England and Wales High Court (Technology and Construction Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT

		Royal Courts of Justice Fetter Lane, London, EC4A 1NL.
		21 December 2016

The Hon. Mr Justice Coulson:

1. THE APPLICATION

1. The claimant contractors appointed the defendant engineer in connection with works they were carrying out at 5 and 7, Mossbury Road, Clapham. The defendant's design involved, amongst other things, the underpinning of an existing gable wall shared with 9, Mossbury Road. It is alleged that the design was defective and the underpinning caused damage to the party wall. In consequence, the project was delayed and the claimant contractor suffered loss and damage.
2. By an application dated 6 December 2016, the defendant sought to amend Responses 13 and 14 of its Answer to the claimant's Request for Further Information, originally provided a year ago, on 4 December 2015.
3. These Responses go to the defendant's allegations of contributory negligence arising out of the works carried out in and around the party wall by the claimant's independent sub-contractor, Toureen. The amendment to Response 13 is uncontroversial and is allowed; the amendment to Response 14 is contested.
4. Response 14 originally pleaded reliance on one exception to the general rule that a main contractor is not liable for the negligence of its independent sub-contractor. That is the narrow exception set out in D&F Estates Ltd v Church Commissioners for England [1989] AC 177 at 209C, which depends on the main contractor's actual knowledge that the work is being done in a foreseeably dangerous way, and the condoning of it, rather than any sort of vicarious liability. That doubtless explains why Response 14 went on to stress that "for the avoidance of doubt, it is not alleged that the claimant was vicariously liable for Toureen's negligent acts or omissions".
5. The controversial amendments to Response 14 propose, first, to delete that clear indication, and to add a new allegation purporting to make the claimant vicariously liable for Toureen's work. The pleaded basis of that allegation is:

"…the defendant will rely upon the exception in cases where the sub-contractor is entrusted with work which involve the withdrawal of support from neighbouring property per Alcock v Wraith [1992] BLR 20 and Johnson (t/a Johnson Butchers) v BJW Property Developments Ltd [2002] 3 All ER 574."

6. The amendments to Response 14 are opposed by the claimant on the basis that they cannot succeed in law and/or that they will necessitate evidence which has not yet been adduced. Since the trial of this action starts on 16 January 2017, it is said that there is insufficient time to allow for that to happen. The proximity of the trial date also meant that this Judgment had to be produced quickly, and I am very grateful for the assistance of both counsel for the clarity of their respective arguments.

2. THE APPLICATION TO AMEND/PRINCIPLES AND ISSUES

7. The amendment is sought pursuant to CPR 17.1(2)(b). When issues arise as to whether or not an amended allegation can succeed, the test that is applied is the same as under CPR Part 24: in other words, the party seeking to make the amendment has to demonstrate that it has a real prospect of success: see Grovehold Ltd v Hughes [2010] EWCA Civ 538.
8. When amendments are made late the burden is on the party seeking to make the amendment to provide a good reason for the delay. The modern approach is summarised by the Court of Appeal in Swain-Mason v Mills and Reeve LLP [2011] EWCA Civ 14 and more recently by Carr J in Su-Ling v Goldman Sachs International [2015] EWHC 759 (Comm). She said:

"38. Drawing these authorities together, the relevant principles can be stated simply as follows:

(a) whether to allow an amendment is a matter for the discretion of the court. In exercising that discretion, the overriding objective is of the greatest importance. Applications always involve the court striking a balance between injustice to the applicant if the amendment is refused, and injustice to the opposing party and other litigants in general, if the amendment is permitted;

(b) where a very late application to amend is made the correct approach is not that the amendments ought, in general, to be allowed so that the real dispute between the parties can be adjudicated upon. Rather, a heavy burden lies on a party seeking a very late amendment to show the strength of the new case and why justice to him, his opponent and other court users requires him to be able to pursue it. The risk to a trial date may mean that the lateness of the application to amend will of itself cause the balance to be loaded heavily against the grant of permission;

(c) a very late amendment is one made when the trial date has been fixed and where permitting the amendments would cause the trial date to be lost. Parties and the court have a legitimate expectation that trial fixtures will be kept;

(d) lateness is not an absolute, but a relative concept. It depends on a review of the nature of the proposed amendment, the quality of the explanation for its timing, and a fair appreciation of the consequences in terms of work wasted and consequential work to be done;

(e) gone are the days when it was sufficient for the amending party to argue that no prejudice had been suffered, save as to costs. In the modern era it is more readily recognised that the payment of costs may not be adequate compensation;

(f) it is incumbent on a party seeking the indulgence of the court to be allowed to raise a late claim to provide a good explanation for the delay;

(g) a much stricter view is taken nowadays of non-compliance with the Civil Procedure Rules and directions of the Court. The achievement of justice means something different now. Parties can no longer expect indulgence if they fail to comply with their procedural obligations because those obligations not only serve the purpose of ensuring that they conduct the litigation proportionately in order to ensure their own costs are kept within proportionate bounds but also the wider public interest of ensuring that other litigants can obtain justice efficiently and proportionately, and that the courts enable them to do so."

9. There are two principal issues raised by the current application to amend. First, does the amendment raise an arguable claim in law against the claimant, which itself raises two sub-issues: did the claimant owe a non-delegable duty in respect of the underpinning works carried out by Toureen and, if so, is that duty capable of being relied on by the defendant in its allegations of contributory negligence? And second, if both the preceding sub-issues are answered in the affirmative, should the court exercise its discretion in favour of allowing the amendment? I deal with the issues in that order.

3. DID THE CLAIMANT OWE A NON-DELEGABLE DUTY AND CAN THE DEFENDANT RELY ON IT FOR THE PURPOSES OF CONTRIBUTORY NEGLIGENCE?

10. The Relevant Law
11. The relationship between non-delegable duties and vicarious liability had become rather muddled. It was clarified in the well-known judgment of Lord Sumption in Woodland v Essex County Council [2013] UKSC 66. He said:

"3. In principle, liability in tort depends upon proof of a personal breach of duty. To that principle, there is at common law only one true exception, namely vicarious liability. Where a defendant is vicariously liable for the tort of another, he commits no tort himself and may not even owe the relevant duty, but is held liable as a matter of public policy for the tort of the other…The boundaries of vicarious liability have been expanded by recent decisions of the courts to embrace tortfeasors who are not employees of the defendant, but stand in a relationship which is sufficiently analogous to employment…But it has never extended to the negligence of those who are truly independent contractors, such as Mrs Stopford appears to have been in this case.

4. The issue on this appeal is, however, nothing to do with vicarious liability, except in the sense that it only arises because there is none…

5. The law of negligence is generally fault-based. Generally speaking, a defendant is personally liable only for doing negligently that which he does at all, or for omissions which are in reality a negligent way of doing that which he does at all. The law does not in the ordinary course impose personal (as opposed to vicarious) liability for what others do or fail to do…The expression 'non-delegable duty' has become the conventional way of describing those cases in which the ordinary principle is displaced and the duty extends beyond being careful, to procuring the careful performance of work delegated to others." (My emphasis)

12. I therefore agree with Mr Sullivan that, in the present case, as a matter of law, the claimant cannot be vicariously liable for its independent sub-contractor, Toureen. Thus the defendant's attempt to delete the last sentence of Response 14 is erroneous. The real question raised by the proposed amendments is whether there is a non-delegable duty which, in the circumstances of this case, could make the claimant liable for the acts or omissions of Toureen.
13. Non-delegable duties are exceptions to the usual rule (as per Lord Sumption in Woodland). Two potential non-delegable duties were referred to during the course of argument. One was identified as the situation where the independent sub-contractor is engaged in 'extra-hazardous or inherently dangerous operations'; the other is where there is a withdrawal of support by the owner of one property which causes damage to the adjoining property. It was the claimant's case that the exception in respect of withdrawal of support was merely a sub-category or sub-type of the exception concerned with inherently dangerous operations, and that this entire exception had to be viewed with grave caution in the light of the Court of Appeal's decision in Biffa v Maschinenfabrik [2009] QB 725.
14. In Biffa the Court of Appeal overturned Ramsey J's decision that certain welding and grinding work, which led to a fire, was extra-hazardous or inherently dangerous. They ruled that the maintenance of an exception based on the carrying out of inherently dangerous operations was difficult, if not impossible, to justify. They were particularly critical of the case on which this principle was originally based: Honeywill and Stein Ltd v Larkin Bros [1934] 1 KB 191. In giving the judgment of the court, Stanley Burnton LJ said:

"73…Much in life is "inherently dangerous", even crossing the road, unless precautions are taken. That is particularly true of work on a construction site. What principled basis is there, therefore, for distinguishing between operations that are not inherently dangerous and those that are?...

75. As we have seen, Ramsey J himself was troubled by the distinction he was required to make. Professor Atiyah, in his seminal work Vicarious Liability in the Law of Torts (1967), p 371, said of the decisions imposing vicarious liability on a person who employs an independent contractor to do work that is inherently dangerous that they "have produced some quite preposterous distinctions arising out of the difficulty of saying what is an inherently dangerous operation." We respectfully agree…

78. As Mr Allen accepts, this court is not free to make as robust a decision as that of the High Court of Australia, but in our judgment the doctrine enunciated in Honeywill is so unsatisfactory that its application should be kept as narrow as possible. It should be applied only to activities that are exceptionally dangerous whatever precautions are taken."

15. To the extent that the defendant in the present case was seeking to pursue its proposed amendments in order to argue that the underpinning works were exceptionally hazardous and/or inherently dangerous, I conclude that such a case would be very likely to fail. The decision of the Court of Appeal in Biffa must mean that, as a practical proposition, no non-delegable duty can now be said to arise from this alleged exception unless the works are exceptionally or unusually dangerous, no matter what precautions are taken.
16. Is the exception in respect of the removal of support only a sub-set of the duty in respect of inherently dangerous activities, such that the result in Biffa extends to the removal of support exception as well? I have concluded that the answer to that is in the negative. True it is that, in his first instance judgment in Biffa, Ramsey J expressed the position in those terms, but I am not sure, with respect, that he was right to do so. The Court of Appeal did not suggest that the two were linked in that way, and Stanley Burnton LJ made no reference to the withdrawal of support cases, like Alcock v Wraith in his judgment. Moreover, whilst Clerk and Linsell 21^st Edition, Chapter 6, does not give as much emphasis to the decision in Biffa as I would have expected (see in particular 6-70), they deal with the withdrawal of support from neighbouring land in an entirely separate section (6-65).
17. I consider that, as a matter of basic principle, the removal of rights of support is a separate concept from the carrying out of inherently dangerous operations. For one thing, it is more likely to give rise to a nuisance claim than a claim in negligence. Moreover, it is possible to see policy justifications for finding a non-delegable duty of support as between neighbours, which would not arise in situations of inherently dangerous operations. In my view, a non-delegable duty does therefore arise in such cases, irrespective of the difficulties now facing the separate exception relating to inherently dangerous operations.
18. But this conclusion does not help the defendant in the present case. The withdrawal of support cases, like Alcock v Wraith, on which the defendant expressly relies here, have arisen between neighbouring landowners, rather than a landowner and a third party, let alone as between two third parties. They are not properly cases about vicarious liability at all. For completeness, I should say that the other case relied on by the defendant, namely Johnson (a decision of Judge Thornton QC) appears wrongly to elide the concept of non-delegable duties and vicarious liability. The case was decided before both Woodland and Biffa, so I do not consider that it can now be regarded as good law. It is not binding on me in any event. But I do note that it also arose as between neighbouring landowners.
19. Did the Claimant Owe a Non-Delegable Duty?
20. At paragraphs 15-16 above I note that, in my view, the withdrawal of support exception is separate from the inherently dangerous operation exception, such that, whatever the status of the latter after Biffa, the former can still give rise to a non-delegable duty. However, I am equally clear that this exception is of no application in the present case because the claimant owed no such non-delegable duty.
21. The reason for that is noted in paragraph 17 above: the duty only arises as between owners of neighbouring land. The claimant was not the owner of 5-7, Mossbury Road: it was a building contractor. I can see no reason to extend this non-delegable duty to main contractors who have engaged independent sub-contractors to carry out the works in question. Such a duty would mean that, provided only that the works in question can be shown to be connected with the removal of support to neighbouring land, main contractors would be potentially liable in tort (in Lord Sumption's phrase) 'for procuring the careful performance of work delegated to independent sub-contractors'. There is no authority in support of that potentially wide-ranging obligation. I also consider that it is contradicted by the much narrower duty noted in D&F Estates.
22. Is Such a Duty Relevant to Contributory Negligence?
23. Now let us assume that I am wrong, and the claimant did owe a non-delegable duty to procure the careful performance of the underpinning work to the party wall that it had delegated to Toureen. Is such a duty relevant to the allegations of contributory negligence which the defendant is making against the claimant? In my view, for two reasons, it is not.
24. Generally, allegations of contributory negligence are not dependent upon the existence of any sort of duty: see Davies v Swann Motor Co [1949] 2 KB 291, and Standard Charter Bank v Pakistan National Shipping Corporation and Other (No. 4) [2001] QB 167 at 193. As Ward LJ put it in the latter case:

"Contributory negligence is constituted by the claimant's failure to take reasonable care to look after himself and that is a different concept from the negligence in the first part which is negligence giving rise to a liability in tort."

25. Thus I agree with Mr Sullivan that the existence of a non-delegable duty here is not a matter which can arise on any consideration of the allegations of contributory negligence. What matters is the claimant's failure to take reasonable care to look after itself; that would not involve some form of strict liability/non-delegable duty owed to others arising out of Toureen's acts or omissions.
26. In addition, I do not consider that the duty alleged here is relevant to the allegations of contributory negligence because any non-delegable duty would have been owed by the claimant, not to the defendant, but to the occupier of 9, Mossbury Road, Dr Dennison. It would again be a major extension of the law to make a main contractor liable to account to a third party (even by way of contributory negligence) for the acts or omissions of his independent sub-contractor just because, on this assumption, the main contractor may have owed a non-delegable duty to the owner of an adjoining property. There is no authority for that proposition either.
27. For these reasons, I therefore conclude that the amendments have no real prospect of success and should not be allowed. I consider that they are, on analysis, an ingenious but illegitimate attempt to render the main contractor vicariously liable for the acts or omissions of its independent sub-contractor.

4. LATENESS

28. Now let us assume that I am wrong on both points above, so that the issue of law is at least arguable as a matter of contributory negligence. Even if that were the case, I would still refuse to allow the amendments to Response 14. There are two reasons for that.
29. The first is because the amendments were made late, only a few weeks before trial (and with a holiday period intervening). The lateness is neither explained nor the subject of any explanation.
30. The second is because of all the uncertainties that the amendments introduce, and the inevitable adjournment of the trial if they were allowed. On the basis of the case as it presently exists, the claimant has devoted little time, and little of its expert's report, to a consideration of the allegations of contributory negligence arising out of the underpinning works. That is because the claim has hitherto been put on the narrow basis indicated in D&F Estates (i.e. actual knowledge and condoning of the wrong) and the claimant has decided – whether rightly or wrongly – that it has a good case in defence of that very specific allegation.
31. I accept Mr Sullivan's proposition that, if these amendments were allowed, they would require the claimant to reconsider this whole aspect of the case and, more than likely, to focus upon matters which it had previously thought were unnecessary. It would give the case on workmanship and inspection a completely different emphasis. Out of caution, the claimant would have to put itself into the shoes of Toureen and look at all the factual and expert issues (not just the narrow D&F Estates point), to gather evidence in response and weigh its potential liability for contributory negligence on this new basis.
32. It would not stop there. No matter what my views are as to the inherent dangerousness exception as a matter of law, and the difficulty of arguing the point in this case (paragraph 14 above), the claimant would need carefully to consider that aspect of the amendments, for the first time, and in very short order. It may be a matter on which expert, as well as factual, evidence is thought to be required. I acknowledge at once that Ms McCafferty properly indicated that this would not be how the case would be presented at trial, but the discussion of the law set out above demonstrates that considerations of inherent danger may easily become part of the defendant's case, even by default.
33. Thus, if I allowed these amendments, they would not only comprise an unwelcome and unnecessary distraction to the claimant as it prepares for a trial that is a month away, but it would probably also give rise to the need for further evidence, perhaps including expert evidence. That would fatally jeopardise the trial date. On an application of the relevant principles summarised by Carr J in Su-Ling, I am bound to conclude that it would not be appropriate to allow the amendments in those circumstances.

5. CONCLUSIONS

34. For the reasons set out above, I consider that the proposed amendments have no realistic prospect of success. If I were wrong about that, I would not allow the amendments because of their lateness and the likely need for further evidence to meet them, and therefore the fatal risk to the trial date.