Rushbond Plc v The JS Design Partnership LLP
| Jurisdiction | England & Wales |
| Judge | Lord Justice Coulson,Lord Justice Stuart-Smith,Lady Justice Asplin |
| Judgment Date | 14 December 2021 |
| Neutral Citation | [2021] EWCA Civ 1889 |
| Docket Number | Case No: A1/2020/1471 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 1889
Lady Justice Asplin
Lord Justice Coulson
and
Lord Justice Stuart-Smith
Case No: A1/2020/1471
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES TECHNOLOGY AND CONSTRUCTION COURT (QBD)
MRS JUSTICE O'FARRELL
Royal Courts of Justice
Strand, London, WC2A 2LL
Ben Elkington QC & Geoffrey Brown (instructed by BLM Solicitors) for the Appellant
Fiona Sinclair QC & Gideon Shirazi (instructed by BWF Law LLP) for the Respondent
Hearing Date: 17 November 2021
Approved Judgment
INTRODUCTION
This is a claim in negligence arising out of damage to the appellant's property, caused by an intruder who, it is said, gained access as a result of a breach of duty by the respondent. The real issue is whether this is what, at least historically, has been called a “pure omissions” case, or whether it falls into an accepted category of potentially sustainable negligence claims. O'Farrell J (“the judge”) concluded that this was a pure omissions case and that none of the relevant exceptions applied. In consequence, she found that there was no duty of care and struck out the claim.
To address the issues, I set out the claim as presented in Section 2 and deal with the application to strike out and the judgment below in Section 3. I set out the relevant law as succinctly as possible in Section 4, conscious as I am that this material has been traversed in a number of recent cases. After a preliminary observation in Section 5, I address at Section 6 the key question as to whether this is arguably not a claim based on pure omissions, and instead a claim which fits within existing case law. I address other matters of law in Section 7 and there is a short summary of my conclusions in Section 8. I am extremely grateful to both leading counsel for the excellence of their written and their oral submissions.
THE CLAIM AS PRESENTED
As noted above, this appeal arises out of the respondent's application to strike out the claim. There has therefore been no trial. So instead of being able to identify the facts as found by the judge, it is necessary for this court to consider the factual basis for the claim as presented in the appellant's pleadings. The practical difficulty with that, as was illustrated during the course of argument on appeal, is that both sides sought to emphasise particular elements of the pleaded facts to the exclusion of others (what might not unfairly be called ‘spinning’ the facts to present their respective arguments in the best possible light), and even to argue about what the pleadings actually said. None of that is of any great assistance to the court in trying to arrive at an answer to the underlying issue. Accordingly, what is set out below is what seems to me to be the critical factual material presented by the appellant in support of its claim and which, for the purposes of this appeal, must be treated as being correct 1.
In 2014, the appellant was the owner of a large empty cinema, the Majestic, in the centre of Leeds (“the property”). The property is situated on City Square. Its imposing bulk will be familiar to anyone coming out of the station and walking up into the centre of the city. It is a large building, built during the cinema boom of the 1920's and 1930's. Loosely triangular in shape, it fronts onto the Square and is then bounded on each side by two side streets. In 2014, the property was laid out over three floors and three mezzanine levels, with a main auditorium space that had the capacity to sit 2,500 people.
Sadly, by 2014, it was empty. Because it was in a vulnerable position in the city centre, with direct access from numerous doors along the side streets as well as the frontage on the Square, the doors were kept permanently locked. In addition, there was a sensor alarm system, and the property was the subject of regular inspections.
The appellant hoped to let the building to a tenant for leisure use. To achieve that, they instructed marketing agents, Pudney Shuttleworth (“PS”). PS were contacted by Burning Night Limited (“BNL”), who were interested either in acquiring the property outright or taking a long lease. The respondent was in turn instructed by BNL to advise them as to its suitability for leisure use.
The representative of the respondent firm advising BNL about the property was an architect, Mr Jeffrey. Mr Jeffrey had been to the property before the relevant visit on 30 September 2014. On those previous occasions he had been accompanied by PS. In consequence, it is said that he was familiar with the nature and layout of the property and the security protections which were in place, in particular the door locks and the intruder alarm system.
Although there were numerous potential points of access into the property, only one door was ever used by PS (and, for the relevant visit on 30 September, by Mr Jeffrey). That was a small door part of the way down Quebec Street, the street running down the righthand side of the property (“the Quebec Street door”). It was conveniently located immediately next to the control board of the alarm system which would have to be deactivated on entry.
By reason of his previous visits with PS, it is the appellant's case that Mr Jeffrey would or should have been aware of their practice when entering through the Quebec Street door. That was first to unlock that door and disable the intruder alarm system. Then PS would ensure that the Quebec Street door was locked again, and remained locked for the duration of the visit. Locking the door was achieved using an internal snib lock: it was not necessary to use the key to relock the door. It is also said that, if the snib lock was not used, not only was it possible for anyone to walk in off Quebec Street simply by opening the unlocked door, but also that the door was prone to swing open in any event. In other words, the snib lock was necessary just to keep the door shut.
On or before 30 September 2014, the respondent contacted PS asking for permission for Mr Jeffrey, together with an engineer and a quantity surveyor, to visit the property. PS had no-one available to accompany Mr Jeffrey to the property. Despite that, the respondent wanted the visit to go ahead, so PS agreed that Mr Jeffrey could make an unchaperoned visit. He was given the keys to the property and the code for the intruder alarm. Mr Jeffrey therefore attended the appellant's property on 30 September 2014 at his own request, with the consent of PS. It is the appellant's case that the respondent owed the appellant a duty of care to take reasonable precautions as to security whilst he was at the appellant's property.
Mr Jeffrey unlocked the Quebec Street door and deactivated the intruder alarm. However, unlike the PS representative on his previous visits, he did not secure the Quebec Street door using the snib lock. Mr Jeffrey and his colleagues then went off to inspect the six stories of the property. This left the Quebec Street door unlocked and unlikely even to stay closed. Nobody was watching that door or was within the area where the door was located; the property was large and dark, so there was nothing to stop an intruder from entering the property during the visit and hiding themselves away without being detected.
The visit lasted for about an hour. It appears that Mr Jeffrey and his colleagues spent most of that time in areas far away from the Quebec Street door. It is the appellant's case that, during that time, an intruder entered the property through that unlocked (and possibly open) door and was not detected in the dark. Mr Jeffrey and his colleagues then left, resetting the alarm and locking the Quebec Street door from the outside. Later that day, a fire was started inside the property and the roof and the interior were destroyed. It is the appellant's case that the fire was started by an intruder. The claim in negligence against the respondent is for damages put at around £6.5m. Fortunately, the external shell was largely saved and has been incorporated into a new building on the site.
Whilst the claim is denied, it should be noted that the respondent accepts, at least in part, certain ingredients of the appellant's claim in negligence. Thus, at paragraph 3.7(a) of the defence, it is accepted that, as an empty property, “the property was at risk of entry and damage by intruders to the extent that such entry was not deterred by locked doors and the alarm system.” At paragraph 3.8, it is admitted that this risk was generally foreseeable, and thus foreseeable by Mr Jeffrey. Perhaps most important of all, at paragraph 6.2(e)(iii), the respondent pleads:
“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.”
The second sentence of the passage set out above – with Lord Hope's qualification that it is foreseeability “of itself” which does not give rise to a duty — is indubitably correct as a matter of law. The issue identified in the first sentence (namely the extent to which the risk of harm was increased by the relevant events) will be a matter for the trial, if we conclude that there was an arguable duty. But the respondent's acceptance that there was an increase in the risk of harm during Mr Jeffrey's visit seems to me to be significant. That is because that increase in the risk of harm can only have been caused by Mr Jeffrey, who disabled the alarm and did not lock the Quebec Street door before he went to inspect other parts of the property.
THE APPLICATION TO STRIKE OUT AND THE JUDGMENT BELOW
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