judgment which concerned the question of whether the Claimant (more widely known as Michael Barrymore) should be entitled to substantial damages, claimed in the sum of £2.4 million, or only nominal damages following his unlawful arrest.

Background

On 31 March 2001, following a social gathering at the Claimant’s home, a Mr Lubbock was found dead in the swimming pool. He later died at hospital. Some years later following a police re-investigation, a decision was made to simultaneously arrest three suspects, including the Claimant. This was deemed necessary to prevent collusion, maintain an element of surprise and enable concurrent interviews to compare responses in real time.

DC Jenkins was the designated arresting officer for the Claimant. She had played a central role in the re-investigation and was fully aware of the evidence. She believed she had reasonable grounds both to suspect the Claimant of committing an offence and that it was necessary to arrest. No other officer had been fully briefed as to the reasons to justify the arrest in order to avoid disclosure of information due to the Claimant’s celebrity status.

On the day of the arrests, DC Jenkins was detained in traffic and not on site to effect the arrest at the requisite time. PC Cootes was ordered to arrest the Claimant which he duly did.

Following the arrests, no material additional information came to light and the CPS decided there was insufficient evidence for any charge to be brought.

First Instance decision

The Chief Constable (“CCE”) admitted that the Claimant’s arrest was unlawful as PC Cootes (the arresting officer) did not personally have reasonable grounds for the necessary suspicion to justify the arrest as required by s.24(2) of the Police and Criminal Evidence Act 1984 and in accordance with the well-established principles in O’Hara v Royal Ulster Constabulary [1997] AC 28.

CCE contended, however, that the Claimant was only entitled to nominal damages on the basis that he could (and would) have been arrested lawfully had DC Jenkins not been stuck in traffic. CCE relied on the decision of R (Lumba) v Sec State for the Home Dept [2011] UKSC 12; [2012] 1 AC 245, in that the power to detain was available had the officers had the legal requirements in mind, therefore the Claimant would have been lawfully detained had the proper procedures been followed. Either DC Jenkins would have lawfully arrested the Claimant had she not been stuck in traffic or, one of the surveillance officers would have been provided sufficient information as to the grounds for arrest from DC Jenkins over the telephone.

This was dealt with as a preliminary issue in 2017 by Justice Stuart-Smith. He found that the Claimant was entitled to substantial damages because he had been unlawfully arrested by someone who did not have the requisite information to satisfy the O’Hara grounds to suspect.

CCE appealed.

Substantial or nominal damages?

On appeal CCE argued that substantial damages should not be awarded based on the interpretation of the counterfactual scenario presented – that a lawful arrest would have taken place had DC Jenkins been present.

In finding in favour of CCE, the court found that substantial damages will not be awarded if, had the defendant acted lawfully, the Claimant would have been detained in any case. Assuming that there were reasonable grounds to suspect the Claimant of committing an offence and a reasonable belief in the necessity of arrest, it was wrong to conclude that the Claimant was entitled to substantial rather than nominal damages. The Court emphasised the judgement did not encourage sloppy practice, but rather, to reflect actual loss suffered.

There must, however, be a distinction drawn between substantive and procedural decisions. In this case, the substantive requirements (that of compliance with s.24 PACE) depended on the state of mind of DC Jenkins. The procedural requirement (the O’Hara obligation that the arresting officer must have reasonable cause) would have been followed had DC Jenkins appreciated what was required. The fact that there was no evidence about what would have happened was not to the point. If DC Jenkins had been alert to the O’Hara obligations, either the arrest would have awaited her arrival or she would have sufficiently briefed PC Cootes as to the reasonable grounds for arrest. The Court succinctly dealt with this issue by stating they have “no doubt that had things been done as they should have been done, a lawful arrest would have been effected.”

Reasonable Suspicion and necessity

The Court of Appeal counselled against courts adopting an approach which seeks to over-compartmentalise material considered by the police in order to discretely analyse its relevance on a piece-by-piece basis. Officers are duty bound to weigh all material in deciding whether there were reasonable grounds for suspecting and arresting a suspect and an officer’s suspicion may take account of matters that could not be put in evidence and may be based on assertions that turn out to be wrong. The factors in the mind of the arresting officer fall to be considered cumulatively.

In relation to necessity, what is required is actual belief the arrest was necessary and objectively, that the belief is reasonable. The court agreed with the lower court that there were grounds to suspect the Claimant to be guilty of an offence and it was necessary to arrest him.

Application and commentary

Lying behind the decision in Lumba is the principle that although procedural failings are lamentable and render detention unlawful, they do not, of themselves, merit substantial damages. This judgement represents an extension of the Lumba principle and may have possible application in other categories of police cases where minor technical breaches (as opposed to substantive breaches) render an otherwise lawful action unlawful.

One can envisage many situations where it could be argued that the rationale behind the decision should be applied for example if a technical failure to conduct a statutory review of detention renders on-going detention unlawful or widening the scope further where a search under warrant is found to be unlawful due to a minor technical failure. A case can now be made that only nominal damages should be awarded in such situations. It will be interesting to see how the case law develops.

If you would like to know more about this matter, please speak to your contact at Plexus Law:

Tom Silson, Associate Partner

T: 0161 2457 973   |   M: 07790 344 010  |   E: tom.silson@plexuslaw.co.uk

City Tower  |  Piccadilly Plaza   |  Manchester |  MI 4BT

Whilst we take care to ensure that the material in this Case Alert is correct, it is made available for information only, and no representation is given as to its quality, accuracy, fitness for purpose, or usefulness. In particular, the contents of this Case Alert do not give specific legal advice, should not be relied on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may arise from reliance on information or materials published in this Case Alert.

 

 

 

Standing alone, even the best workplace safety procedures are useless. To be effective they must be applied, and the history behind a tragedy three years ago is a clear reminder of that.

Facts

On 3 October 2015 a double-decker bus crashed into a superstore in Coventry, killing a pedestrian and one of its passengers and injuring several others, two of them seriously.

Operated by Midland Red (South) Ltd (“Midland Red”), the bus was being driven by its then employee, 77 year-old Kailash Chander, who had bypassed a key safety feature, pressed the accelerator instead of the brake and then lost control.

Prosecution

Mr Chander was ruled unfit to face trial due to the onset of dementia and was given a two year supervision order involving social and psychiatric care.

Midland Red pleaded guilty to two breaches of the employer duties in the Health and Safety at Work Act 1974, in that they failed:

1. Under section 2 (1) “ … to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all [their] employees; and
2. Under section 3 (1) “ … to conduct [their] undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in [their] employment who may be affected thereby are not thereby exposed to risks to their health or safety.”

Midland Red is part of a group whose latest accounts show turnover and operating profit respectively as £3.2 billion and £144 million. They were fined £2,335,000, but reputational and other losses are a lot harder to evaluate.

Background

Midland Red’s own systems had plainly shown that Mr Chander’s driving had long been worsening, but no effective action was taken. For example:

• He was involved in four minor collisions between 2012 and 2014, and an on-board monitoring system had raised many alerts
• After a large number of formal letters to him about this, Midland Red eventually triggered a disciplinary process which included his driving being discreetly observed. This resulted in extra training, and (in response to concern about increased hours)
• The instructor advised Mr Chander to decline unless he felt well enough, also noting that excessive hours should be avoided as fatigue impaired his driving
• During a secondment in September 2015 his home depot failed to warn about his capabilities or the need for him to avoid excess hours. He averaged 72 a week, and there were passenger complaints
• Just two days beforehand a depot manager had again highlighted problems but no action was taken and on the day itself another driver commented on how tired he looked

Findings

The Judge found that Midland Red:

1. Plainly knew that Mr Chander was working long hours and that the quality of his driving was deteriorating
2. Ignored the advice of the training instructor
3. Failed to make sure their drivers were fit to drive at all times

Their failings were a significant cause of the crash, and if they had followed their own policies or the advice of the instructor Mr Chander would not have been driving on that (his sixth consecutive) day.

Changes

While not in breach as regards working hours, Midland Red accepted that failure to apply their own detailed policies on driver supervision meant that warning signs were unheeded and insufficient action was taken.

After a full and priority review, several key changes had been made, resulting in a more robust regime which included increased checks, additional training, better operational communication and more rigorous control of hours.

Commentary

The standout points here were Mr Chander’s age, his working hours and Midland Red’s failure to detect his unfitness to drive or to do something about it. Surely they did detect his unfitness and simply failed to act appropriately.

It has been suggested that the case might also present wider issues in terms of safety, driving age and capability and employment law anti-discrimination provisions, and (at least as to hours) there has been some comparison with different provisions applicable to HGVs.

However, all such are policy matters which may influence how rules are cast and perhaps later changed. It must always be remembered that, wherever the boundaries fall, a body that either lacks or fails to apply a suitable system to track performance and detect and deal with potential breach is always at risk of casualty, loss and public sanction.

In view of this recent reminder, owners and operators might like to review their various safety and other regulatory procedures, to ensure that all are compliant, effective and always verifiably enforced.

 

If you would like to know more about this matter, please speak to your contact at Plexus Law:

Tim Short,  Partner

T: 0161 2457 9o8   |   M: 07920 582 480  |   E: tim.short@plexuslaw.co.uk

City Tower  |  Piccadilly Plaza   |  Manchester  |   MI 4BT

Whilst we take care to ensure that the material in this Case Alert is correct, it is made available for information only, and no representation is given as to its quality, accuracy, fitness for purpose, or usefulness. In particular, the contents of this Case Alert do not give specific legal advice, should not be relied on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may arise from reliance on information or materials published in this Case Alert.

This article was first published online by Highways Today on 15th November 2018 and is reproduced with kind permission.

Introduction

The Well-managed Highway Infrastructure Code (“WMHI”) was published in October 2016. Its two year transition period has now ended. The code was touted as a review of existing practice, as opposed to a complete rewriting, with the focus shifting to a risk-based approach to reflect the flexibility required to enable authorities to adequately respond to each specific sector.

Its 36 recommendations, broadly split across 6 different focussed areas, are officially in force and the WMHI will now be relied upon by local authorities, practitioners, experts, lawyers and the courts as guidance when the adequacies of the network in question are challenged.

This article focuses on a few key areas of the WMHI and highlights important considerations when dealing with civil claims for damages.

Risk Analysis

There has been extensive consultation, engagement and debate as to the changes contained within the WMHI – the most significant being the asset management approach to highway infrastructure based on the establishment of local levels of service through risk-based assessment – Recommendation 7.

Each authority is now left to determine and implement its own network agenda based on its assessment and evaluation of specific needs. A useful reference point is ISO 31000:2009 Risk Management Principles and Guidance. This sets out the management process and model to maximise the effectiveness of a risk-based approach, which can then be adapted to each highway network.

The risk-based approach permeates all of the guidance and includes operational and asset plans, the classification and hierarchy of the network itself, the frequency and method of inspections, investigatory levels and repair timescales.

It is imperative that any decision made in relation to a network risk is documented and recorded so that evidence can be obtained to justify that decision if and when challenged. This could include, amongst others, defined policy and procedures, documented and approved minutes from executive committees, classification data, records of previous accidents and previous claims. Unfortunately, the extent of what a court may wish to consider in order to rule on an authorities’ classification of risk is currently unknown, but it is clear that such information will be a critical consideration in any defence to a claim.

Part of the management of a risk-based approach is also the need to review and monitor the risks of the network. This may be through periodic reviews of usage classifications, new data models and/or condition surveys and a review of defensibility of claims both in the local authority and elsewhere. Evidence will be required to prove that risks are continually being assessed and reviewed. For potential developers within an authority, consideration will need to be given, and evidence provided, as to whether the use of the network will alter and how this can be justified should such a development progress.

Data

Accurate, up to date and accessible data is key. The WMHI specifically states that “A risk-based approach to highway maintenance needs to be founded on information that is sufficiently robust to enable decisions on levels of service to be taken and reviewed over time.” It is clear that the collection, accuracy and analysis of data will be paramount when explaining the risk-based decisions adopted by each local authority under the WMHI.

The recommendations identify the importance of data management as it requires a review and analysis of a number of factors including but not limited to: current/expected levels of use; resilience; local economic and social factors; together with a review of the scale, nature and use of individual assets such as schools and hospitals. This background network data will be relied upon in any defence of a claim as the justification for the risk level in each case.

Careful consideration must be taken as to how such data is collected and reviewed and authorities should consider the adoption of new and emerging technologies as part of their highway service as evidence will be required when the authority is required to justify its categorisation within the network hierarchy.

Collaboration and communication

One of the underlying themes throughout the WMHI is one of integration, collaboration and communication. Within recommendations 3, 4, 5, 6, 8, 24 and 30 it has an important impact on all stages of risk assessment. Whether this be the need for each individual authority to work closely with its internal highway divisions, to publish policy and strategies, to facilitate transparency through data or for each neighbouring authority to be aware and involved in the approach adopted elsewhere, there is a clear push for a unified approach to be adopted and explained. In promoting consistency for all network users irrespective of geographical location, the WMHI encourages local authorities to work closely together when determining levels of service and to justify the approach they have adopted.

The effectiveness of the new recommendations should be encouraged through the establishment of relevant forums, peer-to-peer training and sharing of experiences. However, each authority may well have to differ its approach depending on the characteristic of the assets it has within its control. The relative strength and defensibility of each policy decision will then depend on its ability to record, share and explain its reasoning before court.

There is some concern that the inherent flexibility envisaged by the risk-based approach leaves an authority potentially exposed to large amounts of data and information requests disproportionate to the value of the claim itself. This may lead to satellite litigation to determine the appropriate disclosure of relevant information and is something one would expect to be considered by the courts in the near future.

Competencies and Training

Another area open to challenge within a civil claim is the proven competency of persons involved in the implementation of the guidance in the network itself. Recommendation 15 specifically states that appropriate competencies for all staff should be identified. Training should be provided for directly employed staff (where needed) and contractors should be required to provide evidence of the appropriate competencies of their staff.

Because of the reliance placed on the need to explain each risk-based decision, it is inherent within the system that those persons who will assess the risks are suitably qualified to do so.

Individual training and development plans should be established and reviewed and formal training records should be kept. The use of external training providers and vocational qualifications may be relied upon as evidence of the competency of those whose decisions are being challenged. The need for regular review and refresher training will also be paramount to demonstrate the suitability of qualifications and experience.

Consideration should also be given to membership of professional bodies and/or the need to evidence compliance with industry standards and qualifications provided by an accredited programme. There are a number of diplomas and courses currently available but it is expected that more courses specifically designed to address the risk-based approach will be made available to practitioners as challenges to the competency of persons involved in the network develops in the courts.

Conclusion

The intention behind the WMHI is to promote flexibility and transparency. Whilst each local authority is able to devise its own risk based approach, it must be able to justify and evidence those decisions. The intention is that this is not undertaken in isolation but that there is the opportunity and desire for shared learning across the country to help achieve a more unified network.

As the recommendations only came into force on 28^th October 2018 the courts are yet to interpret how the recommendations should be implemented. There will certainly be challenges ahead as the new approach is explored in court but there are clear opportunities for both local authorities and businesses involved in the highway infrastructure to fully maximise the increased flexibility encouraged through the risk-based approach as long as careful consideration has been given as to how they are able to explain, evidence and justify the relevant decisions made.

If you would like to know more about this matter, please speak to your contact at Plexus Law:

Tom Silson, Associate Partner

T: 0161 2457 973   |   M: 07790 344 010  |   E: tom.silson@plexuslaw.co.uk

City Tower  |  Piccadilly Plaza   |  Manchester |  MI 4BT

Whilst we take care to ensure that the material in this Case Alert is correct, it is made available for information only, and no representation is given as to its quality, accuracy, fitness for purpose, or usefulness. In particular, the contents of this Case Alert do not give specific legal advice, should not be relied on as doing so, are not a substitute for specific advice relevant to particular circumstances. Plexus Law accepts no responsibility for any loss which may arise from reliance on information or materials published in this Case Alert.