Reproduced from The Times 13 August, 1999

[Judgment July 30]

The principles applicable in a personal injury case, such that, while some damage must be alleged or proved to succeed in a claim for damages, the averment of different heads of damage did not give rise to different causes of action in respect of each head, were applicable in a building case.

The Court of Appeal so stated in reserved judgment when dismissing an appeal by London Underground Ltd against a decision of Judge Havery, QC, sitting in the Technology and Construction Court on March 5, 1999 declaring that the payment into court by London Underground, defendants in an action brought by Michael Stock, Frances Stock and Kevin Wilcox (trustees of the Mike Stock Publishing Ltd Retirement and Death Benefit Scheme) and seven other companies, for damages was ineffective.

The judge ordered that the notice of payment into court on November 4, 1998 be withdrawn.

In 1995 and 1996 London Underground drove tunnels for the Jubilee Line extension in the vicinity of Hundred House, commercial premises owned by Michael Stock.

The plaintiffs' case was that as a result the premises were damaged and a recording studio specially built there became unusable.

Particulars were given of damage to the structure of the building. The payment-in was to cover the full cost of repairs. There was also a very much larger claim based on alleged damage to the studio for which £25 million was claimed for consequential losses.

Mr Simon Browne-Wilkinson, QC, for London Underground; Mr Clive Freedman, QC and Mr Steven Davies for Mr Stock and others.

LORD JUSTICE PILL said that the issue was whether the payment in was in satisfaction of a cause of action or only part of a cause of action.

In Letang v Cooper ([1965] 1 QB 232, 242) it was said that a cause of action was simply a factual situation which entitled one party to obtain from the court a remedy against another person.

London Underground submitted that the claim for damages for loss occasioned by the cosmetic cracking was a different cause of action from the claim arising out of the damage to the recording studio, involving different proof.

Moreover, the nature of the damage was entirely different, being economic loss in the studio claim. The extent of the alleged damage was also entirely different.

The rules relating to payment-in should be given a purposive construction. A broad approach should be adopted: see Steamship Mutual Underwriting Association Ltd v Trollope and Colls (City) Ltd ((1986) 33 BLR 77).

In determining whether there was a single cause of action, or more than one cause of action, the fact that the physical damage complained of was all caused by the same breach of duty, negligent tunnelling, was in his Lordship's view, a very important factor and in the present case, no real distinction could be drawn between the mechanisms by which the different acts of physical damage were caused.

On its facts the case was quite different from Steamship. It was not one of those building cases where the court had to consider separate negligent actions arising from separate activities in the course of the building contract whether by a single wrongdoer or more than one wrongdoer. His Lordship expressed doubt as to whether the size of a particular building or its complexities were relevant to the issue.

They did not appear to his Lordship to be relevant in themselves though they might, as would other factors mentioned in Steamship form the background against which the relevant issue was to be determined.

His Lordship did not consider Steamship to be authority for the proposition that where there were heads of damage which were very different in size and nature that in itself established that there was more than one cause of action.

While they were dramatically different in size and nature, the different money claims made in the present case were no more than heads of damage arising from the same claim. They constituted a composite claim: see Stewart v Welsh Office (unreported, April 30, 1991) and Hamlin v Edwin Evans ([1996] PNLR 398).

His Lordship did not consider that a different principle should be applied to disputes over building contracts from that applied in other forms of litigation.

His Lordship would accept that the complexities of building operations were such that they gave more scope for a situation to arise, as in Steamship, in which the plaintiff could properly be said to have more than one cause of action.

The court in Steamship was drawing attention to that possibility. The fact that the heads of damage claimed to result from a claim were numerous, varied and disparate did not in itself normally create separate causes of action.

Lord Justice Peter Gibson agreed.

Solicitors: Beachcroft Wansbroughs; Berrymans Lace Mawer, Manchester.