Mrs Gillian Harrison Mr Michael Harrison Mr Nigel Harrison v (1) Technical Sign Company Ltd (First Defendant) (2) Maison Blanc Ltd (Second Defendant) (3) Active Commercial Interiors Ltd (Third Defendant) (4) Cluttons LLP (Fourth Defendant) (5) R&J Building Services Ltd (Fifth Defendant)

JurisdictionEngland & Wales
JudgeDG
Judgment Date15 October 2012
Neutral Citation[2012] EWHC 2887 (TCC)
Date15 October 2012
CourtQueen's Bench Division (Technology and Construction Court)
Docket NumberClaim No: 0BM90105 (main action) & No: 2BM5 0044 (Part 20 Proceedings)

[2012] EWHC 2887 (TCC)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

BIRMINGHAM DISTRICT REGISTRY

TECHNOLOGY AND CONSTRUCTION COURT

Birmingham DR

Before:

His Honour Judge David Grant

(sitting as a judge of the High Court)

Claim No: 0BM90105 (main action) & No: 2BM5 0044 (Part 20 Proceedings)

Between:
Mrs Gillian Harrison Mr Michael Harrison Mr Nigel Harrison
Claimants
and
(1) Technical Sign Company Limited
First Defendant
(2) Maison Blanc Limited
Second Defendant
(3) Active Commercial Interiors Limited
Third Defendant
(4) Cluttons LLP
Fourth Defendant
(5) R&J Building Services Limited
Fifth Defendant
1

Introduction

These are the part 20 proceedings in a claim commenced by the claimants for damages for personal injuries arising out of an accident which occurred on 23rd June 2007, when the claimants were walking past the front of the premises occupied by Maison Blanc Ltd ("Maison Blanc") at 125 Putney High Street, London SW15 ("the premises").

2

On that occasion, what has been described in these part 20 proceedings as "the modified fascia", to which was attached the new sign at the front of the premises, fell down and on to the claimants, causing serious personal injuries to each of them.

3

The proposed general arrangement of the frontage to the premises, including the new sign, is shown in drawing number 154/WA02 dated December 2004 prepared by Owen Design Associates ("ODA") (page 5/1125). An illustration of those elements which fell down is to be found in a sketch number A4/SK1 prepared by Mr Tutt of Jenkins & Potter (who was the expert engineer called on behalf of Maison Blanc) which is at appendix G to his report (page 5/1127).

4

By order dated 8 August 2011 (page 1/376) made by consent, judgement was entered for the claimants against Maison Blanc for an amount to be decided by the court, and the claimants' remaining claims against all the other defendants were stayed with liberty to restore. Thereafter, also by consent, all issues in the various part 20 proceedings were transferred to the Technology & Construction Court in Birmingham for determination: see the order dated 9 December 2011 (page 1/385).

5

By the time of the pre-trial review in the part 20 proceedings held on 30 April 2012, it was common ground that there was no causal link between (a) the work which R&J Building Services Ltd ("R&J") had carried out to the first floor of the premises between approximately August 2006 and January 2007, and (b) the events which occurred on 23 June 2007. As a consequence, R&J took no part in the trial of the part 20 proceedings: see the preamble to the order at page 1/394.

6

Also by the time of the pre-trial review in the part 20 proceedings, Active Commercial Interiors Limited ("Active") and Technical Sign Company Limited ("Technical Sign") had come to terms whereby neither Active nor Technical Sign would advance any positive case against the other, and Active would take over the defence of Technical Sign in the part 20 proceedings: see the preamble to the order dated 30 April 2012 (page 1/394). As a result, when the trial commenced, Mr Matthews appeared on behalf of both Active and Technical Sign.

7

Further, by the conclusion of the first day of the trial, Technical Sign and Cluttons LLP ("Cluttons") had also come to terms, which enabled Technical Sign then to accept Maison Blanc's offer to discontinue its part 20 claim against Technical Sign, which Maison Blanc had made in the light of the admission which Active had previously made on 25 May 2012 (DG/41). I shall refer to that admission in more detail below.

8

As a result of these various accommodations, with effect from the commencement of the second day of the trial, there remained only three effective parties in the part 20 proceedings: Maison Blanc, which was in effect the claimant in the part 20 proceedings; Active, which was in effect the first defendant in the part 20 proceedings; and Cluttons, which was in effect the second defendant in the part 20 proceedings. Notwithstanding that notional description of the role of each of the three effective parties, it is necessary to identify precisely what claims are made by which party against which other party in the part 20 proceedings.

9

Summary of the various claims brought in the part 20 proceedings

9.1 Maison Blanc's part 20 claims against Active

Maison Blanc brings two claims against Active (Maison Blanc's claim is at 1/15/145 & Active's defence is at 1/23/242; Maison Blanc's amended claim is at 1/33/317 & Active's amended defence is at 1/35/330):

(1) Maison Blanc firstly brings a direct claim against Active in contract, for damages, effectively amounting to an indemnity;

(2) Maison Blanc secondly brings a claim against Active for contribution under the Civil Liability (Contribution) Act 1978 ("the 1978 Act") on the basis that each is liable to the claimants in respect of the same damage.

Active also brings a direct claim against Maison Blanc for contribution (Active's claim is at 1/17/158 & Maison Blanc's defence is at 1/21/218). That claim involves essentially the same subject matter as Maison Blanc's claim for contribution against Active, and it will be convenient to consider both of these cross claims for contribution at the same time.

9.2 Maison Blanc's part 20 claim against Cluttons

Maison Blanc brings two claims against Cluttons (Maison Blanc's claim is at 1/25/260 & Cluttons' defence is at 1/29/282):

(1) Maison Blanc firstly brings a direct claim against Cluttons in negligence, for damages;

(2) Maison Blanc secondly brings a claim against Cluttons for contribution under the 1978 Act on the basis that each is liable to the claimants in respect of the same damage.

9.3 Active's part 20 claim against Cluttons

Active brings a single claim against Cluttons (Active's claim is at 1/26/268 & Cluttons' defence is at 1/30/287): it is a claim for contribution under the 1978 Act on the basis that each is liable to the claimants in respect of the same damage.

10

The evidence called at trial

While various witness statements were served by various parties before the trial commenced, in the event the parties only called four live witnesses of fact at trial. Active had also served a notice under the Civil Evidence Act in respect of the witness statement of Florent Arcin (page 1/51A/396A). The evidence thus adduced at trial consisted of the following:

(1) The witness statements and oral evidence of Matthew Ashmore (page 2/462), Martin Turner (page 2/480), Charles Williams (page 2/494), and Thomas Hunt (page 2/516);

(2) The witness statement of Florent Arcin adduced under the Civil Evidence Act;

(3) The various documents contained in bundle 5;

(4) The reports of Mr Tutt and Mr Price, and the engineers' joint statement to which they (and also Messrs Wyatt, Bachelard and Wasilewski to various extents) had contributed (page 3/76/1424); &

(5) The reports of Mr Freeman, Mr Tuffin and Mr Male, and the surveyors' joint statement to which they had all contributed (page 4/1665A).

11

Tenure

The landlords of the premises are the governors for the time being of St Olave's and St Saviour's Grammar School Foundation ("the Foundation"). By a lease dated 25 January 2005 Maison Blanc entered into a 10 year lease of the retail premises on the ground and basement floors: see a copy of the lease at page 5/87/1736.

12

The "fit out works" carried out in 2005

During 2005 Maison Blanc carried out alterations to the premises, largely described in drawings prepared by ODA: see the licence for alterations at page 5/88/1801, the letter from ODA to Active dated 22 December 2004 at page 5/89/1810, and the various drawings prepared by ODA between pages 5/90/1812 and 5/187/1829. The final certificate was dated 4 April 2005: see Page 5/118/1864.

13

The contractor for the alteration works was Active: see the various documents at page 5/109/1845. Although a copy of the building contract between Maison Blanc and Active is not included in the trial documents, an extract from the JCT standard form of building contract for minor building works, 1998 edition, is at page 5/138/1901. It is common ground between Maison Blanc and Active that the contact between them was on or incorporated such terms: see paragraph 8 of Maison Blanc's amended part 20 claim at page 1/33/318, and paragraph 7 of Active's amended defence at page 1/35/333.

14

Clause 5.1 of the JCT standard form (page 5/138/1902) provides that:

" The Contractor shall comply with, and give all notices required by, any statute, any statutory instrument, rule or order or any regulation or bye-law applicable to the Works …."

15

It is common ground that the relevant statutory regulations include the Building Regulations 2000 (Tab 30 of the Authorities Bundle). Regulation 4 requires that:

"(1) Building work shall be carried out so that –

(a) It complies with the applicable requirements contained in Schedule 1; …

(2) Building work shall be carried out so that, after it has been completed —

(a) any building which is extended or to which a material alteration is made … complies with the applicable requirements of Schedule 1 or, where it did not comply with any such requirement, is no more unsatisfactory in relation to that requirement than before the work was carried out."

16

Schedule 1 of the Regulations provides that;

" A1(1) The building shall be constructed so that the combined dead, imposed and wind loads are sustained and transmitted to the ground –

(a) safely; and

(b) without causing such deflection or deformation of any part of the building …"

17

The new electrically operated awning was installed by Deans Blinds & Awnings: see the letter dated 22 February 2005 at page 5/111/1852. The new fascia sign was installed by Technical Sign: see Technical Sign's installation sheet dated 9 March 2005 at page 5/116/1862.

18

The joint...

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