Fosse Motor Enginers Ltd and Others v Conde Nast and National Magazine Distributors Ltd and Another
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Akenhead,MR JUSTICE AKENHEAD |
| Judgment Date | 30 September 2008 |
| Neutral Citation | [2008] EWHC 2527 (TCC),[2008] EWHC 2037 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: HT 07 313,No. HT07313 |
| Date | 30 September 2008 |
[2008] EWHC 2037 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Akenhead
Case No: HT 07 313
Jonathan Marks QC and James Purchas (instructed by Davies Arnold Cooper) for the Claimants (excluding the 8 th Claimant)
Andrew Bartlett QC and Rebecca Taylor (instructed by Reynolds Porter Chamberlain) for the FirstDefendant
Approved Judgment
Hearing dates: 14–17, 21, 22, 24 July and –August 2008
I direct that pursuant to CPR PD 39A para 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.
THE HONOURABLE MR JUSTICE AKENHEAD
MR. JUSTICE AKENHEAD:
Introduction
On 16 December 2002, a devastating fire occurred in the early evening at a warehouse at Wayside Business Park, Wilson Lane, Coventry (“the warehouse”), owned by Fosse Motors Engineers Limited (“Fosse”), the First Claimant. By the time that the fire brigade arrived shortly after 7.15 p.m., there was little which it could do to save the warehouse although the attached offices were saved. Fortunately no-one was hurt. The four female “Agency” workers, who had been the only people working at that time in the warehouse, were able to vacate the premises. The Second to Twelfth Claimants rented space in the warehouse from Fosse and their goods were lost in the fire.
Those four workers were actually employed by the Second Defendant, Phoenix Industrial Recruitment Limited (“Phoenix”) which was an employment agency which had seconded them to Conde Nast and National Magazine Distributors Limited (“Comag”). Comag also rented space in the warehouse from Fosse. Issues arise as to whether Comag is vicariously liable for the negligence if any on the part of these four workers. Judgment has been entered against Phoenix in default but it is anticipated by the Claimants that it will be unable to satisfy any award of damages against it.
The main issues in the case however surround how the fire started, in particular whether it was started by a cigarette carelessly discarded by one of the four Agency workers whilst no-one else was at the warehouse, that is, after about 6 p.m. or by someone else before 6 p.m. or by an intruder who gained entrance before or after 6 p.m. or by some electrical equipment. The relatively unusual feature of the case is that the expert forensic evidence was not able to identify a cause of fire from the physical wreckage left as a result of the fire. Thus, the case and the defence is dependent upon the reliability of the witnesses of fact and in particular upon the veracity (or otherwise) of the four Agency workers. The case has some features of a “whodunit” and certainly what “done it”.
The Contract between Fosse and Comag
The contract between Fosse and Comag was contained in and/or evidenced by a quotation dated 9 April 2002 prepared by Melissa Undy (as she then was) and sent to Mr Byrne of Comag. She submitted various rates for his consideration. She identified that Comag's requirements were:
“2 … Provide Office, Canteen and floor area for a production line and storage within our site at Wayside Business Park.”
Rates were quoted for the use of 350 square feet of offices at £49 per week, 800 square feet of canteen space at £96 per week and 14,500 square feet of floor area at £0.14p per square foot per week. There was reference to the need for customers to insure their goods against all risks. There then followed this under the heading “Conditions”:
“To accept this quotation, please sign & return a copy of this Agreement. The contract between us will be subject to our conditions which are attached. We recommend that you read these carefully and you will see that we ask for written acceptance of these and of our rates before any goods are placed into store.”
On 19 April 2002, Mr. Byrne on behalf of Comag signed the pro forma attachment in the following terms:
“Having been supplied with, and read the conditions of contract, I/We accept them together with the rates submitted by you. I am a responsible official and am authorised by my company to accept these terms and rates.”
There is a reference to the quotation in Miss Undy's letter of 9 April 2002.
On ordinary principles of contract law, there can therefore be no doubt that, following the communication of the acceptance by Mr Byrne, there was a contract between Fosse and Comag. There is nothing in Fosse's Conditions of Contract which materially assist with regard to any of the issues in the case.
It is however pleaded that in effect there was a term of the original agreement or a collateral agreement whereby Fosse and Comag agreed that Comag, its servants or agents would not smoke in the warehouse.
Following the entering into of the basic contract, on 24 April 2002, Mrs Undy sent to Comag some further “information” in relation to “a few details that must be adhered to for the smooth running of the site”. These “details” related to staff parking, unloading, skips, staff, food, cleaner and this, in relation to smoking:
“ SMOKING The building has [a] NO SMOKING policy, this includes all tearooms and internal rooms. There is an extremely sensitive fire alarm that has already been activated by smoking. Please advise your staff that smoking must be done in your car park ONLY.”
At the end of this letter she wrote as follows:
“I apologise if this letter seems YOU MUST – YOU WILL, but on a multi-user site like Wayside, we must make sure that all our tenants are looked after to the same standard. Your first point of reference will still be Melissa, who will be moving to the site within the next few weeks.”
There is no pleaded suggestion that Comag positively or expressly agreed to this. It is however the case that Comag sought to comply with the no smoking policy.
I am satisfied that the letter of 24 April 2002 did not and was not intended to have any contractual effect. The wording of the letter suggests that the matters raised were to be applied for the smooth running of the site. Comag's Counsel used the appropriate expression “house rules” to describe what this letter was addressing. I do not consider that the content of that letter was intended to give rise to a legally binding contract. The parties had just entered into a signed binding contract with extensive conditions which did not include any requirement as such not to smoke at the site or to comply with house rules or similar requirements. The letter does not ask for Comag's agreement to the rules, albeit that there is an expectation. The requirements in the letter represented management requirements from Fosse which were not intended as such to have absolute or binding legal effect.
That this view is correct is supported by the evidence of Melissa Smith (née Undy) who confirmed in evidence that Fosse had a standard contract in place which Fosse adjusted for each and every customer's requirements sending out a quotation with the terms and conditions to be accepted. She later said that, if there had been an agreed change in the contractual terms and conditions, she would want to record this in writing as being such a change.
It cannot be said (and indeed it was not argued with any force by Fosse) that there was an implied term of the earlier signed agreement that Comag its servants and agents would not smoke in the warehouse. It is not necessary or necessarily reasonable to imply such a term. Whilst one would readily imply a term that Comag would exercise reasonable care in and about its occupation of the premises, such a term would be apt to provide some protection so far as smoking is concerned.
Accordingly, I am satisfied that there was no term of the Comag agreement or indeed any agreement to the effect that Comag, its servants or agents would not smoke in the warehouse.
Description of the Warehouse
In or shortly before April 2002, Fosse acquired the warehouse. The warehouse itself comprised some 81,000 square feet in area with an adjoining two storey L-shaped office block of approximately 23,000 square feet. The total site area was some 6 acres and it was situated close to Junction 3 of the M6 near Coventry, indeed adjacent to a roundabout off the M6. The warehouse and offices were built in 1976. The buildings were served by three car parks, one at the front and one at the rear of the offices and a third on the other side of the entrance road to the site.
The warehouse comprised an open area having dimensions of approximately 105 metres by 70 metres, with the sides of 105 metres being on the west and east sides. The office block was on the north side. The external walls were brickwork with brick buttresses up to approximately 3.125 metres in height with profiled steel sheet from there up to the eaves at approximately 6.7 metres height. Internally, block work walls were infilled between the brick buttresses. The warehouse was divided into three bays of equal width by two lines of steel columns supporting the roof structure, which comprised three shallow roof pitches orientated along the length of the building (that is north to south) formed by steel joists and purlins overlaid with corrugated asbestos cement sheets with intermittent translucent roof light panels.
What has been called the Comag Bay comprised approximately one-third of the floor area on the east side and ran the whole length of the building (105 metres) north to south. There were some fire escape doors (including Door 11) on the eastern wall. At the northern end, access was provided through a door (Door 1A) and a roller shutter...
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...[2005] EWHC 2968 (TCC) at [12], per HHJ Toulmin CMG QC; Fosse Motor Engineers Ltd v Conde Nast & National Magazine Distributors Ltd [2008] EWHC 2037 (TCC) at [61]–[68], per Akenhead J; Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 at [85], per McDougall J; Cooperatieve Centrale......