Case notes

Spark to a flame
A fire in June 1998 destroyed the roofs of two neighbouring Elizabethan buildings, Numbers 3 and 4 High Street, Marlby, Wiltshire and all of the latter's upper storeys. A passer-by had reported the fire at Number 4 but although the fire brigade arrived within five minutes, the damage was so great that it was impossible to determine the cause of the fire accurately. The Fire Brigade reported that it had possibly started on the upper floors at the Number 3 side of Number 4. The case went to court.

The court heard evidence that the roof drainage at Number 4 had been faulty for a long time. The expert for Stan James, the owner of Number 3, contended water had soaked the circuits causing salt deposits that allowed short circuits to develop over the salt tracks. This had generated heat and caused the fire.

Peter Walker, who owned Number 4, pointed out that wet timber was unlikely to catch fire, therefore fire was not foreseeable as a result of damp. He said that the fire had been started by itinerants and pointed to several empty beer cans and twigs in the fireplace as evidence of illegal occupation of the empty flat.

The court disagreed, saying that if Walker had disconnected the power to the unoccupied flat on the upper floors of Number 4, there could have been no short circuits and no fire. Walker was responsible for the £376,000 of damage.
Moral: Water and electricity do not mix
Case: Stan James (Abingdon) Ltd versus Peter Walker Partnership. Bristol District Registry, January 19, 2004

Ambush in Milton Keynes
London and Amsterdam Properties (L&A) issued an adjudication notice for £1,889,463 against Waterman, the structural engineer on the developer's Midsummer Shopping Centre at Milton Keynes. L&A said that a slippage in the dates for release of design information had caused a critical delay to the steelwork package and superstructure work. L&A had then been forced to issue acceleration instructions to the contractors so that its anchor tenant, Debenhams, was open for trading by the lucrative Christmas 2002 period.

Late in the adjudication, under cover of a witness statement, L&A slipped in some additional information which Waterman had not seen. Prior to the adjudication L&A had responded to Waterman's request for specific information relating to the claim with five files of information relating to just one of the subcontractor packages. Waterman said this contained many omissions and was "just raw and unfiltered data" and did not allow Waterman to respond properly.

Waterman complained that it was too late but the adjudicator allowed the information to stand, although he did say he would bear Waterman's complaints in mind.

In May 2003, the adjudicator decided that Waterman should pay L&A £708,796.75 plus his own fees. Waterman objected. When L&A applied for a summary judgement, the court felt that Waterman had been ambushed by the late delivery of information and therefore it would not enforce the adjudicator's decision.
Moral: Make that ambush early
Case: London and Amsterdam Properties Ltd versus Waterman Partnership Ltd, TCC, December 18, 2003

The authority of adjudicators
When Prentice Island took Castle to adjudication, Castle objected on the grounds that it was a re-run of a previous adjudication. The Scheme for Construction Contracts requires that where a dispute is the same (or substantially the same) as one which has previously been referred to adjudication and a decision has been taken in that adjudication, the adjudicator in the case must resign. However, in this instance, the adjudicator ruled that the dispute between Prentice and Castle was not the same and proceeded to determine it.

On March 25 2001, the adjudicator issued his decision for the amount of Castle's final account, including the deductions Prentice could make for the damage Castle had caused and the cost of his own fees as adjudicator.

In a further court action, Castle argued that it should not pay the adjudicator's fees (the other sums involved are covered in a separate court action), as the dispute had been adjudicated before. The court held that if an adjudicator, in good faith, wrongly continues to act in circumstances in which he ought to resign, he remains validly appointed until he either resigns or the court sacks him. The court thought that if Castle had disagreed with the adjudicator's authority, it should have sought judicial review of the adjudicator's decision to continue.
Moral: You have a right to challenge the adjudicator's authority - follow it through
Case: Prentice Island Limited versus Castle Contracting Ltd, Sheriffdom of Tayside Central and Fife December 15, 2003

Given a right roasting
In January 1997, gas engineer Mr Bristoll repaired a rotisserie at the Timberdine Harvester Restaurant in Broomhall, Worcestershire because it wasn't giving out enough heat. R Bristoll Designs had supplied the spit roast rotisserie to Carford, which had been project manager for the design and inistallation of the kitchen equipment in 1996. Carford had installed the rotisserie to the design of the project architect, but the installation did not comply with building regs as it was fixed to plywood on a solid wall rather than having 25mm of non-combustible material or a 75mm air gap behind it.

While doing the repair, Bristoll noticed that three wall tiles were missing. He reported this to Carford in a fax the same day, mentioning a possible fire risk.

Carford passed Bristoll's report to owner Six Continents 14 days later asking "what action the builders should take". Six Continents did not respond, and in March 1997 a fire spread from behind the rotisserie, causing £54,974 worth of damage.

The court at first instance held that although Carford had breached its duty of care by the non-compliant installation, Six Continents was responsible as it failed to heed the warning. Six Continents appealed saying Carford's letter was insufficient warning. The Court of Appeal agreed.
Moral: Make your warnings crystal clear
Case: Six Continents Retail versus Carford Catering Ltd. and R. Bristoll Ltd. Court of Appeal November 5, 2003