Rushbond Plc v JS Design Partnership LLP
| Jurisdiction | England & Wales |
| Judge | Mrs Justice O'Farrell,Mrs Justice O'Farrell DBE |
| Judgment Date | 24 July 2020 |
| Neutral Citation | [2020] EWHC 1982 (TCC) |
| Date | 2020 |
| Docket Number | Case No: HT-2019-000235 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2020] EWHC 1982 (TCC)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
Rolls Building
Fetter Lane, London, EC4Y 1NL
Mrs Justice O'Farrell DBE
Case No: HT-2019-000235
Geoffrey Brown (instructed by BLM Solicitors) for the Claimant
Fiona Sinclair QC (instructed by DWF Law LLP) for the Defendant
Hearing date: 15 th June 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This claim arises out of a fire that occurred in 2014 at a property owned by the Claimant. An architect employed by the Defendant, accompanied by a structural engineer and a quantity surveyor, carried out an inspection of the property on behalf of a potential purchaser. The Claimant's case is that the architect left the access door unlocked for a period of about one hour whilst they were inside the building. It is not alleged that the visitors started the fire. The Claimant's case is that one or more intruders were able to gain access to the property through the unlocked door and, once inside the building, started the fire. Damages of £6.5 million are claimed in respect of damage caused by the fire.
The matter before the Court is the Defendant's application to strike out the claim and/or for summary judgment on the basis that the Statement of Case discloses no reasonable grounds for bringing the claim, the claim has no real prospect of success and there is no other compelling reason for a trial.
Background
For the purpose of the Defendant's application, the material facts are not in dispute.
The Claimant was the owner of an unoccupied cinema in the centre of Leeds, known as The Majestic. The property was laid out over three storeys and three mezzanine levels, with capacity to seat around 2,500 persons in the main auditorium space. The property was protected by an alarm system and lockable doors, including a side door for which the marketing agents, Pudney Shuttleworth and CBRE, held keys.
On 30 September 2014 Mr Jeffrey, of the Defendant architectural firm, visited the property, having been furnished with the key and the code to the alarm by Pudney Shuttleworth. At about 10.15am Mr Jeffrey entered the property by unlocking the side door, using the key, and de-activating the alarm. At about 11.12am, following the inspection, he left the building, re-setting the alarm and locking the door.
Shortly before 7.15pm, a fire started on the second floor of the property. The fire spread through the property, causing extensive damage.
Proceedings
On 15 July 2019 the Claimant commenced these proceedings, seeking damages against the Defendant in the sum of £6,555,000.
At paragraph 16 of the Particulars of Claim, the Claimant pleads that the Defendant owed it a common law duty of care as follows:
“The Defendants owed a duty of care in tort to the Clamant in relation to the security of the Property during Mr Jeffrey's visit on the above occasion. Such duty arose from them making an unaccompanied visit to the Property. Further or alternatively, it arose from him having disabled the protections in place during and for the purposes of his visit (including, in particular, the lock to the Door).”
The breach of duty alleged is that the Defendant, through Mr Jeffrey, failed to exercise proper care for the security of the property during his visit; in particular, by failing to keep the door locked or guarded during his visit.
At paragraph 6 of the Statement of Defence, the Defendant denies that it owed to the Claimant a duty of care for a number of reasons, including the following at paragraph 6.2:
“(a) Mr Jeffrey did not damage the Property, and the Claimant does not allege otherwise.
(b) The third party who, the Claimant alleges, did damage the Property was not under the supervision or control of the Defendant, and the Claimant does not allege otherwise.
(c) In those circumstances, the law imposed no positive duty on the Defendant to take care to protect the Claimant's property from harm except and unless the Defendant voluntarily assumed a responsibility to act positively so as to prevent an unidentified third party(ies) harming the Property.
(d) The Defendant did not assume any such responsibility.
(e) In particular, the facts upon which the Claimant relies do not give rise to such an assumption and the Particulars of Claim disclose no reasonable grounds for the duty alleged:
(i) the Claimant relies on the fact that Mr Jeffrey made an unaccompanied visit to the Property. However Mr Jeffrey visited the Property unaccompanied by the Claimant's managing agents not because the Defendant instructed him to do so or because he chose to do so, but solely because each of the Claimant's managing agents expressly allowed and encouraged him to do so;
(ii) the Claimant relies on the fact that Mr Jeffrey disabled two protections during and for the purposes of his visit. However Mr Jeffrey necessarily unlocked the Access Door and disarmed the alarm system, thereby disabling two protections at the Property for the duration of his visit, because the visit which each of the Claimant's managing agents expressly allowed and encourage him to make would have been impossible unless Mr Jeffrey had unlocked the Access Door and disarmed the alarm system. It was the Claimant's managing agents which knowingly provided Mr Jeffrey with the means of disabling those protections. It was the Claimant's managing agents which did not instruct him as to any way in which those protections could safely be maintained during his visit (there was no such way);
(iii) it was reasonably foreseeable that risk of harm to the Property by an unknown third party was (marginally) increased for one hour on the morning of 30 September 2014. However reasonable foreseeability of harm is inadequate to give rise to a duty of care at common law.
(f) Nor do facts other than those upon which the claimant relies permit the conclusion that the Defendant voluntarily assumed responsibility to the Claimant to prevent an unknown third party(ies) from entering and then damaging the Property. In particular, it was not reasonably foreseeable by the Defendant that the Claimant would reasonably rely upon such an assumption of responsibility and the claimant did not so rely…”
In its Reply, the Claimant responds to the denial of a duty of care as follows:
“29. It is accepted that Mr Jeffrey did not damage the Property. It is also accepted that the intruder who did damage it was not under his control. But the means of access to the Property used by the intruder was under his control.
30. The disabling of existing protections by Mr Jeffrey did give rise to a duty of care and, indeed, an assumption of responsibility.
31. The Claimant would and did reasonably assume that any visitors to the Property permitted unaccompanied access by the marketing (not managing) agents would take reasonable precautions for the security of the Property, on disabling the existing protections, by locking and/or monitoring the Door, and reasonably relied upon them to do so. That was not dependent on, and did not arise from, it knowing of a particular visit. But in any event, the Claimant was in fact aware of Mr Jeffrey's intended unaccompanied visit, having been notified thereof by Pudney Shuttleworth, and it reasonably assumed he would take such precautions and relied on him to do so. It was also reasonably foreseeable to Mr Jeffrey and the Defendant that it would do so. That there was, admittedly, no direct contact between Mr Jeffrey and the Claimant would not and does not negate the above.”
The application
On 7 May 2020 the Defendant issued its application, seeking an order that the claim be struck out pursuant to CPR 3.4(2)(a) and/or summary judgment be given for the Defendant pursuant to CPR 24.1.
The applicable test
CPR 3.4(2) provides that:
“The court may strike out a statement of case if it appears to the court:
…
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim …”
The test on such an application was helpfully summarised in Sainsbury's Supermarkets Ltd v Condek Holdings Ltd & Others [2014] EWHC 2016 (TCC) by Stuart-Smith J:
“[14] The test to be applied on a strikeout reflects the fact that the question is whether the statement of case itself discloses no reasonable grounds for bringing a claim. So, if the pleaded facts do not disclose any legally recognisable claim against a Defendant, it is liable to be struck out…
[15] For the purposes of these applications I adopt the statement of principle provided by Peter Gibson LJ in Hughes v Colin Richards & Co [2004] EWCA Civ 266. There the Defendant had brought applications under both CPR 3.4 and CPR 24. Although the application under CPR 24 permitted the court to take account of evidence, none was relied upon and the applications proceeded on the basis that the facts alleged in the Claimant's pleadings were assumed to be true. At [22]–[23], Peter Gibson LJ said:
“The correct approach is not in doubt: the court must be certain that the claim is bound to fail. Unless it is certain, the case is inappropriate for striking out (see Barrett v Enfield London Borough Council [2001] 2 AC 550 at p. 557 per Lord Browne-Wilkinson).””
CPR 24.2 provides that:
“The court may give summary judgment against a claimant … on the whole of a...
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