James Alan Gambrill v NG Bailey Facilities Services Ltd

A contribution claim under the Civil Liability (Contribution) Act 1978 requires the proposed contributor to be liable to the injured claimant for the same damage. A settlement without admission may nevertheless support an inference that the settling party’s loss arose from its own negligence. An indemnity does not ordinarily cover the indemnitee’s own negligence without clear and unequivocal wording.

Where contractual liability is not concurrent with tortious liability, apportionment is unavailable and an indemnity claim is all or nothing. Permission to make a very late amendment depends on the merits, the explanation for delay, prejudice, disruption to the trial date and the interests of justice. A trial-threatening amendment made through the amending party’s own delay may properly be refused.

The claimant suffered catastrophic injuries while carrying out lighting works. He sued NG Bailey Facilities Services Ltd in negligence, and later also pursued Beauchamp & Bird Ltd. NG Bailey settled the underlying claim for £2.5 million plus costs without admitting liability.

The present proceedings concerned NG Bailey’s Part 20 claims against Beauchamp & Bird for contribution under the Civil Liability (Contribution) Act 1978, a contractual indemnity under the Trade Framework Agreement, and permission to amend to plead breach of contract. The central issues were whether the contribution and indemnity claims had any real prospect of success, whether a partial indemnity could be pleaded, and whether the proposed contractual claim should be admitted six weeks before trial.

The court granted summary judgment to Beauchamp & Bird on the contribution claim and the contractual indemnity claim, refused permission to plead a partial indemnity, and dismissed NG Bailey’s amendment application.

1. Contribution. Under sections 1(1), 1(4) and 6(1) of the Civil Liability (Contribution) Act 1978, a person seeking contribution after a bona fide settlement must show that the proposed contributor was liable to the injured person for the same damage. The evidence overwhelmingly showed that the claimant was employed by Tekna, not Beauchamp & Bird. The contribution claim therefore had no real prospect of success.
2. Indemnity. The settlement was made pragmatically and without admission, but the surrounding circumstances justified an inference that NG Bailey considered itself negligent, or faced a substantial prospect of a finding of negligence. The indemnity clause contained no clear or unequivocal words covering loss caused by NG Bailey’s own negligence. Applying Persimmon Homes Ltd v Ove Arup and Partners Ltd [2017] 2 CLC 28, Jose v MacSalvors Plant Hire Ltd [2009] EWCA Civ 1329 and Canada Steamship Lines Limited v The King [1952] AC 192, the indemnity claim had no real prospect of success.
3. Partial indemnity. The relationship between the parties was solely contractual. It was not a category 3 case under Forsikrings Vesta v Butcher [1986] 2 All ER 488, so apportionment under the Law Reform (Contributory Negligence) Act 1945 was unavailable. The claim was all or nothing, as explained in Greenwich Millennium Village Ltd v Essex Group Services Ltd [2014] EWCA Civ 960.
4. Amendment. Applying the summary judgment approach in Easyair Limited v Opal Telecom Limited [2009] EWHC 339 (Ch) and the late-amendment principles in CIP Properties (AIPT) Ltd v Galliford Try Infrastructure Ltd [2015] EWHC 1345 (TCC), the proposed contractual claim lacked a real prospect of success on causation. The alleged omissions by Beauchamp & Bird arguably provided only the occasion for Mr Kibble’s intervening negligence, by analogy with Quinn v Burch Bros (Builders) Ltd [1966] 2 QB 370. In any event, the amendment was substantially late, would require new investigation, evidence and disclosure, and would jeopardise the five-day trial. The prejudice was substantially of NG Bailey’s own making.

The court directed that it would hear the parties on costs and consequential matters.