Lawyers Briefing Notes

Tue, 18 Jan 2011

State Your Case

Let the decision in Balfour Beatty Infrastructure Services Ltd v Houlihan & Co (Excavations) Ltd serve as a warning to litigants who, for whatever reason, fail to fully state their case.
Balfour issued proceedings against Houlihan for the cost of repair after a van, driven by an employee of Houlihan, collided with a central reservation barrier on the M20. Balfour was responsible for maintaining and repairing the barriers. There were no witnesses to the incident. Houlihan contended that collision occurred as a result of one of the van tyres blowing out after hitting an object in the road. Balfour‘s only allegation was that Houlihan was liable for failing to control, brake or steer the van so as to avoid colliding with the barrier. In an application to strike out Balfour’s case, Houlihan submitted that Balfour had not particularised their allegations of negligence, which they could not prove in any event because the incident was not witnessed. Balfour argued that the van could have only collided with the barrier due to the negligence of Houlihan and that the claim ought to be heard as the precise facts would be established under cross-examination at trial. In granting Houlihan’s application to strike out, the court held that the claim had to be fully pleaded, including the cause of action. It was for Balfour to prove its case. Houlihan was entitled to do nothing. Balfour could not take the matter to trial and hope that its case would be substantiated in cross-examination. Houlihan was entitled to know the case it was facing now.