This claim arises out of a fire that occurred in 2014 at a property owned by the Claimant. An architect employed by the Defendant, accompanied by a structural engineer and a quantity surveyor, carried out an inspection of the property on behalf of a potential purchaser. The Claimant’s case is that the architect left the access door unlocked for a period of about one hour whilst they were inside the building. It is not alleged that the visitors started the fire. The Claimant’s case is that one or more intruders were able to gain access to the property through the unlocked door and, once inside the building, started the fire. Damages of £6.5 million are claimed in respect of damage caused by the fire.

The matter before the Court is the Defendant’s application to strike out the claim and/or for summary judgment on the basis that the Statement of Case discloses no reasonable grounds for bringing the claim, the claim has no real prospect of success and there is no other compelling reason for a trial.

For the purpose of the Defendant’s application, the material facts are not in dispute.

The Claimant was the owner of an unoccupied cinema in the centre of Leeds, known as The Majestic. The property was laid out over three storeys and three mezzanine levels, with capacity to seat around 2,500 persons in the main auditorium space. The property was protected by an alarm system and lockable doors, including a side door for which the marketing agents, Pudney Shuttleworth and CBRE, held keys.

On 30 September 2014 Mr Jeffrey, of the Defendant architectural firm, visited the property, having been furnished with the key and the code to the alarm by Pudney Shuttleworth. At about 10.15am Mr Jeffrey entered the property by unlocking the side door, using the key, and de-activating the alarm. At about 11.12am, following the inspection, he left the building, re-setting the alarm and locking the door.

Shortly before 7.15pm, a fire started on the second floor of the property. The fire spread through the property, causing extensive damage.

On 15 July 2019 the Claimant commenced these proceedings, seeking damages against the Defendant in the sum of £6,555,000.

At paragraph 16 of the Particulars of Claim, the Claimant pleads that the Defendant owed it a common law duty of care as follows:

The breach of duty alleged is that the Defendant, through Mr Jeffrey, 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.

At paragraph 6 of the Statement of Defence, the Defendant denies that it owed to the Claimant a duty of care for a number of reasons, including the following at paragraph 6.2:

The third party who, the Claimant alleges, did damage the Property was not under the supervision or control of the Defendant, and the Claimant does not allege otherwise.

In those circumstances, the law imposed no positive duty on the Defendant to take care to protect the Claimant’s property from harm except and unless the Defendant voluntarily assumed a responsibility to act positively so as to prevent an unidentified third party(ies) harming the Property.

The Defendant did not assume any such responsibility.

In particular, the facts upon which the Claimant relies do not give rise to such an assumption and the Particulars of Claim disclose no reasonable grounds for the duty alleged:

the Claimant relies on the fact that Mr Jeffrey made an unaccompanied visit to the Property. However Mr Jeffrey visited the Property unaccompanied by the Claimant’s managing agents not because the Defendant instructed him to do so or because he chose to do so, but solely because each of the Claimant’s managing agents expressly allowed and encouraged him to do so;

the Claimant relies on the fact that Mr Jeffrey disabled two protections during and for the purposes of his visit. However Mr Jeffrey necessarily unlocked the Access Door and disarmed the alarm system, thereby disabling two protections at the Property for the duration of his visit, because the visit which each of the Claimant’s managing agents expressly allowed and encourage him to make would have been impossible unless Mr Jeffrey had unlocked the Access Door and disarmed the alarm system. It was the Claimant’s managing agents which knowingly provided Mr Jeffrey with the means of disabling those protections. It was the Claimant’s managing agents which did not instruct him as to any way in which those protections could safely be maintained during his visit (there was no such way);

it was reasonably foreseeable that risk of harm to the Property by an unknown third party was (marginally) increased for one hour on the morning of 30 September 2014. However reasonable foreseeability of harm is inadequate to give rise to a duty of care at common law.

Nor do facts other than those upon which the claimant relies permit the conclusion that the Defendant voluntarily assumed responsibility to the Claimant to prevent an unknown third party(ies) from entering and then damaging the Property. In particular, it was not reasonably foreseeable by the Defendant that the Claimant would reasonably rely upon such an assumption of responsibility and the claimant did not so rely…”

In its Reply, the Claimant responds to the denial of a duty of care as follows:

The disabling of existing protections by Mr Jeffrey did give rise to a duty of care and, indeed, an assumption of responsibility.

The Claimant would and did reasonably assume that any visitors to the Property permitted unaccompanied access by the marketing (not managing) agents would take reasonable precautions for the security of the Property, on disabling the existing protections, by locking and/or monitoring the Door, and reasonably relied upon them to do so. That was not dependent on, and did not arise from, it knowing of a particular visit. But in any event, the Claimant was in fact aware of Mr Jeffrey’s intended unaccompanied visit, having been notified thereof by Pudney Shuttleworth, and it reasonably assumed he would take such precautions and relied on him to do so. It was also reasonably foreseeable to Mr Jeffrey and the Defendant that it would do so. That there was, admittedly, no direct

CPR 3.4(2) provides that:

that the statement of case discloses no reasonable grounds for bringing or defending the claim …”

The test on such an application was helpfully summarised in Sainsbury’s Supermarkets Ltd v Condek Holdings Ltd & Others [2014] EWHC 2016 (TCC) by Stuart-Smith J:

CPR 24.2 provides that:

it considers that –

there is no other compelling reason why the case or issue should be disposed of at a trial.”

The test on an application for summary judgment was summarised in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) per Lewison J at [15]:

A "realistic" claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8];

In reaching its conclusion the court must not conduct a

However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550;

Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63;

On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725.”

The basis of the application is that the Defendant did not owe a duty of care to protect the Claimant from fire damage caused by the deliberate or careless actions of an unknown third party for whom the Defendant was not responsible.

The Court is not invited to determine any issues of fact for the purposes of the application.

It is common ground on the pleadings that:

the letting agents gave the keys to Mr Jeffrey of the Defendant firm, did not to accompany him on his visit and did not instruct him that the door should be locked and/or monitored during his visit;

during Mr Jeffrey’s visit, the side door was unlocked and the alarm system was de-activated;

when Mr Jeffrey left the building, he locked the side door and re-activated the alarm.

The Court must consider whether, on the facts as pleaded, the claim is bound to fail, having regard to the applicable legal principles. The issue is confined to a point of law. All the relevant facts are before the Court and the parties have had an opportunity to make full submissions. This indicates that nothing would be gained by delaying a determination of the issue and the Court should decide it. However, the Court must also consider whether there are any potential arguments that could be advanced by the Claimant to extend the ambit of the case law in this area even if the issue of law

Ms Sinclair QC, leading counsel for the Defendant, submits that the Defendant did not owe a duty of care to protect the Claimant from fire damage caused by the deliberate or careless actions of an unknown third party for whom the Defendant was not responsible. Ms Sinclair submits that it was not reasonably foreseeable by the Defendant that there would be property damage by fire caused by an intruder if Mr Jeffrey did not lock himself in the building during his visit. The chain of events, whereby the intruder gained entry to the property, concealed himself, remained undetected by the alarm system after the visitors had left, and started the fire, was not probable. Although the Defendant has admitted on the pleadings that it was reasonably foreseeable that there was an increased risk of harm to the property by an unknown third party during the visit, Ms Sinclair correctly submits that mere foreseeability of harm is not sufficient to give rise to a duty of care in tort. Generally, the common law does not impose a positive duty to take care to protect others from harm. There are exceptions to that rule but they do not apply on the assumed facts. The Defendant did not create the danger and there was no assumption of responsibility by the Defendant to the Claimant in this case.

Mr Brown, counsel for the Claimant, submits that this is not a pure omissions case because the Defendant disabled the lock and alarm whilst inside the building, thereby creating the danger and/or playing a causative part in the train of events that led to the risk of damage. He relies on the Defendant’s admission in its defence that it was reasonably foreseeable that there was risk of an intruder gaining access to the building during the visit. It is not simply a case of failing to prevent a third party causing damage to the property but of the Defendant creating, or permitting the creation of, a source of danger. Even if this were a pure omissions case, the imposition of a duty of care is not limited to cases where there have been direct dealings between the Claimant and the Defendant. The Defendant assumed responsibility for securing the door during the inspection as a visitor with a special level of control over the source of danger. At the very least, it is reasonably arguable that the categories of exception are not closed and in the circumstances of this case there was a duty of care.

In Michael v Chief Constable of South Wales Police [2015] UKSC 2 Lord Toulson considered the circumstances in which a duty of care in tort would be imposed:

Doubts about the Anns formula were expressed by the High Court of Australia in Sutherland Shire Council v Heyman (1985) 60 ALR 1 and echoed in subsequent English decisions. In Caparo Plc v Dickman [1990] 2 AC 605 Lord Bridge (with whom Lords Roskill, Ackner and Oliver of Aylmerton agreed) emphasised the inability of any single general principle to provide a practical test which could be applied to every situation to determine whether a duty of care is owed and, if so, what is its scope. He said, at pp 617-618, that there must be not only foreseeability of damage, but there must also exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of "proximity" or "neighbourhood", and the situation should be one in which the court considers it fair, just and reasonable that the court should impose a duty of a given scope on one party for the benefit of the other. He added that the concepts both of "proximity" and "fairness" were not susceptible of any definition which would make them useful as practical tests, but were little more than labels to attach to features of situations which the law recognised as giving rise to a duty of care. Paradoxically, this passage in Lord Bridge's speech has sometimes come to be treated as a blueprint for deciding cases, despite the pains which the author took to make clear that it was not intended to be any such thing.

The Anns formula was finally disapproved in Murphy v Brentwood District Council [1991] AC 398.”

The Supreme Court provided further clarification of the circumstances in which a duty of care would arise in Robinson v Chief Constable of West Yorkshire [2018] UKSC 4. Lord Reed stated:

Lord Bridge [adopted] an incremental approach, based on the use of established authorities to provide guidance as to how novel questions should be decided:

Applying the approach adopted in Caparo, there are many situations in which it has been clearly established that a duty of care is or is not owed: for example, by motorists to other road users, by manufacturers to consumers, by employers to their employees, and by doctors to their patients. As Lord BrowneWilkinson explained in Barrett v Enfield London Borough Council [2001] 2 AC 550, 560,

It is normally only in a novel type of case, where established principles do not provide an answer, that the courts need to go beyond those principles in order to decide whether a duty of care should be recognised. Following Caparo, the characteristic approach of the common law in such situations is to develop incrementally and by analogy with established authority. The drawing of an analogy depends on identifying the legally significant features of the situations with which the earlier authorities were concerned. The courts also have to exercise judgement when deciding whether a duty of care should be recognised in a novel type of case. It is the exercise of judgement in those circumstances that involves consideration of what is “fair, just and reasonable”. As Lord

Thus, the courts have rejected the use of a universal test to determine the circumstances in which a duty of care will be found to exist. The starting point is for the court to consider whether the circumstances of the case in question have been found to give rise to the existence or non-existence of a duty of care in other cases. In determining whether or not to extend a duty of care to novel situations, the court adopts an incremental basis by analogy with established categories of case where a duty has been found to exist.

The general rule is that the common law does not impose liability for negligence in relation to pure omissions, including loss arising through the criminal actions of a third party. In Michael Lord Toulson explained:

The rule is not absolute. Apart from statutory exceptions, there are two well recognised types of situation in which the common law may impose liability for a careless omission.

The first is where D was in a position of control over T and should have foreseen the likelihood of T causing damage to somebody in close proximity if D failed to take reasonable care in the exercise of that control…

The second general exception applies where D assumes a positive responsibility to safeguard C under the Hedley Byrne principle, as explained by Lord Goff in Spring v Guardian Assurance Plc. It is not a new principle. It embraces the relationships in which a duty to take positive action typically arises: contract, fiduciary relationships, employer and employee, school and pupil, health professional and patient. The list is not exhaustive … There has sometimes been a tendency for courts to use the expression "assumption of responsibility" when in truth the responsibility has been imposed by the court rather than assumed by D. It should not be expanded artificially.”

This general rule was further considered in Robinson by Lord Reed:

The exceptions to the general rule that there is generally no liability in negligence for the wrongful acts of third parties have been considered by the courts. In Smith v Littlewoods Organisation Ltd [1987] 1 AC 241 (HL), the owner of an empty cinema building was found to owe no duty of care to the owner of an adjoining property which was burned down when third parties broke in and set fire to the cinema. Having referred to the existence of a general duty to take reasonable care not to cause damage to neighbouring premises, Lord Goff stated at page 270G:

Lord Goff acknowledged that there were exceptions to that general rule at pp.272D and discussed the nature of the exceptions at 272H-273A:

Lord Goff expressly considered and rejected the imposition of a general duty of care on an occupier to keep his premises secured against intruders who might cause damage to adjacent premises, even where there was a high degree of foresight that such damage might occur: pp.278C and 278G-279A:

In Mitchell v Glasgow City Council [2009] 1 AC 874, Lord Scott considered further exceptions to the general rule at [40]:

Lord Rodger provided additional illustrations of the exceptions, categorising them as wrongful acts on the part of the defendant:

In Stansbie v Troman [1948] 2 KB 48 a decorator, who left the claimant’s front door unlocked when he left the property empty, was held liable for the loss caused by a

The imposition of a duty of care based on an assumption of responsibility was explained by Lord Goff in Henderson v Merrett [1995] 2 AC 145 (HL) at p.180:

The circumstances that could give rise to an assumption of responsibility were considered further in Williams v Natural Life Health Foods Ltd [1998] 1 WLR 830 (HL) per Lord Steyn at p.835F:

In cases concerning professional services, where there have been no direct dealings between claimant and defendant, no such assumption of responsibility has been found: Involnert Management Inc v Aprilgrange Ltd [2015] 2 Ll.Rep. 289 per Leggatt J (as he then was) at [285] - [292].

In Al-Najar v Cumberland Hotel (London) Ltd [2019] EWHC 1593 (QB) the court held that the defendant hotel proprietor owed a duty to take reasonable care to protect its visitors against injury caused by the criminal acts of third parties during their stay at the hotel. In finding that a duty of care existed, Dingemans J placed reliance on a line of authority which established an obligation at common law on a hotel proprietor to take reasonable care to prevent damage to a guest from unusual danger which the occupier knows or ought to know of and by reason of the assumption of responsibility test based on the hotel’s invitation to guests to stay at the hotel.

In this case, the Court must determine whether it is satisfied that the claim is bound to fail. That involves consideration of the following issues:

whether, as the Claimant contends, this is not a pure omissions case, or at least arguably it is not an omissions case, because the Defendant created the danger and/or played a causative part in the train of events that led to the risk of damage;

if it is an omissions case, whether the Defendant assumed a positive responsibility to safeguard the Claimant’s property from harm under the Hedley Byrne principle.

On analysis of the assumed facts, the harm suffered was fire damage to the Claimant’s property. That harm was not caused by the Defendant but by a third party unconnected with the Defendant. The danger causing the damage was fire. The Defendant did not create the source of the fire or provide the means by which the fire started. By leaving the door unlocked, the Defendant increased the risk that an intruder might gain entry to the building. Locking the door would have prevented the third party from causing the damage. Failing to lock the door amounted to a failure to prevent that harm. The examples given by Lord Goff in Smith (above) are apt in this case. Mr Jeffrey’s failure to lock the door during his inspection inside the property may have been the occasion for the third party to gain access to the building but it did not provide the means by which the third party could start a fire and it was not causative of the fire. It follows that this case is a pure omissions case.

The assumed facts of this case do not give rise to the imposition of an assumption of responsibility on the basis of which a duty of care might be owed. Relationships in which a duty to take positive action to safeguard the property of another have been found typically include contractual or quasi-contractual arrangements, such as Stansbie v Troman, promises and trusts, as indicated by Lord Reed in Robinson or circumstances where reliance is placed on the Defendant’s skill and expertise, as indicated by Lord Goff in Merrett. None of the legally significant features of the earlier authorities in which the courts have found an assumption of responsibility exists in this case. In a commercial context, it is difficult to conceive of circumstances giving rise to an assumption of responsibility where there are no dealings between the parties. As Ms Sinclair put it, there were no exchanges between the parties in this case which crossed the line.

Mr Brown seeks to rely on the Defendant’s possession of the key as amounting to a special level of control over the source of the danger, which could give rise to an assumption of responsibility. However, the Defendant in this case did not hold itself out as having any special skill or expertise in safeguarding property. The Defendant was not a fire or security expert, was not a lettings or managing agent for the property, and was not entrusted with possession of the property during construction works. Mere possession of the key during an inspection of the property was not sufficient to give the Defendant responsibility for safeguarding the property from fire damage. The absence of any dealings between the Claimant and the Defendant preclude any finding of reliance by the Claimant on the Defendant, or any finding that reliance was objectively reasonable.

Mr Brown has drawn attention to the decision of Elizabeth Laing J in Chief Constable of Essex Police v Transport Arendonk BvBa [2020] EWHC 212 (QB). The case concerned a claim in negligence against police who, having arrested a lorry driver, left the lorry in a layby without permitting the driver to telephone his employer, following which goods were stolen from the lorry by a third party. Elisabeth Laing J refused to strike out the claim on the grounds that it was arguably not a pure omissions case. However, in that case, on the facts it was arguable that the police action created the danger, that is, an unattended lorry in a public place containing goods. In this case, as set out above, the Defendant did not create the danger.

For the reasons set out above, in my judgment the Defendant did not owe a common law duty of care to the Claimant. On that basis, the Statement of Case discloses no reasonable grounds for bringing the claim and the Claimant has no real prospect of succeeding on the claim.

There is no other compelling reason why the case or issue should be disposed of at a trial because all the relevant facts are before the Court and the parties have had full opportunity to make submissions. There is no legal hook on which to hang the facts of this case that would justify extending the exceptions to the general rule established by the cases.

For the reasons set out above, the Court will make the following orders:

The Statement of Case shall be struck out.

Summary judgment on the claim is given for the Defendant.

All consequential or other matters, if not agreed, will be dealt with by the Court at a further hearing to be fixed by the parties.