Church of Jesus Christ Latter-Day Saints West Yorkshire Fire & Civil Defence John Munroe (Acrylics) Ltd London Fire & Civil Defence Authority & Others Digital Equipment Company Ltd Hampshire County Council Capital & Counties Hampshire County Council

Tuesday, 17th December, 1996

RULING

It is quite impossible to make an order which reflects the wishes of everybody in the case, even for that matter the leaders. I also bear in mind that the suggestion that the Hampshire County Council case could be ready for hearing on 29th January 1997, met not with stony silence, but with not merely forensic protest. I have not pursued the idea of 29th January. I would have preferred to go for 1st March, in view of what I was told, but 1st March creates difficulties for counsel which could be avoided if I went for the 24th. On balance, it seems to me I should go for the 24th, on the basis that although 1st March is extremely difficult and therefore 24th February would be that much more difficult, it should be possible to tidy things up by then. I am sorry that this makes life difficult for Digital Equipment. I recognise the problem, but having looked at the availability of Digital Equipment's counsel, we would be looking to the middle of the year.

These are the orders I shall make: the cases, by which I include all currently in the list, will be heard in the week beginning 24th February 1997, either on the 24th or 25th. The parties will be notified at a later date precisely which date it will be. That should give time for Mr Slater's argument to be completed before he disappears.

The order will be as follows first, in principle, those who argue against liability will argue their cases first. Those who argue in favour of liability will then go second.

The order in which the cases will be listed will be as follows. Digital Equipment Company Ltd v Hampshire County Council and Capital and Counties v Hampshire County Council. Speaking for the Court, I do not mind which goes first. If the parties cannot agree, they will stay as they are. If the parties are content to change the order, so be it, it will be changed by the parties' consent. Please could the parties notify the listing office within two weeks, perhaps one week—there is not much point in allowing the second week it being Christmas—within a week, which order they would prefer. It may just possibly be possible for Digital's counsel to be organised in such a that way they could come in, or go out, if they were first or second. Then John Munroe (Acrylics) Ltd v London Fire & Civil Defence Authority & others. Then the Church of Jesus Christ of Latter-day Saints v West Yorkshire Fire & Civil Defence.

I am acutely conscious of the problem of deciding issues of fact in the Hampshire cases, while the Munroe and the Church cases simply wait to come on. I think practical experience suggests that it would be difficult to separate the questions of fact from the questions of liability.

There are of course distinct issues of law, but liability generally needs to be considered in the light of whatever facts, if any, that this court is prepared to substitute for the findings made by the judge. So despite the difficulties, my conclusion is that the Digital and Capital Counties cases should go first in all its aspects: then Munroe and then the Church of Jesus Christ and Latter-day Saints.

The current estimate is 6 to 7 working days, not allowing for judgment. Obviously if there is any change in those estimates we would like to be told of them.

As far as the Court is concerned, I think at the moment we could find an extra day or two if we had enough notice.

I think that concludes all that I can rule on today, but if there are any other outstanding matters—I do not want to go back over old ground—if there are any outstanding matters I will deal with them now.

ORDER: Skeleton arguments to be submitted 7 days before hearing date. Costs in the appeal.

This is the judgment of the court.

By order dated 17 December 1996 Judge LJ ordered that the appeals in these cases should be consolidated and argued together because they raise similar questions of law, in particular whether and if so in what circumstances a fire brigade owes a duty of care to the owner or occupier of premises which are damaged or destroyed by fire.

The facts of these cases can for present purposes be stated fairly shortly:

Capital and Counties PLC (Capco) v. Hampshire County Council

Digital Equipment Co. Ltd. (Digital) v. Hampshire County Council

This was a decision of H.H. Judge Havery QC sitting as an Official Referee. Capco were the developers and lead lessees of the Crescent, in Basingstoke, Hampshire. Between 1989 and the date of the fire on 6 March 1990 Digital, an American computer company, occupied the Crescent as under-lessees. The Crescent was a modern building equipped with an elaborate smoke detection system and heat-activated sprinkler system. Sprinklers are among the most effective known means of combating fire. It is the golden rule in fire-fighting in sprinklered buildings that you do not normally turn the sprinklers off until you are absolutely sure that the fire is completely extinguished. There are no advantages in doing so which could possibly outweigh the adverse impact on the spread of the fire.

The fire began at about 10:00 a.m. in the east of the roof void of Block A. The sprinklers began to operate at 10:23 a.m., shortly before the arrival of the first fire engine. At 10:50 a.m. the sprinkler system was shut down on the instructions of Stn. Officer Mitchell. This was done in those parts of the building where the fire was, as well as in other parts which were as yet unaffected. The Judge, applying the Bolam test as the standard of negligence, held that Stn. Officer Mitchell's action in turning off the sprinklers was negligent.

At the time when the sprinklers were disabled, the fire brigade had not yet found the seat of the fire, and were not effectively fighting it themselves. The sprinklers were therefore, at that stage, the only operative means of fighting the fire. Disabling them had an immediate, or almost immediate, adverse effect on the restraining of the fire and rapidly led to its going out of control. It made it impossible to contain the fire in Block A, even after the seat of the fire was located; and it enabled the fire to spread into and across the now unprotected Blocks B and C.

At about 10:55 a.m., the fire brigade located the seat of the fire. At 11:10 a.m., the roof of Block A collapsed, and the fire entered Blocks B and C. The fire brigade then withdrew from the interior of the building to fight the fire from the outside. At this point they reactivated the sprinklers. But the spread of the fire had by then destroyed significant parts of the sprinkler system and made it practically useless. The building was a total loss by 12:10pm.

There was conflicting evidence about what would have happened if the fire brigade had not turned up at all. The Judge was unable to say whether or not, on balance of probabilities, if the fire brigade had done nothing and the sprinklers had been left on, the building would have been burned down completely.

In fact, the fire brigade did turn up and...