UK: How Will The Courts Make A Just And Equitable Apportionment Of Damages Under The Civil Liability (Contribution) Act?

In the case of Carillion JM Limited v Phi Group Ltd, [2011] EWHC 1379 (TCC), Mr Justice Akenhead had to consider the meaning of the "same damage" and a "just and equitable" contribution under the Civil Liability (Contribution) Act 1978.

The Facts

The case concerned the design and construction of a train servicing depot near Wembley Football Stadium (the "Works"). The depot was built between 2004 and 2006 as the stadium was being constructed. To create space for the depot, substantial excavations were undertaken to the clay ground which had the effect of leaving 70º and 80º slopes. These slopes became unstable both during and following completion of the Works.

In May 2004 Carillion JM Limited ("Carillion") engaged Robert West Consulting Limited Engineers ("RWC") as Consulting Engineer and Lead Consultant in respect of the overall Works. RWC's scope of work involved developing outline proposals into a fully detailed scheme for the depot. This included advising on further site investigations to verify the ground, providing working drawings and specifications and once construction commenced site visits and attendance at site meetings.

Phi Group Limited ("Phi") were formally engaged by Carillion in January 2005 as Carillion's specialist design and build contractor for the soil nailing works. This was work to restrain and stabilise the slopes around the excavation for the depot. There was no obligation on Phi to review the adequacy of the site investigation documents.

In January 2005, whilst the construction works were progressing, slips occurred in the upper levels of clay. Phi addressed the slips by undertaking remedial works. RWC was not involved in correspondence regarding these slips, although it was aware of them. Further more substantial slips occurred in October 2005. Phi prepared a report and remedial design, which was commented on by RWC.

Subsequent slope failure and settlement was reported shortly before Christmas 2006. Monitoring was undertaken and in August 2007 Carillion engaged an expert to prepare a report reviewing the design of the works. The report found that there was deep seated instability which had not been adequately accounted for in the deign calculations for the soil nailing works. It was the deep seated instability that formed the subject matter of the Court proceedings.

In November 2007, Carillion gave RWC and Phi notice of the potential claims against them. Carillion initially issued proceedings against Phi only on 23 April 2009. The primary complaint was that Phi had been negligent at various stages in its design assumptions. In March 2010 Phi issued contribution proceedings against RWC, on the basis that if it was liable for various losses, so was RWC. Carillion issued direct proceedings against RWC alleging negligence on 30 March 2010.

Carillion and Phi settled the dispute between them by consent. The consent order dated 18 May 2010 provided for a settlement sum of £3.8 million inclusive of interest and costs. Carillion's claim against RWC continued before the Court.

The Issue

The key issue of interest was the operation of a contribution under the Civil Liability (Contribution) Act 1978 ("Civil Contribution Act") and the apportionment between RWC and Phi.

The Decision

Judgement was given against RWC, the Judge finding that the deep seated instability and the need for remedial works was caused by RWC's breaches of duty. Carillion was awarded £6.7 million in damages. The Judge stated that both RWC and Phi were liable to Carillion for 100% of its loss and damage.

The Judge considered the issue of contribution between RWC and Phi under the Civil Contribution Act noting that there was extensive authority regarding apportionment. As to the meaning of "just and equitable" s 2(1) provides:

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

Reference was made to the case of Davies v Swan Motor Co, [1949] 2 KB 291, in which Denning LJ set out that the exercise of the Court's discretion so as to be "just and equitable" "involves a consideration, not only of the causative potency of a particular factor, but also of its blameworthiness."

The Judge stated that it was clear that the Court should take into account the relative blameworthiness of the contributing parties and the "causative potency" of their respective acts and omissions.

As to apportionment between RWC and Phi, the Judge stated that in construction defect cases, the conventional approach has been to fix the culpable builder with about 80 % to 2/3 and the culpable supervisor who has failed to pick up on the defects between 20 % and 1/3.

Reference was made to McKenzie v Potts, (1995) 50 Con. L.R. 40, where two defendants were found to be in breach of their statutory duties, the builder who used inappropriate material and the architect who failed to properly supervise the work. The apportionment was held to be 60/40 as between the builder and architect:

The case of J Sainsbury v Broadway Malyan, [1999] PNLR 286, was also considered which concerned the negligent design of a supermarket fire compartment wall by the architect and the consulting engineers. HHJ Humphrey LLoyd QC held that the engineer was not under a duty to comment on the fire protection, but had he been the correct apportionment would be 12.5% to the engineer and 87.5% to the architect. This was on the basis that the architect had overall responsibility for designing the fire protection and the errors were elementary and fundamental.

As to RWC and Phi, the Judge commented that the "poacher/gamekeeper" apportionment will often be in the range of 80-66.6 % and 20-33 % ranges respectively, but where both contributors each have a responsibility towards their mutual client to have regard to the same dangers and difficulties that does not seem to suggest a poacher/gamekeeper scenario. On the facts the Judge found that:

  • At all stages pre-construction and after the 2005 slips both RWC and Phi failed to pick up initially on the potential for shallow instability and at all material times deep seated instability;
  • Whilst one could argue that the negligence was in the detail of the design produced by Phi, the deficiencies in the design were in essence fundamental misconceptions in the design approach;
  • Each Phi and RWC had a responsibility to Carillion to pick up the two types of instability and guard against them in design and installation;
  • RWC could not be regarded only as a design checker or 'gamekeeper'. RWC was contractually appointed to design the whole of the Works and was Lead Consultant;
  • RWC had a specific responsibility to advise on the need for further site investigations, which Phi did not;
  • RWC's obligation was intended to precede design work by Phi and in effect assist Phi to perform its obligations, which would otherwise have involved Phi in producing detailed designs which took into account the existing site investigation data; and
  • There was no doubt that Phi was equally responsible at the design stage as RWC.

In conclusion, the Judge stated that:

"Whilst I can see and accept that both Phi and RWC are equally responsible at the pre-construction stage, there is less "causative potency" and less "blameworthiness" at the later stages in relation to RWC when Phi, by its greater involvement, was more to blame than RWC."

The Judge formed the view that the just and equitable apportionment was 60 % Phi and 40 % RWC to allow for their equal responsibility in the pre-construction stage and the relatively greater responsibility of Phi in the post construction stages.

Phi argued that its contribution should only be the sum already paid by way of settlement. This was not accepted and the Judge stated that there was no authority to suggest that prior settlement by one party, even if reasonable, should determine what the ultimate apportionment should be based on the eventual award of damages.


The case is a useful reminder of the operation of the Civil Contribution Act and illustrates that settlement by one party does not cap or in any way limit potential liability for damages to the amount of a commercial settlement. It also demonstrates the Court's enforcement of contribution proceedings between parties under the Civil Contribution Act.

This article is one of a series contributed by Fenwick Elliott to the Building website. To see further articles in this series please go to

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.