Martin Hines+wallace Commercial Limited V. King Sturge Llp
| Jurisdiction | Scotland |
| Judge | Lord Emslie,Lord Carloway,Lord Osborne |
| Judgment Date | 2010 |
| Neutral Citation | [2010] CSIH 86 |
| Date | 05 November 2010 |
| Court | Court of Session |
| Published date | 05 November 2010 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Osborne Lord Carloway Lord Emslie | [2010] CSIH 86 OPINION OF LORD OSBORNE in the cause by (FIRST) MARTIN HINES; and (SECOND) WALLACE COMMERCIAL LIMITED Pursuers and Reclaimers; against KING STURGE, LLP Defenders and Respondents: _______ |
Alt: J Lake QC, Miss Higgins; MacRoberts (for Defenders and Respondents)
5 November 2010
The background circumstances
[1] The first-named reclaimer in this action traded as The Vancouver Muffin Company at 73 St Vincent Street, Glasgow at the time of the fire, which constitutes a part of the basis of this action. The second-named reclaimers are a company incorporated under the Companies Acts and having a place of business at 69 St Vincent Street, Glasgow. The respondents are a limited liability partnership specialising in commercial property management, having a place of business at Finlay House, 10-14 West Nile Street, Glasgow. It is averred that, at the time of the fire referred to, they were property managers with responsibility for the maintenance of the properties in which the businesses of the first and second-named reclaimers were conducted.
[2] The circumstances giving rise to the action are described in the averments of the reclaimers in this way. At approximately 3 a.m. on or around 16 April 2005, smoke was discovered by a member of the public in the vicinity of St Vincent Street, Glasgow. This member of the public, whose designation is said to be unknown, alerted police officers who were on mobile patrol nearby. Thereafter, the police officers contacted the Fire Brigade at 3.48 a.m. By 3.56 a.m., fire officers had arrived in the vicinity, along with three water pump appliances and a high reach appliance. On arrival at the scene, the fire officers encountered significant delay in finding the source of the fire. Initially they investigated at the west end of Drury Street in Glasgow. Thereafter, investigations continued around Drury Street and into West Nile Street in Glasgow. Finally, the fire officers moved to St Vincent Street where they eventually noticed blackening of the windows of The Vancouver Muffin Company at 73 St Vincent Street. After further investigation, they forced entry to these premises. Once inside, the fire officers discovered several areas of fire which were thereafter extinguished. As a consequence of the spread of fire prior to its discovery, flames had passed up the face of the building. Window frames were alight above the office of The Vancouver Muffin Company. The fire had also spread to the offices in the rest of the building, including that occupied by the second-named pursuers. The fire reached the main roof of the building, several storeys above the original outbreak. The fire officers attempted to extinguish the fire in the higher parts of the building, but the severity of it forced them to retreat. Thereafter all fire-fighting was undertaken from the exterior of the building. Before being extinguished, the fire had spread to a large proportion of the roof. Ultimately five pumping appliances and a high rise appliance were required to fight it. The severity of the blaze required the involvement of 50 fire-fighters. After the fire had been extinguished, investigation was undertaken into the origin and spread of it. Those investigations concluded that the fire had originated in the office area of premises occupied by the first-named reclaimer and had thereafter spread throughout the building.
[3] It is averred that, at the time of the fire, the first-named reclaimer was tenant of the basement and ground floor areas of 73 St Vincent Street. The property was owned by The Joint Properties Limited, "JP Limited", a company registered under the Companies Acts, having its registered office in Edinburgh. It is also averred that the property was under the control of the respondents, acting in their capacity as managing agents. Their control, as managing agents, is said to have extended to managing the property on behalf of the owners. They did so for the benefit of the owners and also for the benefit of tenants, such as the reclaimers. The control of the respondents is said to have included the control of the maintenance of the fire alarm and fire monitoring system associated with the property and the telephone line upon which the fire monitoring system relied. In elaboration of that description it is averred that the property had a fire alarm system which had been fitted some time prior to the first-named reclaimer opening his business. It comprised a detector at the front door of the property and two detectors at the mezzanine level. It was also fitted with a monitoring system operated under the auspices of "BT Redcare". BT Redcare was designed as an intelligent monitoring system which allowed any trigger of the fire alarm to be reported directly to Strathclyde Fire & Rescue Services. The purpose of this system, located within the first-named reclaimer's business premises was to ensure rapid fire service response and the accurate identification of the property affected by fire. The system relied upon an alarm signal being transmitted, by way of a dedicated telephone line, to an alarm receiving station operated by Group 4 Security Limited. That alarm receiving station would then send an automated immediate alert to Strathclyde Fire & Rescue Service. Fire officers would then be dispatched immediately to the location of fire alert. It is averred that the monitoring system had been successfully utilised on several previous occasions known to the first-named reclaimer. In particular, on several occasions, burning food had triggered the alarm and the monitoring system. On every occasion when the monitoring system had alerted the fire service, fire officers had attended swiftly at the correct address. The last recorded signal to Group 4 Security Limited had been sent on 16 February 2005. It is also averred that the second-named reclaimers were, at the material time, tenants of the second floor premises at 69 St Vincent Street, Glasgow.
[4] In condescendence VII of their pleadings, the reclaimers aver that the maintenance of the fire alarm and monitoring system in the premises of the first-named reclaimer was the responsibility of the respondents, who arranged for the regular checking of the system to ensure that it was fully operational. The maintenance and inspection were undertaken by CMD Fire and Security Limited, "CMD Limited". The respondents were fully aware that they had responsibility to the tenants and to the owner of the building for the testing and maintenance of the fire alarm system. The reclaimers make detailed averments about the circumstances in which the respondents came to assume their responsibilities following the withdrawal of the previous managing agents. A handover meeting between the two sets of agents had been held on 10 December 2004, when a list of contacts for various services in relation to the property was discussed. The reclaimers believe and aver that the testing of fire alarms was specifically included in the discussions between the former managing agents and the respondents as part of the handover meetings prior to the fire. In these circumstances it is said that they had assumed responsibility for the operation, testing and maintenance of the fire alarm system in the building on behalf of the owners. It is averred that the annual service charge paid by the tenants, including the first and second-named reclaimers, under the terms of their lease included payment for fire alarm testing and maintenance. It is averred that accordingly the respondents knew that the tenants paid for, and consequently relied upon, the respondents exercising reasonable care in the maintenance of the fire alarm system.
[5] On 23 March 2005, one Steven Fern, an employee of CMD Limited carried out a routine inspection of the fire alarm system. He noted that the telephone line linking the alarm system to the monitoring control room had been disconnected. Consequently the monitoring system in relation to the property could not function. Mr Fern reported the matter to his employers, CMD Limited. A Mr Philip Blundell, also an employee of CMD Limited, thereafter had a series of telephone conversations with a Mr Glen Spearing, an employee of the respondents. Specifically on 23 March 2005, Mr Blundell immediately contacted the respondents to make them aware that the dedicated monitoring line had been disconnected. Their initial response was to ask CMD Limited to arrange for a dedicated BT Redcare line to be reconnected or for a new line to be established. By a further telephone conversation on 23 March 2005 Mr Spearing was informed by Mr Blundell that CMD Limited did not have the authority to instruct British Telecom on behalf of the respondents and that the reconnection of the existing line or installation of a new line would require to be undertaken by them. It was said that British Telecom would not take instructions from CMD Limited, since Mr Blundell did not have responsibility for the building or for the payment of any account. During the course of that telephone conversation it is averred that the respondents intimated that they understood that position and would attend to the reconnection of the telephone line. However, at the time of the fire, the disconnected telephone line had not been reconnected, nor had any new line been created; no temporary signalling protection system had been put in place to provide temporary monitoring until such time as British Telecom had re-established a permanent dedicated line. In consequence, at the time of the fire, the monitoring element of the system was not operational.
[6] It is averred that, in consequence of the situation outlined, the fire started and spread without a signal being sent to Strathclyde Fire & Rescue Service identifying the exact...
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