Anchor Hanover Group & Ors v Arcadis Consulting (UK) Ltd & Ors

Public authorities do not generally owe private individuals a duty of care merely because they exercise statutory powers or duties. A duty may nevertheless arise where the authority’s conduct would impose a duty on a private body, including where it has created a source of danger or assumed responsibility for protecting the claimant. Statutory involvement, approval or advice alone is insufficient. Where the existence of an assumption of responsibility depends on disputed or incomplete facts, the issue should ordinarily proceed to trial. Strike-out or summary judgment is appropriate only where the claim is legally untenable or has no realistic prospect of success, and the court must avoid conducting a mini-trial.

The claim arose from flooding at sheltered housing and a nearby cottage after debris blocked a culvert and trash screen constructed during diversion works to the River Bure. The claimants alleged that the Environment Agency had negligently approved the design, failed to ensure adequate maintenance, and contributed to the flood risk through its involvement in modelling, consultation and consent.

The Environment Agency applied under CPR 3.4(2)(a) and CPR 24.2 to strike out the claim or obtain summary judgment, arguing that no duty of care could arise from its statutory functions. The central issue was whether the pleaded facts disclosed a realistic prospect that its conduct created a common law duty of care.

1. Application dismissed. The claim against the Environment Agency was not bound to fail. The statement of case disclosed a cause of action with a real prospect of success.
2. The court applied the established strike-out and summary-judgment principles. A claim should be struck out only where the pleaded facts disclose no legally recognisable claim. Summary judgment requires a realistic, more than fanciful, prospect of success. The court should not conduct a mini-trial and should consider evidence reasonably expected to be available at trial. A short point of law may be decided summarily where the necessary evidence is before the court, but that condition was not met here.
3. Following Robinson v Chief Constable of West Yorkshire [2018] UKSC 4 and Poole Borough Council v GN [2019] UKSC 25, there is no single universal test for the existence of a duty of care. The issue is determined incrementally by precedent and analogy. Public authorities do not owe a duty merely because statutory powers or duties could have been used to prevent harm, unless ordinary common law principles impose a duty and that duty is not inconsistent with the governing legislation.
4. The pleaded approval, consultation and consent in the exercise of statutory functions would not, standing alone, establish a duty. However, the alleged involvement in hydraulic modelling arguably went beyond the statutory role. The pleaded circumstances also left open whether the Agency had assumed responsibility for maintenance within the principles explained in Spring v Guardian Assurance plc [1995] 2 AC 296, notwithstanding that the court considered this unlikely on the facts pleaded.
5. The evidence concerning the Agency’s involvement in modelling and its clearance of debris was incomplete. A full trial was therefore required before determining whether a common law duty existed.