Gunn & Anor v Taygroup Ltd

On an application for summary judgment or strike out, the court may test a pleaded case against the claimant’s proposed evidence where witness statements have been exchanged. The evidence must be taken at its highest, and the court must avoid conducting a pre-trial trial. The exercise is exceptional and most suitable for simple cases.

A claim for purely economic loss in negligence requires a special relationship of proximity, ordinarily involving an assumption of responsibility and reliance. The Occupiers’ Liability Act 1957 does not extend that basic duty to a claim involving neither personal injury nor physical damage to the claimant’s property. A contribution claim may remain arguable where a duty is owed to the injured claimant, but breach must still be realistically provable.

The claimants operated a garden-machinery business at premises within a garden-centre complex. An articulated lorry operated by the defendant came into contact with overhead telephone cables while making a delivery, allegedly causing physical damage to the claimants’ premises and substantial trading losses.

The defendant denied negligence and issued third-party proceedings against the occupiers of the complex, alleging that they were responsible for directing the lorry and for warning about the cables. The third parties applied for summary judgment or strike out. The court considered whether the defendant’s proposed evidence disclosed a realistic prospect of establishing a duty of care owed to the defendant or a breach of any duty owed to the claimants.

1. Application granted. Judgment was entered for the third parties against the defendant, and the third-party proceedings were dismissed.
2. Under CPR Part 24.2, a claim may be dismissed where the claimant has no real prospect of success. CPR Part 3.4 also permits strike out where the claim is an abuse of process. The court may review exchanged witness statements against the pleading where there is only limited scope for additional evidence in chief. It must take the evidence at its highest and must not conduct a pre-trial trial on disputed evidence. Such an exercise remains relatively rare and is most suitable for simple cases (paras 14–15).
3. The defendant’s proposed indemnity claim concerned economic loss rather than physical damage to the defendant’s property or personal injury. Applying the principles in Hedley Byrne & Co v Heller & Partners and Hamble Fisheries Ltd v L Gardner &Sons Ltd, the defendant had to show a special relationship of proximity involving assumption of responsibility and reliance. The evidence disclosed no such relationship between the defendant or its driver and the third parties (paras 16–19, 24–25).
4. The Occupiers’ Liability Act 1957 supplemented common-law occupiers’ duties. Section 2 concerned the reasonable safety of visitors using premises, while section 1 extended the principles to certain property damage. The Act did not extend the common-law duty to a claim for purely economic loss without personal injury or physical damage to the defendant’s property (paras 20–24).
5. A contribution claim based on a duty owed by the third parties to the claimants was properly arguable in principle. It nevertheless failed at summary-judgment stage because the proposed evidence showed no realistic prospect of proving breach. The evidence established only that an occupier had briefly told the driver where to go. It did not show that he directed or shepherded the manoeuvre, knew or ought to have known that the lorry could snag the cable, or had assumed responsibility for the manoeuvre. The pleaded allegation concerning a special pole had also been abandoned (paras 26–28).

First-instance decision. The judgment refers to an earlier decision in the same proceedings, reported as [2010] EWHC 1665 (TCC), but no appellate history is stated.