Background
This case concerned the development of the O² Centre on Finchley Road in North-west London, a 3-storey building incorporating a mix of retail, leisure and restaurant facilities. The property had two entrances: one facing east on to Finchley Road and one facing west on to the car park. Both sets of doors were automatic. When both were open, a freezing north-east wind whistled through the building.

The development opened in November 1998. The following year, remedial works suggested by Brian Warwicker Partnership ("BWP") (the mechanical engineering consultants on the project) failed to remedy the problem. In January 2000, the owners engaged new mechanical engineers and the recommended work was completed by December 2001.

In March 2003, the owners sued BWP for negligence and breach of contract, claiming as damages the cost of the additional remedial work. BWP brought the architects, HOK International, into the action, claiming that the wind problem was exacerbated by the design of the façade, which created a funnelling effect into the building.

In April 2004, the owners' claim against BWP was settled without admission of liability for £1.25m in damages, interest and costs. The Third Party proceedings between BWP and HOK went to trial, and, in November 2004, judgment was given against HOK for £398,500 plus interest. HOK appealed.

The main point on appeal was whether the recorder, in assessing whether BWP had a contribution claim against HOK, was entitled to take into account factors that did not directly cause the loss.

Causation
At first instance, the recorder found that HOK had failed to exercise reasonable skill and care in performing its duties under its terms of engagement and under the general law. A reasonably competent architect would have recognised the potential problem and consulted with the mechanical engineers over alternative design options. Had this happened, the issue would have come to light, BWP would not have assumed that HOK had taken such factors into account in their design and both HOK and BWP would have been bound to advise the owner that, without lobbies or revolving doors, the building would be subject to draughts.

HOK's breaches, however, were not directly causative of the loss claimed (which was the additional remedial costs incurred by the owners). Nevertheless, the recorder found that acts and omissions that were not causative could be taken into account for the purpose of assessing what contribution should be ordered under the Civil Liability (Contribution) Act 1978.

Under section 2(1) of the Act:
"The amount of contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to that person's responsibility for the damage in question".

In Resource America International Ltd v Platt Site Services and Barkin Construction Ltd [2004] EWCA (CIV) 655, a fire was started by a welding contractor carrying out hot work. It was found that the employer negligently instigated the work, left the site as soon as the fire started to avoid criticism and pretended to have left much earlier. The Court of Appeal held that the employer's conduct was not causative, but, nevertheless, could be taken into account in assessing contribution. The court could take a broader view than strict causative responsibility.

Judgment
The Court of Appeal in this case was bound by the Resource America decision and unanimously dismissed HOK's appeal. The recorder had been entitled to hold HOK liable to contribute to the amount BWP was liable to pay the owners.

Lord Justice Arden, however, sounded a note of caution. If the court was able to place unrestricted weight on non-causative material, there would be no limit on the matters that it could take into account. The wording of section 2(1) directed the court to attach most weight to the defendant's responsibility for the damage in question. Non-causative factors might be relevant to the court's evaluation of blameworthiness but, in her provisional view, if non-causative material was to be brought into account, it must play only a limited role. The resulting order for contribution must still be just and equitable within section 2(1).

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