4 New Square’s Ben Elkington KC acted for the successful appellant in Rushbond Plc v The JS Design Partnership LLP [2021] EWCA Civ 1889, in which the Court of Appeal handed down judgment shortly before Christmas. The case concerned the defendant firm of architects’ failure to secure the claimant’s property during a site visit, with the decision providing helpful guidance as to the application of the rule in respect of “pure omissions” in negligence claims.
Background
The appellant was the owner of a large historic cinema in central Leeds, which by 2014 was empty. The appellant was hoping to let the building and one prospective tenant instructed the respondent firm of architects to advise on the project.
The respondent’s architect had previously been accompanied on site visits by a representative of the appellant’s marketing agent, but on the crucial occasion visited the property alone, having been given the keys and the deactivation code for the alarm by the marketing agent. On arrival, the respondent’s architect deactivated the alarm but failed to lock the door to the property. At some point during his hour-long visit, an intruder entered the cinema through the unlocked (and possibly open) door. The intruder remained on the premises after the architect had left, later starting a fire which destroyed the cinema’s roof and interior, causing £6.5 million worth of damage.
The property owner brought proceedings in negligence. The respondent accepted that the risk of entry and damage by intruders was foreseeable and had been increased to at least some extent by its employee’s conduct in failing to secure the door. The respondent argued, however, that the reasonable foreseeability of the harm did not give rise to a duty to take active steps to protect the appellant from damage caused by a third party, and applied to strike out the claim.
The first instance decision
At first instance, Mrs Justice O’Farrell held that the case was one of “pure omission”, because the architect’s failure to lock the door during the site visit was merely the occasion for the intruder to gain access to the building – it did not provide the means by which the intruder could start the fire and did not cause the fire.
Given that the “pure omission” rule applied, it was therefore necessary for the appellant to prove that the respondent had assumed a duty to take positive action to safeguard the property from harm, applying the principles in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465. No such assumption was found to have taken place, with the judge remarking that it would be difficult to conceive of a commercial case in which a defendant would have assumed a positive safeguarding duty absent any exchanges between the parties: the respondent had liaised only with the appellant’s marketing agent and the prospective tenant. Neither had the respondent held itself out as having any special skill or expertise in safeguarding property.
Mrs Justice O’Farrell stuck out the claim; the claimant appealed. Ben Elkington KC, who did not appear at first instance, was instructed to represent the appellant on appeal.
The outcome on appeal
Accepting the submissions made by Ben Elkington KC on behalf of the appellant, Court of Appeal reversed the decision below, finding that the alleged duty of care was arguable and that the case should proceed to trial. Giving the leading judgment, with which Lord Justice Stuart-Smith and Lady Justice Asplin agreed, Lord Justice Coulson set out three key reasons for that decision.
- General principle
First, the application of the general principles of the law of negligence suggested that the appeal should succeed. It was “fanciful” to suggest that the respondent did not, while the sole occupant of the property and entrusted with the keys, owe the appellant a duty to take reasonable precautions to maintain the security of the property. The respondent had accepted during oral argument that there arguably would have been a relevant duty (and breach thereof) if the marketing agent had reminded the respondent to lock the door when handing over the keys:
“I cannot accept that PS’ failure expressly to remind Mr Jeffrey to do something which, on the appellant’s case, was so obvious, can make the critical difference on an application to strike out.”
- The respondent was an active participant in the relevant events
Second, the case could be distinguished from those involving “pure omissions” on the basis that the respondent’s alleged negligence arose in the context of its carrying out of a particular activity: this was not a case in which the respondent did nothing at all, but was merely, for example, the owner of a property accessed by intruders who then damaged adjoining premises (as in Smith v Littlewoods [1987] 1 A. 241 and P. Perl (Exporters) Limited v Camden London Borough Council [1984] 1QB 343, on which the respondent sought to rely).
Lord Justice Coulson warned against “semantic bickering” when applying the “pure omissions” rule: all negligence claims involve some combination of acts and/or omissions, which should be considered as a series rather than in isolation. By failing to lock the door after deactivating the alarm, it was at least arguable that the respondent’s architect had positively made the situation worse: “He had rendered a secure building insecure, at least for the duration of his visit”.
- There is a recognised line of authority regarding the duty to keep property secure
Third and finally, the Court held that the case fell within an established line of authority regarding the duty to take reasonable steps to keep property secure. Finding that the case was indistinguishable from Stansbie v Troman [1948] 2 KB 48, Lord Justice Coulson disagreed with the first instance judge that it was necessary to show a contractual or quasi-contractual relationship between the property owner and the defendant for such a duty to arise – it was sufficient that the respondent had been in the property as a licensee.
It was therefore at least arguable that the case was not one of “pure omission”, with the existence of a duty of care and the question of breach falling to be determined at trial. While it was not necessary, having reached that conclusion, to consider whether the case would otherwise have fallen within one of the recognised exceptions to the “pure omissions” rule, Lord Justice Coulson went on to say that it was at least open to the appellant to argue that it did fall within one of the exceptions, if at trial the appellant failed on the “pure omissions” point.
Conclusion
The case is a useful reminder of the proper operation of the “pure omissions” rule, and in particular of the importance of taking a pragmatic view consistent with general principle, especially when applying for strike out. Lord Justice Coulson’s judgment provides a cautionary tale for defendants hoping to rely on overly technical points in the face of an established line of authority – and of common sense.
Disclaimer: This article is not to be relied upon as legal advice. The circumstances of each case differ and legal advice specific to the individual case should always be sought.
© Carola Binney 4 New Square, 4 January 2022
