Blue Manchester Ltd v North West Ground Rents Ltd

JurisdictionEngland & Wales
JudgeStephen Davies
Judgment Date31 January 2019
Neutral Citation[2019] EWHC 142 (TCC)
Docket NumberCase No: D50MA026
CourtQueen's Bench Division (Technology and Construction Court)

[2019] EWHC 142 (TCC)

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS IN MANCHESTER

TECHNOLOGY AND CONSTRUCTION COURT (QBD)

Manchester Civil Justice Centre

1 Bridge Street West

Manchester, M60 9DJ

Before:

HIS HONOUR JUDGE Stephen Davies

(Sitting as a Judge of the High Court)

Case No: D50MA026

Between:
Blue Manchester Limited
Claimant
and
North West Ground Rents Limited
Defendant

Mr. Paul Darling QC and Mr. Edward Hicks (instructed by Freeths LLP, Birmingham) appeared for the Claimant.

Mr. Dermot Woolgar (instructed by JMW Solicitors LLP, Manchester) appeared for the Defendant.

Hearing dates: 7, 8, 9, 10, 11 January 2019

Draft judgment circulated: 21 January 2019

Approved judgment handed down: 31 January 2019

APPROVED JUDGMENT

I direct that pursuant to CPR PD 39A paragraph 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

His Honour Judge Stephen Davies

No.

Section

A

Introduction and summary

B

The terms of the lease

C

The law

D

The witnesses

E

The disrepair issue

F

The hoardings issue

G

The water supply issue

H

The costs of the injunction

A. Introduction and summary

1

The Beetham Tower (“ the tower”) in Manchester is currently the tallest completed building in Manchester and, indeed, in the UK outside London 1. It was designed by SimpsonHaugh Architects Ltd and completed in or around 2006 and has become what has been said to be an iconic feature of the Manchester skyline. In part this is because of its slim rectangular shape with a distinctive cantilevered overhanging section from mid-height level upwards. It is also because its external elevations are fully glazed, the façades being made up of glass panels which form a sleek uninterrupted wall of glass, reflecting the sunlight in which Manchester is — despite common belief outside Manchester to the contrary — frequently bathed. The glass panels are in fact a mix of double-glazed vision units (i.e. glass both inside and out) and single glazed insulated shadow box units (“ SBUs”) (i.e. glass outside but an opaque panel inside). The panels were designed and constructed to be hung from a unitised frame which itself is hung from the edge of the floor slabs. The need for externally visible fixings is avoided by the panels being attached to the frame by strips of structural sealant around their perimeter which restrain them from becoming loose and at risk of blowing off under wind pressure.

2

A serious problem which emerged in 2014 was the discovery that in the SBUs 2 the bond provided by the structural sealant was failing in some cases. An urgent investigation was conducted by Carillion Construction Limited (“ Carillion”) as the main contractor which built the tower, which also involved BUG-Alu technic GmbH (“ Bug”) as the specialist design and build sub-contractor which designed and installed the façade. The cause of the failure appeared to be the failure of the bond between the structural sealant and the polyester powder coating which had been applied to the frames. A decision was very swiftly taken to ensure the safety of the 1,350 SBUs across the building by screw stitching pressure plates to the frame profiles to hold the panels securely in position. This was completed by the end of November 2014 and was intended to be a short-term expedient pending a full investigation and the design and installation of a permanent remedial solution. However, the investigatory and remedial processes were so protracted that nothing concrete had been achieved by January 2018 when, as is well known, Carillion went into liquidation.

3

The tower has 47 floors. The first 23 floors form a Hilton Hotel (“ the hotel”), including a bar known as Cloud 23 situated, as its name would suggest, on floor 23 which is where the cantilevered overhanging section begins. The floors above contain residential flats. The defendant is the freehold

owner of the tower, having acquired the freehold reversion from the original developer in 2010. The claimant is the owner of the hotel, having acquired the 999 year lease of the hotel part of the tower from the original hotel proprietor in 2011. The claimant brings this claim against the defendant seeking to compel it to undertake works under the repairing covenant in the lease to provide a permanent remedial solution for the SBUs. Although there had been some issue as to the claimant's entitlement to bring this claim that issue is no longer live following the claimant's (belated) production of a written assignment of the management agreement for the operation of the hotel
4

The claimant has three particular concerns about the existing temporary solution. The first is that being only temporary it says that there are real concerns as to the safety of the SBUs. The second is that it says that the appearance of the stitch plates adversely affects the appearance of the tower and hence the overall impact the hotel makes as a leading 4 star Manchester city centre hotel which the claimant seeks to market as a “destination” venue both for overnight guests and visitors to its bar, restaurant, conference, event and recreational facilities. The third is that since 2014 there have been safety barriers and then hoardings at ground level which, the claimant says, adversely affects vehicular access by guests to the hotel entrance and hence their “arrival experience” as well as impeding the valet parking service which the hotel provides, as well as obstructing the view into and out of the foyer and the ingress of light into the foyer.

5

The defendant's position, in short, is that whilst it accepts that the existing solution is only intended to be temporary it says that nonetheless as matters currently stand it is a sufficient remedial solution which can remain whilst the defendant pursues claims against Carillion's insurers and Bug which it hopes will enable it to fund a permanent solution. It says that as matters stand it has sufficiently complied with its repairing obligations under the lease so that it is not in breach and the claimant is not entitled either to specific performance – which it says would be inappropriate anyway, given the lack of a clear agreed remedial specification — or to damages.

6

Whether the claimant or the defendant have any rights or remedies against Bug, Simpson or Carillion's insurers is not a matter for determination at this trial, which is concerned solely with the position as between the claimant and the defendant. The claimant has issued separate proceedings against Bug and Simpson and the defendant has issued separate proceedings against Bug and Carillion's insurers.

7

Furthermore, any issue as to whether or not the defendant is able to recover from the claimant under the service charge provisions of the lease any future expenditure which may be incurred in remedying the defects is also not a matter for determination at this trial. The claimant's position as articulated in correspondence and as pleaded in voluntary particulars of its case is that such expenditure is clearly excluded by reference to the express terms of the lease whereby costs relating to the initial construction of the building and the remedying of any inherent defect are expressly excluded. The defendant has not chosen to contest that position in correspondence or in its points of defence to those voluntary particulars but neither party raised the issue in their primary pleaded cases or otherwise suggested that it should be resolved in these proceedings. I proceed on the basis that the defendant's liability under the lease must be determined on the basis that there is, at the very least, a real question mark over its ability to recover any costs from the claimant.

8

Likewise, it is possible that the defendant may seek to recover expenditure in remedying the defects against the owners of the leasehold interests in the residential flats above the Hotel. Again, however, that is not a matter for this trial and I should make it clear that the terms of the residential flat leases are not in evidence nor has any argument been addressed to me in that regard. It follows that I should not and do not speculate as to whether or not the defendant may be able to recover some or all of any costs which it incurs from the residential flat leaseholders.

9

Finally, the scope of this trial is limited to the issue of liability which, as was made clear in the order made in March 2018 by which directions were given and the liability issue was listed for trial, includes the issue as to what, if any works, the defendant is liable to undertake pursuant to its obligations under the lease but not the issue of the quantification of the cost of such works.

10

There are three separate and subsidiary issues which are also for me to determine as part of this trial. The first is the claimant's claim for an injunction and/or damages in relation to the continued presence of the hoardings at ground level. The second is the claimant's claim for damages in relation to interference with the water supply to the hotel in January 2017 in circumstances where the original impetus for this claim was an application for urgent interim injunctive relief to compel the defendant to provide an adequate supply of water to the hotel. As regards both the only issue for this trial is the issue of liability. The third is the issue of to the costs of the claimant's application for interim injunctive relief, in circumstances where there is no continuing claim for injunctive relief in relation to the water supply issue. Although there has also been a running issue as to the defendant's compliance with its disclosure obligations, it is common ground that this is not an issue relevant to my determination of the substantive issues or the costs issue identified above and...

To continue reading

Request your trial
4 cases
  • Pullman Foods Ltd v The Welsh Ministers
    • United Kingdom
    • Queen's Bench Division (Technology and Construction Court)
    • 23 September 2020
    ...adopted, for example, by HHJ Stephen Davies sitting as a judge of the High Court in Blue Manchester Ltd v North West Ground Rents Ltd [2019] EWHC 142 (TCC), 182 Con LR 59; though, as the authors of Dowding observe, attention must always be paid to the form of the particular covenant and th......
  • Blue Manchester Ltd v Bug-Alu Technic GmbH
    • United Kingdom
    • Queen's Bench Division (Technology and Construction Court)
    • 19 November 2021
    ...claim which went to trial and in respect of which this Court gave judgment in 2019: Blue Manchester Ltd v North West Ground Rents Ltd [2019] EWHC 142 (TCC). In the current litigation BML and DFL both seek to recover damages from BUG as cladding subcontractor and from SHA as project archite......
  • Blue Manchester Ltd v Bug-Alu Technic GmbH
    • United Kingdom
    • Queen's Bench Division (Technology and Construction Court)
    • 19 November 2021
    ...claim which went to trial and in respect of which this Court gave judgment in 2019: Blue Manchester Ltd v North West Ground Rents Ltd [2019] EWHC 142 (TCC). In the current litigation BML and DFL both seek to recover damages from BUG as cladding subcontractor and from SHA as project archite......
  • Blue Manchester Ltd v North West Ground Rents Ltd
    • United Kingdom
    • Queen's Bench Division (Technology and Construction Court)
    • 20 October 2020
    ...but not the issue of the quantification of the cost of such works. 8 For the reasons stated in my judgment, neutral citation number [2019] EWHC 142 (TCC), which is readily accessible through the Bailii website, I determined that the claimant was entitled to specific performance to compel t......
1 firm's commentaries
  • “Wall of glass” - Landlord must reinstate glass facade of iconic Manchester tower
    • United Kingdom
    • JD Supra United Kingdom
    • 11 February 2019
    ...A recent case, Blue Manchester Limited v North West Ground Rents Limited [2019] EWHC 142 (TCC), shows that landlords must consider aesthetics when assessing repairs, as they could be ordered to reinstate original design The Beetham Tower is an iconic feature of the Manchester skyline, and t......
5 books & journal articles
  • Table of cases
    • United Kingdom
    • Construction Law. Volume I - Third Edition
    • 13 April 2020
    ...Pty Ltd v Babcock & Brown International Pty Ltd [2009] NSWSC 87 III.22.30 Blue Manchester Ltd v North West Ground Rents Ltd [2019] EWHC 142 (TCC) II.9.53, II.14.105 Blueprint Homes (WA) Pty Ltd v Samuel [2016] WASC 287 I.3.197 Blue Station Ltd v Kamyab [2007] EWCA Civ 1073 II.6.366 Bluewate......
  • Table of Cases
    • United Kingdom
    • Wildy Simmonds & Hill Positive Covenants and Freehold Land Contents
    • 30 August 2019
    ...UKHL 2, [1968] AC 58, [1967] 3 WLR 932, [1967] 2 All ER 1197, HL 155–157, 165 Blue Manchester Ltd v North West Ground Rents Ltd [2019] EWHC 142 (TCC), 182 Con LR 59, [2019] All ER (D) 22 (Feb), [2019] 1 WLUK 347 199 Bolus v Hinstorke (1670) 2 Keb 686, T Raym 192, 83 ER 100 70, 72 Bond v Not......
  • Defects
    • United Kingdom
    • Construction Law. Volume II - Third Edition
    • 13 April 2020
    ...QC. See also Chalet Homes Pty Ltd v Kelly [1978] Qd R 389 at 392, per Connolly J; Blue Manchester Ltd v North West Ground Rents Ltd [2019] EWHC 142 (TCC) at [43], per HHJ Stephen Davies. Compare Freeborn v Marcal [2019] EWHC 454 (TCC) at [141], per DHCJ Bowdery QC. 295 McGlinn v Waltham Con......
  • Enforcement
    • United Kingdom
    • Wildy Simmonds & Hill Positive Covenants and Freehold Land Contents
    • 30 August 2019
    ...it would require constant supervision by the court. 15 [1999] Ch 64. 16 See also Blue Manchester Ltd v North West Ground Rents Ltd [2019] EWHC 142 (TCC), 182 Con LR 59 at [52]. 17 [1997] UKHL 17, [1998] AC 1. 18 [1997] UKHL 17, [1998] AC 1 at [12]. 200 Positive Covenants and Freehold Land I......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT