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Anthony Johnson represented the Defendant in its successful dismissal of the Claimant’s application to appeal against a case management decision not to allow him to rely upon expert evidence from a retired Highways Engineer in relation to the correct categorisation of a highway for the purposes of the National Code of Practice for Well Maintained Highways.
HHJ Baucher accepted the Defendant’s case that there is a very high threshold for appealing case management decisions, which didn’t come close to being met on the facts of the instant case. She noted that the judge below had given a reserved judgment after careful consideration. In the circumstances, the Claimant was declined permission to appeal.
In any event, she went on to find that the judge had been correct to hold that such evidence was not reasonably required pursuant to CPR 35.1 on the basis that the categorisation of the highway was properly a question of fact for the trial judge. She noted that expert evidence was not required in the leading Court of Appeal case of Wilkinson v City of York Council  EWCA Civ 207.
The Judge went on to find that the Claimant should pay the Defendant’s costs on the standard basis, rejecting the Claimant’s suggestion that costs should be limited pursuant to CPR 52.19 on the basis that the underlying case is allocated to the Fast-Track and subjected to fixed costs.
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