Pre-action Protocol and Disclosure

In fairness, some Local Authorities are able to produce comprehensive computer records suitably coded with clear explanations of those codes used during inspection. These local authorities are generally equipped in being able to supply necessary documentation within the Protocol time scales required.

However, many Authorities appear either unable or unwilling, to produce the relevant documentation or it is made available in an incomprehensible form, frequently consisting of poorly copied pages of records and notes in manuscript.

It is crucial to concentrate on the quality of the information that is provided and to be able to understand exactly, what story it tells. Regard should be had to the Code of Practice for Maintenance Management, which was most recently updated in July 2001. The recommendations contained in the Code are not mandatory on Authorities but the extent to which an Authority has had regard to those recommendations when setting its policy in relation to highway maintenance will be a relevant consideration in the context of a claim against that Authority.

There is a wealth of detail in relation to issues crucial to consideration of potential liability. By way of very limited example, recommendations are made in respect of such areas as;

  • The scope of highway maintenance, and what is expected to constitute reactive, routine, programmed and regulatory maintenance.
  • Carriageway footway and cycleway hierarchy, which categorise certain types of highways.
  • Categories of Inspection which deal with the key maintenance objectives for safety and service inspections and structural condition surveys, and the parameters which are needed for those inspections.
  • Frequency of inspection, items for inspection, degree of deficiency and nature of response.

You cannot fully consider the documentation secured relating to pre-accident history of maintenance, inspection and repair of a highway, without being clear as to how the highway has been classified by the authority and in turn, aware of detail of the policy that they have adopted in respect of maintenance.

Consideration of the adopted policy and the implementation of it, might be considered with some caution as sounded by Steyn L.J. in Mills v Barnsley Metropolitan Borough Council in mind.

“It is important that our tort law should not impose unreasonably high standards, otherwise scarce resources would be diverted from situations where maintenance and repair of the highways is more urgently needed. This branch of the law of tort ought to represent a sensible balance or compromise between private and public interest”

It may be right to say that most local authorities may have in place a laudable policy, but given restriction on funds available and the rising maintenance backlog, many are not complying with their own guidelines. If they were, the claims would not be increasing at the rate that they are.

If your proposed Defendant will not hand over the documents that you need to see or you have long lost patience waiting for them to be produced, issue an application under CPR 31.16. The documentation being sought is not privileged, there is no question that the same is being sought by a Claimant in these circumstances as a fishing expedition, and the requirements of CPR 31.16 can be easily made out.

In so far as the issue of costs is concerned, it is important to set up the pre application correspondence correctly to ensure that the Court is persuaded to make a full order for costs against the local authority and that the general rule as provided for in CPR 48.1 (2) is not applied.

Make sure:

  • The letter of claim sets out clearly the documentation that is being required from the Authority on denial of liability
  • If liability is not admitted at the expiration of the Protocol period or full documentation is not forthcoming, send a warning letter clearly stating that an application for pre-action disclosure will be made within a specified time and that costs will be sought contrary to CPR 48.1 (2) on the grounds that there has not been compliance with the pre-action protocol (CPR 48.1 (3) (b)).

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