Rushbond Plc v The J S Design Partnership LLP

A failure to prevent an unknown third party causing property damage is ordinarily a pure omission and does not give rise to liability in negligence. The exceptions include creating or increasing a source of danger, exercising special control over it, or assuming responsibility to protect the claimant. Duty of care questions should be resolved incrementally and by analogy with established categories, rather than by applying a universal fairness-based test. In a commercial setting, assumption of responsibility generally requires legally significant dealings, an undertaking, or objectively reasonable reliance. Mere possession of a key during an inspection is insufficient. A claim based solely on failing to secure premises against an intruder may therefore disclose no reasonable grounds and be suitable for strike out and summary judgment.

The claimant owned an unoccupied cinema. An architect employed by the defendant inspected the property after being given a key and alarm code by the claimant’s marketing agents. The architect unlocked a side door and deactivated the alarm during the inspection, then re-secured the premises. Several hours later, an intruder entered and deliberately or carelessly started a fire, causing substantial damage.

The claimant alleged that the defendant owed a common law duty to take reasonable precautions for the property’s security, particularly by keeping the door locked or guarded. The defendant applied under CPR 3.4(2)(a) and CPR 24.2 to strike out the claim or obtain summary judgment. The central issue was whether the pleaded facts could establish a duty of care in relation to harm caused by an unknown third party.

1. Application granted. The claim was struck out and summary judgment was entered for the defendant. The pleaded facts disclosed no reasonable grounds and gave the claimant no real prospect of success.
2. On an application under CPR 3.4 and CPR 24, the court must determine whether the claim is bound to fail or has no real prospect of success. The court should not conduct a mini-trial, but may decide a short point of law where the material facts and evidence are before it and a trial would add nothing material.
3. The existence of a duty of care is not determined by a universal test applicable to every negligence claim. Established categories govern established situations. Novel cases are developed incrementally and by analogy with existing authority.
4. The general rule is that negligence does not impose liability for a pure omission to prevent harm caused by a third party. Exceptions may arise where the defendant creates or increases a danger, has special control over its source, prevents another from protecting the claimant, has a relevant status, or voluntarily assumes responsibility for protection.
5. The defendant’s failure to lock the door increased the risk that an intruder would enter, but did not create the source of the fire or provide the means by which it was started. The claim was therefore a pure omissions case. The defendant had no relevant relationship or dealings with the claimant, had not undertaken responsibility for security, and was not a security or fire expert. Possession of the key during the inspection did not establish special control or reasonable reliance.
6. The circumstances did not justify extending the recognised exceptions. There was no compelling reason for a trial because the relevant facts were pleaded and the parties had fully addressed the legal issue. Consequential matters were left to a further hearing if not agreed.

First-instance decision. The judgment does not state any prior appellate decision in this dispute.