Begum v Maran (UK) Ltd (Rev 1)

On a summary judgment application, the court must accept the claimant’s factual case unless plainly fanciful and ask whether the claim is bound to fail without conducting a mini-trial.

A claim concerning injury caused by third-party conduct may fall outside the pure omissions cases where the defendant actively arranged or materially contributed to the events. The creation of danger principle may establish sufficient proximity where the defendant created or helped create a danger to which the claimant was exposed. The uncertainty of that developing principle made summary determination inappropriate.

The unjust enrichment claim failed because the alleged enrichment was not received at the deceased’s expense. The negligence claim therefore remained viable and the application was dismissed.

The deceased died while dismantling an oil tanker at a shipbreaking yard in Bangladesh. His widow claimed damages in negligence and, alternatively, unjust enrichment, against a United Kingdom company involved in arranging the vessel’s sale for demolition.

The defendant applied for summary judgment under CPR Part 24.2 and to strike out the claim. The principal issues were whether the pleaded facts could establish a duty of care, whether the defendant had been unjustly enriched at the deceased’s expense, and whether the claim was statute-barred under Bangladeshi law.

1. Summary judgment. Under CPR Part 24.2(a), the court asks whether the claimant has no real prospect of success. The pleaded facts must be accepted unless plainly fanciful, allowance must be made for further evidence, and the court must avoid conducting a mini-trial. The same caution applied to the strike-out application.
2. Negligence. The claim was not properly characterised as a pure omission. The defendant was alleged to have actively arranged the sale of the vessel to a cash buyer, knowing that it would be taken to Bangladesh for demolition in dangerous conditions. The distinction between acts and omissions is fluid and substance prevails over pleading terminology.
3. The case was a hybrid involving active conduct by the defendant and intervening conduct by the yard and employer. The absence of control over the Bangladeshi yard created a substantial difficulty, but the creation of danger principle was capable of applying. The relevant question was whether the defendant created a danger to which the deceased was exposed, thereby establishing the necessary legal nexus. The accident was also arguably a likely consequence of the alleged breach.
4. The boundaries of that principle were uncertain and developing. It was therefore inappropriate to decide conclusively, on assumed facts, whether a duty of care arose. The negligence claim had a real prospect of success.
5. Unjust enrichment. The four-question structure identified in Bank of Cyprus UK Ltd v Menelaou was considered, but only enrichment and enrichment at the claimant’s expense required determination. The contractual arrangements were genuine and did not constitute a single scheme. The defendant did not receive the purchase price or a sale-related commission, and any enrichment was not at the deceased’s expense. The claim was unsustainable.
6. Limitation. The court accepted that Bangladeshi law would ordinarily apply under Article 4 of Rome II, but held that the claimant had a real prospect of establishing that Article 7 applied to environmental damage. The Article 26 issue was left unresolved. If Bangladeshi law applied, the statutory scheme imposed a one-year limitation period.
7. The application for summary judgment under CPR Part 24.2 and to strike out the claim under CPR Part 3.5 was dismissed.