Willmott Dixon Construction Ltd v Robert West Consulting Ltd

An amendment will be refused where the proposed allegation has no real prospect of success. A main contractor is not vicariously liable for the negligence of an independent subcontractor. A non-delegable duty is exceptional and does not generally arise merely because delegated works affect neighbouring property. The duty concerning withdrawal of support is distinct from the exception for exceptionally dangerous operations, but ordinarily arises between neighbouring landowners, not between a building contractor and a third party. It cannot be converted into a basis for contributory negligence. A very late amendment will also be refused where it is unexplained, requires substantial new evidence and threatens the trial date.

The claimant contractor alleged that defective underpinning designed by the defendant engineer damaged a party wall and caused project delay and loss. The defendant sought to amend its allegations of contributory negligence concerning underpinning works carried out by the claimant’s independent subcontractor, Toureen.

The amendment sought to rely on alleged vicarious liability and exceptions concerning non-delegable duties, including withdrawal of support and inherently dangerous operations. The court had to decide whether the proposed case had a real prospect of success and, if so, whether the amendment should be allowed shortly before trial.

1. The amendment to Response 13 was allowed. The contested amendment to Response 14 was refused.

2. Under CPR 17.1(2)(b), where the legal viability of an amendment is challenged, the applicant must show a real prospect of success, applying the approach under CPR Part 24. The governing principles for a very late amendment require a good explanation for the delay, consideration of the strength of the new case, and a balance between the parties’ interests and the wider interests of court users.

3. Following Woodland v Essex County Council [2013] UKSC 66, vicarious liability and a non-delegable duty are distinct. A contractor is not vicariously liable for the negligence of a genuinely independent subcontractor. A non-delegable duty is an exception to the ordinary principle that liability in negligence is personal.

4. The exception concerning inherently dangerous operations must be confined narrowly. Applying Biffa v Maschinenfabrik [2009] QB 725, it would require work that was exceptionally or unusually dangerous whatever precautions were taken. The underpinning works could not realistically satisfy that test.

5. The withdrawal-of-support exception is conceptually separate from the inherently dangerous operations exception. It may give rise to a non-delegable duty between neighbouring landowners. However, Alcock v Wraith [1992] BLR 20 did not support extending that duty to a building contractor engaged by an owner. The claimant was not the owner of the relevant property, and no authority justified imposing such a wide obligation on a main contractor.

6. Johnson (t/a Johnson Butchers) v BJW Property Developments Ltd [2002] 3 All ER 574 wrongly elided non-delegable duties and vicarious liability. Having been decided before Woodland and Biffa, it could not be regarded as good law and was not binding in any event.

7. Even assuming that the claimant owed a non-delegable duty, that duty could not support the pleaded contributory-negligence case. Contributory negligence concerns the claimant’s failure to take reasonable care for itself and is conceptually distinct from the negligence giving rise to the defendant’s liability. Further, any assumed duty would have been owed to the neighbouring occupier, not to the defendant.

8. The amendment would therefore have no realistic prospect of success. Independently, it was made only weeks before trial without explanation. It would require the claimant to investigate new factual and expert issues and would probably jeopardise the fixed trial date. Applying Swain-Mason v Mills and Reeve LLP [2011] EWCA Civ 14 and Su-Ling v Goldman Sachs International [2015] EWHC 759 (Comm), permission was refused.