Practice and procedure – Strike out – Summary judgment – Appellant seeking damages against respondent architect firm for breach of duty of care in connection with damage caused by fire – High court allowing application by respondent to strike out claim and granting summary judgment – Appellant appealing – Whether claim being “pure omissions” case or falling within accepted category of potentially sustainable negligence claims – Appeal allowed
The appellant owned an unoccupied cinema in the centre of Leeds, a three-storey property with three mezzanine levels and seating capacity of around 2,500 persons. The property was protected by an alarm system and lockable doors. Marketing agents held keys for a side door.
An architect employed by the respondent, accompanied by a structural engineer and a quantity surveyor, inspected the property on behalf of a potential purchaser, having obtained the key and the alarm code from the agents. Following the inspection, he left the building, resetting the alarm and locking the door. A fire subsequently started on the second floor and spread through the property, causing extensive damage.
The appellant alleged that the architect left the access door unlocked while they were inside the building, intruders gained access through the unlocked door and, once inside, started the fire. Damages of £6.5m were claimed in respect of the damage caused. The appellant alleged that the respondent owed a duty of care in tort in relation to the security of the property during the visit. Further or alternatively, the respondent, through its architect, had failed to exercise proper care for the security of the property, in particular by failing to keep the door locked or guarded during his visit.
On the respondent’s application to strike out the claim pursuant to CPR 3.4(2)(a) and/or for summary judgment pursuant to CPR 24.1, the judge concluded that this was a pure omissions case and that none of the relevant exceptions applied. Consequently, she found that there was no duty of care and struck out the claim: [2020] EWHC 1982 (TCC); [2020] PLSCS 144. The appellant appealed.
Held: The appeal was allowed.
(1) For this appeal to succeed, it was only necessary for the appellant to show that its claim was arguably not one based on “pure omissions”, or if it was, that it arguably fell within one of the exceptions to that rule.
Pure omissions cases were ones where the defendant did nothing, or nothing of any legal relevance to the claim. That was to be contrasted with those cases where the defendant was involved in a particular activity, and it was the negligent carrying out of that activity that gave rise to the claim.
In the present case, the respondent was involved directly in the activity which allowed the intruder to enter the property. On the appellant’s case taken at its highest, it was that alone which allowed the intruder inside. The respondent’s employee had not just provided the opportunity for the intruder to get in. It was at least arguable that he was in breach of duty because he positively made things worse. He had rendered a secure building insecure, at least for the duration of his visit. He might or might not have been negligent but it could not be said unequivocally that he did not owe a relevant duty of care because such a duty would be based on pure omissions. Standing back from the detail and the authorities, this was a claim based on the respondent’s critical involvement in the activity which gave rise to the loss, so it was not a “pure omissions” case: P Perl (Exporters) Ltd v Camden London Borough Council [1984] 1QB 343, Smith v Littlewoods [1987] 1 AC 241, Stovin v Wise [1996] AC 923, Mitchell v Glasgow City Council [2009] 1 AC 874 and Robinson v Chief Constable of West Yorkshire Police [2018] AC 736 considered.
(2) All negligence claims involved acts (things done which should not have been done) and/or omissions (things which ought to have been done which have not been done). It did not mean that a claim like the present, where the failure to do something (locking the door) was part of the activity undertaken by the tortfeasor that gave rise to the loss, could be said to be a claim based on pure omissions. Arguably, on an ordinary application of general principle, all the necessary ingredients of a negligence action were in place: duty, foreseeability, breach and causation.
The failure to lock or otherwise guard the door after entering the property was a central part of the architect’s activity that allowed the intruder into the property. It was arguably not a pure omission but an actionable wrong. The judge erred in concluding otherwise. This was a case where the architect was carrying out an activity, in the course of which he had failed to keep the appellant’s property secure and the appellant had suffered loss as a result. It was all about damage to the appellant’s own property and the extent to which the respondent owed a duty to the appellant to take reasonable steps to secure that property, in circumstances where, at the respondent’s request, the respondent was allowed into the property and, on those assumptions, was in breach of that duty: Stansbie v Troman [1948] 2 KB 48 followed.
(3) Whether or not there was in fact liability on the part of the respondent for the acts of third parties would be determined at the trial, which was another reason that the existence of a duty was at least arguable. If what happened was within the scope of the foreseeable risk created by the alleged negligence, there would be liability, even if the precise manner in which the damage occurred was not foreseeable. That might be an apt description of what happened here: access by a vagrant and resulting property damage might have been foreseeable, so that, even if the burning of the property to the ground was not foreseeable, it would arguably not matter.
An analysis of causation at this stage was not appropriate. The strike out was based on there being no duty of care. It was not based on there being no sufficient causative connection between the alleged breach and the alleged loss, assuming the pleaded duty was found to exist. Accordingly, the judge was wrong to find that this case did not fall into a recognised category of decided cases where a relevant duty had been found.
Ben Elkington QC and Geoffrey Brown (instructed by BLM Solicitors) appeared for the appellant; Fiona Sinclair QC and Gideon Shirazi (instructed by DWF Law LLP) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Rushbond plc v The JS Design Partnership LLP
