B E T W E E N : - v GB BUILDING SOLUTIONS LIMITED (IN ADMINISTRATION)

Summary judgment is inappropriate where liability depends on a developing or fact-sensitive duty of care, disputed contractual terms, the parties’ communications, or evidence likely to emerge on disclosure. The court must decide whether the claim has a realistic prospect of success without conducting a mini-trial. In economic-loss cases, assumption of responsibility is assessed objectively in the full commercial, contractual and factual context. A contractual chain does not by itself exclude a tortious duty. The relationship may evolve after the original contract. A disclaimer is an important factor, but its effect depends on its construction and context. A pleaded breach that is not causative of the loss should be struck out, even if it may provide background to another allegation.

The claim arose from the destruction by fire of a supported living facility. The claimants alleged that WSP, retained by the main contractor as a fire-engineering consultant, negligently designed or failed to update the fire-safety strategy and thereby caused physical and economic loss. WSP had no contract with the claimants and applied for reverse summary judgment under CPR 24.2, alternatively to strike out the allegation concerning escape-route planning under CPR 3.4(2).

The central issues were whether the claimants had a realistic prospect of establishing a tortious duty of care, including assumption of responsibility, whether the application was premature before extended disclosure, and whether the escape-route allegation was causative of any recoverable loss.

1. Summary judgment. The application for summary judgment was dismissed. The issues included the existence and scope of a duty of care, incorporation of WSP’s terms, the effect of a disclaimer, the relationship between the fire-safety strategy and later operational documents, and communications with the claimants’ representatives. They involved disputed facts and could not fairly be resolved without a mini-trial. The claimants’ case was arguable and was not fanciful or bound to fail.
2. Economic loss and assumption of responsibility. The court applied the contextual approach summarised in Galliford Try Infrastructure Ltd v Mott Macdonald, including the commercial and contractual structure, the scope of the alleged duty, reliance, and the effect of any disclaimer. A contractual chain is highly relevant but not determinative. The factual relationship may evolve after the original contractual structure. WSP’s knowledge of the PFI arrangement, its alleged intention that operators would rely on its advice, its dealings with Avantage, and the interrelationship between the FSS, OFSM and FRA could support an objective assumption of responsibility.
3. Physical damage. The judge expressed preliminary doubts that WSP’s alleged failures amounted to the direct infliction of physical damage, as opposed to a failure to prevent damage caused by another contractor. The issue was not finally decided because it had been argued piecemeal and was unnecessary to dispose of the application.
4. Disclosure and contribution. Further disclosure could reasonably produce evidence relevant to assumption of responsibility. The existence of contribution claims did not independently justify retaining WSP, because section 1(1) of the Civil Liability (Contribution) Act 1978 required liability for the same damage.
5. Strike out. The allegation that escape routes were too long was struck out. It concerned risk to life and was not alleged to have caused or contributed to the property damage or economic loss. It could be pleaded, if appropriate, as factual background to the sprinkler allegation.