Case No: B3/2001/1835 and 2003/1437

Neutral Citation Number: [2004] EWCA Civ 329
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR JUSTICE HOLLAND
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Tuesday 23 March 2004
Before :

LORD JUSTICE KENNEDY
LORD JUSTICE SEDLEY
and
LORD JUSTICE SCOTT BAKER

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Between :

	William Roe	Appellant	
	- and -		
	(1) Sheffield City Council
(2) South Yorkshire Light Rail Ltd
(3) South Yorkshire Supertram Ltd
(4) Balfour Beatty Power Construction Ltd	Respondt’s	

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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
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Gary Burrell QC, Graham Robinson & Miss Siobhan Kelly (instructed by Atteys (Doncaster)) for the appellant
Alan Jeffreys QC & Michael Nicholson (instructed by Mark Webster, City Solicitor) for the Sheffield City Council
Ian Wright (instructed by Kennedys) for Balfour Beatty
Miss Susan Cooper (instructed by Keeble Hawson (Sheffield)) for the South Yorkshire Light Rail Ltd. (in a listening watch capacity in the appeal)
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Judgment
Lord Justice Kennedy:
1.	These are appeals by the claimant against two decisions of Holland J which in different ways restrict the way in which the claimant now wishes to present his claim for damages for serious personal injuries which he sustained in a road traffic accident on 16th May 1995.  The accident has been found to be wholly caused by the state of the road on which the claimant was travelling, where tram rails had relatively recently been installed, and for the purposes of this appeal it is necessary to say something about how the rails got there, what happened on 16th May 1995, and the history of the claimant’s legal proceedings to date.  
How the Rails got there.
2.	Sheffield had trams until 1960, when those that remained were replaced by buses, but after about 25 years it was decided and agreed by the City Council (the first defendants) that trams should run again.  Parliament authorised the necessary construction work by passing the South Yorkshire Light Rail Transit Act 1988, which incorporated part of the Tramways Act 1870.  South Yorkshire Light Rail Limited and South Yorkshire Supertram Limited, who are the second and third defendants, were wholly owned subsidiaries of the South Yorkshire Passenger Transport Executive, a privately funded company, which was and is the promoter of the enterprise.  The executive seems to have operated through those companies, which have been referred to compendiously as the Supertram companies.  No distinction need now be drawn between the two companies or between the companies and the executive, so in this judgment they are referred to as the Supertram companies or the second defendants.  The Supertram companies engaged Balfour Beatty Power Construction Limited, the fourth defendants, to design and build the supertram system.  Turner and Townsend Project Management Limited, the fifth defendants, were appointed project managers, and Kennedy and Donkin Transportation Limited, the sixth defendants, were involved in the design.  The project was unusual, because it envisaged, to a significant extent, trams using carriageways also used by motor cars and other road vehicles, including some sections of dual carriageway road where vehicles were permitted to travel at up to 40 miles per hour.
The Accident.
3.	In March 1994 the trams began to run again in Sheffield, and thereafter the network continued to expand.  By March 1995 trams were operating in Norton Avenue, a dual carriageway road subject to a 40 mph speed limit, and at about 7 am on 16th May 1995, when it was wet, the claimant was driving along that road.  He was using the outside lane, in the centre of which were laid the tram tracks for trams travelling in the same direction as himself, and the distance between the tram tracks was almost exactly the same as the track width of a standard motor car.  So it is not surprising that the tyres of the claimant’s car got onto the rails, which were a little proud of the bedding material and concrete on either side of them.  The car tyres then slid along the rails, and then off to the nearside onto the adjacent concrete.  The sudden increase in friction caused the front of the car to “snatch”.  The claimant tried to correct that movement by turning to the offside, and he lost control.  That resulted in his car colliding with a cable support pole in the central reservation, and as a result of that collision the claimant sustained serious injuries.  
The course of legal proceedings.
4.	The claimant by his next friend commenced legal proceedings on 8th April 1998, just under three years after the accident, and initially he brought proceedings against the six defendants identified above and one other.  His original case can be summarised as follows –
(1) All of the defendants knew or ought to have known that the protruding rails, positioned as they were, were dangerous and slippery, especially for vehicles with radial tyres in wet weather.
(2) The first defendants, the council, were in breach of their statutory duty under section 41 of the Highways Act 1980 in failing to maintain the road so that it was level, and not exhibiting marked variations of friction.
(3) The first defendants were also negligent in –
(a) permitting the rails to stand proud of the road:
(b) failing to keep the co-efficient of friction even:
(c) failing to ensure that the fourth defendants laid the rails level with the road:
(d) failing to apply a high friction coating to the area of the rails:
(e) failing to inspect and test the rails and the area adjacent to them before that part of the road was made available to cars and other traffic:
(f) failing to erect warning signs and/or in wet weather reduce the speed limit, or if necessary close the lane in which the tram lines were set.
(4) Similar allegations were made against the Supertram companies, but with particular reliance on the statutory requirements in section 9(4) of the 1998 Act and section 25 of the 1870 Act to lay the rails level with the surface of the road.  Subsequently there was reliance upon section 28 of the 1870 Act and section 15 of the 1988 Act which imposed on the promoter, for 12 months, an obligation to maintain the road between the tram tracks he had laid, and some 18 inches of the road to either side.
(5) As against the fourth defendants, Balfour Beatty, the allegations were much the same as those made against the second defendants.
The allegations of negligence against the other defendants were not particularised, but the particulars are not material to this judgment.  There were also allegations of nuisance made against the first four defendants.
5.	Further and better particulars of the Statement of Claim were provided in due course, but nothing turns on those particulars at this stage.  
6.	By November 2000 the first four defendants had served their defences, and the action, which was recognised to be a lead action in relation to personal injury claims involving Supertram, had been assigned to Holland J so that he could supervise the preparatory stages and ultimately conduct the trial.  On 3rd November 2000 a Case Management Conference was held, and the judge noted that the first defendants were the highway authority, which was obliged by section 41 of the 1980 Act to maintain the road, but –
(1) it denied any responsibility for that part of the road where the accident had occurred, and-
(2) it raised allegations of contributory negligence.
The highway authority did not however at that stage rely on section 58 of the 1980 Act, which enables such an authority to avoid liability if it can show that it has taken such care as in all the circumstances was reasonably required to secure that the relevant part of the highway was not dangerous to traffic.  The judge therefore ordered the trial of preliminary issues.  On 12th March 2001 there was an amendment to the description of the preliminary issues and at the beginning of the judgment which he delivered on 11th May 2001, after the trial of those issues, the judge set out the first three issues which he was addressing.  They were –
“a. At the material time what was the state of the highway at the location specified in the Statement of Claim?
b.  Did that part of the highway in its then state wholly cause or materially contribute to the claimant’s accident?
c.  Did the claimant’s driving wholly cause or materially contribute to his accident?”
The judge resolved those three issues in favour of the claimant, and he then went on to consider two other issues namely –
“(4) At the material time were the first defendants as highway authority under a duty to maintain this part of the highway?  If ‘no’ was some other (and if so, which) body subject to a like duty?
(5) If section 55 of the Tramways Act 1870 applied, who were the ‘promoters or lessees’ within the meaning of the Act at the material time?”
Section 55 of the 1870 Act, so far as material, reads –
“The promoters … shall be answerable for all accident, damages, and injuries happening through their act or default, or through the act or default of any person in their employment by reason or in consequence of any of their works or carriages, and shall save harmless all road and other authorities, companies, or bodies, collectively and individually, and their officers and servants, from all damages and costs in respect of such accidents, damages, and injuries.”
For the first defendants as highway authority it was contended that for so long as section 28 of the 1870 Act and section 15 of the 1988 Act imposed maintenance obligations on the promoters in relation to part of the road the highway authority was relieved of its obligations in relation to that part.  For the second defendants it was argued that the maintenance duties were concurrent, but in any event there was no lack of maintenance, and no duty arose under section 15 because the introduction of the tram track did not alter the road.
7.	The judge found in favour of the first defendants as to section 41.  In other words he found that as to part of the road their highway maintenance obligations were displaced by those imposed upon the second defendants, who, he found, had altered the road for the purposes of section 15.  They accepted that they were promoters for the purposes of section 55.  The judge found that the maintenance duties imposed upon the second defendants “were absolute”, amounting in effect to “a duty to keep the ‘section 28 road’ free from dangers to traffic so as to equate to the section 41 duty.”  He noted, but was unmoved by, the fact that the second defendants could not pray in aid any defence equivalent to section 58 of the 1980 Act. 
8.	The judge then indicated that if the claimant proved against the second defendants a causative breach of one or more of their statutory obligations he would succeed in full, but he did not actually find that there had been a breach because that was outside the scope of the defined preliminary issues.  He had, however, found as a fact that the rails stood proud of their surroundings to the extent recorded by PC Bashforth, and that the accident was wholly caused by the state of the road –
“The crucial features were the rails and a configuration of such within this highway which meant that a motorist properly utilising this outside lane could drive onto and along them before abruptly contacting the adjacent concrete.”
When judgment was handed down the judge was initially under the impression that “the first defendants were simply sued as the highway authority, and that absent the relevant section 41 duty the claim against them failed.”  Mr Robinson, counsel for the claimant, made it clear that the case was not so confined, and he made two points –
(1) Design and Building Services, a sub-division of the council, had apparently been involved in the design process, and its acts and omissions underlay the allegations of defective design:
(2) It remained part of the claimant’s case that the first defendants “failed to exercise their powers to anticipate the problems at this particular locus and to erect warning signs”.
The judge was rightly concerned to do what he could to contain the litigation, and he directed the claimant’s counsel to consider whether they needed to continue against the first defendants, and if so he required them to amend the claimant’s pleading to particularise his case against the first defendants.  I interpose to point out that such particularisation, as Mr Burrell QC for the claimant pointed out before us, would inevitably involve evaluation of the vast amount of documentation which had been disclosed.  Clearly the judicial thinking was that the claimant had a strong case against the second defendants, and it was unnecessary to complicate the next trial by keeping alive allegations against other defendants which widened the issues and which might or might not succeed.  The position was even more stark in relation to the other defendants, so the claimant’s counsel were directed to consider their position in relation to the fourth defendants, and other defendants with whom we need not now be concerned.  The judge questioned whether those defendants owed a duty of care to the claimant, and indicated that it might be necessary to decide that as a further preliminary issue.  He recognised that Part 20 claims by the second defendants or first defendants against other defendants might have to be resolved in the Technology and Construction Court, and indicated that not only for this claim but for others what was required was “a forensic pathway that will readily lead a claimant to the right defendant or defendants, who can and will meet or resist the claim on the merits”.  As the judge said, claimants should not have to sue six or seven defendants, and although a forensic pathway can be imposed by the court it would be much more satisfactory if it could be agreed between the parties.  I echo those words, and I note that on 11th May 2001 the judge concluded by asking counsel if the claimant had received any money at least as an interim payment.  The answer then was in the negative, but I understand that the claimant has now received interim payments totalling £200,000.
9.	 The claimant’s counsel then put forward, first to the defendants and then to the judge, the suggestion that the case against the second defendants should proceed, and the case against the other defendants should be stayed pending the outcome of the case against the second defendants.  That proposal, which seems to me to have had its attractions, did not immediately commend itself to Holland J who was anxious to deal first with whether any defendant owed to the claimant a duty of care “free standing and additional to the statutory duties potentially or actively owed to him by the first, second and third defendants”.  The judge therefore arranged to hear submissions in relation to that issue at Chester at the end of July 2001.
The Chester Hearing.
10.	In preparation for the Chester hearing the claimant’s counsel prepared a 16 page skeleton argument, and a two-page document which he described as an overview.  In their skeleton argument counsel pointed out that the second defendants might have an arguable defence to the allegations of breach of statutory duty, and that in the end it might turn out that it was the horizontal alignment rather than the vertical protrusion of the rails which was the critical factor.  The second defendants had statutory power to lay rails 4 feet 8½ inches apart, but they should have exercised their statutory power in such a way as to minimise the risks.  In paragraph 11 of the skeleton argument counsel say –
“So far as the construction of the tramway is concerned, the rails were located in such a position in the highway that the natural line for cars to take involved them driving on the rails with the offside tyres on the offside rail and the nearside tyres on the nearside rail.  This constitutes a nuisance.  The nuisance could have been avoided if the horizontal alignment had been such that cars were encouraged to straddle the rails.  This has now been achieved by means of lining and the addition of a rumble strip, as was seen at the site visit.  Additionally, “slippery when wet” warning signs have been posted.  The claimant says that failure to lay the rails in the first place so that cars were encouraged to straddle them constitutes a breach of the obligation to exercise statutory powers without negligence – in other words that the statute affords no defence to the nuisance thereby caused, because the authorised works could have been executed in such a way that no nuisance was caused.”
The claimant’s counsel submitted that the second defendants might escape liability if they showed that they delegated to competent professionals and contractors the issue of horizontal alignment.  
11.	As to the position of the first defendants, it was pointed out that they were involved in two capacities – as highway authority and through their Design and Building Services.  DBS, it was said, were “responsible for the position of the rails in such a position that cars were in effect positively encouraged to drive upon them”.  Accidents began long before the index accident.  They should have been investigated and thought should have been given to horizontal alignment before track laying was finalised.  That would have led to the conclusion that the way to stop accidents was to discourage cars from driving directly on the rails.  Attention was invited to Larner v Solihull MBC [2001] PIQR P248, a decision of this court, which shows that in certain circumstances a highway authority can be subject to a common law duty of care.
12.	Turning to the position of the fourth defendants, the claimant’s counsel pointed out that on 4th October 1994 there was a fax from the fourth defendants own consulting engineers to those defendants which identified the dangers, and the steps necessary to ameliorate the risks.  It was contended that there had been no adequate reaction to that fax.  
13.	As is clear from the overview, the claimant’s position had been clarified by consideration of the documents disclosed on discovery, and it was clear that the safety precautions taken some time after the accident, and referred to in paragraph 11 of the skeleton argument quoted above, had proved effective.
14.	The skeleton arguments served by counsel for the second defendants spelt out in detail their contention that –
(1) They were not liable:
(2) The responsibility for any shortcomings which existed at the time of the accident lay with other defendants, and in particular the first and fourth defendants, and –
(3) Those defendants did owe to the claimant a duty of care.
After the hearing at Chester Holland J gave judgment on 31st July 2001.  He was critical of the failure of the claimant’s counsel to amend the pleadings which, as I have said, were not particularised at all in relation to the duty of care said to be owed by later defendants.  For some reason the judge when giving judgment does not seem to have directed his attention either to the claimant’s skeleton argument or to the overview, or even to the nature and content of the second defendants’ defence.  In that defence liability was denied and it was and is maintained that the first defendants, through DBS, were responsible for the design and supervision of the works.  The fourth defendants are also alleged to have been responsible for design.  In paragraph 23 of the second defendants’ defence they assert that the claimant’s accident was caused or contributed to by the negligence and/or breach of statutory duty of the other defendants, and they adopt the allegations made against those defendants in the Statement of Claim.  The judge was persuaded that it would be premature to enter judgment for the first defendants against the claimant before outstanding issues between the claimant and the second defendants were resolved, but he struck out the claims against the other defendants, simply by reference to the pleadings.  That decision in relation to the fourth defendants is one of the two matters we have to consider in this appeal.  When giving permission to appeal Keene LJ said –
“In the unusual circumstances of this case it is properly arguable that an order for striking out should not have been made simply by reference to the pleadings.”
Soon after judgment had been delivered at Chester the claimant’s Statement of Claim was re-amended to particularise the case against the second defendants, and the second defendants responded with a re-amended defence.  In that re-amended defence the allegations against the first defendants and against other former co-defendants were elaborated.  For example, and only by way of example –
(1) At paragraph 18(11), in relation to the alleged breach of section 28 of the 1870 Act, it is said –
“In so far as there is found to be any valid criticism of the materials used in the maintenance of the section 28 road and/or the manner in which they were so used, this is as a result of the fault of the first and/or fourth defendant and not the second and/or third defendants.”
(2) In paragraph 18(14.1), as to negligence at common law it is said–
“The second and third defendants reasonably and with all reasonable care engaged and/or were advised by other parties to advise them on the design, construction and maintenance of the tramway system, which was installed to operate in streets which would also be used by other motor vehicles such as that driven by the claimant.  Such other parties included the first, fourth, fifth, sixth and seventh defendants herein.”
In paragraph 18(15.3) it is said –
“The position of the rails within the highway was a matter of the overall design of the tramway system which was carried out by the first and/or fourth and/or sixth and/or seventh defendants and/or approved by those parties and/or the fifth defendant, which design and/or approval the second and/or third defendants reasonably relied upon.”
15.	It seems to me to be clear beyond argument that if the claimant had begun his action in 1998 by suing only the second defendants, and had then been faced with a defence such as that upon which the second defendants now rely, any responsible counsel acting on his behalf would have at once advised that at least the first and fourth defendants be joined as defendants in the action, and the application to join them could not seriously have been opposed.
The Barnsley Hearing.
16.	In October 2001 there was a trial at Barnsley of the remaining issues between the claimant and the second defendants, and on 20th December 2001 Holland J handed down what he optimistically described as one comprehensive final judgment.  It is a helpful document because it sets out at paragraph 16 his findings of fact and his reasons for finding that there was no contributory negligence.  It lists the defendants and the relevant statutory provisions, and at paragraphs 33 to 34 it summarises the judge’s previous rulings.  They included the judge’s finding that the first defendants were relieved of their obligations under section 41 of the 1980 Act to the extent that highway maintenance obligations were imposed upon the second defendants by section 28.  As to section 55 the judge rejected the submission that it imposed an absolute liability, but accepted that if there is shown to be a breach of the relevant statutory duties then there is liability under section 55 for a wrongful act or default.  
17.	At paragraph 42 the judge held that the second defendants had been in breach of section 25 (the obligation to lay the rails level with the adjacent surface) because that section imposed an absolute obligation, and he rejected without giving reasons the causation argument that any breach of section 25 was immaterial because there would have been a similar loss of control even if the rails had been level with the surface of the road.
18.	As to the maintenance obligation imposed by section 28 the focus remained on the vertical protrusion of the rails.  The judge accepted that the second defendants had in effect been prevented from adducing evidence as to foreseeability of risk, and so he refrained from reaching any conclusion.  
19.	At paragraph 51 of his judgment the judge said that on 31st July 2001 he had ordered that so much of the Statement of Claim as alleged negligence on the part of the first defendants in a capacity other than that of highway authority should be struck out, but because of the forthcoming October hearing in relation to statutory liability, an area of potential involvement for the first defendants, he was prevailed upon simply to stay the claimant’s case against the first defendants.  He now saw no reason to maintain the stay, so he lifted it and directed that judgment be entered for the first defendants against the claimant.  That is the second decision which we have to consider in this appeal.  It should be said at once that the order of 31st July 2001 dealt with only two out of 19 allegations of negligence made by the claimant against the first defendants in paragraph 27 of the amended Statement of Claim.  That may be because in July the judge had been under the impression that those were the only effective allegations of negligence not covered by the allegations of breach of statutory duty, but, whatever the reason, the decision to strike out the case against the first defendants was taken without further argument.
20.	The order drawn up as a result of the judgment handed down on 20th December 2001 provided by consent for an interim payment of £100,000, and gave the second defendants permission to appeal.
The First appeal.
21.	The appeal and the cross-appeal were heard in November 2002, and judgment was handed down on 17th January 2003.  The leading judgment was given by Pill LJ, with whom Hale LJ agreed.  They held that –
(1) The 1870 Act did give rise to a private law cause of action, but that the obligation imposed by section 25 permitted some degree of tolerance – as level as could be achieved within the limits of current technology and materials.
(2) That section 28 imposed an absolute duty to maintain the part of the road to which it related, the standard of maintenance being measured by considerations of safety.
(3) That although the laying of tram tracks was an alteration to the highway within the meaning of section 15 of the 1988 Act, neither that section nor section 28 of the 1870 Act relieved the first defendant, as highway authority, of its overall obligation imposed by section 41 of the 1980 Act to maintain the whole of the highway.
The findings of fact did not enable the Court of Appeal to reach conclusions as to the liability of the second defendants, or as to the liability of the first defendants.  Sedley LJ dissented.  He would have upheld the decision of the trial judge.  The case was ordered to be remitted to Holland J for further consideration, but remission was ordered to be deferred pending our decision in relation to this appeal.  There was a petition to appeal to the House of Lords, but on 7th June 2003 leave to appeal was refused “bearing in mind that not all of the facts have yet been established.”
This appeal.
22.	The claimant then sought to pursue this appeal.  On 19th August 2003 Hale LJ gave permission to appeal out of time against the order made on 20th December 2001 dismissing the claim against the first defendants. As she said at paragraph 27 of her decision -
“The position in which the claimant finds himself is, to a considerable extent, the result of case management decisions that were made for very laudable reasons in the course of the first instance hearing of this matter.”
Initially the claimant was seeking to set aside the decisions of the judge in relation to defendants other than the first and fourth defendants, but he has abandoned that attempt.  His counsel sensibly accept that if he cannot succeed against the first, second or fourth defendants his claim will fail, and if he does succeed against one or other of them he does not need to pursue others.
23.	As to the first defendants, Mr Burrell submits that the claimant should not be confined to alleging a breach of the statutory maintenance obligation imposed by section 41 of the 1980 Act.  He submits that for reasons now set out in paragraph 27 and appendix A of the proposed re-re-amended statement of claim, as well as in the skeleton argument before us, he has a viable common law claim against the first defendants which should now be heard at the same time as his claim that the first defendants were in breach of section 41.  That allegation of breach of statutory duty is not certain to succeed.  The duty only requires the first defendants to maintain the highway, and even if there can be said to have been a lack of maintenance the first defendants may be able to take advantage of the statutory defence provided by section 58 if they prove that they had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous to traffic.  But, as Mr Burrell contends, the liability of a local authority involved in a project such as this is not necessarily confined to its statutory obligations - see Larner (supra).  This local authority knew or ought to have known of the risk of cars and other road vehicles getting into difficulties on wet rails.  Even without any accident the risk was relatively obvious, having regard to the track width, the position of the rails in the carriageway, the fact that they did stand a little proud of the road, and the speed at which traffic was permitted to travel.  The existence of the risk was highlighted by the history of accidents prior to the claimant’s accident, some of which were reported direct to the first defendants by those involved.  The first defendants as highway authority had the capacity to react.  As partial designers of the project and as highway authority they could have required the incorporation by the contractors of the safety precautions eventually implemented, which were designed to alert motorists to the risks, and to encourage them to straddle one rail.  They could also have taken other precautions, such as reducing the speed limit, or even shutting off the fast lane in wet weather.  
24.	For the first defendants Mr Alan Jeffreys QC criticised the failure of the claimant to apply at an early stage to set out his case at common law against the first defendants.  As Mr Jeffreys says, no attempt seems to have been made in December 2001 to prevent the judge from dismissing the remainder of the common law claim against the first defendants.  He submits that in order to determine the issues now being raised against the first defendants there will have to be an expensive, time-consuming and lengthy trial which need not take place because the claimant is bound to succeed against the second defendants.  As against those defendants the claimant can rely on section 25 (the obligation to lay the rails level with the surface of the road).  If on further consideration it is found that there was non-compliance with that obligation, then it is clear that a breach of statutory duty was causative, as the judge found in May 2001.  In the Court of Appeal Pill LJ said that on the judge’s findings he did not see a defence based on causation.  In addition, as against the second defendants, the claimant can rely on the non-delegable duty imposed by section 28 to maintain the relevant part of the highway, and, unlike the first defendants the second defendants do not have available to them any statutory defence equivalent to that provided by section 58 of the 1980 Act.
25.	Mr Jeffreys also invited our attention to the documentation to show how the first defendants and others reacted to information about accidents which they received prior to and after May 1995.  He submitted that the records did not suggest that there was a “black spot” at the place where the claimant’s accident occurred, or that it was irrational not to do more than was done.  Clearly there was a degree of concern.  A video camera was installed at a black spot, and it was decided to have a white line on Norton Avenue at the right hand side of the carriageway, near to the central reservation, but the letter from South Yorkshire police of 11th October 1994 expressing police concern apparently went unanswered.  Having invited our attention to Gorringe v Calderdale MBC [2002] RTR 446, a decision of this court currently under appeal to the House of Lords, Mr Jeffreys submitted that in order to succeed at common law against the first defendants the claimant must show that in Norton Avenue it was wholly unreasonable not to do more than the first defendants did, and that is something which the claimant cannot hope to show.
26.	However, as Mr Burrell pointed out in his reply, the case which the claimant wishes to present against the first defendants at common law is not confined to highway maintenance obligations, or obligations which arise alongside section 39 of the Road Traffic Act 1988 as amended.  It arises out of the first defendants’ part in the design and implementation of the Supertram project, and in my judgment it is a case which ought now to be heard and decided.  The reality is that although the claimant has a strong case against the second defendants he is not certain to succeed.  Plainly there may have been no breach of section 25 (otherwise this court would not have decided as it did on the last occasion), and even if there was a breach the second defendants are in a position to contend that the breach was not causative.  As to section 28, the second defendants are entitled to contend that the road was maintained and kept in good condition and repair.  The cause of the accident was more fundamental than that.  There are of course allegations of negligence against the second defendants which the judge did not find it necessary to determine, but they cannot at this stage be said to present an unanswerable case.
27.	I turn to the case against the fourth defendants.  That case is now set out in paragraph 29 and appendix B to the claimant’s proposed re-re-amended statement of claim, but much of it was deployed before the judge at Chester by Mr Burrell and Mr Richard Maxwell QC by reference to their respective skeleton arguments.  So, Mr Burrell submits, the judge should not have struck out the claim as he did, simply by reference to the pleadings.  The fourth defendants knew then the case they had to meet, so they cannot seriously claim to have been prejudiced by the failure to amend, and from a very early stage the fourth defendants held themselves out as being “responsible for the total infrastructure”, including “re-profiling the highways to ensure complete traffic safety for the integrated running of supertram with other normal road users.”  So, Mr Burrell contended as between the claimant and the fourth defendants there was clearly sufficient proximity, and in addition to creating the road and track layout which caused the accident the fourth defendants knew of its potential effect on road users.  That was spelt out for them in detail in the fax from their own consulting engineers dated 4th October 1994.  They had statutory authority to lay rails, but that cannot avail them if their negligence was collateral.  They could at least arguably have reduced the risk by laying the rails level, advising the first defendants to erect warning signs, taking steps to encourage motorists to straddle the rails, and if necessary even advising that speed limits be reduced or that part of the road be closed in wet weather.
28.	Furthermore, after Holland J gave judgment at Chester, the second defendants amended their defence to spell out not only their own defence but also their allegations against the first and fourth defendants, and, as Miss Cooper for the second defendants told us, the second defendants still make that positive case.  It would, Mr Burrell contended, be manifestly unjust and contrary to the overriding objective if the second defendants were to succeed on the basis that the blame lay with the fourth defendants, from whom the claimant was unable to recover.
29.	For the fourth defendants Mr Ian Wright submitted that the claimant never needed to sue his clients because he was certain to succeed against the second defendants, and possibly against the first defendants under section 41 of the 1980 Act. He complained that in a situation like this if allegations are made against a contractor the burden of investigation and disclosure becomes enormous because of the complexities of the contractual arrangements, and in reality at the end of the day the allegations made against the fourth defendants by the claimant, who has the benefit of public funding, simply mirror his allegations against the first and second defendants.  Mr Wright acknowledges that if the claimant succeeds against the second defendants his clients may well be faced with a claim in contract which, he submitted, could best be resolved in the Technology and Construction Court.
30.	As to the responsibilities of the fourth defendants, Mr Wright pointed out that Mr Barnes of the first defendants’ DBS department said, in a statement taken in March 1997, that “where shared lanes were used there was an acceptance by the council that the tram rails would be central within that lane with lane dimensions governed by the rail inspectorate guidance and vehicle characteristics on bends dictating the required lane widening.”  Similarly Mr Latham, the DBS chief engineer, said in March 1997 in a statement that the council –
“had a role as consultant to design highway alterations to accommodate the placing of a tramway within the highway, e g re-alignment, traffic management and control …. The council did not design the tramway, which includes the concrete track slab, steel rails and a polymer called Edilon.  The tramway designer was Balfour Beatty.”
Mr Davies, the chief executive of the second defendants, in a statement which he made in September 2000 pointed out the limits of the fourth defendants’ authority.  They did not control the “swept path alignment” and decisions in relation to vertical and horizontal alignment were joint decisions.
31.	Mr Wright emphasised that the work undertaken by the fourth defendants at the behest of the second defendants was authorised by statute, and if the second defendants are liable because the work was negligently done they are not protected from liability to the claimant because they engaged an independent contractor (see Hardaker v Idle D C [1896] 1 QB 335).  There was, Mr Wright submitted, no need to involve the fourth defendants as a contingent defendant, and it is an abuse of process for the claimant to be seeking to do so.
32.	As I have already indicated, I am simply not persuaded that the strength of the claimant’s case against the second defendants, or the first defendants and the second defendants, is such that it is unnecessary for him to pursue his case against the fourth defendants, whose liability is not necessarily co-extensive with that of the other defendants.  As Mr Burrell said, if it can be shown that the fourth defendants undertook to design a safe system and then obtained information which pointed to both dangers and a solution, it must then have been the duty of the fourth defendants either to implement the solution or, if they could not do that alone, to advise all relevant parties of the dangers and of the solution.  The second defendants contend that the fourth defendants failed to take either course, and if that can be shown it amounts to negligence which could be causative, and for which neither the first defendants nor the second defendants would have responsibility.
Conclusion.
33.	For the reasons I have given above I would allow these appeals and thus permit the claimant to deploy his case as he wishes against the first defendants, the second defendants and the fourth defendants.  I believe that to be necessary if the over-riding objective is to be achieved, and in fact I doubt if, as between the claimant and the defendants, it will add much to the length, complexity, or cost of the litigation, now that the allegations have been fully particularised and discovery is complete.
34.	The complaints now being made by the respondents to this appeal about the burden of discovery and the costs of extended litigation cast upon them by a claimant supported by public funds seem to me to have a hollow ring.  Without purporting finally to decide the issue it does seem to be reasonably clear that this claimant should succeed in full against one or more of these defendants, and it should have been possible for the principal defendants to agree that long ago.  If they had done so then the claimant could have been paid out, and the defendants could then have, if necessary, continued the litigation to resolve issues of apportionment and contractual contribution or indemnity.  We were told that the position at the present time is that Part 20 proceedings have been issued by the first defendants against the second defendants, and that the second defendants propose to issue such proceedings against the fourth defendants if, but only if, the second defendants are themselves held liable to the claimant.  It seems to me that the time has come for the proceedings to be brought to a complete conclusion, and by that I mean all proceedings, whether against or between surviving defendants.  It is unacceptable that fresh proceedings between two defendants covering largely the same ground as the principal action may be begun when the main action is over.  The effect of CPR 20.6(2) is that no defendant in the present proceedings who has not yet served a contribution or indemnity notice may now do so without the court’s permission.  CPR 20.9 allows the court which is asked to give such permission to have regard to the connection between the Part 20 claim and the principal claim.  The court may have of course have regard to anything else that is material.  In my judgment the High Court might well be justified in refusing permission to a defendant in this action to issue Part 20 proceedings after judgment in the principal action.  When it is clear that there are no more Part 20 proceedings in the wings Holland J will be able to decide whether it is best to deal with all of the issues at the same time.  There may be contractual issues best left for consideration at a second stage, but I am by no means persuaded that more than one trial will be required.
Lord Justice Sedley:
35.	 I agree.
Lord Justice Scott Baker: 
36.	I also agree.
Order: 
Appeal B3/01/1835 – By Consent
1.	That the Claimant’s appeal be allowed and that the Order of the Honourable Mr Justice Holland dated 31 July 2001 be set aside to the extent that it relates to the Fourth Defendant.
2.	That Judgment for the Fourth Defendant be set aside.
3.	That the Fourth Defendant do pay the costs of this appeal which relate to the appeal against the fourth Defendant only, such costs to be subject to detailed assessment on the standard basis if not agreed.
4.	That the Claimant’s costs be assessed in accordance with Regulation 107 of that Civil Legal Aid (General) Regulations 1989. 
5.	That the Claimant do by 19th April 2004 serve on the 4th Defendants any proposed draft re-re-amended Statement of Claim.
6.	That the balance of the issues joined between the parties be remitted to the Honourable Mr Justice Holland for further consideration.
7.	That the case be listed before the Honourable Mr Justice Holland for a further Case Management Conference on the next available date after 3rd May 2004 (time estimated 1 ½ hours).
Appeal B3/03/1437
8.	That the Claimant’s appeal be allowed and that the Order of the Honourable Mr Justice Holland dated 20 December 2001 be set aside.
9.	That Judgment for the First Defendant be set aside
10.	That the First Defendant do pay the Claimant’s costs of this appeal and of the application for permission to appeal out of time, such costs to be subject to detailed assessment in the standard bases if not agreed.
11.	That the Claimant’s costs be assessed in accordance with Regulation 107 of the Civil Legal Aid (General) Regulations 1989.
12.	That the Claimant do by 19th April 2004 serve on the 4th Defendants any proposed draft re-re-amended Statement of Claim.
13.	That the balance of the issues joined between the parties be remitted to the Honourable Mr Justice Holland for further consideration.
14.	That the case be listed for a further Case Management Conference on the next available date 3rd May 2004 (time estimate 1 ½ hours)
(Order does not form part of the approved judgment)