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Brian Warwicker Partnership v Hok International Limited, 27 July 2005, Court of Appeal

5 August 2005
The issues

Contribution – Civil Liability (Contribution) Act 1978 Section 2 – whether non-causative acts and omissions should be taken into account for the purpose of assessing contribution – blameworthiness

The facts

In 1994 a company called Burford NW3 (Burford) Limited wanted to develop a property in London. It engaged an architectural practice HOK International Limited (HOK) and a firm of engineering consultants, Brian Warwicker Partnership (BWP)

A problem arose with air flow through the building which was possibly exacerbated by the shape of the fa¡ade of the building. The developed building was opened in November 1998. In 1999 remedial work suggested by BWP was undertaken but did not deal with the problem. In January 2000 Burford sough the advice of another engineer. By December 2001 the works recommended by that engineer were completed.

In March 2003 Burford began proceedings against BWP for damages for negligence and breach of contract amount to the cost of the further remedial works. In May 2003 BWP made a Part 20 claim against HOK. Burdford’s claim against BWP was settled in April 2004 for 1.25 million in damages, interest and costs. The Part 20 claim by BWP against HOK continued. At Trial Judgment was given against HOK for £398,500.00 plus interest. HOK appealed.

The judge had found that HOK was in breach of its duty as alleged by BWP. The breaches were causative. Other breaches in the context of consultation had not been causative of any loss. The Recorder had taken the non causative breaches in to account in accessing the level of contribution. HOK appealed amongst other matters that decision.

The decision
  1. It was established law that under the 1978 Act the court may have regard to both causative potency and also of the blameworthiness of the defendant. Both aspects were included in the concept of responsibility for the purposes of Section 2(1).
  2. The point had already been considered by the Court of Appeal in Resource America International v Platt Site Services. In that case Lord Justice Tuckey concluded that Section 2 of the 1978 Act was not expressed exclusively in terms of causative responsibility for the damage in question although the court had to have regard to that and that causative responsibility was nonetheless likely to be the most important factor in the assessment of relative responsibility which the court had to make. The court’s assessment however had to be just and equitable and this enabled the court to take account of other factors as well as those which were strictly causative. Such an assessment made by a trial judge would only be altered on appeal if it was plainly wrong. There was however a difficulty. As Lady Justice Arden pointed out, if the court placed unrestricted weight on non-causative material there would be no limit on the matters which the court could take into account. It would be very difficult to determine as a preliminary issue that a matter was not relevant to the assessment of contribution and the introduction of significant non-causative material could lead to lengthy and costly trials. Moreover it was create an anomaly that a party a part who incurred some liability to the victim could be made liable for 100% contribution on the basis of a non-causative matter while a person who was liable for no loss at all could not be made liable to make any contribution at all. The answer lay in the way the section was expressed. The section directed the court to attach most weight to the defendant’s responsibility for the damage in question. If the defendant’s action did not cause the damage in question it could not as such form part of the responsibility for the damage.

If non-causative material was brought into account there was only a limited role it could play and it had to be given less weight that the material showing the defendant’s responsibility for the Act in question. There had to be some sufficient relationship between it and the damage in question.

Appeal dismissed.

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