Case No: C08YP765
IN THE COUNTY COURT AT DERBY
Date: 13th April 2018
HIS HONOUR JUDGE GODSMARK QC
|Highways England Company Limited||Claimant|
|– and –|
|Peter Michael Hughes||Defendant|
Mr S Whitfield (instructed by Freeths) for the Claimant
Mr J Carter (instructed by Langleys) for the Defendant
Hearing dates: 15th February 2018
– – – – – – – – – – – – – – – – – – – – –
His Honour Judge Godsmark QC :
- This is a claim in damages in the tort of negligence arising out of a road traffic accident which occurred on 7th January 2016 on the A55 road in Cheshire. The Defendant Mr Hughes lost control of his car and hit an offside safety barrier. The claim is to recover damages in respect of the damage caused to highway furniture in the form of the crash barrier.
- Although not a high value claim it is one of an increasing number which are arriving in the County Court at Nottingham due to the location of solicitors and witnesses rather than there being any geographical connection with this court. Many of these cases appear to have common issues. I have therefore taken this case onto the fast-track for trial by myself as Designated Civil Judge in the hope of providing some guidance to parties and District Judges (at least in my area).
- The Claimant is Highways England Company Limited (“Highways England”) which is the owner of the UK road network under the Infrastructure Act 2015 and the Appointment of a Strategic Highways Company Order SI 2015/376. There is no dispute that in effect the Claimant is the owner of the damaged safety barrier. Highways England claim damages of £8,164.50 in respect of the damage caused by Mr Hughes.
- On behalf of Mr Hughes it is accepted that he was negligent in his driving and that such negligence caused the loss and damage. The issue lies in quantum of recoverable loss.
- That issue is not as straightforward as one might think. Highways England has a number of contracts for the repair and maintenance of the highway network including highway furniture. The country is apparently divided into a number of areas and this accident took place in Area 10 which includes Greater Manchester, Merseyside and part of Cheshire. The contract for repair and maintenance of Area 10 lies with Balfour Beatty Mott MacDonald (“BBMM”). I have seen relevant extracts of that contract. In short Highways England pay BBMM a lump sum to repair and maintain the highway network in Area 10.
- In addition the contract provides for “Claims against Third Parties” such as those who negligently damage the highway network. The relevant provision is at clause 87.2 in which the Provider is BBMM and the Employer is Highways England. The paragraph reads as follows:-
“Where the repair or replacement falls within the Lump Sum duties, the Provider may pursue a claim against any third party to recover the costs involved in the name of the Employer. The provider bears and indemnifies the Employer against any costs and liabilities incurred in pursuing the claim. Any sums recovered by the Provider as a result of the claim and received by the Employer (other than sums recovered in respect of the repair or replacement of Employer’s Stocks which belong to the Employer) are held in trust for the Provider and are paid by the Employer to the provider on demand. Alternatively the Provider may agree with the third party that the third party will carry out the necessary works at no cost to the Employer.”
The Lump Sum Duties are the repairs and maintenance to the highways network which BBMM have agreed to undertake for a fixed lump sum.
- It is under this authority that this claim is brought. Although the Claimant is identified as being Highways England, in fact the claim is being brought by BBMM in the name of Highways England by virtue of the authority given in paragraph 87.2 above.
- The claim is for £8,164.50 broken down as follows:-
Labour – £ 205.47 Materials – £ 583.92 Plant – £ 85.38 Sub-contractor charge – £6,547.50 Total £7,422.26
To this total is added a 10% Administration Fee of £742.23 giving the claim total of £8164.50 (give or take a penny).
- The claim falls into two parts. Initially BBMM employees attend the site to assess the damage and effect initial repairs to make sure the highway was safe and operational so far as possible. Those costs are the labour and plant costs set out above. The actual repair work is subcontracted out which explains the sub-contractor charge.
- Clearly the bulk of the sum claimed lies in the sub-contractor charges. This is turn is broken down as follows:-
a) Traffic management.
The barrier repairs were done over the course of two nights. As I understand it, concrete was poured into which posts were set on the first night, with a return the next night to fix barriers once the concrete had set. During these periods there had to be lane closures with the familiar cones, signage, lights etc. with a of team of men to do it all. This was undertaken by HW Martin (Traffic Management) Ltd who charged £1,295 per night being £2,590 in total.
Two cubic metres of concrete was required and was supplied by Bettamix at a cost of £570.
Bettamix also did the actual barrier work. Charges levied are based on length of barrier repair rather than time spent. This was a 19.2 metre length repair for which Bettamix charged £2,660.
- Total sub-contractor charges amounted to (£,2590 + £570 + £2,660) = £5820. To this total BBMM have applied a 12.5% uplift in accordance with CECA Dayworks rates generating a total of £6,547.50. This is the figure seen in paragraph 8 above.
- The Civil Engineering Contractors Association (CECA) publishes industry recognised rates for labour and plant for Dayworks. The Introductory Notes to those rates describe when the rates are applicable at paragraph 2.
“These Schedules are the Schedules referred to in the ICE Conditions of Contract and have been prepared for use in connection with Dayworks carried out incidental to contract work where no other rates have been agreed. They are not intended to be applicable for Dayworks ordered to be carried out after the contract works have been substantially completed or to a contract to be carried out wholly on a Dayworks basis. The circumstances of such works vary so widely that the rates applicable call for special consideration and agreement between contractor and employing authority.”
- This paragraph reinforces my own understanding of the term “Dayworks” which applies to unforeseen or unpriced work within a larger contract. The CECA rates are not intended to apply to a single entire contract.
- The CECA rates for Dayworks applies the following uplifts:-
Labour – Operative’s wage + 148% Materials – Cost of delivery to site + 12.5% Sub-contractors accounts – Add 12.5%
Head Office charges and profit are specifically included in the labour and plant uplift but not the sub-contractor uplift.
- BBMM argue that the CECA rates are the best way of calculating a repair cost on relatively small repairs such as the one in this case where the figure is less than £10,000. That figure is significant because BBMM do have agreed rates with Highways England for repairs where the total is over £10,000.
- There are a number of issues which arise of general application to these cases and some which are specific to this case. The general issues (which I deal with first) are:-a) Has Highways England suffered any loss at all given that these barrier repairs are included in the works to be done by BBMM for the fixed contract sum?
b) What, if anything, does paragraph 87.2 of the agreement between Highways England and BBMM permit BBMM to recover?
c) Are CECA rates an appropriate basis for calculating repair costs in cases such as this?
d)Is a “profit element” in repair costs recoverable?
- The negligent damage to the highway barrier is causative of two strands of loss. Firstly there is the cost of attendance to assess the damage and make the area safe. Secondly there is the physical damage to the barrier itself.
- It is uncontroversial in this case that the tortious measure of damages in respect to damage to chattels is the diminution in value of that chattel (recently affirmed in Coles v Hetherton  EWCA Civ 1704 at para 27).
It is also uncontroversial that the most practical method of quantifying diminution in value is by reference to the cost of repair. Again from Coles v Hetherton at para 27
“Generally the practical way that the courts have calculated this diminution in value is to ask how much would be the reasonable cost of repair so as to put the chattel back in the state it was before it was damaged. In general this is a convenient practice which we think the courts should continue to follow. Only if the sum claimed appears to be clearly excessive will the court be justified in investigating whether that sum exceeds the cost that the claimant would have incurred in having the repairs carried out by a reputable repairer.”
- The start point is thus that the Defendant has negligently damaged the Claimant’s property. The consequent loss suffered by the Claimant is the cost of initial attendance to assess and make safe and then the diminution in value of his property which is measured by reference to the reasonable cost of repair.
- Is the position any different because these costs of attendance and repair are included in the lump sum paid by Highways England to BBMM meaning that this repair involves no additional cost to Highways England? In my judgment this aspect of the case makes no difference to the quantification of loss, not least because it is not the actual cost of repair to Highways England which is important, it is the reasonable cost of repair.
- As it happens, it seems to me that Highways England has paid for this damage to be repaired when one considers the overall consideration in its agreement with BBMM. There is a lump sum component to the agreement under which BBMM is to repair barrier damage such as this. But in addition Highways England has granted BBMM authority to recover for itself a sum in respect of such barrier damage. Without such a clause it is likely that either barrier repairs such as this would be excluded from the lump sum duties entirely or that the lump sum would be larger. This authority given by Highways England is part of the total consideration package.
- As is made clear in Coles v Hetherton  EWCA Civ 1704 at para 27, in a case of chattel damage the diminution in value is the recoverable loss. The Claimant is not obliged to repair the chattel to recover the loss, nor does it matter if the Claimant can get the repair done at less than cost. In these cases Highways England is entitled to recover the reasonable cost of repair of the damaged barrier – not the actual cost.
- Although these proceedings are brought in the name of Highways England, they are brought for the benefit and under the direction of BBMM. The authority for that is contained in clause 87.2 of the contract between them (see paragraph 6 above). Although not a point taken in any skeleton argument before me I invited submissions on the wording of the authority, which is expressed to permit BBMM to pursue “a claim against any third party to recover the costs involved” in the name of Highways England. What is meant by “the costs involved”? If the costs involved referred only to the costs to BBMM then that would not necessarily be the sum claimed here.
- I have concluded that the point was not advanced in any skeleton argument for good reason: it is not a reasonably arguable point. The reference to “costs involved” relates back to repair or replacement. Thus the cost must be the cost of repair or replacement. That leaves the question of “cost to whom?” Is it cost to Highways England or cost to BBMM? The sums would be different as the cost of repair to Highways England would include a profit element to BBMM whilst the cost to BBMM (without profit) would be a lower figure.
- It seems to me that the only sensible interpretation of the authority is that it relates to cost of repair to Highways England. Otherwise it would not reflect the measure of damages by reference to diminution in value. It would be odd if a tortfeasor was liable to Highways England for diminution in value of a damaged chattel in one sum if sued by Highways England itself and in a different sum if sued by Highways England via BBMM. Accordingly, I find that clause 87.2 authorises BBMM to claim in the name of Highways England the sum which Highways England could recover from the tortfeasor.
- No-one has sought to argue that the costs of initial attendance for assessment and making safe should be considered separately to the cost of repair. Again I consider that to be correct. Whether one considers the initial attendance costs as part of the repair cost or as a different head of damage those costs would clearly be recoverable from the tortfeasor. I see no point in distinguishing between them.
- The major argument before me related to whether it was appropriate to use CECA Daywork rates to calculate cost of repair. On this I heard evidence from Mr Ellis who was a quantity surveyor for BBMM and also Ms Tolmie who is a loss adjuster.
- Ms Tolmie pointed to lower rates for labour and plant as used on the £10,000 + repairs and suggested that if these rates were appropriate for other works they were appropriate here. She noted also that there is no contractual agreement to use CECA rates and questioned the basis upon which they were incorporated into this claim.
- During the oral evidence before me it became clear that in fact there are two regimes in operation to recover damages in respect of damaged highway furniture. Where the costs are under £10,000 then BBMM undertake the repairs and, under the authority of clause 87.2 of its contract with Highways England, recovers damages from the tortfeasor. However with larger repairs (over £10,000) Highways England claims against the tortfeasor and claims the repair cost calculated by reference to rates agreed with BBMM for works over £10,000. Those rates are not the CECA Dayworks rates.
- Mr Ellis acknowledged that CECA Dayworks rates were not a perfect fit to this type of work. A repair such as this was a self-contained mini-contract of its own and not really an extra to an existing contract with men, plant and materials already on site. It was though a reasonable way of pricing the repair. He was asked why the same rates which were used in pricing repairs of over £10,000 could not be used. His response was that the £10,000 + rates were negotiated prescribed rates which were in part subsidised by the lump sum paid under the agreement. Nor would they necessarily always produce a cheaper price; sometimes it would be more and sometimes less.
- The suggestion from Mr Ellis that the £10,000+ rates were in part subsidised by the lump sum appears to jar with paragraph 21 of his witness statement.
“Whilst still defined by the contract as part of the lump sum duty, no payment is made within the lump sum to cover the repair costs incurred due to third party negligence”.
However having heard the oral evidence of Mr Ellis I am satisfied that this statement is an over-simplification. I accept that the lump sum payment does not cover barrier repairs. However I also accept from Mr Ellis that the rates charged by BBMM to Highways England in respect of such repairs are influenced by the larger picture of works being done within a substantial commercial arrangement. To that extent the rates charged by BBMM to Highways England are discounted (or subsidised) as a consequence of that larger agreement.
- I can understand that on larger repair works there are economies of scale which can be utilised. I also accept Mr Ellis’s evidence that the £10,000 + repair rates are subsidised in part by the lump sum payment in the sense that I have set out above. They are to that extent artificial in that they do not stand alone as representing the price of repair. They are in effect preferential rates which BBMM has negotiated with Highways England. BBMM is not obliged to charge those rates to anyone else.
- It should not be forgotten that the figure being sought is diminution in value by reference to the reasonable cost of repair. That does not mean there is only one possible figure for diminution in value, there may be a range of reasonable repair costs all within a reasonable bracket. I have come to the conclusion that while CECA Dayworks rates may not be a perfect fit for this type of repair they are a reasonable fit. The rates are accepted as reasonable within the civil engineering industry for unanticipated works. In many respects that is a good description of the barrier repairs I am concerned with; although it is predictable that barrier repairs will be needed, no-one can predict how many or of what complexity. In order to reject the use of CECA Dayworks rates in pricing this repair I would have to have some alternative measure to apply. The only one suggested is the £10,000 + repair regime rates and I have already accepted that they are artificial in that they are partly subsidised by the lump sum. No-one can suggest anything else.
- My conclusion is that while use of CECA Dayworks rates may not be the only method by which to calculate a repair cost, it is a reasonable method and the figures thereby generated are not excessive on a repair of this size.
- I am bolstered in that conclusion by taking a step back and looking at the repair bill. It comes to a little under £7,500 using CECA rates. Bearing in mind that a traffic lane has to be closed for two nights and the no doubt technical specification of what has to be repaired I do not find such a sum surprising.
- However the Claimant is not pricing the repair using CECA Dayworks rates alone. In addition there is added a 10% Administration Charge. Mr Ellis justified this on two bases:-
a) Administration and back office expenditure incurred which is not included in CECA rates such as organising lane closures and planning the works;
b) By way of updating of CECA rates which have not been revised since 2011.
- It is worth noting that the CECA Dayworks rates for labour, plant and materials include a mark up of 12.5% to cover Head Office charges and profit. Whilst that is not expressly stated in relation to sub-contractor charges it is difficult to see what else it would relate to.
- BBMM’s justification for using CECA Dayworks rates is that they are an accepted industry standard. If that is right I cannot see the justification for departing from them by adding a further charge for office charges when they are already included in the CECA rates.
- I am also unimpressed with the argument that the CECA rates are out of date being now 7 years old. I have no evidence that those rates are no longer regarded as appropriate in the industry and whilst they remain the industry standard I cannot see the justification for departing from them.
- Whilst I can see the basis for using CECA Dayworks rates in arriving at a repair cost I can see no basis for immediately then departing from those rates by adding an additional 10%. The additional 10% Administration Charge is not a reasonable addition to the CECA rates and would thus lead to an unreasonable repair total. It is disallowed.
- I come then to the question of whether a profit can be made on a repair such as this. That question comes to the fore in the light of the judgment of District Judge Hale in this court when dealing with one of this claims on the small claims track. In Highways England v Pirie the learned District Judge rejected a claim for damage to a crash barrier primarily on a factual basis – he was not satisfied that the repair costs claimed related to the right stretch of damaged barrier. However District Judge Hale went on to consider the use of CECA rates in these cases and observed that in his judgment such rates were inappropriate since they allowed BBMM to make a profit out of the damage done. He would want to assess the cost of repair by stripping out the profit element of the CECA rates.
- With the greatest of respect to the learned District Judge I have concluded that he has looked at this issue in the wrong way. What has to be ascertained is diminution in value. That is calculated by reference to cost of repair. However the cost must be the cost to the owner of the chattel i.e what the owner would pay to effect a repair. A business undertaking the repair is allowed to make a profit. Any professional repairer giving a quote for a repair will include a profit element and would be entitled to do so. That profit element is part of the cost of repair to the owner – it is not the owner’s profit. But in any event one should not forget that there is no obligation to repair. What is being recovered is diminution in value. The reasonable cost of repair (to the owner) is simply a method of quantifying that diminution in value.
- This “profit question” is really tied up with the issue of whether CECA Dayworks rates are an acceptable means of quantifying repair costs. I have concluded that they are and the profit element for the repairer does not change that.
The Specific Claim
- Having set out what I consider to be the appropriate approach to quantification of these claims I can now deal fairly shortly with the specific items of claim here.
Labour – £205.47
- The timesheets show that two BBMM employees initially attended the damage and were involved from 16:30 hours until 19:00 hours (end of shift). For the Defendant the point is taken that the incident log records those employees as being allocated this job at 16:24 with the job “complete” at 17:04. That is not 2 ½ There are references to follow up logged at 19:06 and this looks as though it is an entry made back at the depot at end of shift.
- Whilst troubled by the incident log reference to “complete” at 17:04 I prefer the timesheet as a source of evidence for time spent on this matter. The attending team’s work may well not be complete just because the damage is coned off. There will be paperwork (albeit electronic) and travel back to base to factor in as well.
- At one point in the evidence Mr Ellis seemed to suggest that only travel to the barrier would be chargeable time. That surprised me as it is illogical. However it was later clarified that Mr Ellis had been referring to a situation where the team involved in this assessment had gone straight to a different job. That makes sense. In this case the team did not go onto another job and so the full 2 ½ hours as recorded on the timesheet is referable to the accident I am concerned with.
- The evidence is that both operatives who attended were skilled men whose basic wage rate, multiplied by 2.5 hours and then uplifted by 148% under CECA yielded a figure of £205.47. I accept that arithmetic and have already found that the application of CECA Dayworks rates is appropriate. The labour cost is allowed in full.
Plant – £85.38
- This is the cost attributed to the MRT Response van used by the two operatives on their initial attendance. This vehicle with cones signs etc is charged at £34.15 per hour which includes the 12.5% CECA uplift. The composition of that figure and identification of its component parts is set out on Mr Ellis’s witness statement. The arithmetic is not in issue and I have allowed the 2 ½ hours of time from the timesheet and CECA uplift. The £85.38 is allowed in full.
Materials – £583.92
- The materials used in the repair (posts, beams, connectors etc) have been listed and the CECA 12.5% uplift applied. A point was taken that a CO3 Adjuster Beam is included in the list of material charged for but is not included in the BBMM materials measure sheet. Mr Ellis considered the error to be on the materials measure sheet not least because the job could not be completed without an adjuster beam. I accept his evidence on that. Apart from the adjuster beam no real issue was taken with the material used, only with the application of the 12.5% CECA uplift. That issue I have dealt with above. The £583.92 is allowed in full.
Sub-contractor charge – HW Martin – £2,590 + 12.5% CECA uplift = £2,913.75
- This was the cost of closing part of the highway and managing the traffic during those closures. There were two nights of lane closures since on the first night the concrete is poured and posts positioned in the concrete whilst on the second night the barrier is connected to the, by then, solidly set posts. The charge is £1,295 per night.
- The point is taken that the closure of the lane allowed other routine work to be done (litter collection etc) for which credit should be given although in what sum it is difficult to say. However in my judgment this suggestion misses the point. What has to be identified is the reasonable cost of repair. The lane closures were necessary to effect the repair and are an inevitable part of that cost. The fact that other minor routine work can be done at the same time does not diminish the repair cost itself.
- There is nothing in the lane closure cost which strikes me as unreasonable. This is specialist night-time work. Clearly there had to be lane closures on two nights. The £2,590 HW Martin sub-contractor cost is allowed. The CECA 12.5% uplift is also allowable. The claimed figure of £2,913.75 is allowed.
Sub-contractor charge – Bettamix – Concrete – £570 + 12.5% CECA uplift = £641.25
- The is the cost of supply of 2 m3 of concrete and delivery to site. No serious challenge is made to this element of cost nor could there be. The issue lies in the application of the CECA uplift which I have already dealt with. The £641.25 is allowed in full.
Sub-contractor charge – Bettamix – Barrier repairs – £2,660 +12.5% CECA uplift = £2,992.50
- The arrangement that BBMM have with Bettamix is that barrier repairs are charged according to the physical length of the repair. This was a 19.2 metre repair. Mr Ellis was asked about the rates charged by Bettamix and whether Bettamix had correctly invoiced BBMM for this repair. The invoiced sum was £2,660 for DSTCB barrier. That is not the sum on the Bettamix table of rates for that type of barrier (it is £2,760). In cross-examination it was suggested to Mr Ellis that the charge should have been for 9.6 metres of double barrier at a cost of £1,980 and Mr Ellis agreed that BBMM had been wrongly invoiced and that the correct figure should have been £1,980.
- Despite the apparent concession I do not follow that. This was a 19.2 metre repair. If it was single barrier type the labour / plant rate is £2,660. If it is double barrier the rate for labour / plant is £2,760. What has been charged is £2,660 albeit for double. It strikes me that the invoice is wrong only in its description of the type of barrier repair. If this was a 19.2 meter single barrier repair the correct sum to invoice was £2,660 which is what was in fact invoiced.
- It is that figure of £2,660 which I regard as correctly representing repair cost. However the 12.5% CECA uplift will be applied to it yielding the total of £2992.50.
- Totalling the allowed charges (including CECA uplifts) results in the following:-
Labour – £ 205.47 Materials – £ 583.92 Plant – £ 85.38 Sub-contractor charge HW Martin – £2,913.75 Sub-contractor charge concrete – £ 641.25 sub-contractor charge barrier repairs – £2,992.50 TOTAL – £7,422.27
- I have already indicated that I regard the additional 10% administration fee an unreasonable additional charge. I assess the cost of repair of the damaged barrier and accordingly its diminution in value at £7,422.27.
- BBMM is entitled to recover, in the name of Highways England, the tortious measure of damage resulting from negligent damage to highways furniture including barriers. That includes diminution in value of the damaged items.
- Diminution in value is to be assessed by reference to reasonable cost of repair (not necessarily actual cost of repair). I would regard the costs of initial site visit to assess damage and make immediately safe as part of the costs of repair. It cannot be said that Highways England have suffered no loss because such repairs are part of the lump sum agreement with BBMM. Firstly the consideration within that agreement allows BBMM to recover repair costs in the name of Highways England. If that were not so then I anticipate that the lump sum payable by Highways England would be higher. Secondly, diminution in value is not measured by actual costs of repair (and carries with it no obligation to repair). It is measured by the reasonable cost of repair.
- CECA Dayworks rates provide a reasonable route to calculating reasonable cost of repair. They are applied and accepted within the civil engineering industry. Dayworks rates are not a precise fit to the nature of the repair undertaken as this repair is a single free-standing project rather than an unanticipated “extra”. However it is in my judgment a reasonable way to assess repair costs. An alternative measure based on the rates agreed between BBMM and Highways England for more extensive (over £10,000) repairs is subject to the criticism that those rates are subsidised by the lump sum element of the contract between Highways England and BBMM. No-one suggested to me any third method of calculating repair costs. But is any event the quest is for a reasonable cost of repair – not the cost which is most advantageous to the tortfeasor, or the owner.
- CECA Dayworks rates are recognised and accepted within the industry. It is on that basis that I am prepared to use them to cost the barrier repair work. They include an element for Head Office charges and profit. However since those rates are those recognised in the industry I see no justification for an additional cost of 10% by way of Administration Charge. CECA Dayworks rates already include an element for Head Office charges and the 10% is an unreasonable addition to those rates. I am not impressed by the argument that the rates are out of date absent some evidence that they are no longer generally applied.
- While the CECA Dayworks rates include an element of profit, this is profit for the repairing contractor and not for the chattel owner. To that extent it is unobjectionable and is part and parcel of any cost of repair. The chattel owner is not making a profit out of the repair. But in any event this is a distraction from the true goal in this exercise which is to assess diminution in value of the damaged chattel. That is done by reference to reasonable cost of repair which can include an element of profit for the repairer. In so far as the judgment of District Judge Hale in the case of Highways England v Pirie suggests to the contrary I respectfully disagree with him.
- Applying those general criteria to this claim I find that the reasonable cost of repair of the barrier damaged by Mr Hughes was £7,422.27. That includes the CECA uplift. It does not include any additional uplift by way of 10% Administration Charge which I consider to be an unreasonable additional cost.
- There will be judgment for the Claimant in the sum of 7,422.27.
- Finally, I was asked to indicate my view as to whether Ms Tolmie’s evidence was expert or factual. She is a loss adjuster and has analysed the figures forming the claim in this case. She has also extracted costings from other similar repairs which she is aware of in an attempt to compare. This is not expert evidence. It is scrutiny of the claim with comment and factual evidence of rates in other cases of damage. I do not regard her evidence as being expert opinion.
- I hope that this judgment resolves a number of contentious issues in this type of claim which should enable claims to be presented and settled at minimal cost. Subject to any appeal, I would expect the conclusions here to carry some weight with District Judges in at least Nottinghamshire, Derbyshire and Lincolnshire.