Fosse Me Ltd & Ors v Conde Nast and National Magazine Distributors Ltd & Anor

This is an application by the first defendant, Condé Nast and National Magazine Distributors Ltd (“COMAG”) to have this case transferred into the TCC List. That application is opposed.

Briefly, the undisputed facts of the case are that the first claimant owned premises at a site in Coventry. They comprised a two-storey office block and a warehouse. All or parts of the warehouse was let out to the other claimants for purposes of storage of goods and other products. The second defendant, who does not appear and is not represented, was an agency which provided workers to COMAG who were working at the warehouse in December 2002. There is likely to be an issue between the parties as to whether COMAG was vicariously responsible for these agency workers.

On 16 December 2002, the warehouse was substantially destroyed by a fire. The issue in the case is whether or not any of the agency workers were responsible causatively for causing the fire. It is essentially pleaded by the claimants that one or other of those agency workers was smoking a cigarette and put the lit cigarette on or near combustible materials in the warehouse which, within an hour or so, caused the fire to happen which then destroyed the warehouse. The defence is not one of just simple denial as to the cause of the fire but there is a series of positive pleas in Paragraph 6, in particular (f) and (g), as to the likely or not improbable cause and location of the fire source.

Proceedings were issued in December last year and the pleadings were substantially closed in the summer of this year. The proceedings were issued in the Queen’s Bench Division in the ordinary Queen’s Bench Division List and the matter came before Master Fontaine about five weeks ago on 21 September and he gave directions to take this matter up to trial. But it is clear that by the time of that hearing the first defendants were making it clear that they were likely to make an application to transfer this claim to the TCC.

It is accepted under CPR Part 30.5 that I have jurisdiction to consider this application as to whether to allow the case to be transferred to the TCC List. The criteria for any such application are substantially set out in CPR Part 60.1(3) which states:

“A claim may be brought as a [Technology and Construction Court] claim if –

(a)

it involves issues or questions which are technically complex; or

(b)

a trial by a [Technology and Construction Court] judge is desirable.”

The Practice Direction to Part 60 gives examples of the types of claim which it may be appropriate to bring in the TCC and that includes “claims arising out of fires”.

Paragraph 2.2 of that Practice Direction states this:

On one level, as Mr Purchas for the claimants says, this is, or at the very least, could be – he would say will be – a simple case; if the trial judge finds that one or more of the agency workers did not smoke the cigarette which may have caused the fire, that will be the end of the case. If the trial judge finds that one or more of the agency workers’ evidence is not credible, then that may well also lead to a simple outcome to the case. However, it is absolutely clear that both sides intend to deploy expert evidence to show that their position on the factual evidence is more likely rather than less likely. There will probably be arguments about the timing of the fire, the type of damage to the warehouse and the location of the source of the fire that will involve the consideration of the combustibility of the materials which the cigarette is said to have caught light to. There will be, or may well be, evidence about smouldering time and so on. I do not understand it to be abandoned by the first defendant that there may have been an explanation for the fire in electrical equipment. Be that as it may, it seems to me highly likely that there will be expert evidence which will be prayed in aid to support each party’s factual position.

What I need to have regard to are the alternative requirements in CPR Part 60.1(3). Although this is a claim which is a claim arising out of a fire, the fact that it is a claim arising out of a fire does not necessarily bring it within the criteria set out in Part 60.1(3). However, this court has, over the last 10 to 20 years, built up a bank of expertise in dealing with fire and fire damage cases. They are almost invariably cases involving negligence either of individuals or of architects or contractors in and about the design and construction of premises.

Master Fontaine has ordered a timetable up until trial which involves the exchange of witness statements by the second week in January 2008. He has also given the parties leave to rely on expert evidence in four different disciplines: a forensic scientist/engineer; a fire scientist/engineer; an accountant; and a building valuer. It may be that one or more of these disciplines may be discharged by not as many as four experts. Experts are to meet by about the third week in February 2008 and expert reports are to be exchanged by mid-March 2008. He ordered that the case be entered into the Trial List as Category B with a time estimate of 10 days, to be listed within a trial window from 1June to 31July 2008.

Thus, it is likely that by mid-March it will be clear how technically complex the issues will be, both in terms of liability and causation (with causation perhaps being the most difficult area of the case) and also on quantum matters. It is not going to be clear until then but, certainly in the experience of this court, there is a very real risk – having examined the pleadings and, in particular, also the witness evidence put before me on this application – that there will be questions which are technically complex. In a sense one hopes that they will not be, but there is a real risk that they will be. There is a real risk that there will be complex issues arising out of quantum. The quantum claim is over £4 million.

I consider that this is a case in which a trial by a Technology and Construction Court judge is desirable. It takes into account the real risk that there will be technically complex issues or questions relating to liability, causation and quantum, and it is desirable to determine now where this case is to be tried because the first time at which the extent of that complexity will become clear is mid-March of next year. It would be wholly undesirable if the trial programme laid down by Master Fontaine was disrupted by an application made in March or April of next year, two or three months before the trial, to transfer this case to the TCC.

Therefore, because this court has experience in fire cases, because there is a real risk of technical complexity, and because a timetable can be adopted which brings about a trial of this matter in July of next year, I consider that not only has the threshold in CPR Part 60.1(3) been met but also as a matter of discretion it is appropriate, in my view, for this matter to be transferred to the Technology and Construction Court List. There is no hint or suggestion that the cost will be increased by having it tried here. There is a very strong probability that it will be tried by a High Court Judge; indeed, I would propose to retain it in my diary to try.

There has been mention of the fact that this application could have been brought earlier. I agree it could have been brought earlier but I do not see that there is any prejudice resulting from any delay in bringing the application because Master Fontaine has fixed a timetable which leads to a trial in June or July 2008 and that is a timetable which this court can accommodate.