PT-2025-000379 - [2025] EWHC 2628 (Ch)

The starting point is the relief sought by the Claimants. The application notice sought a range of relief in relation to the roof starting with a mandatory order to “repair the Hangar roof so as to render it watertight and safe” but also including an order for inspection of the roof and/or a declaration that the Claimants have an implied licence to carry out the repairs and/or the appointment of an interim receiver.

The focus at the hearing was on the first of these – the mandatory order – with an order for inspection as a lesser option. The Defendants indicated in their oral submissions that they would agree to a joint inspection of the roof in short order.

As regards the mandatory order, the updated draft order prepared by the Claimants put that relief in the following way:

“5.

By 4pm on [the date 21 days from the date of this Order] the Respondents shall carry out or procure the carrying out of temporary repairs to the Hangar roof (“the Temporary Repairs”) so as to render the Hangar roof watertight, as follows:

5.1

On each area where there is a failure in the existing Hangar roof, the Respondent shall fit new pieces of Sika membrane, which shall be mechanically fixed and hot air welded to the existing membrane which forms the outer surface of the Hangar roof, in accordance with paragraphs 51 and 52 of the Greenwood Report.

5.2

At each point where there are holes in the existing Hangar roof, the Respondents shall make isolated repairs of each hole by undertaking patch repairs, each repair to consist of fixings and a welded patch which shall be mechanically fixed and hot air welded to the existing membrane which forms the outer surface of the Hangar roof, in accordance with paragraphs 53 to 56 of the Greenwood Report.

Mr Greenwood’s report

The terms of the draft order reflect the reliance by the Claimants on Mr Greenwood’s report (from February 2025) which set out (at ¶51-56) the steps which he said should be taken to provide a short-term or emergency solution to the issues with the roof. Mr Greenwood estimated the cost of these repairs as £9,500 plus VAT for the emergency repairs to the membrane (¶5.1 in the draft order) and £8,750 plus VAT for repairs to up to 500 small holes in the roof (¶5.2 of the draft order), a total of £18,250 plus VAT.

The Defendants said that the application in relation to the roof does not get off the ground because it is predicated on the admissibility of Mr Greenwood’s report and, without that report, there was no basis on which the Court could make the order sought. The Defendants then identified four reasons which, they said, taken together would mean that the report should not be admitted:

I was also referred by the Defendants to Rowley v Dunlop [2014] EWHC 1995 (Ch) in which Mr Justice David Richards said the following at [20]-[21] in relation to the admissibility of expert evidence where there is a connection between the expert and the litigation or the parties:

“20.

The qualities of independence and lack of bias may be compromised by the expert's connections with the litigation or the parties or those who may benefit from the litigation. It is always a matter for the court to decide whether any such connections disqualify the expert from giving evidence or whether, as may often be the case, they go not to the admissibility of the evidence, but to the weight to be attached to it.

21.

Such connections may take a number of forms, of which three are the most obvious. First, the expert may have a financial interest in the outcome of the litigation. Only rarely will the court admit the evidence of such an expert: see R (Factortame Ltd and others) v Secretary of State for Transport, Local Government and the Regions [2002] EWCA Civ 932, [2003] QB 381 (Factortame ) at [72]-[73]. Secondly, the expert may have a conflicting duty. Whether this will disqualify the expert from giving evidence will depend on the circumstances of the case: see Toth v Jarman [2006] EWCA Civ 1028, [2006] 4 All ER 1276 (Note) at [99]-[110]. Thirdly, an expert may have a personal or other connection with a party, which might consciously or subconsciously influence, or bias, his evidence. Such connections will not normally of themselves disqualify the witness, but will go to the weight to be attached to the evidence: see Field v Leeds City Council [2000] 32 HLR 618; Factortame, particularly at [69]-[70] where the Court of Appeal disapproved the test put forward by Evans-Lombe J in Liverpool Roman Catholic Archdiocesan Trustees v Goldberg (Practice Note) [2001] 1 WLR 2337; and Hodgkinson v James: Expert Evidence (3rd ed.) at 6.006–6.011.”

I declined to rule on the admissibility of Mr Greenwood’s report at the outset of the hearing, preferring instead to hear each side’s substantive submissions on the roof and to deal with the report in this judgment.

Having considered the submissions made by the Defendants, it seems to me that the report of Mr Greenwood should be admitted. It is true that Mr Greenwood occupies an unusual position in that he gives material factual evidence about the state of the roof and the historic repairs to it as well as providing opinion evidence about what should, he says, be done to the roof. It is also concerning that he appears to have contacted the new contractor who was appointed to deal with the roof and that his evidence about why he did this is, at least, dubious because he says that he did not know about the appointment when the contact was made. However, I was not persuaded that the prior winding-up petition issued by Seeco in relation to its fees was sufficient to demonstrate that Mr Greenwood had an animus against the Defendants. Likewise I do not consider that Mr Greenwood has a real financial interest in the outcome of the application because the identity of the contractor in the proposed draft order would be in the hands of the Defendants. While he was suggesting that his firm could do it, that is not sufficient.

In these circumstances, Mr Greenwood fell into the third of the categories identified in Rowley and I am prepared to admit the report of Mr Greenwood for the purposes of the interim application. I will deal with the matters relied on by the Defendants as affecting the weight to be attached to the report.

The first issue which I have to consider is whether or not there is a serious issue to be tried that the Defendants (or at least one of them) is under an obligation to repair the roof.

I am satisfied that there is a serious issue to be tried on this question. I have already set out the relevant terms of the Defence at paragraph 7 above which accepts that, even on the Defendants’ own case, the implied term to Jet Support’s licence extends in principle to the repair of the roof. Likewise, the Defendants’ skeleton argument for the hearing did not say, in terms, that there was not a serious issue to be tried. It simply said that “It is far from certain that Rs have any duty…to maintain the Roof”.

The Defendants’ principal point was that the range of different ways in which the Claimants put their case gives rise to material uncertainty about the standard of any duty in respect of repairing the roof. It is right that, because the Claimants have identified seven different potential ways they can get to a repairing obligation, these are likely to be of varying legal merit. It is also correct that there are significant disputes as to which is the correct claimant and defendant, such that the principal dispute appears likely to arise between Jet Support and DH, with Charter and LJC (who the Defendants say have no interest in the Hangar) playing a more limited part. However, neither side invited me to look at the Claimants or Defendants individually, or to seek to identify separately the merits of each of the Claimants’ alternative cases. Rather the question of whether there is a serious issue to be tried was looked at in the round and, on this basis, there is a serious issue to be tried as to the existence of a repairing obligation.

Further, while the Claimants’ case was that any such duty would require the Defendants to keep (or make) the roof watertight and safe, the Defendants disputed this point, emphasising that the Claimants were seeking to obtain repairs to the roof on an interim basis to a standard (“watertight” or “watertight and safe”) which they might well not establish at trial. This seems to me to be relevant to the adequacy of damages and the balance of convenience rather than the existence of a serious issue to be tried and I consider it further below.

The second issue concerns the adequacy of damages for the Claimants in the event that no injunction is granted and for the Defendants were an order to be made. It seems to me that, in principle, this issue supports the Claimants. If a mandatory order were to be made, the Claimants’ case is that the temporary repairs which it seeks could be carried out relatively cheaply and quickly. If the Claimants were then to lose at trial, the Defendants would be protected against the costs they would have incurred by the cross-undertaking offered by the Claimants, the adequacy of which was not disputed. In the meantime, the proposed repairs to the roof would benefit not just the Claimants but also the Defendants who are occupying the other half of the Hangar.

By contrast, the Claimants point to the fact that the prejudice caused to them by continued leaks is not just monetary but also includes a risk to their personnel caused by the roof failures and the presence of significant amounts of water in their working environment. It will also be difficult to quantify the loss caused by that water through, for example, the loss of productivity. There is also a risk posed to Jet Support’s EASA accreditation given that the ingress of water could put them in breach of the requirements of Part 145. I do not consider that this latter risk is as serious as suggested by the Claimants given that there have been complaints about the roof going back over a number of years and I was not shown any EASA reports indicating any concern about conditions in the Hangar other than the report from June 2025. However, there is the risk that Jet Support would be put in breach of the requirements for its accreditation because of the issues with the roof and that is not something that can easily be compensated for in money terms.

That leads me to the third issue, the balance of convenience. As a matter of principle, it seems to me that the factors identified in relation to the adequacy of damages are also relevant here with the potential for injustice to the Claimants being, in principle, greater than that to the Defendants. However, in the circumstances referred to below, I am not satisfied that an interim mandatory injunction should be granted now and in the terms sought by the Claimants.

The principal reason for this is that, although there have been significant issues with the roof both historically and in the last year, I am not satisfied that I have a sufficiently clear and up-to-date understanding of the state of the roof to be satisfied that the balance falls in favour of the Claimants.

The order sought would require repairs to be carried out within the next 21 days and in a very specific manner (using the Sika system), failing which the Defendants would be in breach of an order and liable to contempt proceedings. In order for such an order to be made, it seems to me that it is important, if not essential, to understand the current state of repair of the roof and to be satisfied that the proposed repairs would be likely to be effective. The cost of the repairs, their likely duration, and the ease with which they could be completed would also be relevant to the balance of convenience. However, the “ping-pong” nature of the evidence which I have described above - with the Claimants identifying and videoing leaks or further leaks and the Defendants responding with evidence of repairs and their own videos, and saying that the roof is now sound – means that there is considerable uncertainty in relation to these matters. In short, the way in which the evidence has developed means that, as with the position of the boilers in the Camden case, it is not clear what needs to be done to the roof, how much it would cost, how long it would take, and how effective any repairs would be.

Although the Claimants say that the report of Mr Greenwood provides me with an explanation of what needs to be done and how much it would cost, I do not consider that I can safely rely on these opinions for two reasons. First, the prior involvement of Mr Greenwood with the Defendants, the potential relevance of the nature and quality of the work which his firm has done on the roof historically, his approach to the new contractor, and the argumentative nature of his witness statement (which followed the report) mean that, in my view, he is significantly compromised as an expert witness. Second, and more fundamentally, his proposals and the estimate of their cost was prepared more than seven months ago and was prepared without an inspection from roof level. Since that time, it appears that repairs at significant cost and using a different method than that advocated for by Mr Greenwood have been carried out albeit I accept that there is limited detail provided as to what those repairs were. In these circumstances, I consider that I can attach very little weight to Mr Greenwood’s report.

Moreover, I am far from satisfied, that the sort of temporary repair suggested by Mr Greenwood would perform a worthwhile function now given that the history of the roof appears to show that, despite significant expenditure on temporary repairs, further problems emerge whenever there is a period of stormy weather. Thus, on the face of the evidence, both Seeco and Elevation have carried out significant (and expensive) works on the roof but that these have not prevented further damage and leaks from occurring.

In these circumstances, the appropriate order at this stage in relation to the roof is for there to be an inspection by an independent expert or experts. While I am prepared to consider any further submissions which the parties wish to make on the mechanics of this inspection and the terms of the instruction to any expert(s), it seems to me that this is case where there should be a single expert instructed on a joint basis by the Claimants and the Defendants. Furthermore, I do not consider that it is appropriate for the inspection to be by Mr Greenwood or Mr Simmonds. This is a case which calls for an expert who is detached from both parties. I appreciate that this will cause additional expense but the parties have already spent very large amounts fighting this application and the further expenditure should be modest and ought to bring much needed clarity and independence to this increasingly fractious dispute.

I would also hope that, once such a report has been prepared, the parties would be able to agree a way forward for the roof but, if not, the Court will consider at that stage whether or not a mandatory order is appropriate.