Practice and procedure – Strike out – Summary judgment – Claimant seeking damages against defendant architect firm for breach of duty of care in connection with damage caused by fire – Defendant applying for strike out of claim and/or summary judgment – Whether claim having real prospect of success – Application granted
The claimant owned an unoccupied cinema in the centre of Leeds, known as The Majestic, 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 defendant, 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, re-setting the alarm and locking the door. A fire subsequently started on the second floor and spread through the property, causing extensive damage.
The claimant alleged that the architect left the access door unlocked whilst they were inside the building, intruders gained access through the unlocked door and, once inside, started the fire. Damages of £6.5 million were claimed in respect of the damage caused. The claimant alleged that the defendant owed a duty of care in tort in relation to the security of the property during the visit. Further or alternatively, the defendant, 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.
The defendant applied to strike out the claim pursuant to CPR 3.4(2)(a) and/or for summary judgment pursuant to CPR 24.1 on the basis that the statement of case disclosed no reasonable grounds, it had no real prospect of success and there was no other compelling reason for a trial. The defendant did not owe a duty of care to protect the claimant from fire damage caused by the deliberate or careless actions of an unknown third party for whom it was not responsible.
Held: The application was granted.
(1) The test to be applied on a strike out reflected the fact that the question was whether the statement of case itself disclosed no reasonable grounds for bringing a claim. If the pleaded facts did not disclose any legally recognisable claim against a defendant, it was liable to be struck out. The court had to be certain that the claim was bound to fail. Unless it was certain, the case was inappropriate for striking out: Barrett v Enfield London Borough Council [2001] 2 AC 550 and Sainsbury’s Supermarkets Ltd v Condek Holdings Ltd & Others [2014] EWHC 2016 (TCC); [2014] PLSCS 190 considered.
(2) The test on an application for summary judgment was whether the claimant had a realistic as opposed to a fanciful prospect of success. A “realistic” claim was one that carried some degree of conviction and was more than merely arguable. In reaching its conclusion the court was not to conduct a mini-trial. That did not mean that the court had to take at face value and without analysis everything that a claimant said in his statements. It might be clear that there was no real substance in factual assertions made, particularly if contradicted by contemporaneous documents. However, the court had to take into account not only the evidence actually placed before it on the application but also the evidence that could reasonably be expected to be available at trial: Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) considered.
(3) The general rule was that the common law did not impose liability for negligence in relation to pure omissions, including loss arising through the criminal actions of a third party. In the present case, the court had to determine whether it was satisfied that the claim was bound to fail. That involved consideration of whether this was not a pure omissions case because the defendant created the danger and/or played a causative part in the events that led to the risk of damage; if it was an omissions case, whether the defendant assumed a positive responsibility to safeguard the claimant’s property from harm. On analysis of the assumed facts, the harm suffered was fire damage to the claimant’s property. That harm was not caused by the defendant but by a third party unconnected with the defendant. The danger causing the damage was fire. The defendant did not create the source of the fire or provide the means by which the fire started. The architect’s alleged failure to lock the door might have allowed a third party to gain access but it did not provide the means by which the third party could start a fire and it was not causative of the fire.
This was a pure omissions case but the assumed facts did not give rise to the imposition of an assumption of responsibility on the basis of which a duty of care might be owed. Relationships in which a duty to take positive action to safeguard the property of another had been found typically included contractual or quasi-contractual arrangements. In a commercial context, it was difficult to imagine an assumption of responsibility where there were no dealings between the parties. There were no exchanges between the parties here which crossed the line.
(4) The defendant did not hold itself out as having any special skill or expertise in safeguarding property. Mere possession of the key was not sufficient to give the defendant responsibility for safeguarding the property from fire damage. The absence of any dealings between the parties precluded any finding of reliance by the claimant on the defendant, or any finding that reliance was objectively reasonable. Therefore, the defendant did not owe a common law duty of care to the claimant, the statement of case disclosed no reasonable grounds for bringing the claim and the claimant had no real prospect of succeeding. There was no other compelling reason why the case should be disposed of at trial because all the relevant facts were before the court and the parties had had full opportunity to make submissions. There was no legal hook on which to hang the facts of this case to justify extending the exceptions to the general rule. Accordingly, the statement of case would be struck out and summary judgment on the claim given for the defendant.
Geoffrey Brown (instructed by BLM Solicitors) appeared for the claimant; Fiona Sinclair QC (instructed by DWF Law LLP) appeared for the defendant.
Click here to read a transcript of Rushbond plc v The JS Design Partnership LLP
Eileen O’Grady, barrister
