London Fire and Emergency Planning Authority v Halcrow Gilbert Associates Ltd and another
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Toulmin CMG QC,His Honour Judge Toulmin |
| Judgment Date | 31 July 2007 |
| Neutral Citation | [2007] EWHC 2546 (TCC) |
| Docket Number | Case No: HT-04–103 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 31 July 2007 |
[2007] EWHC 2546 (TCC)
His Honour Judge Toulmin Cmg Qc
Case No: HT-04–103
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Finola O'Farrell QC (instructed by Winward Fearon) for the Claimant
Mr Marcus Taverner QC and Ms Chantal-Aimée Doerries
(instructed by Mayer Brown Rowe & Maw LLP) for the Defendants
If this Approved Judgment
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.
Introduction
This is a claim by the London Fire and Emergency Planning Authority (“LFEPA”), formerly the London Fire and Civil Defence Authority, against Halcrow Gilbert Associates Limited, the first defendant, and its parent company, Halcrow Gilbert Group Limited, the second defendant. The first and second defendants are referred to collectively as “Halcrow” and are a well known international multi-disciplinary engineering practice providing engineering, architectural, quantity surveying, contract administration and project management services.
LFEPA also claims against the third defendants Lorne Stewart PLC (“Lorne Stewart”). Lorne Stewart is a building services engineering contractor. Until just before the trial P & P Ducting Limited (“P & P”) was the fourth party in the litigation.
Halcrow has settled its contribution claim against Lorne Stewart. The terms of the settlement are confidential save that the court has been informed that Halcrow is now on the record for Lorne Stewart. A settlement has also been agreed between Lorne Stewart and P & P. The court has no knowledge of the terms of this settlement.
The claims arise against these defendants in contract and tort as a result of a fire at LFEPA's training centre, The Firehouse in Southwark, on 5 January 2005. The Firehouse was being used to provide realistic firefighting training facilities in simulated operational conditions including fire, heat and smoke. There had previously been a small fire in the section of the duct work in the fourth floor plant room in June 2004, the relevance of which I shall consider in due course.
The uncontrolled fire which occurred in the ceiling void of the Office scenario room on 5 January 2005 was not very extensive, was quickly brought under control and caused minimal damage.
LFEPA claims that since then it has not been possible to use The Firehouse for a substantial part of the training of firefighters for which The Firehouse was designed and which it claims has had to be undertaken elsewhere at substantial additional cost.
LFEPA claims for (1) the cost of repair of the damage caused by the fire, (2) the cost of investigation of the cause of the fire, (3) replacement of defective ductwork and associated equipment, (4) loss of use of The Firehouse based on a 45 month shutdown for the investigation, remedial works and subsequent commissioning.
The claim for consequential loss is for the cost of alternative real-fire training for the whole of the period and alternative cold fire training for a period of twelve months during the remedial works. The Authority gives credit to take account of the reduced costs in operating the facility during this time.
Apart from the liability issues of negligence and breach of contract I shall have to consider (a) what remedial scheme would be appropriate and (b) on the balance of probabilities whether LFEPA will carry out that or any remedial scheme?
The original sum claimed by LFEPA has been the subject of extensive and helpful work by the quantum experts and will be the subject later of more detailed consideration. In the amended quantum schedule served by LFEPA on 18 December 2006 the sum claimed was £6,639,009.76. By the end of the trial the sum contended for by LFEPA after considerable work by the quantum experts has been reduced to £4,744,568.00.
The subject matter of this trial is confined to particular issues. By a written agreement dated 2 August 2005 and embodied in a Tomlin Order dated 12 August 2005 LFEPA and Halcrow settled other substantial claims made by LFEPA against Halcrow.
Under paragraph 4 of that settlement/agreement all claims made by LFEPA and Halcrow for present and future claims relating to Halcrow's services were settled except for:
“(a) the claims which LFEPA brought against Halcrow in relation to the uncontrolled fire at The Firehouse on 5 January 2005 as set out in paragraphs 271–275 and 279 in LFEPA's amended Particulars of Claim re-served on 30 June 2005 including, for the avoidance of doubt, any claims by LFEPA against Halcrow for fees paid to Halcrow as part of the investigation of the fire post-5 January 2005 and
(b) future claims in respect of defects in The Firehouse which were not apparent or could not with reasonable diligence have been discovered at the date of the settlement agreement.”
Paragraphs 271–275 of the amended Particulars of Claim relate to
1. Halcrow's alleged defective design of the ducts and the exhaust system installed in the ceiling voids in The Firehouse. The relevant ducts are identified in the pleading as those which carry smoke during training exercises (para 271)
2. Para 272 of the pleading alleges that the ductwork was wrongly specified by Halcrow in that it was specified to comply with industry standard DW/142 when this standard was for normal commercial air conditioning and ventilation systems and was not designed to be airtight and was stated specifically not to be intended to handle polluted air.
3. It is alleged that the ductwork should have been specified to stainless steel fully welded construction with welded angle flanges and full faced gaskets (para 273).
4. As a result of the allegedly defective ducts LFEPA contends that oil leaked and an uncontrolled fire occurred. In order to prevent any possibility of a recurrence LFEPA claims that all the supply ductwork and possibly all the extract ductwork in The Firehouse needs to be replaced (para 274).
Paragraph 275 of the pleading alleges that Halcrow was in breach of duty in
“1. failing to produce a satisfactory design;
2. insofar as it is applicable, failing to ensure that an adequate design was prepared by others and/or failed to ensure that contractors carried out their works in accordance with the terms of the construction contracts; and …
4. accepted defective works and/or allowed unauthorised relaxations to the specifications.”
Paragraph 279 of the pleading served on 20 May 2005, just under six months after the fire, particularised the quantum of damage as (1) direct cost of repair £1. 6m, (2) construction costs and professional fees £200,000 (plus VAT), (3) cost of the loss of use of The Firehouse based on a 24 month shutdown for the remedial works £1.4m and (4) cost of the investigation and the ductwork which was installed.
Although paragraph 279 of the pleading was not amended, on 30 June 2005 a revised quantum schedule was served which increased these figures substantially. The final figures which take into account the substantial measure of agreement by the quantum experts, (subject to liability) are more in line with the figure contemplated in the original pleading.
The allegations against Halcrow set out in the Re-Re-Re-Amended Particulars of Claim are:
1. Failed to prepare a specification for the distribution ductwork appropriate for the use to which it was to be put (i.e. transfer of hot oil, air and smoke as opposed to normal temperature air).
2. Wrongly specified the ductwork to be manufactured and installed in accordance with HVCA Specification DW/142.
3. Failed to specify the ductwork to be either stainless steel or zintec of fully welded construction with welded iron flanges and full faced gaskets in accordance with HVCA Specification D1/171 (kitchen ventilation systems) or some other specification appropriate for the transfer without leakage of hot air/oil and/or smoke. (This may be a misprint for DW/171.)
4. Failed to provide a specification for the ductwork that was airtight.
5. Failed to produce a satisfactory design.
6. Failed to review its design.
7. To the extent that the material design was not prepared by Halcrow, failed to ensure that adequate design was prepared by others.
(8. Withdrawn)
9. Failed to ensure that the mechanical services contractor (Lorne Stewart) carried out works to the ductwork in accordance with the terms of the mechanical services contract by carrying out inspections of the works as completed or otherwise.
10. Acceptance by Halcrow of defective work and/or allowing unauthorised relaxation to the specifications.
At the end of the trial the liability claims against Halcrow are summarised clearly in LFEPA's closing submissions as follows:
1. Halcrow's ductwork design permitted the leakage of smoke oil through the cross joints in the ductwork insulation when it should not have done so.
2. Halcrow knew or ought to have known that its design would permit such leakage. Each of the options in DW/142 provided for permitted leakage and DW/142 contained a specific warning that special consideration was required for a design where the air in the ductwork was polluted. The ductwork was tested and accepted by Halcrow on the basis that it permitted such leakage.
3. Halcrow should have specified that the gaskets and sealant used in the flange joints needed to be oil resistant.
4. Halcrow failed to review and correct its design during the works and/or after the first fire in 2004.
5. Halcrow should have, but...
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