IS A CLUB YARD A “PUBLIC PLACE”? REVERSE SUMMARY JUDGMENT GRANTED TO INSURER DEFENDANTS

In Brown v Fisk & Ors [2021] EWHC 2769 (QB) Master Dagnall granted reverse summary jugment to an insurer defendant. This involved consideration of whether a yard was a “public place” under s.151 of the Road Traffic Act 1988.

 

THE CASE

The claimant had been injured by the first defendant’s car in a yard owned by a club.  The second defendant insurer had refused to indemnify the first defendant. The claimant brought an action against the driver, the insurer, the MIB and the government.  The issue the Master had to determine was whether the yard in question was a public place.  If it was a public place then the insurer defendant was liable to pay under s.151 of the Road Traffic Act, regardless of whether they were providing an indemnity or not.  The insurer applied for summary judgment of the case against it, arguing that there was no prospect of the claimant succeeding on the argument that the yard was a public place.

 

THE JUDGMENT

The Master considered the law on “public place” in detail, there was also detailed evidence as to who had use of the area in question.  The conclusion reached was that this was not a public place under the Act.

    1. Looking at the actual evidence I continue to see, first, that this is a remote location as in Spence. Secondly, these are the premises of a private members’ club used for the private, rather than general public, purposes of the club and therefore seeming to resemble the situation in Pugh. Thirdly, that the only evidence about persons who enter, not for reasons linked with the club are: (i) people who are seeking directions to the Recycling Centre, who are simply going to receive those directions and leave, and where I do not see how their presence can render this a public place. (ii) Dog walkers who have wandered in and then, because they cannot go anywhere else wander out again, and where again I cannot see how they can render this a public place. It might be different if there was evidence that people actually parked in order to then leave and go to the woodland with or without their dogs, but there is simply no evidence as to that. It seems to me that the evidence with regards to dog walkers falls within the trivial category, as referred to in the elements of Vivier which were cited in May. Fourthly, there are those who deliver hardcore and other material for the club’s purposes, but it seems to me that those deliveries are simply private purposes. I cannot see as to how any site or place becomes public, simply because there are deliveries to the commercial or other operation – here the club operation – which exists there.
    1. There are those others, though, who are said by Ms Nelson to be more public. First, those who come as enquirers to ask about the Society. As against that, this is not the main location of the Society, this is very much a subsidiary location; but, even if it was the main location, I cannot see where the fact that enquirers come to ask about the Society renders the yard a public place. Making such an enquiry seems to me to be exactly a private purpose, and if the fact that people come to a private members’ club to make enquiries about it could render it those premises, and the area outside them a public place, it seems to me that that would be highly surprising and would have resulted in a contrary result to that which was adjudged in Pugh.
    1. Secondly, there those who are invited to deliver jumble. That, however, it seems to me is still for very private purposes relating to the club and its operation. It is not for the purposes of a jumble sale which is being conducted for the purposes of the local community, it is simply, again, a delivery to the club for its own purposes.
    1. Thirdly, there is the suggestion that some buy tickets. The evidence here though is that it is only a very few people. It is not the main location for ticket sales, and there is no suggestion or evidence that those persons then park and go off to walk around. Again, it seems to me that they are people who have simply come for a very limited purpose which is a purpose of the Society itself and that, again, this is within the Richardson classification rather than the May one.
    1. Fourthly, there is a question as to whether or not there are members of the public who come there simply because it is a place to come for a social chat. That, however, is something which features only in the particulars of claim and not in the witness statements evidence.
    1. As I have said, because of my concerns both as to the law and the nature of the test which I have been carrying out, I have been considering very anxiously as to whether or not it could be said that this is a public place car park linked to a private club, but still access tolerated by the club, being access by the public for their own, that is to say, public purposes, and not solely for what I would describe as the owner’s private premises.
    1. Nevertheless, notwithstanding my anxious consideration, I conclude that the claimant has no real prospect of success on this aspect. My overwhelming impression remains that this is a private place and people come in there either, effectively by mistake and to leave simply because the gates are open, which is not, in my judgment, sufficient to turn the matter into a public place, or because they come there for a specific Bonfire Society purpose which is not public in nature. Although I am very conscious that this is a summary judgment matter with a summary judgment test, and though I have only come to this conclusion on balance, I do conclude that there is no real prospect that the claimant would succeed on trial on the evidence before me and which is, at first sight, the evidence which would be before the trial judge.
    1. I do also have to ask myself as to whether I see no compelling reason for there to be a trial in these circumstances, in circumstances where the third and fourth defendants have accepted that they are bound by the outcome and that the claimant is able to pursue them, principally the fourth defendant, along the lines pleaded – if those lines pleaded are right as a matter of law – I do not see any compelling reason for a trial.
  1. For all those reasons I will grant the reverse summary judgment as sought and which, at first sight, would involve an order for the vacation of the trial. I will consider, in the light of any suggestion which may be made to me about appeal, as to whether I should be making such a direction at this point in time.