Matthew Rogerson (t/a Cottesmore Hotel, Golf and Country Club) v Eco Top Heat & Power Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Alexander Nissen |
| Judgment Date | 02 July 2021 |
| Neutral Citation | [2021] EWHC 1807 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: HT-2020-000294 |
[2021] EWHC 1807 (TCC)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
Royal Courts of Justice
Rolls Building, London, EC4A 1NL
Mr Alexander Nissen QC
sitting as a Judge of the High Court
Case No: HT-2020-000294
Mr Neil Moody QC (instructed by KENNEDYS) for the Claimant
Mr Graham Eklund QC (instructed by KEOGHS) for the Defendant
Hearing dates: 15 June 2021
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.
Mr Alexander Nissen QC
Mr Alexander Nissen QC:
Introduction
The application before the Court concerns the jurisdiction which permits the Court to allow a party to change its expert witness upon terms which can include disclosure of materials, including any reports prepared by a prior expert, as the price for such change. It raises the interesting question of how far back in time this jurisdiction can reach. At the end of the oral hearing I gave my decision on the application, to enable the Costs and Case Management Conference to proceed in light of it, but reserved the reasons for my decision. These are my reasons.
The action arises from a disastrous fire at Cottesmore Hotel, Golf and Country Club on 11 June 2018. The Claimant is the owner of the hotel. At the time of the fire, the Defendant, a small firm of building contractors, was undertaking window installation works at the hotel premises. On the day of the fire, the Defendant's employees were working in a first-floor room known as the barn store. The seat of the fire was in a ground floor tunnel below where the Defendant's employees were working. The tunnel is where laundry bags left for collection had been stored. The Claimant's case is that the fire was most probably caused by a cigarette discarded by one of the Defendant's employees. Alternatively, the Claimant says that the fire was caused by a spark emitted from an angle grinder used by the Defendant's employees. The claim is advanced in negligence and breach of contract. Damages are claimed in a substantial sum, namely £7,642,450, comprising material damage and business interruption losses.
The Defendant denies negligence and breach of contract. The Defendant does not advance a positive case as to the mechanism which caused the fire but denies that it was caused by a cigarette discarded by one of its employees or by its use of an angle grinder. Its case is that none of the employees on site at the relevant time were smokers and it does not admit that a cigarette which fell through a gap in the floor would have ignited laundry left in the tunnel below. If the fire was caused by a cigarette, it suggests that it may have been one discarded by the Claimant's own staff. It denies using the angle grinder on the day of the fire.
As I shall explain in greater detail below, a Claim Form was issued on 11 August 2020. Pleadings have now closed. In the lead up to the CCMC, the solicitors for the parties exchanged correspondence about proposed directions. On 12 March 2021, the Defendant's solicitors, Keoghs, sent draft directions to the Claimant's solicitors, Kennedys, which included one that it should have permission to call Ms Emma Wilson of Prometheus Forensics Ltd concerning the cause of the fire. On 19 March 2021, the Claimant's solicitors, Kennedys, contended that the decision to call Ms Emma Wilson involved a substitution for a prior expert, namely Dr Anil Nagalingam of Burgoynes.
On 17 May 2021, the Claimant's solicitors issued the application presently before the Court. The application was originally listed as a self-standing one but it was subsequently re-fixed to be heard at the same time as the CCMC. The Claimant does not oppose the direction sought by the Defendant to rely on the evidence of Ms Wilson but applies for a condition to be imposed upon that direction which involves the disclosure of certain documents and categories of documents as the price for doing so. In essence, the Claimant's case is that this is a clear case of expert-shopping.
The application was heard in person on 15 June 2021. Mr Neil Moody QC appeared for the Claimant and Mr Graham Eklund QC for the Defendant.
Factual Chronology
As I have said, the fire occurred on 11 June 2018.
On 13 June 2018, Keoghs wrote to Mr Porter, the General Manager of the Claimant stating as follows:
“Will you please note our interest in this matter as the Solicitors now instructed on behalf of Eco Top Heat & Power UK Ltd. Our instructions are received via liability insurers potentially interested in this matter…
We are instructed and we are writing to you because there have been early reports of your Mr Johnny Porter having made suggestions that the cause of this fire may have been the careless discarding of a cigarette end by an employee of Eco Top Heat & Power UK Ltd.
That suggestion is firmly denied and further it is equally firmly denied that anything on the part of Eco Top Heat & Power UK Ltd was in anyway related to the start or spread of this fire.
Nonetheless in the circumstances where your Mr Johnny Porter is understood to have made some assertion against our client we are instructed now to take all steps necessary to fully protect the position of Eco Top Heat & Power UK Ltd and robustly to defend any assertion of liability on its part. We shall be seeking our costs of doing so in due course from Cottesmore Golf & Country Club.
We are immediately taking steps to arrange for the involvement of an expert forensic fire investigator on behalf of Eco Top Heat & Power UK Ltd and we shall imminently request from you facilities for that duly appointed expert to make a full forensic examination and inspection of the fire scene.
…
We anticipate that legal representatives may by now have been appointed to act on behalf of the Cottesmore Golf & Country Club and we would be pleased to further this correspondence with those representatives as soon as they are identified to us.”
On 21 June 2018, Gateley solicitors, acting for the Claimant, sent an email to Keoghs which said:
“You indicated in your letter of 13 June that you were instructing an expert forensic fire investigator on behalf of your client. Please “reply to all” giving the contact details of your client's fire investigator…”
Later that day, Mr Houseago of Keoghs replied:
“Dear All,
My instructed expert for the fire investigation is:
Dr A C Nagalingam
Associate
Dr JH Burgoyne & Partners LLP…
Please ensure that Dr Nagalingam is made party to any examination of the physical evidence remaining at the site.”
The terms upon which Dr Nagalingam was retained have not been shared by the Defendant. According to Mr Houseago of Keoghs, Dr Nagalingam was originally instructed by UK Power Network (“UKPN”). I assume UKPN would have had an interest in investigating the fire in case it was suggested that an electrical fault was the cause.
Dr Nagalingam first attended site on 4 July 2018 and attended again on 16 July 2018. On both occasions he took site investigation notes which the Defendant has now voluntarily disclosed. The notes of 4 July include a sketch plan and records of various discussions with a number of witnesses including Mr Porter, the Claimant's General Manager and Matt Smith, the Health Club Manager. Dr Nagalingam also took photographs. His further notes from 16 July include more sketches and notes of conversations. The meeting on 4 July took place jointly with two experts appointed, respectively, by the Claimant and its insurer, namely Mr Christie and Dr Vallance. The witnesses were interviewed together by the three of them. Mr Evans of Kennedys says in his witness statement that, after the interviews had been concluded, Mr Porter asked the three experts their opinion on causation. Mr Christie and Dr Vallance both said “cigarette” and Dr Nagalingam added: “It's hard to see it's anything else”. Mr Houseago of Keoghs supposes that, if he did say that, it was probably because at the second joint meeting Dr Nagalingam, Mr Christie and Dr Vallance had been informed of evidence relating to contractors in hi-vis jackets near the tunnel who were smoking. CCTV apparently does not show the Defendant's workforce in hi-vis jackets.
No loss adjuster was ever appointed by the Defendant. Insurers did not attend the site.
On 2 October 2018, Dr Nagalingam had a meeting with the Defendant's solicitors. It is common ground that the attendance note of the meeting prepared by Keoghs is privileged. It is also common ground that, during the meeting, Dr Nagalingam set out or referred to his views on causation. (See paragraph 7 of Mr Houseago's witness statement.)
Dr Nagalingam was still instructed on 11 October 2018, when he wrote to both of the Claimant's experts by email to say that he had finally received witness statements from Eco Top Contractors. He said:
“At this stage I have been instructed not to disclose the statements as they are still a work in progress but from the sounds of it my principal has no objection to them being shared once they have finalised”.
He identified some matters raised by the Defendant's witnesses and asked the experts for permission to approach Mr Porter again to address these points with him. In his witness statement, Mr Houseago says he does not know who Dr Nagalingam was referring to as “his principal” and says that he is not...
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