HT-2025-000282 - [2025] EWHC 850 (TCC)

Fecha: 09-Abr-2025

“From: "Rensteph Thompson" <[email protected]>

“From: "Rensteph Thompson" <[email protected]>

Date: 22 December 2016 at 18:22:15 GMT

To: "Alastair Ogle" <[email protected]>, "Oliver Jung" <oliver. [email protected]>

Cc: "Andrew Waugh" <[email protected]>, "Tom Westwood" <[email protected]>,

-·'Mark Adams" <[email protected]>, "Simon Garwood" <[email protected]>

Subject: AW: Installing Roofing Membrane on Wet CLT

Alastair,

I think we have to be careful with CLT roof panels that became wet on the outside and then being covered by a vapour control layer. This is especially critical if:

• the vapour control layer is 100% airtight which I believe is the case.

• the CLT has a lot of moisture that needs to dry out

The CLT roof panels don't have any primer coating on the inside. And this would not have had any impact.

I suggest we ask Plotform to measure the moisture content of the CLT roof panels. This would help us to make a decision.

However, if there is too much moisture within the CLT panel there is a risk of getting fungi/mold damages if the VCL is not allowing the moisture to lead off.

I am in the office tomorrow and we can speak on the phone.”

74.

The next day on the 23^rd December 2016 Mr Ogle asked Hess amongst other matters to instruct Plotform to measure the moisture content on their return to site after the Christmas break, see his email below.

“Rensteph,
Further to your email, I would be grateful if you would contact Plotform directly and instruct them on how the roof should be protected over the next 10 days while the site is unmanned.
Our understanding of the current situation is as follows.
- 50-60% of the roof CLT is covered with Sika 5000E VCL. Drainage holes are in the process of being made through the up-stands in this area.
- The remaining area of the roof is unprotected with the breather membrane left wrapped around the columns and beams below. The unprotected roof CLT panels have no tape to the joints. Photos attached.
Please can you provide your comments and whether you consider that any further methods should be employed. It is our concern that this area of roof will be exposed and unprotected over the next ten days and could become saturated, further the structure below could become damaged from any water ingress. Plotform need to provide sufficient protection to the structure in their absence from site.
With regards to the fixing of the VCL. The VCL used "Sika 5000E" is airtight. Please could you instruct Plotform to measure the moisture content on their return to site after the christmas break and liase with Stora Enso as to whether any further drying out is required before applying the remaining VCL. Regarding the CLT panels which are already covered by the VCL and single ply membrane please advise as to whether further moisture tests are required in these areas.
Many thanks for you assistance,
Alastair.”

75.

At this stage Simon Garwood the Claimant’s project manager was taking charge and sent an email to all concerned followed up with a telephone conversation with Mr Ogle. His email stated:

On 23 Dec 2016, at 09.5.2., Simon Garwood <[email protected]> wrote:

All

Having just reviewed with Clive the water protection of the building over Christmas, there are two clear strategies:

Sanavap membrane laid to 50% to 60% of the roof, along with drain holes to be added today (apologies I had mistaken that these drain pipes were already in) to allow the water to drain away rather than collect in large quantities.

No protection to the top surface of the roof, water allowed to flow through gaps naturally, with the membrane laid over the beams to shed the water either side.

I have attached some photos from the review to illustrate the strategy. From the discussion with Clive, he is confident this is the best and only strategy possible. Incidentally there are reasonably high winds forecast for over this weekend, and Clive is focussing on making sure that materials on site are not in a position to go flying into Morrisons Car Park.

Simon”

76.

His telephone conversation with Mr Ogle was even more re-assuring. See below:

“ From: Alastair Ogle
Subject: Re: Water protection of Vitsoe RLS over Christmas
To: Andrew Waugh; Tom Westwood
Sent: December 23, 2016 11.30AM (UTC+00:00)
I have just received a phone call from Simon at Vitsoe to tell us that his is happy with the protection methods employed by plotform and JCA onsite over the christmas break and that we can stop panicking. Other points raised.
- The forecast is looking mild over the christmas period.
- The end grain in the parapets will be covered however the windows will not be covered or protected, stating he is happy to allow the air to blow through the building to naturally dry out any timber rather than cover them
- The moisture content has been continuously monitored by plotform onsite as is currently at 12%
Alastair Ogle Associate”

77.

Mr Ogle immediately followed this up with an email to JSA stating:

From: Alastair Ogle

Subject: Re: CLT moisture content.

“To: Clive Williams

Simon Garwood; Tom Westwood; Andrew Waugh; Adrian Kenny

Sent: December 23, 2016 11:47 AM (UTC+00:00)

Clive,

I have just spoken with Simon who informs us you have an agreed strategy in place for protecting the structure during the christmas break He also stated that Plotform are monitoring the moisture content of the CLT and I was wondering if you could give us more information on how this is being done and how the information is being used. ls it being used to inform Stoneleigh on when they can start applying the VCL for example or effecting how or when they hand the structure over to JCA?

Regards.

Alastair Ogle Associate” ·

78.

Also on the 23^rd December Mr Ogle had an exchange of emails with Hess as set out below:

“Alastair,
As already discussed on the phone please understand that we had clarified (back in October) and agreed with JCA that the roofing company needs to install the VCL membrane 1-2 days after we have installed the CLT rood panels partially.
We have tried to support JCA by trying to explain the importance of the roof cover. We just tried to get a hold of Clive/ Andy to clarify when the roofing company will cover the roof. So far it is our understanding that JCA was trying to get the roofing company on site up from 27th December. Unfortunately the roofing company left the site today at 11:00 AM. Clive has also taken pictures to proof that the roofing company was not doing the works properly.
Regarding the moisture content I think that the torch process for the roof membrane is helping to dry the timber surface. However, it is my opinion that the roofing company should quickly come and apply the roof membrane.
As you see we are trying to help as much as we can but HESS and Plotform are not responsible in this matter.
I will also call Mark Adams to explain where we are.”
Cc: Alastair Ogle <[email protected]>, Oliver Jung <[email protected]>, Andrew Waugh <[email protected]>, Mark Adams <[email protected]>, Simon Garwood <[email protected]>
From: Tom Westwood <[email protected]>
Subject: Re: AW: Installing Roofing Membrane on Wet CLT
Sent: Fri 23/12/2016 1:26:18 PM (UTC)
To: Rensteph Thompson <[email protected]>
Dear Rensteph,
Many thanks for your input and advice. Let's catch up in the new year and discuss further the best way to complete the works.
Wishing you a great break,
Tom
Sent from my iPhone”

79.

Against that factual background it is necessary to carefully consider the allegation of breach of duty made by the Claimant against the Defendant.

80.

The Defendant has helpfully broken down the particulars of this breach of duty as follows: -

-1 the Defendant should have "Advised Stoneleigh and/or JCA and/or the Claimant not to install the VCL in the existing wet conditions". This will be referred to as the "Installation Allegation".

-2 the Defendant should have "Instructed and/or advised the Claimant and/or JCA that moisture levels of the CLT should be tested ...". This will be referred to as the "Moisture Testing Allegation".

-3 the Defendant should have "Instructed and/or advised the Claimant and/or JCA that a raised tarpaulin cover or temporary canopy be constructed over the building (or the incomplete sections) ...". This will be referred to as the "Temporary Cover Allegation".

-4 Insofar as the Defendant did raise any of the above "it should have followed up with JCA to ensure that they were being carried out and, if not, advised the Claimant ...". This will be referred to as the "Follow-Up Allegation."

Taking each in turn

-1 The Installation Allegation

This is a very difficult allegation for the Claimant to establish. It appears clear and undisputed that: -

Stoneleigh

Hess

JCA

the Claimant

all knew that VCL should not be installed in wet conditions. What is another difficulty is that Mr Adams knew from Hess by at least the 12^th December 2016 when he had a conversation with Hess’ Mr Thomson that was followed up by an email from Hess to Mr Adams.

“From: Rensteph Thompson <[email protected]>
Sent: 12 December 2016 10:42
To:Mark Adams
Cc: Simon Garwood
Subject:AW: Oliver Jung
Dear Mark,
Please trust me that it is really not our intend to generate any harm on your side. Also please believe me that Oliver did nothing on an intentional basis. Furthermore, if you believe it or not: We are worried that your project is exposed to further risks (e.g. weathering/moisture damage due to missing roof membrane) and therefore we tried to find a solution with JCA.
I know that this is hard for you to understand as everyone has his own selective perception. The only chance to solve this conflict is to speak with each other. I am not sure if you would like to speak with me since your last sentence (There is nothing further to discuss on this matter) tells me that this is not the case. I hope that I have misunderstood the aforesaid and that we both can speak so that I can work out something that would help all of us.
I am happy to call you. Just let me know.
Mit freundlichen Gru en I Best Regards
(Dipl.-lng.) Rensteph Thompson
Projektleiter International/ Project Manager International”

So from the 12^th December 2016 the Claimant knew that Hess had completed work which was not covered or protected from the rain. The Claimant did not tell the Defendant about any of this. This was inexplicable as Mr Adams accepted when he was cross examined.

[T2-202] Re: E5-1512 SM KC/MA

"Q. And Hess then tell you "we are concerned about the protection of timber from the rain". That is Mr. Rensteph?

A. Correct.

Q. The roof company is having difficulty to protect the roof, yes?

A. Correct.

[T2-203] SM KC/MA

Q. And you were aware of that?

A. Andy Miles of JCA had made me aware of that, yes.

Q. Because there is no suggestion when you have that conversation that that came as a surprise to you; you already knew there was a problem with the roofers?

A. Correct."

The Installation Allegation fails because the Claimant cannot complain that the Defendant did not inform it of something of which the Claimant was well aware,

The Installation Allegations must fail because

- everyone knew the VCL should not be installed in wet conditions.

- when it was being installed in wet conditions the Defendant was the last person to be informed when everyone else knew what was happening including the Claimant and Hess, the timber specialist, neither of whom thought it necessary to tell the Defendant at the time of the roofer’s difficulties in protecting the timber from the rain.

-2 The Moisture Testing Allegations

The 23^rd December 2016 email is one in which Mr Ogle records Mr Garwood telling Mr Ogle to “stop panicking”. That email also stated that the Defendant was told that :

“- the moisture content has been continuously monitored by Plotform on site and is currently at 12%”

This email was discussed by Ms Hoey in answer to the Court’s questions as follows:-

[T5/862/4] to [T5/863/23]:

“THE JUDGE: Go back to page 1668. As I understand it, this was a record of a conversation from Simon Garwood, who was the representative of the claimant, telling Alastair Ogle that the moisture content has been continuously monitored by Plotform on site that is currently at 12%. Do you think there is any reason why WTA should have challenged that information?

I think if that was delivered to them, I do not know that it needed challenging. It might have been helpful to understand what "continuously monitored" meant and where those measurements had been taken to understand whether it was representative, you know, whether they were taken from panels just laid one day or whether they had been laid for two weeks previously, whether it was in the middle of a panel or near a joint which was vulnerable. I think more information would have been useful to understand what that sentence really meant.

Q. So what would you have done if you had received this information from the client and wished the content to be continuously monitored?

A. I might have asked to understand what that meant. "Do you have any further information or can Plotform provide some information?" It was a rapidly developing scenario – every time there was rainfall, certain panels were getting wetter depending on where you were in the installation process. The later panels may not have got as wet as the earlier panels. Some of the earlier panels had been covered with a VCL. So that statement, as it is, gives me some comfort but it would not provide me with information as to whether they were monitoring something that had just been laid and therefore not subject to much wetting.

Q. Would you criticise the architect for being incompetent if he took this at face value without asking any questions?

A. I think it just needed some following up, whether it was immediately there and then.

Q. It is whether -- by not following it up, are you criticising them for being negligent and incompetent?

A. I think their obligation to determine whether the works are in accordance with their own -- with the works contracts in their own design, given the difficulties that there were on site, it is not possible for them to assess that adequately without more information as to the moisture content.

Q. So you say they are incompetent?

A. I say that not acting with reasonable skill and care.

THE JUDGE: Thank you.”

81.

When the Court asked Ms Hoey about the email stating the moisture content was currently 12% and whether she thought "there is any reason why WTA should have challenged that information" and whether the Defendant was incompetent if it failed to do so, Ms Hoey said "I do not know that it needed challenging". [TS-862/8- 11] but then said that "more information would have been useful" and that in her view the Defendant was "not acting with reasonable skill and care.” [T4/863/22].

82.

Ms Hoey’s position was undermined when the following two documents were put to her.

-1 Mr Ogle’s email dated the 23^rd December 2017 [E5-1676] in which the Defendant sought further information from JCA regarding the moisture readings.

-2 Mr Ogle’s email of 23^rd December 2016 asking Hess to instruct Plotform to measure moisture content on their return to site after Christmas. The email went on to state:

“… and liase with Stora Enso as to whether any further drying out is required before applying the remaining VCL. Regarding the CLT panels which are already covered by the VCL and single ply membrane please advise as to whether further moisture tests are required in those areas”

and she was forced to effectively withdraw all her criticism of the Defendant in respect of moisture testing allegations. Ms Hoey agreed that these were all perfectly appropriate questions to be raising [T6/875/15-16]

83.

I consider that Mr Hoey was correct in withdrawing her criticisms of the Defendant with regard to moisture testing. Moisture testing was being carried out “continuously”. The reported readings were within safe limits 12° ±° 3°. The Defendant raised the appropriate questions regarding moisture testing and recommended further tests should be taken after the Christmas shutdown. There was clear evidence to suggest to a reasonably competent architect that appropriate moisture readings were taking place.

-3 Temporary Roof Allegation

I accept Mr Waugh’s evidence that there was a discussion regarding a temporary canopy to allow drying out. This discussion took place on the 12 January 2017. I accept Mr Waugh’s evidence that Mr Adam’s said “Well that’s not going to happen or something similar.” I accept Mr Waugh’s recollection of what was said in preference to Mr Adam’s recollection of this conversation because Mr Adam’s testimony on this occasion as on other occasions varied from his written evidence and that I consider makes his evidence less reliable than Mr Waugh’s .

In the circumstances I fail to understand how the Defendant can be criticised or be accused of negligence by not raising the very point in fact raised by Mr Waugh.

-4 Follow Up Allegations

Neither expert criticised the Defendant in not following up with JCA to ensure that the moisture readings were being carried out.

Ms Hoey accepted that there was no evidence that the Defendant's 22 December 2016 instruction had not been followed [T5-681/17-18]. She "did not know what did or did not happen." [T5/682/2-3].

Mr Potter was asked whether the Defendant should have intervened. His response was that: "My understanding is that that is what they were doing in, stepping in, and asking the people who were running the project, to wit JCA, for example, what was going on, and Hess, who were organising, told them that they were going to ask Plotform to organise moisture testing. Up to that point, I do not see that they had an obligation, nor would I expect them, to intervene in the situation." [T7/1115/16-22]

I consider that it was reasonable for the Defendant to assume and to rely upon Hess who the evidence shows were on site intermittently in January and February 2017, to ensure those moisture readings were being taken after the Christmas break and thereafter. Furthermore it was JCA who should have been checking that the moisture readings were being taken not the Defendant. JCA were in control of the site not the Defendant.

The Defendant did not fail to take appropriate steps in response to the CLT being exposed to sustained rainfall around Christmas 2016. The Defendant’s advice before and after the Christmas 2016 break was sensible, prudent and appropriate. In respect of these matters the Defendant did not act in breach of duty.

Even if the Defendant had produced an MCCP or a risk assessment or if the Defendant had reported upon and appraised Hess’ tender the Defendant and indeed any reasonable competent architect would not have recommended a temporary roof. In any event even if the Defendant had recommended a temporary roof the Claimant would not have agreed that a temporary roof was required.

Wrongly considering that wet timber would dry out.

84.

At [31.3] of the RAPOC the Claimant pleaded that "It is understood that the Defendant may have decided not to issue any instructions or advice on the basis of an erroneous belief that the CLT would dry out from its internal face which was not covered by a VCL ..." [A-21].

85.

This allegation at [31.3] of the RAPOC is not referred to in the Claimant's Opening Note. It appears to have been dropped by the Claimant.

86.

That is unsurprising given Ms Hoey could not support the allegation. Her oral evidence indicated she could not support this as an allegation of negligence, saying "I think at the time it was not very clear how long it would take to dry out. I think there was a consideration that it would dry out, but there did appear to be some uncertainty as to how long that would take." [T6-914/13-16]. Ms Hoey was asked whether she thought it was an "erroneous" belief to hold, she said"I think it is a little bit more complex because it does depend on the moisture level. So it will dry out but it depends what the moisture levels are as to whether - how long they will take to dry out and therefore whether there is a risk of decay." [T6-914/24] to [T6-915/4].

87.

The evidence is clear, Stora Enso, Exova BM Trada and Probyn Miers were all in 2017/18 contemplating the possibility of the CLT, with VCL laid on its upper surface still drying out from its interior face.

88.

Accordingly it is no wonder that the Claimant did not pursue this complaint against the Defendant with any vigour.