Plexus was recently instructed to act for a company which had proceedings issued against it. The Claimants (“C”) contended that the Second Defendant (“D2”) had failed to unblock some drains on the neighbouring land, with the consequence that the C’s land flooded. D2 was a contractor engaged from time to time by D1.
The claim against D2 was only framed in negligence. Despite a robust Defence and part 18 questions, little if anything was provided by way of clarification as to the basis for the claim or the basis on which D2 was said to owe a duty of care to C.
From the outset and as pleaded in the Defence D2 contended that they did not have a liability in negligence to C. It was submitted that on any analysis no such duty of care was owed, and therefore the claim must fail and should be struck out before further unnecessary costs were incurred.
Plexus took the bold step and on agreement of the client to apply for Summary Judgment.
Summary Judgment is one of the highest civil thresholds. CPR 24.2 provides as follows:
“The Court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –
(a) it considers that –
(i) that claimant has no real prospect of succeeding on the claim or issue; or
(ii) that Defendant has no real prospect of successfully defending the claim or issue; and
(b) there is no other compelling reason why the case or issue should be disposed of at a trial”.
Plexus argued that the Claimants’ claim had no prospects of success. The Claimants argued that negligence was not proven against the Second Defendant.
The House of Lords in Caparo Industries plc v Dickman  2 A.C. 605, held that in order to establish a duty of care the Claimants needed to satisfy the court of 3 things:
- Damage was foreseeable
- That C and D2 had a relationship of sufficient proximity or neighbourhood; and
- That it is fair and reasonable, taking into account policy concerns, that a duty of care should be recognised in all the circumstances of the case
Consideration of proximity requires isolation of factors that indicate that D’s act or omission closely and directly affected C and that the parties are, in a sense, neighbours. The taking on or assuming responsibility for a task can give rise to a duty of care to third parties in certain circumstances.
It is a trite observation to make that in order for any such claim to stand any real chance of success it must, as a first pre-requisite, be shown that D2 owed a duty of care to C.
Plexus argued that D2 was not C’s physical neighbour nor was there sufficient proximity and for the purposes of the Caparo v Dickman analysis:
- There was no contractual relationship
- D2 did not own the land on which works were to be carried out
- D2 had not assumed any responsibility to C
- D2 had assumed no responsibility to undertake any works. All that had happened was that works had been recommended and priced and authorisation from D1 to carry them out was outstanding
- D2, even if it thought that works ought to have been done, had no right or necessary access to go onto the land or power to do anything
- There were no policy considerations which would allow a finding that it would be just and reasonable to impose a duty of care on D2 in the circumstances of this case. To do so would open floodgates to claims against innocent contractors who had assumed no responsibility and were powerless to act
Finding of the Court
The Court found that there was no real prospect of success in the claim against D2 and summary judgment was entered in favour of D2 with costs in full.
Plexus Law recovered their costs from the Claimants and it was therefore at no cost to D2. The Claimant paid a high price for litigating a claim without properly analysing the merits of the claim beforehand, and in the face of warnings from Plexus Law.
If you would like further information of this case please speak to your contact at Plexus:
Edward Musa, Solicitor
Property Risks & Coverage
T: 0344 334 1057
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