Lloyd's Maritime and Commercial Law Quarterly
WHAT ASSIGNMENTS OF CAUSES OF ACTION ARE, AND MORE
Offer-Hoar v. Larkstore
Much academic ink has been spilt over the speeches of the House of Lords in Linden Gardens Trust Ltd
v. Lenesta Sludge Disposals Ltd
1
and its sequel, Alfred McAlpine Construction Ltd
v. Panatown Ltd
.2
Seemingly none, however, has been spent so far on the Court of Appeal’s decision in Offer-Hoar
v. Larkstore Ltd (Technotrade Ltd, Part 20 defendant)
.3
While Offer-Hoar
is not concerned with the “black-hole” conundrum that so exercised their Lordships in Linden Gardens
and Panatown
, its clarification as to what precisely passes by a legal assignment of a cause of action may have wider implications on certain other developments hinted at in cases as diverse as Barbados Trust Co Ltd
v. Bank of Zambia
4
and Golden Strait Corp
v. Nippon Y.K.K. (“The Golden Victory”)
.5
The claimants in Offer-Hoar
owned land adjacent to a building site undergoing residential development owned by the first defendants, Larkstore Ltd (“L”). L acquired the site with all necessary planning and building consents from Starglade Ltd (“S”) on 21 June 1999. To obtain these consents, S had engaged Technotrade Ltd (“T”) to produce a soil investigation report on the site. The contract of engagement did not provide for any restriction on assignment, and the report, dated 14 December 1998, duly came into L’s possession. Without T’s consent, L used the report as part of its contract documentation with the second defendants, Bess Ltd (“B”) (who were engaged to carry out works on the site) and to obtain planning permission from the local council for a further phase of development. On 13 October 2001, a landslip occurred while works were ongoing, damaging the claimants’ adjacent properties. Alleging that the landslip was caused by L’s development of the site, the claimants commenced proceedings against L and B on 25 March 2003. B being insolvent, L brought Part 20 proceedings against T on 6 October 2004 for an indemnity under the Civil Liability (Contribution) Act 1978, alleging that T’s report had been prepared in breach of its obligations in tort6
and in contract. To surmount
1. [1994] 1 AC 85.
2. [2001] AC 518.
3. [2006] EWCA Civ 1079; [2006] 1 WLR 2926.
4. [2007] EWCA Civ 148; [2007] 1 Lloyd’s Rep 495.
5. [2007] UKHL 12; [2007] 2 WLR 691.
6. Wilcox J found that T owed no duty of care to L as their relationship was not sufficiently proximate: [2005] EWHC 2742 (TCC), [69] and [74]. The point was not raised on appeal.
CASE AND COMMENT
287