The Court of Appeal have unanimously overturned an earlier decision in the Technology and Construction Court (TCC) to strike out a claim in tort by a property owner against an architect. This is a salutary tale for construction and other property professionals, where a small omission may lead to a multi-million pound liability.
In Rushbond plc v The JS Design Partnership LLP [2021] EWCA Civ 1889 (Rushbond) the Court of Appeal overturned an earlier decision by Mrs Justice O’Farrell (O’Farrell J) to strike out the claim for £6.5m on the basis that it was a "pure omissions" case (which does not usually create a legal liability). The judgement considers whether this was arguably not a case of "pure omission" and/or whether the architect had assumed a duty to take reasonable steps to keep the property secure during his visit.
This blog post will briefly look at key points from the decision in Rushbond and why the Court of Appeal disagreed with the TCC.
The facts:
- Rushbond plc was the owner of a large disused cinema. JS Design Partnership LLP (architect) was acting for a potential purchaser of the property. On 30 September 2014, the owner’s marketing agents allowed Mr Jeffrey of the architect (and two colleagues) to access the site unaccompanied (Mr Jeffrey had made previous visits accompanied by the marketing agent and was aware of the security arrangements for the site). He was given a key to the door and the code to the intruder alarm.
- On his arrival, Mr Jeffrey unlocked and opened the door and deactivated the intruder alarm. However, unlike during his previous visits with the marketing agent, he failed to secure the door using an internal lock (which did not require him to use a key). It was said that without the internal lock being secured, the door was not just unlocked and accessible by anyone from the street, but was also prone to swing open.
- Mr Jeffrey completed an hour long visit to the property, most of which was spent in areas far away from the door. Mr Jeffrey then left, setting the alarm and locking the door behind him.
- Later that day, a fire was started in the property which resulted in the destruction of the roof and interior of the property. It appears to have been accepted that the fire was started by an unknown intruder who gained access to the property during the hour that the door was left unlocked and/or open by Mr Jeffrey.
- The owner brought a claim for £6.5m against the architect in tort, as the owner had no contract with the architect. The architect argued that it owned no duty of care to the owner to protect it from harm caused by a third party and applied for the claim to be struck out.
Decisions by the TCC and Court of Appeal
In July 2020 O’Farrell J struck out the claim, holding that the architect did not owe a common law duty of care to the owner as the claim related to a ‘pure omission’ for which the common law does not generally impose liability for negligence and that the architect had not assumed any responsibility to the owner or held itself out as having any special skill on which the owner had relied.
However, in December 2021 the Court of Appeal unanimously overturned this decision. In coming to its decision the Court of Appeal discussed the run of cases giving rise to the ‘pure omissions’ principle as well as the cases concerned with a failure to keep property reasonably secure. In particular Lord Justice Coulson (Coulson LJ) held that:
- There was a general point of principle, that where the architect was a visitor to the owner’s property with that owner’s permission, it was “fanciful to suggest that, whilst the sole occupant of the property, trusted with the keys, the respondent owed no duty of care to the claimant to take reasonable precautions as to security”.
- The Court also held that this was arguably not a "pure omissions" case, which Coulson LJ described as one “where the defendant did nothing, or certainly nothing of any legal relevance to the claim”. He contrasted this to the present case where “the respondent was involved directly in the activity which allowed the intruder to enter the property”, by failing to take any steps to guard the door (which could have included locking the door or otherwise keeping the door under guard) during his visit to other parts of the site and which he described as an “actionable wrong”.
- This case was within the line of authority of cases which confirm a duty to take reasonable steps to keep a property secure (see, for example, Stansbie v Trowman [1948] 2KB 48 where a decorator was held liable for a theft that occurred at a residence when he left the door unlocked during his absence from the house).
- Coulson LJ also found that, even if this were a "pure omissions" case, it was arguable that the architect owed the owner “a duty of care because it had assumed a responsibility, at least for the hour of the visit, to take reasonable care in respect of the security of the property” and that this did not require the architect to hold itself out as having a special skill or expertise in safeguarding a property – “all that had to be done was to lock the Quebec Street door. That did not require any specialist skills”.
Key takeaways
This decision was not given as part of a full trial but was rather for the purposes of assessing a strike out application. Therefore, the Courts were concerned with the relatively narrow question of whether it was arguable that the architect owed a duty of care to the owner.
The Court of Appeal expressly noted that this was an interlocutory application and therefore its remit was limited. In particular, while it held that it was arguable that the architect owed a duty of care to the owner, it did not make a final decision on that point (which would be a matter for full trial) and made no comment on causation. Therefore, whether or not the architect did in fact owe a duty of care to the owner, whether his actions were causative and whether the architect is liable for the full extent of the damages claimed will be a matter for a full trial in due course.
In the meantime, the Court of Appeal’s comments should sound a note of caution to any professional making an unaccompanied site visit, whether the visit is made pursuant to a contractual arrangement or otherwise. The professional should be aware that he/she may be held responsible for any damage suffered following a failure to take reasonable care to secure the property during his or her visit. So please take care when visiting sites to see that any security arrangements are checked and adhered to, and at the very least, always remember to lock the door…
Claire Perry