Begum v Maran (UK) Ltd

A defendant may owe a duty in respect of harm immediately caused by a third party where it has actively created a danger which the third party foreseeably exploits. Foreseeability alone remains insufficient. Proximity may, however, be arguable where the defendant controlled a decision which knowingly exposed an identifiable class of workers to grave and predictable danger.

On a strike-out or summary-judgment application, a novel negligence claim in a developing area should proceed if it is arguable on the assumed facts. Rome II Regulation article 7 applies only where the relevant non-contractual obligation, or damage to persons or property, arises from environmental damage. A workplace fatality caused by absent safety measures did not meet that requirement. The public-policy exception in article 26 is exceptional; a foreign limitation period is not objectionable merely because it is shorter than the English period.

Begum v Maran (UK) Ltd concerned the death of a shipbreaking worker in Bangladesh after he fell from an end-of-life oil tanker. On the assumed facts, the English shipbroker had autonomous control over the vessel’s sale and knew that its high sale price meant that it would be demolished at a Bangladeshi yard with notoriously unsafe working conditions.

Jay J refused the defendant’s applications for strike out and reverse summary judgment in [2020] EWHC 1846 (QB). He held that the alleged duty of care was arguable. He also declined to determine whether the Bangladeshi one-year limitation period barred the claim, because of arguments under articles 7 and 26 of the Rome II Regulation.

The appeal concerned whether the negligence claim was bound to fail and whether either Rome II provision prevented the Bangladeshi limitation period from applying.

1. Appeal allowed in part. The alleged duty of care was not fanciful and the negligence claim should not be struck out. The claim was nevertheless statute-barred unless the claimant could establish undue hardship at a remitted preliminary issue.

2. The tests under CPR rr 3.4 and 24.2 were, on this application, materially the same. The court asks whether the claim has a realistic rather than fanciful prospect of success, without conducting a mini-trial. Assumed factual averments are ordinarily accepted unless demonstrably unsupportable.

3. The ordinary rule is that a person is not liable for harm inflicted by a third party. A recognised exception applies where the defendant creates or is responsible for a source of danger which a third party foreseeably exploits. On the assumed facts, it was arguable that the appellant’s decision to send the vessel to Bangladesh actively exposed workers to a danger which would not otherwise have existed. The claim was an unusual extension of established negligence principles, but not a wholly new category.

4. Route 1, based on ordinary Donoghue v Stevenson principles, faced substantial difficulties over proximity and the intervention of the shipbreaking yard. Route 2, based on the creation-of-danger exception, was stronger. In a rapidly developing area of negligence law, the issue should be decided on facts found at trial rather than on assumed facts.

5. By a majority consisting of Coulson and Bean LJJ, article 7 of the Rome II Regulation did not apply. The pleaded duty arose from unsafe working conditions, not environmental damage. The death resulted from the absence of a safety harness, not from any environmental damage caused by beaching or demolition. Males LJ agreed that article 7 was unavailable, while reserving his position on aspects of its wider construction.

6. Article 26 and section 2 of the Foreign Limitation Periods Act 1984 permit departure from foreign limitation law only exceptionally. A shorter foreign limitation period is not, without more, manifestly incompatible with English public policy. The claimant could reopen undue hardship only on the confined question whether material available to her solicitors between the letter of claim and expiry of the period made the error as to the accident date relevant. That issue was remitted to the Queen’s Bench Division as a preliminary issue.

• Court of Appeal (Civil Division): Allowed the defendant’s appeal in part. It upheld the refusal to strike out the negligence claim, rejected reliance on article 7 of the Rome II Regulation, and confined article 26 to a remitted undue-hardship preliminary issue: [2021] EWCA Civ 326.

• High Court, Queen’s Bench Division: Jay J refused reverse summary judgment and strike out. He held the duty claim arguable and left the articles 7 and 26 issues unresolved: [2020] EWHC 1846 (QB).