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8. Oktober 2020

Red alert - Autumn 2020 – 3 von 6 Insights

Look who's behind you - Taking care during property inspections

Rushbond plc v the J S Design Partnership LLP [2020] EWHC 1982 (TCC

Summary

An architect carried out an inspection of a vacant cinema. A third party unknowingly gained access during the inspection and later started a fire causing damage worth £6.5million. The property owner brought an action against the firm of architects, alleging negligence for allowing the third party to enter the cinema. The Court struck out the claim, holding that the firm did not owe a duty of care to prevent the intruder gaining access.

The facts

The case concerned a vacant cinema in the centre of Leeds owned by the Claimant, known as The Majestic. The property had capacity to seat around 2,500 and was therefore of a considerable size. The property was protected by an alarm system.

An architect from the Defendant firm collected keys and the alarm code from the landlord's agents and visited the cinema for about an hour. The architect unlocked the side door and deactivated the alarm and then entered the cinema.

Whilst inside and without his knowledge, an intruder entered via the unlocked door and hid within the cinema.

The architect then left, having activated the alarm and locked the door. The intruder remained inside and later started a fire which caused the damage.

The claim

The cinema owner brought an action for damages against the architect's firm. The cinema owner argued:

  • The architect owed a duty of care to the cinema owner having taken custody of the keys and the alarm code
  • The architect failed to exercise proper care for the security of the property during his visit; in particular, by failing to keep the door locked or guarded during his visit
  • There was a link between the failure to lock the door and the intruder entering who then caused the damage.

In response, the architects defended the claim stating:

  • The architects did not assume a duty of care to prevent intruders from entering the cinema
  • The intruder was not under the supervision or control of the architects
  • The owner's agents had voluntarily provided the keys and the alarm code and failed to accompany the architect to the property
  • The damage was caused by the fire started by the intruder and not by the architect.

The Court Case

After the exchange of statements of case, the Defendant architects brought a claim for summary judgement and invited the court to strike out the claim. In accordance with the court rules, a court will be entitled to do so if:

  • The claimant has no real prospect of succeeding on the claim or issue; and
  • there is no other compelling reason why the case or issue should be disposed of at a trial.

A summary judgement application is obviously a powerful procedural step as it is possible to avoid the delay and costs of a lengthy trial. Consequently, there have been many cases on what is needed in order to satisfy the criteria for succeeding in an application for summary judgement. For example, it has been held that the court must consider whether the claimant has a "realistic" as opposed to a "fanciful" prospect of success. In addition, a "realistic" claim is one that carries some degree of conviction. This means a claim that is more than merely arguable.

The court examined the history of cases which dealt with the question of whether a duty of care arose and held that the architect's failure to lock the door during his inspection inside the property may have enabled the intruder to gain access but it did not provide the means with which to start the fire.

More interestingly, the court noted that the architect did not hold himself out as having any special skill or expertise in safeguarding property. This would contrast with a fire or security expert or even perhaps a lettings or managing agent. In conclusion, the fact the architect had the key during his inspection was not sufficient to give him responsibility for protecting the property from fire damage.

Our comments

It is interesting that the court made a distinction between the responsibilities of an architect and that of a letting or managing agent when accessing a property. Clearly it would be prudent for a property owner to insist that their agent accompanies any visitors to properties. More importantly, it can't be too difficult to secure the door behind you particularly in large properties.

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