Re-Source America International Ltd. v Platt Site Services Ltd. & Anor

A contribution under section 2 of the Civil Liability (Contribution) Act 1978 must be just and equitable having regard to each person's responsibility for the damage. Causative responsibility will usually be the most important factor, but the court may consider other relevant circumstances. An appellate court should alter the trial judge's assessment only where it is clearly wrong.

A late change of case does not justify reversing a judgment unless it caused real prejudice or injustice. The court should examine the pleadings, opening submissions, conduct of the trial and opportunities available to meet the case. A serious procedural irregularity alone is insufficient under CPR 52.11(3)(b); the resulting decision must also be unjust.

Hotwork performed by Platt Site Services Ltd, a steelwork sub-sub-contractor, caused a fire which seriously damaged goods belonging to Re-Source America International Ltd. Platt brought Part 20 proceedings against the main contractor, Barkin Construction Ltd.

The Technology and Construction Court, in [2003] EWHC 1142 (TCC), held Platt liable to Re-Source but awarded Platt a complete indemnity or 100% contribution from Barkin. Barkin appealed against the factual finding that welding blankets were present, the determination of liability on grounds allegedly outside the pleaded case, the 100% contribution, and the contractual indemnity.

The principal questions were whether the factual finding could stand, whether Barkin had received a fair opportunity to meet the wider negligence case, and whether assigning Barkin the whole contribution was just and equitable.

1. Appeal dismissed unanimously. Tuckey LJ gave the leading judgment, with which Laws LJ agreed. Brooke LJ agreed in the result and on the remaining issues, although he regarded the trial judge's handling of the altered cases as a serious procedural irregularity.

2. The finding that welding blankets were in place was supported by the evidence. The absence of identifiable remains after an intense fire did not establish that no blankets had been used. The judge was also entitled to find that hot products from flame cutting passed through holes burnt in the blankets and ignited the stored materials.

3. Platt was entitled to advance its wider case that Barkin had assumed responsibility for the method of hotwork and protection of the stored goods. That case was apparent from the pleadings read as a whole, Platt's reply, its written opening and its conduct at trial. The evidence already addressed the effect of flame cutting and the blankets' fire resistance. Barkin therefore suffered no real prejudice from the reliance on holes rather than gaps.

4. Brooke LJ considered that the judge should have ruled expressly on whether the parties could alter their cases and whether an adjournment or further evidence was required. That omission was a serious procedural irregularity within CPR 52.11(3)(b). Nevertheless, the decision was not unjust. The evidence and the allocation of responsibility showed that the fire was Barkin's fault, and a new trial had no realistic prospect of changing that conclusion.

5. Under section 2 of the Civil Liability (Contribution) Act 1978, causative responsibility is likely to be the most important consideration, but the assessment is not confined to causation. The ultimate question is what contribution is just and equitable. Barkin had assumed responsibility for the system of work and fire protection, while Platt's fault was its young welder's acquiescence in the inadequate protection. The award of 100% contribution against Barkin was not clearly wrong.

6. The contractual indemnity issue was unnecessary to the result. Tuckey LJ nevertheless concluded that the Canada Steamship principle was only a general rule, normally operating through construction against the proferens, and did not apply in the circumstances of the letter. The indemnity still failed because its condition requiring fire blankets for protection was not satisfied by blankets containing holes.

1. Court of Appeal (Civil Division): In [2004] EWCA Civ 665, unanimously dismissed Barkin Construction Ltd's appeal. The award of 100% contribution remained effective, although the court concluded that the alternative contractual indemnity was unavailable.

2. Technology and Construction Court: In [2003] EWHC 1142 (TCC), His Honour Judge Thornton QC held Platt liable to Re-Source and held Barkin liable to indemnify Platt, alternatively to make a 100% contribution as a joint tortfeasor.