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Turton v Hellier & the Environment Agency, Yeovil County Court, 1 August 2005

24 November 2005
The issues

Abuse of Process – Pre Action Admissions – Withdrawals

The facts

The Claimant was killed in a collision with a bullock belonging to the First Defendant on 8th October 2001. The bullock was kept in a field about half a mile off the road along with 33 other bullocks. On the day in question two bullocks had strayed onto the main road. A Letter of Claim was sent in September 2002. The Defendant’s insurers replied confirming that they were prepared to make an admission of liability although noting that they would also seek to involve the Environment Agency who they would be blaming for allowing the cattle to escape.

In December 2002 the insurers for the First Defendant paid the Claimant’s solicitors bereavement damages in full. For the next 18 months there was correspondence between the Defendant’s insurers and then their solicitors and the Claimant’s solicitors in which the Claimant’s solicitors were pressed to quantify their claim.

Subsequently the First Defendant sought to withdraw the admission.

The Defendants argued that their admission was as a result of a misunderstanding of the law. They took the view that following Mirvahedey v Henley they had an absolute liability as owners of the livestock. Subsequently that case went to the House of Lords when it was made clear that liability rests on proof of the elements set out in Section 2(2) of the Animals Act.

The Defendants withdrew the admission in March 2004. In October 2004 proceedings were served. The Defendant entered a Defence denying liability and alleging contributory negligence arising from the fact that post accident police found the light switch on the deceased’s car to be set on side lights only whereas at the time of day on the day of the accident it was dark. The Claimant took the view that the Defence amounted to an abuse of process. The Claimant argued that they were prejudiced in that they had not obtained factual witness evidence from the deceased’s work colleagues; and that the light bulbs on the car had been removed but were destroyed in July 2003 without testing as to whether the head light filament was alight at the moment of impact; and that there was financial prejudice in that the Claimant’s widow had, relying on the admission, bought a bungalow and had used the bereavement damages to pay towards that purpose. The Claimant brought an application to strike out the Defence.

The decision

For the Defence to amount to an abuse of process it had to be shown the Defence was unarguable. This was not unarguable. However, notwithstanding the Claimant’s reliance in the application on “abuse” the Court would treat the application as a general one to strike out the Defence. On the matters before the Court the Defendant had a realistic prospect of defending the claim. There was nothing fancible about it nor was there any evidence of bad faith on the part of the First Defendant.

The explanation for the admission related to a misunderstanding as to the meaning and effect of Mirvahedy, a misunderstanding which had been resolved by the House of Lords decision. The Claimant’s prejudice was not substantial. The police had been very active in interviewing everyone who conceivably could attribute as to what had happened and there were many photographs available of the gate and the three intervening gates. The light bulb issue went to contributory negligence the burden of which rested on the First Defendant which was as prejudiced as the Claimant by the destruction of the bulbs.

As to the financial and emotional prejudice that the Claimant alleged she had suffered from, it could not be taken to amount to any particular financial prejudice. If she had taken it on herself to have in mind a sum of money that she would recover and had that notion put out of her mind six or seven months before she issued the proceedings that was a matter for her.

Emotional prejudice was entirely understandable but the difference between having a claim admitted or not could not in the Court’s judgment be a proper reason for denying the First Defendant the opportunity of filing the Defence.

Application dismissed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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