Iliffe & Anor v Feltham Construction Ltd & Ors

This judgment is in six parts, namely:

This is an appeal by the main contractor against a summary judgment on liability in favour of the building owners, in the context of multi-party litigation concerning fire damage. The issue in this appeal is whether, despite the building owners’ good prospects of success, the requirements for summary judgment set out in the Civil Procedure Rules (“CPR”) are satisfied.

The building owners are the Hon. Edward Iliffe and Mrs Teleri Iliffe. They are claimants in the action and respondents in the present appeal. I shall refer to them collectively as the claimants. I shall refer to the first claimant individually as Mr Iliffe.

Feltham Construction Limited is the main contractor. It is defendant in the main action, claimant in the third party proceedings and appellant in this court. I shall refer to it as “Feltham”.

I shall now identify other organisations which feature in the narrative of events:

In this judgment I shall use the abbreviation “TCC” for the Technology and Construction Court. I shall refer to the Pre-action Protocol for Construction and Engineering Disputes as “the TCC protocol”.

CPR 24.2 provides:

it considers that-

that claimant has no real prospect of succeeding on the claim or issue; or

that defendant has no real prospect of successfully defending the claim or issue; and

there is no other compelling reason why the case or issue should be disposed of at a trial.”

After these introductory remarks I must now turn to the facts.

In 2010 the claimants resolved to construct a luxurious timber house (referred to sometimes as a “cabin”) on Green Island in Poole Harbour. They engaged Gotelee as architect. They engaged Pioneer to supply and erect the timber structure. Feltham was the main contractor for most of the works on site.

The project was divided into three phases. Phase 1 comprised groundworks, foundations and the construction of a timber ground floor. Phase 2 comprised the erection of a “log house package”, which had previously been fabricated in Canada. Phase 3 comprised numerous fitting out works, including the mechanical and electrical installations.

The project proceeded without anyone paying close regard to the legal position. Feltham carried out the Phase 1 works without there being a letter of intent or a signed contract in place. Feltham achieved practical completion of Phase 1 on 16^th March 2011. On 16^th June 2011 Mr Fewtrell-Smith of Gotelee sent the contract for Phase 1 to Feltham. In his covering letter Mr Fewtrell-Smith stated:

Both parties signed the Phase 1 contract in late June 2011, although they did not trouble to date it. The form of contract used was the Intermediate Building Contract with Contractor’s Design, 2005 edition, revision 2, 2009 issued by the Joint Contracts Tribunal. I shall refer to this standard form contract as “the JCT contract”.

During 2011 Pioneer carried out the Phase 2 works. It duly erected on site the log house package which it had fabricated in Canada.

In the meantime Mr Iliffe and Mr Fewtrell-Smith were turning their attention to Phase 3. In early 2011 they identified Affleck as a suitable sub-contractor to design and carry out the mechanical works. They asked Affleck to proceed with the design work and attended meetings with Affleck to discuss the details. They identified Wroath as a suitable firm to design and install the electrical works. They asked Wroath to proceed with the design work for that installation.

On 12^th May 2011 Mr Fewtrell-Smith sent to Feltham the tender package for Phase 3. This comprised the specification, the schedule of works and a set of drawings. The specification stated that the same form of contract would be used as before, namely the JCT contract. Mr Fewtrell-Smith stated in his covering letter:

The Phase 3 specification indicated that Wroath would carry out the electrical works as sub-contractor to Feltham. In the event that did not happen. The claimants engaged Wroath as a separate contractor to design and install the electrical works.

In relation to the mechanical works, paragraph T90 of the specification provided that Feltham would be responsible for “completing” the design of the heating system. Paragraph 1.02 of the Schedule of Works provided:

The mechanical subcontract installation, comprising the supply and installation of a wet underfloor heating system over the Lewis plates; the installation of 2 no. Rayburn logburning stoves (supplied by others) and a two-way logburning stove with heat exchanged, all with insulated stainless steel flues;

The design and installation for the mechanical systems will be carried out by Affleck Mechanical Services Limited.”

Paragraphs 10.05 and 10.06 of the Schedule of Works provided :

On 22^nd June 2011 Affleck submitted to Feltham its quotation in the sum of £209,877.00 for carrying out the mechanical works at Green Island. This quotation included the following items:

So far as I can discern from the documents, the reason why Affleck quoted such a low figure for design was because it had already done (and presumably been paid for) most of the design work. Affleck’s quotation includes a narrative description of the various works which it will do. The sections concerning the flue systems and wood burner contain no reference to design.

On 28^th June 2011 Feltham submitted its proposals for the Phase 3 construction works. These proposals included a priced schedule of works. The introduction to the priced schedule of works stated that Affleck would carry out the design and installation of the mechanical works. Section 10 of the priced schedule of works included the sum of £209,877.00 for completing the design of the mechanical works and installing the same. This shows that Feltham was adopting Affleck’s figures without any mark-up.

On 5^th July 2011 the architect, Feltham and Affleck attended a meeting on site to discuss the details of Phase 3. After that meeting Mr Fewtrell-Smith sent the following email to Mr Lampard of Feltham:

Your tender issued on 28^th June included a programme with a completion date of 6^th April 2012. You tabled at the meeting today a revised draft programme with a completion date of 15^th February 2012.

This programme will need to be adjusted with firm dates, after Pioneer have given information relating to the completion of their work including that of Mastercraft.

Consideration will be given to splitting Phase 3 into 2 parts (say Phases 3a and 3b), with a separation point arrived at by the removal of the scaffolding and the sleeping accommodation, and consequently the barge being taken off hire. Phase 3 may continue after the removal of the accommodation to complete works started (i.e. possibly the stone floors).

You are instructed to carry out the works relating to Phase 3a, this to include an immediate instruction to place an order with Affleck Mechanical to carry out the work in accordance with the specification as included in your tender submitted by email on 28^th June 2011.

It is intended that Phase 3b will either continue without interruption or may be deferred until the spring of 2012. Edward Iliffe would want to reserve the right to review any future instruction regarding Phase 3b, which therefore cannot at this stage be fully guaranteed.”

On 5 July 2011, after receiving Mr Fewtrell-Smith’s email, Feltham sent a sub-contract order to Affleck, this required Affleck to carry out the mechanical services for the sum of £209,877.00. The order identified the minutes of the meeting on 5 July as a contractual document. Those minutes included the following entry:

Following the site meeting on 5 July, the various contractors and sub-contractors proceeded with carrying out the Phase 3 works. As before, the claimants and Feltham did not trouble with the formality of entering into a written contract. Everyone simply assumed that the JCT contract applied. As the works progressed, from time to time the architect issued certificates for payment. Each of these certificates was headed:

Affleck engaged Docherty as sub-sub-contractor to supply and install the steel flues serving the Rayburns and the wood burner. Docherty purchased the steel flues from Poujoulat. Docherty employed Mr Karl Callaway as a labour only sub-sub-sub-contractor to install the flues on site.

The Poujoulat steel flues comprise a series of sections with male and female ends, which are held together by locking bands. In order to avoid the risk of fire, there is a requirement that there should be at least 50mm between the flues and any combustible materials.

In September 2011 Mr Callaway became concerned that the flues which he was installing may be too close to parts of the timber structure. He expressed his concerns to Mark Dearie of Docherty, who sent the following email to Affleck on 26 September:

By April 2012 the project was nearing completion. Those who were working on the cabin were staying in the bedrooms and on occasions they lit the wood burner. Early in the morning of 20 April they awoke to discover that there was a fire in the roof. Inevitably there are some discrepancies between their accounts, but the strong indication is that the fire started in the area where the steel flue passed through the roof structure.

Those on site took rapid steps to quench the fire. They also called the fire brigade. Despite the best efforts of all concerned, the fire caused extensive damage. The current estimate of the cost of remedial works is a sum in excess of £3.5 million.

The claimants and their advisers set about ascertaining the cause of the fire and who should bear responsibility. They instructed Burgoynes to investigate and report.

On 23 April 2012 Dr Goudsmit of Burgoynes visited Green Island. He inspected the debris left from the fire and interviewed the individuals who had been present on the morning of 20 April. He examined the records relating to the construction works as well as numerous photographs taken during the course of the project.

On 24 October 2013 Dr Goudsmit produced a lengthy and detailed report. He concluded that, although faulty electrical wiring is a known cause of fires, the cables in the roof of the cabin could be eliminated, because they were fire resistant and the cables only related to the fire alarm. After discounting the possibility of an electrical fire, Dr Goudsmit stated as follows in the concluding section of his report:

One potential cause involved the ejection of a spark or brand from the chimney’s terminal and it entering the roof through the open upstand on the roof. In my opinion it was improbable that a spark or brand would be emitted from the terminal with that then passing through the hole to find a readily ignitable material to initiate a smouldering fire that was sustained for many hours before undergoing a transition to flaming combustion.

Chimney fires are short-lived events that can involve the outside of chimneys reaching high enough temperatures to cause ignition of nearby combustible materials. Accordingly, Approved Document J of the Building Regulations and the manufacturers of factory- made metal chimneys require that the chimney is separated from combustible materials, in the instance, by a distance of 50mm. The available evidence is that this separation was not present but in my opinion it was unlikely that there had been a chimney fire.

There was a joint at about roof level and this was contrary to the requirements of Approved Document J but the presence of a small gap between sections of a chimney would not represent a likely cause for the fire during normal operation. However, the physical and witness evidence indicated that the installation had been carried out in a non-standard manner. The reasons for the manner of installation could not be determined from the physical evidence alone.

In view of the evidence of the non-standard installation, it was possible that the fire was caused in some way by an aspect associated with the installation. One possibility was that there had been a gap or one had formed in the chimney. If the gap had been large enough, for which there was no positive evidence, there could have been ignition of the roof timbers or potentially the combustible membrane by the hot flue gasses.

The second possibility related to the evidence of deposits on the outside of the inner liner of the chimney. These deposits could have been indicative of a lack of integrity along the inner liner and could have come to be on the insulation. It is known that combustible liquids leaking from hot pipework on to insulation can initiate so-called lagging fires. As far as I am aware, there is no precedent for a lagging fire involving condensates but I believe that such a cause provided a potential explanation for the fire.

The remaining cause involved the heat from the chimney igniting nearby combustible materials because the normal heat losses from the outside of the chimney had been restricted by insulation and/or lack of ventilation. The localised heat within the roof construction could also have been a factor in the heating of the condensates on the insulation to initiate a lagging fire. In this regard I am conscious that the wood-burner was used for between 10 and 14 ½ hours on the day before the fire but that this was reportedly not unusual. As such, the reasons why the fire occurred when it did remain uncertain but I consider a mechanism involving high temperatures in the area of the chimney as the result of the reduced heat losses to be the probable cause.”

Armed with this report the claimants sought to make a swift recovery of their losses by bringing an adjudication against Feltham. Complex multi-party adjudication proceedings followed, which for present purposes I need not narrate. Suffice it to say that the claimants failed. The adjudicator concluded the cause of the fire may be related to the design of the flue system and that Feltham might have no contractual responsibility for that element of the design.

Having lost before the adjudicator, the claimants commenced the present proceedings.

By a claim form issued in the TCC on 7 February 2014 the claimants claimed against Feltham damages for breach of contract, namely incorrect installation of the chimney of the log cabin. The particulars of claim, which accompanied the claim form, limited the claimants’ claim to defective workmanship. Dr Goudsmit’s report was annexed to the particulars of claim. The claimants alleged that one or more of the workmanship defects identified in that report had caused the fire.

Feltham served its defence on 4 April 2014. Relying upon the confused state of the documentation, Feltham denied that there was any contract in respect of the Phase 3 works. Turning to the causes of the fire, Feltham limited itself to non-admission of the claimants’ allegations. The reasons for this somewhat Delphic pleading were twofold. First, Feltham’s expert witness was in agreement with many of Dr Goudsmit’s conclusions. Secondly, Feltham was seeking to recover against Affleck the amount of its liability to the claimants. Feltham did not know what defences would be advanced by Affleck or those further down the contractual chain. It would be necessary in due course for Feltham to adopt those defences as against the claimants.

There followed, inevitably, a cascade of pleadings which followed the contractual chain. Feltham joined Affleck as third party. Affleck joined Docherty as Fourth Party. Finally on 18 July 2014, Docherty joined Mr Callaway as Fifth Party.

While these events were unfolding, the claimants were still eager to secure a quick win. On 14 May 2014 they issued an application for summary judgment against Feltham on liability, together with an interim payment on account of damages and costs. The principal evidence upon which the claimants relied was Dr Goudsmit’s report, the relevant correspondence and the material which had emerged from the adjudications. Feltham opposed the claimants’ application on a number of grounds. In particular Feltham denied that there was a contract for Phase 3 and did not admit the causation of the fire. Feltham argued that it was inappropriate to give summary judgment for the claimants in multi-party litigation, when the factual evidence was unclear and the position of other parties down the line was unknown.

The application came on for hearing before Mr Justice Stuart-Smith (“the judge”) on 26 June 2014. The judge handed down his reserved judgment on 3 July 2014. He held that the claimants succeeded on liability and directed an assessment of damages. He ordered Feltham to pay £3 million to the claimants on account of damages.

I would summarise the judge’s findings and reasoning as follows:

As a result of the parties’ correspondence and conduct they concluded a contract on 5 July, alternatively 15 July, alternatively soon after 15 August 2011, whereby Feltham agreed to carry out the Phase 3 works in accordance with Feltham’s tender, subject to the conditions of the JCT contract.

The contract included an obligation upon Feltham to design the wood-burner and the flue, but that does not matter because the claimants’ case is based upon defective workmanship.

The fire started in the roof space close to the steel flue.

All of the possible causes of the fire arise from defective installation of the flue.

Therefore Feltham must be liable to the claimants for defective workmanship.

After the judge had given summary judgment the action proceeded. Numerous further pleadings were served in the third party, fourth party and fifth party proceedings. At a case management conference on 1 May 2015 Mr Justice Coulson directed that there be a three week trial starting on 11 April 2016, in order to deal with (a) quantum as between the claimants and Feltham, (b) all liability issues in the third, fourth and fifth party proceedings.

Feltham is aggrieved by the judge’s decision to grant summary judgment. Feltham fears that, depending upon how the evidence turns out in the main trial, the end result may be that Feltham recovers nothing in the third party proceedings but remains under a substantial liability to the claimants.

Accordingly, Feltham appeals to the Court of Appeal.

By an appellants’ notice filed on 31 July 2014 Feltham appealed to the Court of Appeal on three grounds, namely:

The judge erred in holding that defective installation was the only possible cause of the fire.

The judge erred in holding that the claimants and Feltham had entered into a contract for the execution of the Phase 3 works. Alternatively, he erred in holding that that contract included a design obligation.

It is unjust in multi-party proceedings to enter summary judgment before all parties have pleaded out their cases.

I considered this case on the papers on 14 October 2014. I granted permission to appeal, stating two reasons for my decision. First, I regarded the grounds of appeal as properly arguable. Secondly, I thought that the appeal raised a question concerning the proper operation of CPR Part 24 in the context of multi-party construction litigation.

The appeal was heard on 23 June 2015. Mr Karim Ghaly appeared for Feltham. Mr Richard Wilmot-Smith QC, leading Mr Julian Field, appeared for the claimants. I am grateful to all counsel for the clarity and excellence of their arguments.

Mr Ghaly concentrated on his first and second grounds of appeal. He treated the points which arise under ground 3 as being supportive material for grounds 1 and 2.

That was a sensible approach to adopt in argument. Nevertheless for the purposes of this judgment, it is helpful to give separate consideration to the points of principle which arise under ground 3.

Before addressing the issues in the appeal, I must first say something about the Court of Appeal Bundle.

Paragraph 27 of Practice Direction 52C sets out clear rules concerning what should be included and – more importantly – what should be omitted from bundles prepared for the Court of Appeal. In particular, paragraph 27 (1) provides that the appeal bundle “must contain only those documents relevant to the appeal”.

In the last TCC appeal which I heard (a complex case concerning the construction of a road in Gibraltar) the parties were scrupulous in complying with that rule. They thereby saved the court much valuable time. Not so in the present case. Here the parties set about doing precisely the opposite.

The present appeal bundle (ignoring the authorities bundle) contains 2,550 pages. This includes numerous duplicates and irrelevant documents. There are at least two copies of Dr Goudsmit’s report and at least two copies of the JCT contract. The arrangement of the correspondence is, to put it charitably, chaotic. It is certainly not chronological. For example, I managed to track down the architect’s important letter of 12^th May 2011 at page 1807. His follow-up letter dated 16^th June 2011 is tucked away at page 2148. Mr Dearie’s email of 26^th September 2011 (about the gap around the flue) is at page 359. Amongst the jumble of correspondence there are copies of superfluous authorities. The brief chronology furnished by the parties does not contain any page references to aid the hapless judge as he/she struggles to piece together the story of what happened.

The appeal bundle should be an aid to the court, not an obstacle course. The practice direction governing the conduct of appeals is not difficult to understand. It serves a serious purpose. Experienced practitioners should do what it says.

In the present case, as I indicated during argument, whatever the outcome of the appeal no party will be entitled to recover any costs referable to the preparation of the bundle.

After those observations about procedural matters, I must now come to a decision on the issues before the court.

The first matter to consider is the contractual issue. If the only question to decide were whether there was a contract between the parties for the execution of the Phase 3 works, I would say that the judge was unquestionably right. It appears that on 5 July 2011 the parties were ad idem that Feltham should carry out the Phase 3 works in accordance with Feltham’s tender and subject to the conditions of the JCT contract. Thereafter both parties acted on that basis. Feltham carried out the Phase 3 work. Gotelee issued certificates for payment under the terms of the JCT contract. Mr Iliffe paid the certified sums to Feltham. The fact that the claimants reserved the right to withdraw the later part of the Phase 3 works (which did not in the event happen) does not detract from the existence of the contract.

That, however, is not the only contractual issue which arises. There is also an issue, or a potential issue, which arises concerning design responsibility. Mr Wilmot-Smith submitted at the summary judgment hearing that since this was a contractor’s design contract, it did not matter how the fire started; the fire was obviously attributable to a design or construction fault. See paragraph 105 of the judgment.

The judge accepted that submission, although he concluded that it did not matter, since defective construction rather than design had caused the fire.

I do not agree with this part of the judge’s analysis. On the material which I have seen, it is at least arguable that the design responsibility of Feltham was limited to part only of the mechanical works. Paragraph T90 of the specification and paragraph 10.05 of the schedule of works required Feltham to “complete” the design of the heating system rather than undertake the whole of that design. That makes sense because Affleck had done most of the design work (in direct consultation with Mr Iliffe and Mr Fewtrell-Smith) before Feltham received the tender package. Furthermore Feltham’s priced schedule only allowed a fairly small sum (£4,000.00 out of £209,877.00) for that residual design work. All parties were aware of the build up of the figures which Affleck had prepared and which Feltham adopted without any mark-up. It appears from Affleck’s quotation dated 22 June 2011 and the accompanying narrative that that quotation did not include designing the flue system.

I am not reaching any binding decision on the contractual issues. The contract was made partly by conduct and I have not heard any evidence concerning the relevant conduct. All I am deciding at this stage is that the documents are not sufficiently clear to establish, for summary judgment purposes, that Feltham’s contract included responsibility for the design of the flues.

I turn now to the cause of the fire. As the case stood before the judge, it appeared that one or more construction defects had caused the fire, although no one could identify precisely which defect was the culprit.

Events have moved on since then. In particular, Mr Callaway has served his defence in the fifth party proceedings. Mr Callaway denies that there were any errors in his installation work. He asserts that there were numerous shortcomings in the work done by others, which caused the fire. Some of these shortcomings were matters of workmanship and some were matters of design.

It is normal practice in multi-party construction disputes for every defendant to adopt all available allegations which might pin the blame on others. That is likely to happen in this case, in so far as Mr Justice Coulson (the case managing judge) sees fit to allow amendments.

On 20 June 2014 when the claimants presented their application for summary judgment, the judge faced a number of difficulties. First, he did not know how future pleadings would unfold. Indeed Mr Callaway had not yet been joined as a party to the action. Secondly, Dr Goudsmit relied very heavily on his discussions with factual witnesses in order to establish the circumstances of the fire. When this action comes to trial, it will be for the trial judge to listen to the witnesses and decide the facts. He will not take findings of fact from the experts. Thirdly, the Judge had only seen one expert report, namely that of Dr Goudsmit. In relation to the other experts, the judge only had summaries of their opinions, as emerging from the adjudication documents. Fourthly, even Dr Goudsmit’s report did not identify a specific cause of the fire. What Dr Goudsmit did was to identify a range of possible causes. He then opined that whichever cause was the operative one, that must be a matter of workmanship, for which Feltham was responsible.

The judge noted that all the claimants’ pleaded allegations related to defective installation work, rather than defective design. He held that all the possible causes of the fire fell within the claimants’ pleaded case.

I must confess that I find this a difficult aspect of the case. On the one hand, it seems highly likely that one way or another the claimants will prove at trial that defective installation work caused the fire. On the other hand, we still do not know what actually caused the fire. Also there has been no judicial investigation of the facts. All that we have is the result of various experts interviewing the factual witnesses. At a number of points in his report Dr Goudsmit comments that he needs to know what particular witnesses will say about this or that. See for example paragraphs 6.4.14, 6.4.17 and 6.4.20.

The judge saw only one expert report. I have seen two, namely the reports of Dr Goudsmit and Mr Leung (for Docherty). Mr Leung identifies some possible causes of the fire unrelated to the installation of the flue: for example, the use of incorrect fuel in the wood burner or a burning ember falling through the open upstand in the roof. I still have not seen the expert reports for the third, fourth and fifth parties. I do not know what those reports will contain.

I feel distinctly uneasy about upholding a summary judgment on liability in favour of one party, when very similar issues are going to be the subject of a full trial between the other four parties.

Mr Wilmot-Smith says that there has been pre-action correspondence between the parties pursuant to the TCC protocol. Therefore the position of all parties should be clear. That is the spirit of the CPR, as now understood. It would be quite wrong for this case to proceed to trial, just in case something turns up.

Mr Wilmot-Smith is, strictly speaking, right about the TCC protocol. There has been debate (ever since the London TCC moved into the Rolls Building) as to whether the TCC protocol should be retained or whether the TCC (like the Commercial Court) should do without a pre-action protocol. This is foreshadowed in the Review of Civil Litigation Costs Final Report at pages 351-352. The views of the profession have long been divided on this issue: ibid pages 348-9. It would be quite wrong for the Court of Appeal to venture into this dispute. I do, however, make three comments. First, so long as the protocol is in place, parties must comply with it. Secondly, when issues of compliance with the protocol arise, TCC judges look at the substance of the matter rather than the minutiae of the protocol. Thirdly, the court deplores any excessive front loading of costs in order to comply with protocol: see CIP Properties v Galliford Try [2015] EWHC 481 (TCC) at [58]-[59].

In the present case, there was a limit to the extent that Feltham could set out its positive case in correspondence, as required by the protocol. Inevitably Feltham would be seeking to pass liability down the contractual chain. Also Feltham would be likely to adopt the future pleaded allegations of the third, fourth and fifth parties, so far as it was advantageous to do so.

When I stand back from the detail and look at this case in the round, I conclude that as at 20 June/3 July 2014 the position as to causation of the fire was not so clear as to justify the grant of summary judgment on liability in favour of the claimants. Also I think it was inappropriate to do so when similar issues remained to be determined at a full trial as between the other parties. In the particular circumstances of this case that constitutes a “compelling reason” not to enter summary judgment within the meaning of CPR 24.2(b). A judge in multi-party litigation must aim to do justice as between all parties involved in the case.

A further significant feature is that summary judgment in this case achieves much less in terms of saving costs and court time than is normal. There is going to be a trial anyway at which extensive factual and expert evidence will be called in order to establish (a) what caused the fire, (b) who is responsible. The claimants will have to participate in the trial, because they need to prove the quantum of their damages.

I wish to emphasise that whilst, after some hesitation, I am differing from the judge in the circumstances of this case, I am certainly not discouraging robust case management or the use of summary judgment under CPR Part 24. In appropriate cases Part 24 provides a valuable mechanism to avoid holding a trial, with all the expenditure of time and costs which that entails. My conclusion is simply that, for a collection of reasons as stated above, this case falls short of satisfying the requirements of CPR 24.2.

If my Lords agree, this appeal will be allowed and the judge’s order made on 3 July 2014 will be set aside.