Breach of contract — Defective building works Damages Contribution — Section 2 Civil Liability (Contribution) Act 1978 — Whether acts and omissions not causing loss to be taken into account when assessing contribution — Appeal dismissed
A landowner engaged the appellant architectural practice and the respondent firm of mechanical and engineering consultants to develop a commercial centre incorporating a mix of retail and leisure facilities.
A design fault rendered the building without wind barrier; an unacceptable level of air flow being created upon opening the doors at both entrances. It was contended that the problem was exacerbated by the design of the façade at one end which had the effect of funnelling cold winds towards the entrance.
The owner commenced remedial works and brought proceedings against the respondent, which settled the claim in the sum of £1.25m. The respondent succeeded in a part 20 claim against the appellant which was ordered to make a contribution in the sum of £398,500. The recorder held that, although the appellant’s actions had not contributed directly to the owner’s loss, its failure to adequately consult with the respondent had amounted to a breach of its duty, the extent of that contributory breach being expressed in the sum of damages. The appellant appealed contending, inter alia, that the recorder was wrong to take account of alleged breaches of duty that had not caused any loss.
Held: The appeal was dismissed.
The recorder was correct in law in holding that acts and omissions which were not causative of loss might be taken into account for the purpose of assessing what, if any, contribution should be ordered pursuant to section 2 of the Civil Liability (Contribution) Act 1978: Re-Source America International Ltd v Platt Site Services Ltd [2004] EWCA Civ 665 applied.
The material provisions of the 1978 Act hold that the appropriate contribution recoverable is that which the court finds “just and equitable”. In exercising its discretion in the matter, the court could have regard not only to the extent of the defendant’s direct causative responsibility for the loss, but also, or alternatively, any element of “blameworthiness”. Additionally, the court could have regard to the actions or blameworthiness of the claimant, in similar vein to the provisions of section 1 of the Law Reform (Contributory Negligence) Act 1945; see Davies v Swan Motor Co [1949] 2 KB 291 and Madden v Quirk [1989] 1 WLR 702.
Justin Mort (instructed by Nabarro Nathanson) appeared for the appellant; Benedict Patten (instructed by the Pi Direct) appeared for the respondent.
Eileen O’Grady, barrister
