HT-2022-000311 & HT-2022-000254 - [2024] EWHC 3179 (TCC)

It was not in itself a breach of clause 5.2 to start removing the tin hat roof on 19 July 2021. But it was a breach to do so if no adequate protection against rainfall and the risk of water ingress was provided. Not only is there always the risk of rain but there was never any certainty that the installation of the modular units could be completed in one lift, hence the back up date for a road closure that had been obtained. Further there is no evidence that simply installing the modular units, in the sense of lifting them into place, was the best protection against rain and water ingress as pleaded by the defendants or anyprotection against rain as evidenced by the continued water ingress on and after 7 August 2021.

In my judgment, and for those reasons, unless adequate protection to the roof was provided, there was such a breach irrespective of any weather warning. Based on the evidence of Mr Rivett, to which I refer below, the claimants set out a sequence which they argued the works ought to have followed. The key point in this was that a sacrificial membrane ought to have been installed before the tin hat roof was removed and the roof exposed.

Once the first yellow weather warning had been given – which on the defendants’ case was before the removal of the tin hat roof had been completed – it was all the more imperative that some means of protecting the Property even from “normal” rainfall was provided. In fact, the weather warnings given all week and well before the amber warning presented a picture of a wet week and not one in which a dry weekend could reasonably be expected.

It is clear, in my judgment, that no adequate protection against even normal rainfall was provided. The Visqueen membrane, although not intended for this purpose, might have provided some protection but, given that it was loosely fitted and required to be pulled back and then somehow refitted, it was unlikely to have provided adequate protection.

At its highest, Click St Andrews’ intention appeared to have been to crane all the modular units into place in one day and, in that way, mitigate the risk of water ingress when the membrane was peeled back. That was what, in the joint statement, Ms Williams had considered appropriate. On the facts, however, the yellow weather warnings that were given identified the risk of rain over the weekend when the membrane would need to peeled back. The risk was, therefore, not mitigated. I have no hesitation in accepting the agreed view of the experts that Click St Andrews ought to have delayed the crane lift.

The amber warning was, as the defendants have emphasised, only given on the day of the crane lift. There was no evidence as to the sequence of events on that day and as to whether there was rain and water ingress before the membrane was peeled back or when it had been peeled back, but it seems to me that the most likely inference from the extent of water ingress that occurred is that the roof was at some point unprotected. Once that warning had been given, the operation ought to have been postponed and, at the very least, the membrane left in place or put back in place. The operation ought not to have proceeded in heavy rain, with no means of protecting the roof and on the basis that the modular units would provide the best protection.

There was little evidence before me as to what happened on 7 August other than that the crane lift proceeded in similar conditions of heavy rain. As set out in the claimants’ case as to the sequence of works, what ought to have been done is the installation of a sacrificial membrane/ waterproofing layer below the steel frame so that the installation of the modular units had no impact on the protection provided by that membrane.

For completeness I would add that the fact that there may have been exceptional rainfall on 25 July 2021 is something of a red herring in the sense that it may have caused the water ingress to be more significant than it would have been if, say, the same volume of rain had fallen over a longer period and with less ferocity. But there is no evidence that whatever was placed over the roof would have been adequate protection against such normal rainfall and it would still have suffered from flaws in installation and the need to be peeled back.

Although I have addressed this breach as one of a failure to carry out the Works in a good and workmanlike manner, I note that there is also an obligation in clause 5.2 to use reasonable endeavours to repair any loss and damage and, once the water ingress had occurred, there was a discrete breach of that obligation. The acts and omissions of Click St Andrews in carrying out the Works which give rise to liability under the FPA and the subsequent failure to remedy the damage caused also amounted to breaches of the covenant of quiet enjoyment.