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

Fecha: 09-Abr-2025

THE WITNESSES

THE WITNESSES

Mark Adams

16.

He was the managing director of Vitsoe. He gave clear and concise evidence. However on important points his oral evidence diverged from his written evidence.

- In his oral evidence he stated that he did not recall the Frankfurt Airport discussion regarding a temporary canopy. He accepted that his Witness Statement stated that:

“It is simply not true there was any discussion about a temporary canopy.”

- As regards the discussion with Mr Waugh about a 'temporary canopy to allow drying out' at the 12 January 2017 site meeting: Mr Adams stated he did not recall it, but in his witness statement he had gone further and said: "Andrew did not propose that a temporary roof was erected while the CLT dried out." Mr Adams appeared to accept that this would have been an "inconvenient discussion" to have had given the nature of the Claimant’s claim.

- His written evidence suggested that the two loans the Claimant took out were to pay for the repair works, but this evidence was at the very least incomplete. Regarding the purpose of the CBILS loan his oral evidence said it was for "general working capital requirements" and regarding the purpose of the £1.2m loan the relevant documents showed that it was partly to pay for ERP software which was not mentioned in his written evidence.

Generally where his oral evidence diverges from his written evidence, I prefer to accept his oral evidence.

Martin Francis

17.

His is the founder and director of Francis Design Limited and was a clear and honest witness although as the Claimant accepted in their Written Closing:-

“… it is not clear that his evidence is particularly important to the dispute.”

Daniel Calderbank

18.

Daniel was an employee of the Claimant. He was tasked with the move from London to Leamington Spa and gave clear evidence which primarily focussed on the nature of the decisions that were taken during the remedial work.

Alastair Ogle

19.

Is an architect and an employee of the Defendant. Again I agree with the Claimant’s Closing Submissions which stated that Mr Ogle appeared to be an honest witness who sought to answer the questions asked of him. He was also the central individual at the time of WTA’s alleged third breach of contract.

- failing to take appropriate steps in response to the CLT being exposed to sustained rainfall around Christmas 2016.

Tom Westwood

20.

Is an architect and a former employee of the Defendant. I agree with the Claimant’s Written Closing where it is stated that Mr Westwood appeared to be an honest witness who sought to answer the questions asked of him. I do not accept the Claimant’s criticisms of Mr Westwood as acting as a mere post box by adopting a passive and limited approach to the role of the architect. He spoke of how in respect of Moisture Content Control Plans (“MCCP”) “the advent of that particular form of document has come about in fairly recent years.” His evidence was clear that he had never come across an architect designing a canopy and had never worked on a project with a canopy.

Andrew Waugh

21.

Is a director of the Defendant in these proceedings. He has a degree in architecture but never qualified as an architect with either RIBA or the ARB. With regard to

.1 MCCPs

Mr Waugh’s evidence was clear. He explained to the Court that :

“The TRADA Wood Information Sheet WIS 4-14 of June 2016 referred to a 'Moisture Content Control Plan" or "MCCP''. I had never prepared a MCCP or been instructed by clients, contractors, project managers, construction managers or anyone else in projects to prepare a MCCP for a timber roof or other timber structure. I did not see, on any WTA project, a MCCP being prepared or mentioned by anyone. I refer to other parts of WIS 4-14 below. I do not recall anyone involved in projects referred to in 100 Projects, which were comparable to the Vitsoe project, telling me or anyone else at WTA that a MCCP was prepared by anyone during those projects.”

-2 The discussions of the 12^th April 2016

Again Mr Waugh’s evidence was clear.

“There were a lot of discussions between Mr Adams and Mr Wang and myself, during the trip to Germany regarding the Building, One of the discussions was at Frankfurt Airport while we were waiting to board our plane back to England. Our flight was delayed so we had plenty of time to talk about the Building. We discussed what has been called in these proceedings a temporary shelter or canopy on scaffolding over the whole of the Building while it was being constructed. I think I would probably have referred to it as a canopy.
Canopies came up in our discussion at the airport because Mr Adams showed Mr Wang and I a photograph in a magazine which he had. I cannot recall now what the magazine was but I recall it was a trade or professional magazine of some sort I cannot recall if the photograph was part of an article or why it was in the magazine but I do recall that it was a photograph of a large canopy over a building while, it appeared from the photograph, it was being constructed but it might have been a photograph of a canopy being used in remedial works, So far as I can recall the photograph was of a site somewhere in Europe, possibly Sweden or possibly Switzerland.
I can recall Mr Adams holding the magazine and passing it to Mr Wang and me and asking us both "Are you aware of this?” or "Have you seen this?" or some similar words. Mr Wang did not say he had never seen such a canopy or ask me to explain what the function of such a canopy was intended. I recall Mr Wang saying a canopy like the one in the photograph was not needed. I recall saying to Mr Adams that I agreed with Mr Wang without saying much more. Mr Adams said "It looks expensive. I am glad that we do not need it” or something similar.”

-3 The discussions held on the 12 January 2017 between Mr Adams and Mr Waugh. Mr Waugh stated

“I cannot recall exactly how the discussions in the portacabin with Mr Admas [sic] began but we began discussing how to try to prevent internal staining of the columns and beams before the Building was fully watertight and while works continued. So far as I recall I said "you could install a large temporary canopy to protect the timber columns and beams and prevent further internal staining” or some similar words. Mr Adams said "Well that's not going to happen" or something similar. I cannot recall if Mr Adams or I referred back to the discussion between him Mr Wang and I at Frankfurt Airport in April 2015.
After our discussion in the portacabin on site we then took part in the site visit when everyone walked round parts of the Building. I did not go onto the roof, so far as I can recall. Also, so far as I can recall I was not asked to comment on the CLT and VCL and insulation and PVC during that site visit.”

I accept Mr Waugh’s evidence about MCCPs, the content of the conversations at Frankfurt Airport and the discussions held on the 12 January 2017 and I accordingly find that what Mr Waugh said was said.

Ms Hoey

22.

Whilst Ms Hoey had less experience than Mr Potter to give technical evidence on the main issues in this dispute her oral evidence was thoughtful and helpful. She was at all times mindful of her overriding duties to the court and gave clear answers to the difficult questions put to her.

Mr Potter

23.

The Defendant’s technical expert had more than sufficient expertise to address the main issues in dispute and I preferred his evidence to the evidence provided by Ms Hoey, particularly on the issue by architects of Moisture Content Control Plans and whether a temporary roof was necessary or non-essential for the construction of this project.