LEAVING ISSUE UNTIL THE LAST MOMENT – ALWAYS DANGEROUS : PARTICULARLY WHEN A CLAIMANT IS ON NOTICE OF POTENTIAL PROBLEMS

In Hall v Environment Agency [2017] EWHC 1309 (TCC) His Honour Judge Havelock-Allan QC pointed out the dangers of leaving issue until the last moment, particularly in cases where there were likely to be procedural issues relating to jurisdiction.

THE CASE

The claimant issued a claim for damages following flooding in March 2010. The claimant issued proceedings in the County Court Money Claims Centre just before the six year limitation period expired.

THE DEFENDANT’S APPLICATION

The defendant applied to strike out the action on the grounds that the Water Resources Act 1991 (“the WRA 1991”) provides an exclusive remedy and precluded the bringing of an action at common law for negligence.

THE JUDGMENT

Ultimately the judge decided that the WRA did not give rise to an exclusive remedy. That decision was described as “quite finely balanced”.

THE WARNING

  1. The application to strike-out the claim is dismissed. I am relieved to have reached this decision because the EA has pursued the application in order to be able to plead a limitation defence against Mr Hall if he was obliged to start his claim afresh in the Upper Tribunal. Progress towards unifying the Courts and Tribunals Service has not reached point where I can transfer an action from this Court to the Upper Tribunal. It is possible under CPR PD30 to make direct transfers between the Courts and the Competition Tribunal, but not between the Courts and other Tribunals. So Mr Hall would have been non-suited if the strike-out had succeeded.
  2. Whilst that would have been a regrettable outcome, it is fair to point out two matters which would have mitigated that regret. The first is the evidence in the witness statement of Mr Carty, a Senior Lawyer with the EA, that the EA informed Mr Hall’s solicitors in November 2012, both by telephone and in writing, that Mr Hall’s claim for compensation fell to be dealt with under the statutory compensation scheme in the WRA 1991, and followed this up with a written warning in January 2013 that if a claim was commenced in the County Court the EA would dispute the Court’s jurisdiction. At one point, it looked as though this warning had been taken on board because Mr Hall’s solicitors sent an email to the EA in October 2013 saying that if the claim could not be settled proceedings would be commenced in the Upper Tribunal. But it would appear that Mr Hall’s legal team had second thoughts. The point, however, is that Mr Hall was on notice of the jurisdiction point more than 3 years before this action was commenced. The second matter is that the commencement of this action was left to the very last minute. If the explanation for the fact that the action was commenced in the County Court rather than in the Lands Tribunal is that the claim was issued in haste in order to beat the time-bar and that the jurisdiction point was overlooked, I would have had a good deal less sympathy for the consequences of the action being struck out.