Brian Warwicker Partnership v Hok International Ltd

When assessing contribution under section 2(1) of the Civil Liability (Contribution) Act 1978, the court considers both the causative potency of each party’s fault and its blameworthiness. Causative responsibility will ordinarily carry the greatest weight, but the statutory discretion is not confined to matters which caused the damage.

Non-causative conduct may be considered where it illuminates the seriousness of the relevant wrongdoing or otherwise has a sufficiently close relationship with the damage. Its role must remain limited, and the resulting apportionment must be just and equitable. An appellate court will interfere with the trial judge’s assessment only where it is clearly wrong.

A property developer engaged HOK International Ltd as architect and Brian Warwicker Partnership as mechanical and electrical engineer for a development. Draughts and low winter temperatures led the developer to claim damages against the engineer. After settling that claim, the engineer obtained a 40 per cent contribution from the architect in the Technology and Construction Court.

The architect sought permission to appeal findings concerning pleading, evidence and causation. It also appealed the Recorder’s conclusion that non-causative breaches of duty could be considered when assessing contribution under section 2(1) of the Civil Liability (Contribution) Act 1978. The central question was whether the statutory assessment of responsibility is confined to causative matters.

1. Disposition. The court unanimously refused permission to appeal on grounds 1, 2 and 3 and dismissed the appeal on ground 6. The Recorder’s order requiring HOK to contribute £398,500 was left undisturbed.

2. Pleading and causation. The Vice-Chancellor held that the pleaded allegations concerning design, consultation, coordination and resulting draughts were sufficiently wide to permit the Recorder’s findings. There was ample evidence that proper consultation would have removed BWP’s assumptions and prompted further consideration of air ingress. The Recorder had identified three independent causal paths. The proposed grounds challenged only two of them and therefore could not affect the order.

3. Meaning of responsibility. The court was bound by Re-Source America International v Platt Site Services, [2004] EWCA (Civ) 665. Section 2(1) of the Civil Liability (Contribution) Act 1978 is not concerned exclusively with causative responsibility. Responsibility includes both the causative potency of the relevant fault and its blameworthiness. The court may therefore consider material which did not itself cause the damage.

4. Limits on non-causative material. Arden LJ described section 2(1) as conferring a semi-structured discretion. The court must attach the greatest weight to responsibility for the damage. Non-causative conduct may be relevant to the blameworthiness of the conduct giving rise to liability, but its role is limited. It must have a sufficient relationship with the damage, and the final contribution must remain just and equitable. Keene LJ agreed that a close connection is required and that the line must be drawn case by case.

5. Application. The Recorder was entitled to use the non-causative breaches as evidence of the seriousness of HOK’s shortcomings or as additional closely connected factors. The assessment that BWP should bear the greater share of responsibility showed that causative responsibility remained central. There was no basis for appellate interference.

1. Court of Appeal (Civil Division): The appeal on ground 6 was dismissed, and permission to appeal on grounds 1, 2 and 3 was refused: [2005] EWCA Civ 962.

2. Court of Appeal permission stage: Chadwick LJ granted permission on ground 6 but refused permission on the other grounds. The application concerning grounds 1, 2 and 3 was renewed at the substantive hearing.

3. Technology and Construction Court: Mr Recorder Blunt QC ordered HOK to pay BWP a contribution of £398,500 plus interest. He refused permission to appeal. No citation is stated in the judgment.