in allowing the claim to proceed out of time. I would have found it equitable to apply s.33 Limitation Act 1980 so as to permit the claim to proceed. Summary Judgment / Application to Particulars of Claim The Second Defendant highway authority has applied for summary judgment on the basis that the claim against it has no real prospect of success. The application was based on the Claimant’s account that the First Defendant mounted the pedestrian area within which he was standing (or was at least 99% so). This alongside the pleading that the untended state of the hedge obstructed the Claimant’s view from the pedestrian area. If the First Defendant mounted the pedestrian area, the point made by the Second Defendant is that the state of the surrounding hedgerow in so far as it obstructed the Claimant’s view was irrelevant and could not attract liability in the Second Defendant. As argument before me developed it emerged that the Claimant was alleging that the hedge was not so much obstructing the Claimant’s view but rather was obstructing the First Defendant’s view of the presence of the Claimant. It also seemed to me that there might be another issue for the judge to grapple with. The First Defendant was alleging that far from mounting the pavement, it was the Claimant who emerged from the cut-through onto the carriageway and into his path. Whilst that was not the Claimant’s case, it might be that the judge found that he did emerge onto the highway and might conclude that this was at least in part due to the overgrown state of the hedge obstructing the Claimant’s view of oncoming traffic. As these points were ventilated it became evident that the Particulars of Claim might benefit from further attention. An oral application to amend was made. I ordered that a proper draft be prepared and served with provision for written submissions if the
in allowing the claim to proceed out of time. I would have found it equitable to apply s.33 Limitation Act 1980 so as to permit the claim to proceed. Summary Judgment / Application to Particulars of Claim The Second Defendant highway authority has applied for summary judgment on the basis that the claim against it has no real prospect of success. The application was based on the Claimant’s account that the First Defendant mounted the pedestrian area within which he was standing (or was at least 99% so). This alongside the pleading that the untended state of the hedge obstructed the Claimant’s view from the pedestrian area. If the First Defendant mounted the pedestrian area, the point made by the Second Defendant is that the state of the surrounding hedgerow in so far as it obstructed the Claimant’s view was irrelevant and could not attract liability in the Second Defendant. As argument before me developed it emerged that the Claimant was alleging that the hedge was not so much obstructing the Claimant’s view but rather was obstructing the First Defendant’s view of the presence of the Claimant. It also seemed to me that there might be another issue for the judge to grapple with. The First Defendant was alleging that far from mounting the pavement, it was the Claimant who emerged from the cut-through onto the carriageway and into his path. Whilst that was not the Claimant’s case, it might be that the judge found that he did emerge onto the highway and might conclude that this was at least in part due to the overgrown state of the hedge obstructing the Claimant’s view of oncoming traffic. As these points were ventilated it became evident that the Particulars of Claim might benefit from further attention. An oral application to amend was made. I ordered that a proper draft be prepared and served with provision for written submissions if the
b78ym721-wells-v-wood-notts-cc-judgment-final.docx