Brenda Vainker & Anor v Marbank Construction Ltd & Ors

Permission to issue a late contribution claim may be granted where the proposed contributor already knew that the underlying claim remained live and has suffered no procedural prejudice. A party that elects to conduct litigation on the assumption that a defence will succeed takes the risk that the assumption proves wrong. The court may assess contribution by reference to the parties’ relative responsibility for the loss and the causal potency of their breaches. Under the statutory just and equitable assessment, greater responsibility attaches to the contractor whose workmanship was the primary cause of the damage, while the designer remains responsible for a contributing design defect.

The judgment concerned consequential matters arising from earlier proceedings brought by the claimants against Marbank Construction Ltd and SCD Architects Ltd. Neither defendant had issued a Part 20 contribution claim against the other, although both had been defendants to claims concerning defective brickwork and glass.

Marbank sought permission to issue and serve a Contribution Notice against SCD in respect of the brickwork defects. SCD objected, contending that it would be prejudiced because it had not adduced further expert evidence concerning an aesthetic defect and the appropriate remedial works. SCD did not object to a contribution claim concerning the glass.

The issues were whether permission should be granted at that stage and, if so, what contribution was just and equitable having regard to the parties’ respective responsibility.

1. Permission for the brickwork contribution claim. Permission was granted to Marbank to issue and serve the Part 20 Contribution Notice. SCD had known from the pleadings, Scott Schedule, expert evidence and opening submissions that the brickwork claim remained live, including the possibility of liability for discolouration alone. Its limitation defence was a litigation risk, not a basis for assuming that further evidence was unnecessary.

2. SCD had itself put in issue the relative responsibility of Marbank and SCD through its pleaded reliance on a net contribution clause. The same design and workmanship issues were relevant both to discolouration and to the alleged risk of structural failure. SCD had addressed the cause of the discolouration in its expert evidence and could reasonably have adduced further evidence about cleaning or remedial works. It therefore suffered no relevant prejudice and was not entitled to a further opportunity to improve its case.

3. Brickwork contribution. The court applied the just and equitable standard under the Civil Liability Contribution Act 1978. SCD’s negligent design of the damp-proof course contributed to the loss, but Marbank’s workmanship materially exacerbated the problem and was responsible for the principal construction defects. Marbank was ordered to contribute 25% of the cost of the brickwork remedial works; the allocation was therefore 75% Marbank and 25% SCD.

4. Glass contribution. Marbank bore primary responsibility for installing the wrong glass and for associated workmanship defects. SCD was liable for failing to observe that the wrong glass had been installed. SCD’s contribution was fixed at 20%, with Marbank responsible for the remaining 80%. The reciprocal contribution claim operated on the same basis.