Pure Omissions: Rushbond PLC V The J S Design Partnership LLP

• Published date: 18 August 2020
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Trials & Appeals & Compensation, Construction & Planning
• Law Firm: Clyde & Co
• Author: Mr Bryn Hodges

The High Court has struck out a property owner's tort claim against an architect's firm, and granted summary judgment to the firm, pursuant to a finding that the firm did not owe a duty of care to protect the property from fire damage caused by the deliberate or careless actions of an unknown third party for whom the firm was not responsible.

Background

Rushbond PLC ("the Claimant") was the owner of an unoccupied cinema ("the Property"), which was protected by an alarm system and lockable doors. An employee of The J S Design Partnership LLP ("the Defendant") visited the Property, having been furnished with the key and the code to the alarm by the marketing agents. During his visit, he left the door unlocked and alarm de-activated. Upon exiting the building, the employee re-set the alarm and locked the door. Later that evening, a fire was started at the Property which caused extensive damage; the Claimant averred the fire was started by intruders who gained access to the Property through the unlocked door.

The Claimant stated the Defendant owed a common law duty of care in tort to the Claimant in relation to the security of the Property during the employee's visit, such duty arising from him making an unaccompanied visit to the Property, and/or from having disabled the protections in place during and for the purposes of his visit. The Defendant contended that no such duty of care was owed to the Claimant and subsequently sought 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 Judgment

In deciding whether to grant the Defendant's application for the claim to be struck out or for summary judgment to be given, the Court must determine whether the claim is bound to fail, having regard to the applicable legal principles. The issues to be considered in this regard (without conducting a mini trial) were twofold:

1. "Whether, as the Claimant contends, this is not a pure omissions case, or at least arguably it is not an omissions case because the Defendant created the danger and/or played a causative part in the train of events that led to the risk of damage;
2. If it is an omissions case, whether the Defendant assumed a positive responsibility to safeguard the Claimant's property from harm under the Hedley Byrne principle [i.e. where the duty arises as a result of the relationship between parties]."

O'Farrell J held, regarding (i), that the employee's failure to lock the door...