Martin Hines And Others V. King Sturge Llp
| Jurisdiction | Scotland |
| Judge | Lady Stacey |
| Neutral Citation | [2009] CSOH 96 |
| Court | Court of Session |
| Published date | 01 July 2009 |
| Year | 2009 |
| Date | 01 July 2009 |
| Docket Number | A317/07 |
| OUTER HOUSE, COURT OF SESSION [2009] CSOH | |
| A317/07 | OPINION OF LADY STACEY in the cause MARTIN HINES and OTHERS Pursuers; against KING STURGE LLP Defenders: ________________ |
Pursuers: Jones, Q.C. (Solicitor Advocate), Hamilton; Simpson & Marwick
Defenders: Higgins; MacRoberts
1 July 2009
Introduction
[1] This is an action for damages in which I heard an interesting discussion on the procedure roll. Miss Higgins for the defenders moved me to sustain the defenders' second plea-in-law to the relevancy of the pleadings and dismiss the action, and Mr Jones and Mr Hamilton for the pursuers sought a proof before answer.
Background
[2] The first pursuer, Mr Martin Hines traded as "The Vancouver Muffin Company", 73 St Vincent Street, Glasgow as at 16 April 2005. On that date a fire occurred in the premises. The second pursuers are Wallace Commercial Limited who at the time of the fire had a place of business at 69 St Vincent Street, Glasgow. Each of the pursuers seeks reparation for the cost of physical damage to building and contents, and for loss caused by interruption of business. At debate there was no discussion about the nature and extent of the sums concluded for. The defenders are King Sturge LLP, a limited liability partnership specialising in commercial property management. The defenders are variously referred to in the pleadings as "a limited liability partnership specialising in commercial property management"; "property managers" and "managing agents". The case of Henderson v Merrett Syndicates Ltd [1995] 2 A.C. to which I refer below is a case in which the defenders are referred to as "managing agents". It will be obvious to all that the defenders in the current case are not carrying out the same function as those in the case of Henderson. It may be useful to bearing mind the lengthiest description above, that is "a limited liability partnership specialising in commercial property management."
[3] In the early hours of 16 April 2005 smoke was discovered by a member of the public in St Vincent Street, Glasgow. He alerted police officers who were on patrol nearby who in turn contacted the fire brigade and fire officers arrived at the scene. According to the averments they had difficulty in finding the source of the fire. They began by investigating at the west end of Drury Street and proceeded into West Nile Street. They then moved to St Vincent Street and forced entry to the premises. They discovered several areas of fire and extinguished them. By that time fire had damaged the part of the premises occupied by the first pursuer and by the second pursuer. The pursuers aver that investigations after the fire had been extinguished concluded that the fire had originated in the office area of the premises occupied by the first pursuer and had thereafter spread throughout the building.
The Pleadings.
[4] The averments regarding the ownership of the premises, the basis of occupation by the pursuers and the nature of the defenders function at the premises are slightly odd. The pursuers aver in article three that at the time of the fire the defenders were property managers with responsibility for the maintenance of the properties in which the businesses of the pursuers were based. In reply to those averments the defenders aver that the properties were owned by The Joint Properties Ltd (JPL). The defenders were JPL's managing agent in respect of the properties. The property at 69 St Vincent Street was let to Martin White in terms of a lease between the JPL and Mr White dated 7 and 9 December 2004. The property at 73 St Vincent Street was let to Bell Bakers Limited in terms of a lease between JPL and that company dated 1 and 9 October 2001. The pursuers do not admit the defenders' averments concerning the ownership and lease hold interests in the subjects. In article 6, the first pursuer avers that at the time of the fire, he was tenant of the basement and ground floor premises at 73 St Vincent Street. He avers that the property was owned by JPL. The defenders admit that the property was owned by JPL, and deny that the first pursuer was a tenant. While the defenders have a plea of no title to sue and pleadings to that effect the point was not taken at the debate before me and matters proceeded on the basis that both pursuers were as a matter of fact running businesses from the properties at the date of the fire, although no concession was made that the pleadings were sufficient in respect of their rights of occupation.
[5] In Article 6 the first pursuer offers to prove that at the time of the fire that:
"The property was under the control of the defenders acting in their capacity as managing agents." The pursuer then goes on to aver that the property had a fire alarm system which had been fitted some time previous to his opening as a business. That fire alarm system comprised a detector at the front door of the property and two detectors at the mezzanine level. The fire alarm system was also fitted with a monitoring system operated under the auspices of "BT Redcare", an intelligent monitoring system which allowed any trigger of the fire alarm to be reported directly to Strathclyde Fire and Rescue Services. The purpose of this system located within the first pursuer's business was to ensure rapid fire service response and the accurate identification of the property in the case of fire. The system relied upon an alarm signal being transmitted via 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 and Rescue Services who would then be dispatched immediately to the precise location of the fire alert. The monitoring system had been successfully used on several previous occasions known to the first pursuer. On each one the fire brigade had attended swiftly and had immediately attended at the exact address. The last recorded signal to Group 4 Security Limited was on 16 February 2005. The pursuers aver
"It is believed and averred that the telephone line had been disconnected as a consequence of non payment of bills to British Telecom by the defenders."
The second pursuers aver that they were tenants of the second floor of the premises at 69 St Vincent Street, Glasgow.
[6] The defenders admit that the property had a fire alarm system. They also admit that "BT Redcare" is a system designed as an intelligent monitoring system but they aver that no such system was fitted at the time of the fire. They deny that the property was under their control acting in their capacity as managing agents.
[7] The pursuers aver in Article 7 that the maintenance of the fire alarm system and monitoring system in the premises of the first pursuer were the responsibility of the defenders. They aver that the defenders consequently arranged for the regular checking of both systems to ensure that the fire alarm and monitoring process was fully operational. They aver that maintenance and inspections were undertaken by CMD Fire and Security Limited ("CMD"). They aver that the defenders 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 alarms. In the course of the handover meeting between the previous managing agents and the defenders on 10 December 2004, a list of contacts for various services in relation to the properties involved were discussed. The pursuers make averments about handwritten notes concerning fire alarm testing and go on to make the following averment:
"It is accordingly believed and averred that the testing of fire alarms was specifically included in the discussions between the former managing agents and the defenders as part of the hand over meetings months prior to the fire. The defenders assumed responsibility for the operation, testing and maintenance of the fire alarm systems in the buildings on behalf of the owners. The defenders owed a duty of care to the pursuers (as tenants) in the exercise of that responsibility."
[8] The annual service charge paid by the tenants under the terms of their lease included payment for fire alarm testing and maintenance. The pursuers aver that the defenders accordingly knew that the defenders pursuers paid for, and consequently relied upon, the defenders exercising reasonable care in maintaining the fire alarm system.
[9] The pursuers aver that on 23 March 2005 an employee of CMD carried out a routine inspection and in the course of it noted that the phone line linking the alarm system and the monitoring control room had been disconnected. As a result of that the monitoring system could not function. Telephone conversations ensued thereafter between a representative of CMD and a representative of the defenders. The defenders therefore knew that the monitoring system could not function and their initial response was to ask CMD to arrange for a dedicated BT Redcare line to be reconnected or for a new line to be established. That instruction was abortive in that the representative of CMD told a representative of the defenders that he could not give instructions to BT as he did not have responsibility for the building nor for payment of the bill. The pursuers aver that the defenders' representative stated that he understood the position and would attend to reconnection of the telephone line. By the time of the fire that had not been done. Nor was any temporary signalling protection in place. The absence of a monitoring system meant that the fire services experienced significant delay in identifying the outbreak of the fire which caused or materially contributed to the extent of the fire spread and loss and hence the damage suffered by the pursuers.
[10] The pursuers aver that the defenders were aware no BT Redcare system or other temporary system was in place and that none would be so until instructed by them. Further, the...
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