Date: Tue, 13 Sep 2005 14:59:46 +0100

From: Charles Mitchell

Subject: Brian Warwicker Partnership plc v HOK International Ltd

I share Andrew's misgivings about the second of these cases - and also about Re-Source America International Ltd v Platt Site Services Ltd [2004] EWCA Civ 665, which is the earlier CA case on which the finding in Warwicker was based. In Re-Source, the CA found that when the trial judge had made a 100% apportionment against D he had been entitled to take into account D's employee's behaviour in:

instigating the hotwork originally in highly contentious circumstances, of his directing it in a wholly dangerous manner and of his deliberate decision to leave site as soon as he learnt that a fire had started so as to avoid criticism in these regrettable acts. This was then followed by a lengthy campaign in which he sought to show that he had left site earlier than he did and in innocent circumstances, that the fire was exclusively caused by the reckless conduct of Platt which he knew that Platt had not engaged in and which aimed to vindicate both Barkin and himself and unfairly leave Platt solely responsible, liable and culpable for the fire.

In effect the CA therefore held that a court can punish a defendant who behaves badly by lying and denying responsibility for his actions after the event by making an apportionment weighted against him in contribution proceedings on the ground of moral blameworthiness - even though his bad behaviour related to what we might call the 'fall-out' from the accident rather than the accident itself. Rix J took a similar line at first instance in Dubai Aluminium v Salaam [1999] 1 Lloyd's Rep 415, where he held that it was a relevant circumstance when he came to make his apportionment between multiple defendants that some had settled the claims against them quickly while others had reprehensibly held out until after the initiation of court proceedings even though they were clearly liable. However it seems to me that this kind of behaviour is better dealt with when costs orders are made against the parties, and that where a contribution claimant wishes to invoke the defendant's bad behaviour as a reason for making an apportionment weighted against him he should have to prove a closer connection between the defendant's behaviour and the 'damage' for which he and the claimant must be commonly liable before the 1978 Act can be brought into play.

Charles

Date: Tue, 13 Sep 2005 13:44:53 +0100
From: Andrew Tettenborn
Subject: ODG: 2 contribution cases

To end the summer, a couple of interesting English cases re contribution between wrongdoers.

First, for those who haven't spotted it, a welcome decision preserving the width of the statutory right to contribution. Contrary to what was often assumed, you don't need a payment in cash by D1 to C to trigger a right to contribution against D2.

In Baker v Wilks [2005] 3 All ER 603 defects appeared in a block of housing association flats. For the sake of argument, the court assumed the defects were the fault of both the builder and the consulting engineers. The builder settled with the owners on the basis that it would remedy the defects free of charge. Did it have a right to contribution from the engineers? Yes: the fact that no cash had been paid to the owners was irrelevant, at least where what the builder had done was capable of money valuation. There was also a limitation point: time, it was held, ran in such a case from the time of the agreement to settle.

This seems obviously sound. No doubt it can be extended. For example, suppose a debtor has a right to set off the same liability against 2 different creditors, C1 and C2. If he sets it off against a demand by C1, there now seems little objection to C1 claiming contribution against C2: C1 may not have paid the liability in cash, but he has done the next best thing.

Secondly, something more controversial. In Brian Warwicker Partnership plc v HOK International Ltd [2005] EWCA Civ 962 commercial premises were misdesigned so as to be a wind-tunnel and hence tenant-unfriendly. This was partly the fault of the architects & partly that of the consulting engineers. Having shelled out to the owners for the cost of correction, the engineers claimed contribution from the architects. In apportioning the loss between the two defendants, the judge took account of certain acts of negligence by the architects that were non-causative of the owners' loss and used them to increase the share the architects had to pay. The CA said this was unexceptionable, affirming an earlier case where this had been done. The argument was that relative responsibility wasn't the sole criterion on apportionment under the relevant legislation (the Civil Liability (Contribution) Act 1978), and that it was just and equitable that all fault should be in account.

To me, this proposition seems a tad iffy. If you can't be sued directly for non-causative negligence, it seems a bit curious - perhaps even unjust and inequitable - to take it into account indirectly in contribution proceedings. Warwicker also creates a potential mismatch with the Law Reform (Contributory Neg) Act 1945, where - even though the wording of the relevant apportionment provision is similar to that under the 1978 Act - it's long been accepted that only causative negligence by the claimant is relevant to the apportionment exercise.

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