HT-2022-000180 - [2024] EWHC 1088 (TCC)

Fire safety defects have been pleaded in the draft Amended Particulars of Claim at paras. 105, 112 and 113 in relation to the following defects, namely:

In the skeleton argument of Sweett, there is a detailed critique of the Particulars of Claim as originally drafted at paras. 45 - 49, 50 - 53 and 58 - 61. The gravamen of the criticism is that the claim of LOR against MAAP was in effect repeated against Sweett without analysing that the scope of the duties of MAAP was different from the duties of Sweett. This judgment shall return to this, but for the moment, it suffices to say that the concentration must be on the latest iteration of the pleadings, that which is called version 4 of the draft Amended Particulars of Claim together with the latest iteration of the RFI Response.

Sweett summarised the draft Amended Particulars of Claim at para. 105.2A (at para. 62 of its skeleton argument). It is desirable to set out the relevant part of the draft pleading in full:

“Failure to properly classify the Services Crawlway

105.1

MAAP failed to produce a fire engineering and/or risk assessment for the Services Crawlway that assesses whether it should be designated as a fire hazard room / zone and/or enclosed in 30-minute fire-rated construction.

105.2

MAAP ought to have, but failed to, designate the Services Crawlway as a fire hazard room (or series of fire hazard rooms). It ought to have done so because inter alia the Services Crawlway contained sources of ignition of a fire, such as electrical distribution boards, as well as combustible materials. The consequences of MAAP’s failure to designate the Services Crawlway as a fire hazard room(s) are that MAAP’s detailed design of the fire protection for the Services Crawlway was inadequate, as set out further below.

105.2A This element of the design of the Timber Framed Blocks was not compliant with Schedule 8 of the Project Agreement because:

(a)

HTM 05-02 paragraph 6.29 requires the designer to assess the fire risk associated with all rooms to determine whether it is necessary to enclose the room in fire resisting construction;

(b)

There was nothing in the design documentation to indicate that a fire risk assessment had been carried out for the Services Crawlway pursuant to paragraph 6.29 of HTM 05-02;

(c)

A proper and competent fire risk assessment for the Services Crawlway, if carried out in accordance with paragraphs 6.28 and 6.29 of HTM 05-02 (as it ought to have been), would have concluded that it was a fire hazard room that needed to be enclosed in fire resisting construction (for the reasons given in paragraph 105.2 above);

(d)

Contrary to the aforementioned requirements of HTM 05-02, the designs for the works failed to designate the Services Crawlway as a fire hazard room that needed to be enclosed in fire resisting construction, pursuant to paragraph 6.30 of HTM 05-02.

There should also be read with this the additional paragraph 112.1 and 112.2 and 113.1 of the Amended Particulars of Claim which reads as follows:

112.

“In respect of the Fire Safety Defects set out at paragraphs 105 and 109 above (“the Fire Safety Defects”), Sweett breached the following terms of the Appointment (and consequently was in breach of clause 1.1. of the Collateral Warranty):

112.1

Clause 2.1, in that it failed to perform its Services in Appendix 1 with reasonable care and skill;

112.2

Paragraph 3.1 of Appendix 1, in that, in relation to the matters at paragraph 105 above and contrary to its obligation to exercise reasonable care and skill, it:

(a)

failed to properly carry out an initial review of the design of the Works; and

(b)

failed to properly monitor the development of the design, in both cases so as to verify compliance with the Project Agreement.

113.1

In respect of the deficiencies and/or defects in thedesigns, as set out at paragraph 105 above, Sweett:

(a)

Failed to properly review the designs, with the result that it failed to identify the defects and/or deficiencies aforesaid (which were non-compliant with Schedule 8, for the reasons set out above); and/or

(b)

Failed to notify and/or alert the Trust and/or TVH and/or LOR of the existence of the design defects and/or deficiencies aforesaid.”

Sweett is critical about this pleading because it says that the obligation at HTM 05-02 at para. 6.29 was not on Sweett. There was nothing in the design documentation to indicate that a risk assessment has been carried out and therefore there was nothing against which to verify compliance. Since there was no risk assessment carried out, there was nothing for Sweett to do. Sweett points to a response in evidence to the effect that there was a breach of contract by failing to advise that no fire risk assessment had been produced: see the extracts from Mr Kippax’s witness statement quoted in Sweett’s skeleton argument at paras. 65-66. Sweett submits that this is not pleaded and goes beyond verifying compliance with that which had been produced. Sweett submits that para. 105.2A is a different case from the remainder of the pleading and is inconsistent with it.

The answer of LOR is that it was a breach of contract for Sweett not to report about the absence of a fire risk assessment. Just as defective aspects of the fire risk assessment would have to be reported on to comply with Appendix 8, so too the absence of a fire risk assessment had to be reported, in both instances to the extent that it would involve a failure to exercise reasonable skill and care on the part of Sweett not to report about it. If compliance has to be verified, that is broad enough to include both a defective design (to the extent that it ought to have been observed and without having to assess suitability of fitness for purpose) and also the failure to have a design at all.

The allegation has at lowest a real prospect of success. Whether it will succeed at trial is a matter for trial. The Judge will have the benefit of expert evidence and will consider the alleged breach in the light of the evidence as a whole. It is wrong to have a mini-trial to assess the prospects of success in the circumstances.

LOR relies on its pleading as regards the Services Crawlway matter at para. 105.2A, including sub-paragraph (b) quoted at para. 55 above that there was nothing in the design documentation to indicate that a fire assessment had been carried out which was not compliant with Schedule 8. That is not an incoherent plea as alleged. Nor must it fail on the ground of inconsistency with other allegations. It is a further way of putting this part of the case. This was a defect or deficiency in the designs which is relied upon as a breach of contract against Sweett at para.113 in the respects set out therein.

Insofar as the absence of a risk assessment is capable of amounting to a breach of contract as regards the Services Crawlway matter, so too it is capable of giving rise to a breach of contract as regards the other fire safety defects. That the same issues arise in respect of alleged shortcomings of the pleadings is a part of Sweett’s case as set out in its skeleton argument in paras. 73-74 of its skeleton argument. The failure to have a risk assessment was a common theme, and likewise the criticisms of Sweett and the responses of LOR.

It does not follow from the foregoing that the already lengthy pleadings need to be extended to plead expansively why an obligation to report about a compliant risk assessment involves also an obligation to report that there has been no risk assessment at all. It is also not the case that a pleading has to be perfect or incapable of improvement in order not to be struck out. There is usually scope for improvement. The question is whether it does enough to comply with basic rules including about providing a concise statement of fact and to put matters in way that can be readily understood by the other side and the Court. In my judgment, this has been achieved sufficiently. The pleading does not require to be struck out, and the case requires the matter to be progressed towards trial without further delay in a battle of the pleadings which ought to be drawing towards to a conclusion.

The submissions made on behalf of Sweett are relevant to whether the obligations alleged by LOR can be sustained at trial. It may be that the missing risk assessment is not a matter which can render Sweett or Nisbet as Independent Tester liable for a variety of reasons. These may include that the role was limited to checking what was in, and not what was not in the drawings produced. It may be that there was nothing to show that in the Services Crawlway allegation, that it should be designated as a fire hazard room, or that an Independent Tester ought to have picked up this point. Similar points may be made in respect of the other fire safety allegations at paragraph 105. Points may arise in respect of whether these alleged breaches of contract caused loss, but none of these points are decisive in favour of Sweett at this stage. They are not answers to the instant applications. In these applications, the focus is on whether there is a real prospect of success of the pleaded allegations and whether the pleadings in the current form should be struck out under any of the grounds alleged, or should not be permitted to be maintained in their current form. The fact that Sweett’s defence to these allegations may prevail at trial, or even that it may have good prospects of success, is not relevant for now. These are points for trial, but they do not provide a reason why LOR should not be able to proceed on the basis of the existing pleadings with the amendments sought. It therefore follows that the strike out application must fail and the amendments allowed in respect of the Services Crawlway allegation and each of the other alleged fire safety defects.