Sky UK Limited & Anor v Riverstone Managing Agency Limited & Ors [2023] EWHC 1207 (Comm)

“(a) The Principal and/or associated and/or subsidiary companies - British Sky Broadcasting Ltd (b) The contractor - Mace Ltd (c) All other contractors and/or sub-contractors of any tier and others engaged to provide goods or services in connection with the Project insured hereunder. (d) Consultants, suppliers and vendors, all of any tier, whilst carrying out physical work associated with the Project on or about the Project Site or caused by their physical presence on or movement about the Project Site (e) The employees, directors or officers of any of the above (f) Including all such parties, whether named hereunder or not, or whether appointed prior to inception of the Contract of Insurance or subsequently. Each for their respective rights and interests.”

“Initial Period of Insurance The whole period of the Project estimated to be 23 months from 18 February 2014 to 31 December 2015 from 00.01 am local standard time at the Project Site including testing and commissioning, and thereafter automatically held covered for further periods if required at additional premium to be agreed by Leading Insurer only but not to exceed pro rata temporis. Maintenance Period of Insurance 12 months commencing from the date of expiry of the Initial Period of Insurance”

“… indemnify the Insured against physical loss or damage to Property Insured, occurring during the Period of Insurance, from any cause whatsoever whilst within the Geographical Limits including whilst in transit (other than by sea or air) including loading and unloading and/or temporary off-site storage.”

“Permanent works, materials (including those supplied free to the Project by or on behalf of the Principal, provided the value is included in the Contract Works Sum Insured), temporary works, equipment, machinery, supplies, temporary buildings and the contents thereof, camps and the contents thereof and all other property used for or in connection with the Project.”

“In settlement of claims under this Section of the Contract of Insurance the Insurers shall, subject to the terms and conditions of the Contract of Insurance, indemnify the Insured on the basis of the full cost of repairing, reinstating or replacing property lost or damaged (including the costs of any additional operational testing, commissioning as a result of the physical loss or damage which is indemnifiable hereunder) even though such costs may vary from the original construction costs and shall Include all taxes and import duties even if they have been varied or imposed subsequent to the inception of the Contract of Insurance. In the calculation of the costs of restoration or replacement of works, those elements of cost for which provision is made in the computation of the Sum Insured or the original building or trade contract price will be taken into account. In the case of a claim by an Insured party in respect of repairs or replacement undertaken by that Insured party that Insured party shall be entitled to charge an amount for overheads and profit equivalent to that included in the original building or trade contract price or value. In circumstances where a claim is indemnifiable under this Section of the Contract of Insurance the Insurers agree to make reasonable interim payments on account at the request of the Insured and if recommended by the loss adjuster pending finalisation of the claim settlement. The Property Insured may be reinstated or replaced upon any other site wheresoever situate at the absolute discretion of the Principal and in any form or manner suitable to the requirements of the Principal subject to the liability of the Insurers not being thereby increased.”

“The Insurers shall not be liable for: 1. Design Exclusion 5 (DE5) Design improvement Exclusion (a) The cost necessary to replace repair or rectify any Property Insured which is defective in design plan specification materials or workmanship (b) Loss or damage to the Property Insured caused to enable replacement repair or rectification of such defective property But should damage to the Property Insured (other than damage as defined in (b) above) result from such a defect this exclusion shall be limited to the costs of additional work resulting from and the additional costs of improvements to the original design plan specification materials or workmanship. For the purpose of this Contract of Insurance and not merely this Exclusion the Property Insured shall not be regarded as lost or damaged solely by virtue of the existence of any defect in design plan specification materials or workmanship in the Property Insured or any part thereof.”

“GBP 10,000 each and every loss, However in respect of defective design, materials or workmanship the following will apply where option is selected by the Principal: - GBP 150,000 any one event but this will only apply to those claims which are recoverable under DE5 but not under DE3…” [Emphasis supplied]

“For the purpose of determining the application of the Insured's Retained Liability under DE5 1995 Design Improvement Exclusion, the following definition is included: Design Exclusion 3 (DE3) Design, Plan, Specification, Materials or Workmanship “ Consequences ”

“72 hour clause For the purpose of the application of the Insured’s Retained Liability it is agreed that any damage to the Property Insured or liability for damage arising during any one period of seventy-two consecutive hours and caused by storm, tempest, flood, water damage, subsidence, collapse or earthquake shall be deemed to be a single event and therefore to constitute one occurrence. For the purpose of the foregoing the commencement of any such seventy-two hour period shall be decided at the discretion of the Insured, it being understood and agreed, however, that there shall be no overlapping in any two or more such seventy-two hour periods in the event of damage occurring over an extended period of time.”

“Being named as an insured does not without more make a person a party to the insurance contract. A person who is named as an insured but who is not otherwise a party to the insurance contract does not become a party to the contract simply by reason of having been named in it. That person remains a third party unless and until it becomes a party in a way recognised as constituting it in law a party to the insurance contract or obtains the benefit of the policy in question in some other way. … Similarly, the editors of Colinvaux rightly say at 15-018 “the mere fact that a policy states that it covers the interests of named or identifiable third parties does not of itself give those third parties the right to enforce the contract or to rely upon its terms (eg the benefit of a waiver of subrogation clause)”.”

““In my judgment, … (s)ince National Oilwell v Davy … it is settled law …that in order for a contractor not identified as a principal co-assured in a CAR policy to be entitled to the benefit of cover as another assured under such policy, the insured operator must have assumed a contractual obligation to such contractor to procure the benefit of cover for him… Consequently, when an underwriter insures under a CAR policy, a Principal Assured and an unidentified Other Assured, the cover to which he agrees extends only to that which is given by the policy to the Principal Assured and to those Other Assureds with whom the Principal Assured has contracted and will contract to procure cover and only to the extent to which such cover is by the terms of the contract to be procured.” [Underlining emphasis supplied] Although this was the subject of significant criticism by counsel for the second defendant in Haberdashers’ Aske’s Federation Trust Ltd v Lakehouse Contracts Ltd (ibid.) Fraser J at [51] rejected that criticism and concluded that Colman J’s reasoning was correct and, although obiter, was “… persuasive, and highly persuasive at that …”

“ Contractor’s Obligations .. Materials, Goods and workmanship ... 2.2.7.1 All materials plant and equipment for incorporation into the Works “Works” is defined in the construction contact amendments as being “the design and construction of Sky Building 2 (office accommodation, production space and staff amenities), an energy centre and associated hard and soft landscaping at Grant way Isleworth, Middlesex …” – which is what is now known as Sky Central. shall become the property of the Employer (whether or not they have been delivered to the site) upon payment in full of any amount due to the Contractor in respect of such materials, plant and equipment. … 2.2.7.4 The risk in the Works and in all materials plant and equipment shall remain with the Contractor until the date of practical completion of the Works.”

“The Contractor shall be liable for, and shall indemnify the Employer against, any expense, liability, loss, claim or proceedings in respect of any loss, injury or damage whatsoever to any property real or personal in so far as such loss, injury or damage arises out of or in the course of or by reason of the carrying out of the Works and to the extent that the same is due to any negligence, breach of statutory duty, omission or default of the Contractor or of any of the Contractor's Persons. This liability and indemnity is subject to clause 6·3 …” [Emphasis supplied]

“…the reference in clause 6·2 to 'property real or personal' does not include the Works, work executed and/or Site Materials up to and including whichever is the earlier of: · 1 the date of issue of the Practical Completion Statement; or ·2 the date of termination of the Contractor's employment.”

“The Employer shall take out and maintain a Joint Names Policy for All Risks Insurance with cover no less than that specified in clause 6·8 for the full reinstatement value (save for any deductibles or excesses) The words in parentheses were inserted by the schedule of amendments attached to the construction contract. of the Works or (where applicable) Sections (plus the percentage, if any, stated in the Contract Particulars to cover professional fees including site materials and (subject to clause 2·33) shall maintain such Joint Names Policy up to and including the date of issue of the Practical Completion Statement or, if earlier, the date of termination of the Contractor's employment (whether or not the validity of that termination is contested).”

“The Contractor … and the Employer, where Insurance Option B … applies, shall ensure that the Joint Names Policy referred to in paragraph … B·1 of Schedule 3 shall either: ·1 provide for recognition of each sub-contractor as an insured under the relevant Joint Names Policy; or ·2 include a waiver by the relevant insurers of any right of subrogation which they may have against any such sub-contractor in respect of loss or damage by the Specified Perils to the Works or relevant Section, work executed and Site Materials and that this recognition or waiver shall continue up to and including the date of issue of any statement or other document which states that in relation to the Works, the sub-contractor's works are practically complete or, if earlier, the date of termination of the sub-contractor's employment.”

“Any monies payable pursuant to a Joint Names Policy referred to in paragraph B1 … shall be paid to the Employer and the Contractor hereby authorises and shall procure that each of the Contractor’s Persons who is insured under the relevant Joint Names Policy shall authorise the insurers to pay all (if any) monies from such insurance in respect of the relevant loss or damage to the Employer, whether or not the Employer shall require such loss or damage to be restored, replaced or repaired.”

“The restoration, replacement or repair of such loss or damage and (when required) the removal and disposal of debris shall be treated as a Change but, subject always to paragraphs B.3.6 and B.3.7, the Contractor shall not be entitled to make any claim, whether pursuant to clause 4.20 or otherwise, for the reimbursement of any loss or expense suffered or incurred in consequence of such loss or damage or the restoration, replacement or repair thereof or (when required) the removal and disposal of debris.”

“the answer to question (1) is plainly "Yes". Fire was one of the specified perils defined in clause 1.3 of the main contract against which [MC] was obliged by clauses 22A.1 and 22.3.1 to take out and maintain all risks insurance providing cover or protection for (among others) itself and [SC]. Clause 22A made detailed provision for investigating, repairing and paying for damage caused by fire to the works included in the main contract and clause 25 provided for time to be extended to allow for delay thereby caused. No doubt because fire is not a rare or unforeseen event, the standard forms of contract used by [O], [MC] and [SC] made detailed arrangements to govern the consequences if it should unhappily occur.”

“Under clause 20 of the main contract [MC] accepted a liability against which (by clause 21) it was obliged to insure. But damage to the new works to be carried out under the main contract was expressly excluded from the scope of clause 20, and clauses 22 and 22A applied to such damage a markedly different contractual regime. If damage were caused to the new main contract works by fire [MC] was obliged to make it good (clause 22A.4.3) and was to be paid for doing so out of a fund provided by insurers under the joint names policy (clause 22A.4.4) and not otherwise (clause 22A.4.5). The contractual scheme did not protect [O] and [MC] (or [MC's] sub-contractors) against the possibility of loss if damage was caused to the new works by fire. Such fire damage would in all probability lead (as in this case it did) to an extension of the contract period, which would be a source of loss to [O] for which it could not recover liquidated damages. The extension would also involve expense for [MC] and its sub-contactors for which they would not be fully compensated. Thus the contract provided for loss to be shared between [O], [MC] and [MC's] sub-contactors. But it plainly precluded any claim for compensation by [O] against [MC] or a sub-contractor such as [SC]: their duty was to make good, not to compensate.”

“Involuntary betterment Where Property Insured is damaged and requires replacement by similar property within the terms of reinstatement but that is not obtainable the insurer agrees: a) to accept without deduction for betterment replacement property which is as similar as possible and which is capable of performing the same function; b) to pay the cost of purchasing and Installing technologically current equipment which is necessitated by incompatibility between: i) the equipment installed to replace damaged equipment; and ii) undamaged existing equipment at the same or interdependent location; except that the insurer shall not be liable to pay more than the amount sufficient to enable the insured to resume construction in substantially the same manner as before the damage.” [Emphasis supplied]

“To paraphrase Cardozo J’s famous dictum in a different context in Ultarameres v Touche 174 NE 441 (1932), [the claimants’ approach] exposes Insurers to an indeterminate liability for indeterminate damage for an indeterminate time, in circumstances where the Claimants have not identified any relevant workable control mechanism. It places Insurers at the mercy of squabbling insureds who cannot agree on how to remedy damage which may be continuing. On the Claimants’ case, the Policy would still be providing cover for damage to the roof which occurs even now, more than five years after the expiry of the Maintenance Period of Insurance. There is no commercial justification for extending the scope of cover in this way and unnecessarily blurring the clear boundaries drawn by the Policy’s express terms.”

“The principle of the English law of construction that confines recovery to damage occurring during the period covered by the policy is no more nor less than the fundamental principle that the words of a contract should normally be given the meaning that they naturally bear.”

“Under English law nothing could be clearer than that a contract providing cover for loss and damage occurring only during a specified three-year period could not be construed as covering in addition damage occurring before (or for that matter after) that three-year period.”

“Given the fundamental importance under English law of the temporal scope of a time policy, I find it impossible to construe the reinsurance contracts in the way contended for….”

“The only property damage which the reinsurance, construed according to purely English law principles, covers is property damage occurring during the three-year reinsurance period. This is under English law clear beyond argument upon its wording. It insures property against risks during a stated period.” and at [39] he approved the summary by Hobhouse LJ (as he then was) in Municipal Mutual Insurance Ltd v Sea Insurance Co Ltd [1998] Lloyds Rep IR 421, 435—436 that: “When the relevant cover is placed on a time basis, the stated period of time is fundamental and must be given effect to. It is for that period of risk that the premium payable is assessed. This is so whether the cover is defined as in the present case by reference to when the physical loss or damage occurred, or by reference to when a liability was incurred or a claim made. Contracts of insurance (including reinsurance) are or can be sophisticated instruments containing a wide variety of provisions, but the definition of the period of cover is basic and clear.”

“ … contrary to the principle of insurance law, that the insurer is liable for a loss actually sustained from a peril insured against during the continuance of the risk: and, if a ship, insured for time, during the time receives damage from the perils of the sea, although the amount of it be not ascertained till the expiration of that time, and she is kept afloat till then, upon the assured taking proper steps by giving notice of abandonment or by obtaining evidence of the sum which would be required to repair the damage sustained, there does not appear any good reason why they may not, according to the facts, proceed against the insurers for a total or for a partial loss.”

“… damage’ to Property Insured means physical change which so compromises the performance of an individual cassette that, in order to perform the function for which it was intended, it requires repair. Without prejudice to the generality of the foregoing, such damage cannot occur unless the moisture content of the cassette in question has passed the Trigger Point.”

“17.1 … Without prejudice to the generality of the foregoing, the moisture content of the timber during the assembly of the cassettes was maintained at between 6% and 15%; 17.2 It is denied that, in order to ‘function properly’ (the meaning of which is not explained) and/or to retain their structural performance and/or integrity, the cassettes needed to be free from moisture. On the contrary, the timber in the cassettes could tolerate a moisture content of up to 25% before decay/rot capable of causing impairment of structural performance or integrity could be triggered (‘the Trigger Point’); and if the moisture content of the timber fell below 20% any existing decay would cease to progress.”

“ … the assured has to prove some change in the physical state of the vessel” and Pilkington United Kingdom Limited v. CGU Insurance Plc [2004] BLR 97 per Potter LJ at [50] where he said that “… for the purposes of indemnity it will normally be necessary to demonstrate that physical change has occurred to the property damaged …”

“… damage requires some altered state, the relevant alteration being harmful in the commercial context”

“In ordinary speech, an event is something which happens at a particular time, at a particular place, in a particular way. I believe that this is how the Court of Appeal understood the word. A cause is to my mind something altogether less constricted. It can be a continuing state of affairs; it can be the absence of something happening.”

“An “occurrence” (which is not materially different from an event or happening, unless perchance the contractual context requires some distinction to be made) is not the same as a loss, for one occurrence may embrace a plurality of losses. Nevertheless, the losses’ circumstances must be scrutinized to see whether they involve such a degree of unity as to justify their being described as, or as arising out of, one occurrence. The matter must be scrutinised from the point of view of an informed observer placed in the position of the insured. … on the basis of the true facts as at that time.”

“… I would have expected temporary roofing to have been used so that incomplete works were not exposed to rainwater or other forms of precipitation.”

“… I do not think that either the decision to carry out a programme of remedial work or the implementation of that programme amounts to an event of the kind contemplated by the clause. The remedial work provided the context in which the damage was caused, but was not itself the underlying cause of it. That lay in the defects which gave rise to the need for it. In these circumstances I do not think that it is possible to identify a single event that can be regarded as the underlying cause of all the access damage required to enable the defective sealing membranes to be renewed.”

“176. For my part, I do not consider that there can be any general rule that the taking of a decision cannot be an occurrence. It might be that in a particular insurance policy the context and wording indicates that a decision will not count as an occurrence. Furthermore, in any event, whether a decision is an occurrence would depend on the facts, and in particular the nature of the decision and the way it was made. But it seems to me that there may be little difficulty in describing some decisions as occurrences. I would consider that to be the case, for example, in relation to a resolution of a Board of Directors of a company. I do not see, equally, why a decision taken in a Cabinet meeting (or a COBR meeting) cannot be an occurrence. These are matters which happen at a particular time, at a particular place, in a particular way, and as a matter of ordinary speech can be said to have been occurrences. … 178. In Midland Mainline David Steel J had found that there was in fact no single decision at all: see at [90]. What had happened was that there had simply been a range of measures incrementally brought into play in reaction and response to the derailment. Furthermore, what was said at [97] was in the specific context of the construction of the Denial of Access extension, and not the construction of an aggregation clause (as David Steel J pointed out at [73]). I do not read what was said in the first sentence of paragraph [97] as seeking to make any general statement as to what might constitute an occurrence for the purposes of aggregation provisions. If it was, it was obiter dicta, which, with respect, I do not consider to be correct. 179. In the present case, I regard the decision taken at the COBR meeting on 16 March 2020 that the public should be advised to avoid pubs, restaurants and clubs as being an occurrence. It satisfied the unities. There is to my mind nothing in the context of the Policy which indicates that such a decision cannot count as an occurrence. Judging the matter from the perspective of an informed observer in the position of the insured, it is to be regarded as a single occurrence.” [Emphasis supplied]

“I am prepared to assume for present purposes that in each case the same mistakes were made. However, there is no evidence that those mistakes were attributable to a single event, such as giving the workmen wrong instructions which they then conscientiously followed so as to produce a series of similar defects. Again, had that been the case, it might have been possible to argue that giving faulty instructions was the unifying event, but the judge’s findings point to the conclusion that the defects were simply the result of poor workmanship repeated over and over again.”

“… And so the position at this stage was that you were focusing on the leaks, as opposed to investigating the interior of the cassettes; is that correct? A. That is correct.”

“I'm not a wood scientist, I'm a timber decay surveyor. As a result of becoming a timber decay surveyor, I've become a wood scientist by virtue of experience and understanding of how decay progresses in buildings.”

“The reality is that he was simply someone chosen by SPE to act on its behalf as an advocate of its case. To the extent that he advanced and purported to prove factual matters in his report, his evidence was largely hearsay, going to matters of which he has no first hand knowledge, and in respect of which no admissions had been made by PPC. To the extent that he expressed opinions, they were on matters in respect of which he had no relevant expertise. I hold that this evidence is inadmissible.” [Emphasis supplied]

“The degree of the damage evident within the policy period is indicated by the discovery of damage in widespread areas of the gutters (in the form of “soft spots”) beginning in September 2016 and progressing in degree and extent over the following year. The soft spots were caused by a combination of swelling of the OSB and decay by wood destroying fungi (WDF). These fungi are distinct from moulds, which rot timber by digesting the structural component of wood.”

“2.9 The timing and extent of the emergence of soft spots is critical to understanding the progression of decay in the roof structure during the policy period. It is the most important evidence directly from site of the timing of damage to timber. The means by which the damage was discovered through the relatively strong waterproof membrane; and the terms used to describe it by those at the time, indicate that near total loss of structural integrity of the board, was present, and thus that damage had occurred around 6 months prior to its discovery. 2.10 Damage to solid softwood timber from WDF Wood Destroying Fungus is also present in the roof. Considering the progressive nature of decay and the effects of early growth of brown rot fungi to timber; the evidence of widespread damage to gutter boards in 2016, and the poor condition of the roof when finally investigated thoroughly in 2018/2019, demonstrate that damage from WDF occurred to solid softwood prior to the 15 July 2017. This is consistent with my experience of the time lag for discovery of damage to similar structures following water ingress during construction at 12-24 months; and with evidence from a cassette (251) on the Sky roof which serves as a site-specific test case for timing of advanced decay in the roof.”

“The process of inspection of the roof is ongoing, but widespread damage to timber has been revealed since inspections of the roof structure began in 2018. Damage is present in the majority of gutter areas of the roof (88% of gutter compartments). The extent of the timber damage now evident in these areas is indicative of the extent of damage that would have been present in the policy period, but not the degree/severity of that damage.”

“… the timing of progression of decay by WDF in the roof is difficult to accurately determine but timing can be estimated based on the available evidence and my experience.”

“It is my opinion that decay by WDF had become established by the summer of 2016 in some areas of the roof and was contributory to the damage that became evident in gutters that Autumn, and by the early summer of 2017 was likely to have occurred to varying degrees in the majority of gutter areas and elsewhere.”

“… removing insulation and photographing the internal elements of each of the gulley bays (and many of the adjacent bays) and taking a series of moisture content readings. This work was done in a number of months through 2018 and into 2019. The survey only focused on the gully (and some immediately adjacent) areas. In fact, the majority of the other bays in cassettes across the roof have not ever been opened up and inspected beyond the drainage gully and immediately adjacent areas, so far as I am aware.”

“1.6 To assess the condition of each bay within all 428 cassettes, I have therefore focused on the Prater investigation and drying out records, falling between 2018 and 2019. Whilst this information is later than July 2017, it provides me with a good history from which to provide an Expert opinion. I reviewed the available Prater photographs by enhancing/enlarging the images, in order to see them in as much detail as possible. My opinion of the damage in the cassettes was also formed using the documentary evidence with which I have been provided, including the reports and surveys as prepared by Sandberg and Mott MacDonald. 1.7 By analysing all of this information, I have been able to develop an opinion on what the probable condition of most of the (photographed) cassette bays were; particularly in the gully areas, up to the point of at the end of the Rectification Period.”

“… looked at the timber to say, if I can work backwards from the amount of decay or fungal material that I can or may see, then I've got to think would that have been less advanced 18 months or so before the photograph I'm looking at, and if I think it would have still been there, then I've given it a red rating or a possible amber rating for 2017. If I think that the decay is not very far advanced, then I've assumed, in my opinion and based on my experience -- is that the decay would not have been progressed to the point where it would have structurally affected the timber member in 2017.”

“… that's where I judge it to possibly have some level of decay purely on the surface. I think I've said in my report that incipient decay, in my opinion, is purely a surface phenomenon. If it's progressed beyond incipient decay to where I can see either multiple longitudinal cracks close together or, more importantly, cross-grain cracks, then that's what I regard as being decay but even then it depends how much of that there is as to whether I regard the timber to be beyond repair and need replacement.”

“The design of the roof, including the sequencing of the installation, did not provide temporary protection to the cassettes prior to the application of the final strips of cap sheet, such as a scaffolding roof or other form of sheeting over the works. The design did not include any warnings that the cassettes were vulnerable to water until the final strips of cap sheet were applied. It did not include any method to protect the vulnerable locations on the cassettes. It did not include any warning about installing the cassettes during inclement weather, leaving the cassettes in the vulnerable condition overnight or installation during winter and spring. The design required the cassettes to be exposed to the weather during the installation sequence.”

“… the exposure of the vulnerable details to rainfall, during the construction works until the final waterproofing was complete, was a consequence of the design of the roof and was not a workmanship defect. I consider that the design was defective as it did not adequately protect the roof structure during construction as recommended in BS 8217, which is referred to in the Alumasc Specification.”

“… testing that I have undertaken indicates that any punctures or unsealed laps could not have allowed sufficient water to enter the roof to result in the standing water that was observed within Gutter compartments or to result in the damage that has been seen, as I showed in section 8 above. Consequently, I consider that the locations of punctures or unsealed laps are not relevant to the overwhelming majority of the damage.”

“… in my opinion, having looked at the cassettes we have already discussed on the roof, having seen how the membranes were installed on these mock-ups, knowing how reinforced bituminous membranes are applied generally, I consider it highly likely that that gap would have been present at the majority of the gutter upstands.”

“… a poorly sealed lap joint between the strip of membrane along the joint and the field sheets could allow a small amount of water to reach the joint but such water would pass between the cassettes and into the building. If the path of such water coincided with a rip in the VCL (none of which were observed during construction), water could enter the cassette, but I consider this would be an insignificant amount.’”

“… As I said previously, for water to enter a cassette via that route, it would need the coincidence of a weakness or a defect in the joint between the field sheet and the capping strip as well as a weakness -- a weak point in the joint between the Butyl tape and the Derbigum field sheet. I consider the probability of those two things coinciding to be very low, which is why the evidence that I've seen does not suggest that this occurred in more than a handful of places.”

“… I would have expected temporary roofing to have been used so that incomplete works were not exposed to rainwater or other forms of precipitation.”

“The design of the roof, including the sequencing of the installation, did not provide temporary protection to the cassettes prior to the application of the final strips of capsheet, such as a scaffolding roof or other form of sheeting over the works. The design did not include any warnings that the cassettes were vulnerable to water until the final strips of capsheet were applied. It did not include any method to protect the vulnerable locations on the cassettes. It did not include any warning about installing the cassettes during inclement weather, leaving the cassettes in the vulnerable condition overnight or installation during winter and spring. The design required the cassettes to be exposed to the weather during the installation sequence. 9.2.7 The installation sequence led to some cassettes being exposed to weather for longer periods than other cassettes. But until the final strips of capsheet had been applied over the cassette-to-cassette joints around each cassette, that part of the roof would remain vulnerable to water ingress.”

“The inability to protect the vulnerable joints from rain was a feature of the design … it was not something that could be influenced by the roofing contractor as work proceeded … Clearly, the construction of a temporary roof over the works would have been a considerable undertaking, bearing in mind the size of the building, and therefore could not be considered to be a workmanship matter but a consideration for the designers at an earlier stage. … I consider that the exposure of the vulnerable details to rainfall, during the construction works until the final waterproofing was complete, was a consequence of the design of the roof and was not a workmanship defect. I consider that the design was defective as it did not adequately protect the roof structure during construction as recommended in BS 8217,”

“Q. Can we agree it's a design solution? A. No, I think it's a contractor's working method. Q. It's still design, isn't it, how to go about it? A. I think it's part of the contractor's working methods. Q. You see, I'm going to put it to you, you show a marked reluctance to use the word "design" when it obviously is, a design, a temporary roof? A. Clearly to actually come up, if you were going to use a temporary roof, that would have to be designed but it could be a bespoke product, such as a tent that's just blown up and is off the shelf, in which case you wouldn't need a design, you would just specify it in your method statement, but if you were doing a bespoke structure, then that would need a design prepared for it. Q. And to put a bouncy castle on the roof, we would need to know what the windage is, how it was to be held down and so forth, wouldn't we? A. Yes. Q. That's all part of the design, isn't it? A. The design of the temporary works to facilitate the construction.”

“Q. But the point is that the investigative survey, which needs to be an intrusive survey, you say, needs to be a survey of every single cassette on the roof, doesn't it? A. Yes, it would have to be.”

“… I'm fairly comfortable that we have covered all eventualities that could possibly compromise the fixing of the temporary roof.”

“Q. It's a very simple question. It should be capable of a yes or no answer. Does your scheme include provision for a survey of the roof to check the condition of the timber where your temporary roof is going to bear? A. No, because I believe others will be doing that. Q. What others do you believe will be doing that? A. Well, Mace would like to remove the entire Derbigum and OSB from the entire roof and it would become obvious where there is damage. Q. What's that got to do with your scheme? A. Well, I've already stated that I don't believe there is any damage where my temporary structure or the insurers' temporary structure is going to bear. Q. And because of that belief, you make no provision for any survey to check the condition of the timber where your roof will bear? A. In hindsight, I believe the point you make is very valid and indeed perhaps it should be tested. It's a very simple test. It requires putting a screw through the timber to see that the timber is compressibly and structurally sound because we are using it in bearing. It's something we could include. Q. It is a necessary element of a sensible scheme that a full survey is carried out to check that the locations where your temporary roof will be bearing are safe to bear on?”

“… the 2017, 2018 remediation schemes proved that there was no damage within the zone of the temporary roof that's proposed.”

“His approach is misconceived, as it amounts to nothing more than an assertion that none of his temporary roof feet need to bear on areas identified as red. It ignores the fact that all areas coloured white have not been inspected – i.e. he has considered only known areas of damage, and ignored the unknown areas of damage. 181. To paraphrase Donald Rumsfeld, there are known unknowns; (i.e. we know that most of the roof has not yet been surveyed), and there are unknown unknowns (i.e. we also know that there is likely to be extensive damage in those areas that have not been surveyed (and are therefore uncoloured on Mr Smith’s RAG diagram …, to which Mr Howie expressly referred).”

“There are three tent types in the Insurers’ scheme: a duo pitch, a lean-to and an arch. They are framed using light box or circular sections and braced with 6mm diameter wires. There is not an obvious group of these members that could be defined as a truss, or feasibly be connected at ground level and hoisted. 3.4 Pre-assembly at ground level and hoisting into position requires a lifting beam with multiple connections to the “truss/frame” to ensure it does not buckle during the lifting operation. The truss/frame would need to be held by the crane until members such as ridge, purlins and eaves beams were connected out of plane for stability. This time would need to be allowed for in the works programme.”

“The temporary works are a fully enclosed roof working area, using a temporary roof spanning from the existing – but newly reinforced – cores, to a full hight external scaffold independent of the building structure. The temporary roof incorporates a lifting facility, removing the need to open the temporary roof to allow cranes to lift components to roof level.”

“… The introduction of the winched beam arrangement was a late addition due to Mr Strutt and Mr Baillie's commentary, which I took on board, and we revisited. So that had to be designed and manufactured, and it was a very busy week. It was as early as we could do it, sadly.”

“ … I assumed they wouldn't be interested. Q. You assumed they wouldn't be interested? A. It didn't cross my mind.”

“Q. Are you suggesting a MEWP could be used to install your style of crash decks in this location? A. I'm not saying anything. It could be either by MEWP, scaffold tower or scaffolding. One of the three would do the job. Q. Yes, but what I'm putting to you is that here, because you need to bridge over this fixed furniture, you need to have fixed scaffold. You can't use a MEWP? A. I don't know without surveying it myself. MEWPs have telescopic cradles that may be able to reach all of that from both sides. Either way, Mace got up there, they installed that blue cassette and if they can get up there, anybody else can get up there. Q. The point is how. Mace used a fixed scaffold, as described here. A. Fine. So at least we know it can be done with scaffolding. It could possibly be done with a MEWP or with a tower, if there is sufficient room and it's surveyed properly.”

“Q. Are you suggesting that your crash decks in these locations could be installed using MEWPs? A. No, I'm suggesting it can be installed, as I've said in my report, with either a MEWP, a scaffold tower or a scaffolding.”

“The units can be installed by a small battery powered scissor lift which can be raised to the 2nd Floor by the Service lifts or by larger 22.5 m reach cherry pickers from the Ground Floor to those cassettes within the Atrium that are not accessible from the 2nd Floor.”

“Q. We will come on to explore that. The third reason why the Mace mock-ups are not directly applicable is that there are very different approaches to temporary propping, aren't there? A. You are talking about the liner sheet, I believe. Q. I'm talking about the temporary props to support the cassettes while they are being worked on, that are part and parcel of the Mace scheme, are very different from what you propose in your scheme? A. Again that's not a simple question. From what I believe, Mace are supporting the liner sheet below --which is the bottom portion of the cassette, and are not intending to remove that, and they've devised a cushioned lattice that they are propping underneath from their crash deck, below … Q. But of course, if you are going to carry out remedial works on these cassettes, you will need not only to walk on top of them, you will have to have people actively working above them, won't you? A. No, you won't. I don't agree with that. The works that are carried out are to remove the damaged timber, the OSB, the joists, the 100x100s, the 160s and the 280 by 60 joists that are in distress and replace them with new. So therefore you would not be standing on something that, one, is hazardous and, secondly, you are going to remove in any event. The operatives, as my first report, will be wearing harnesses, fall arrest systems, and they will have a crash deck underneath the working space, so they will be able to conduct the works safely and in accordance with a method statement that's yet to be drafted in detail, to carry out that work.”

“Q: And you propose that all external and roof works be carried out in normal working hours. A. That's subject to test, as we agreed in the joint experts' statement. It was all subject to being tested and proven that it didn't disrupt Sky. That's the decision of the three experts.”

“All construction works to Sky Central are carried out outside of normal working hours. In my experience it is completely normal, in the context of office space, that any construction works, which inevitably generate noise and cause disruption, would not be carried out during normal working hours … [because] … we have health and safety obligations to both colleagues and operatives, and further we need to maintain BAU Business As Usual within the building as a live office and broadcasting space, which is not consistent with the noise, disruption, or shutting down of services which are an unavoidable consequence of construction work.”

“Over the years of dealing with the roof remediation, we have received multiple complaints from Sky colleagues. As part of Mott MacDonald carrying out opening-up works to investigate the condition of the roof, which meant using hand tools to cut holes into the upper surface of the roof of no more than 150mm by 150mm, we received a number of emails from Sky colleagues trying to work underneath complaining about the noise and the reverberation, and therefore all of the survey works had to be completed outside of normal working hours. 40. Even leaving to one side the roof remediation works, most other activities such as maintenance, cleaning or desk moves, are carried out outside of normal working hours, and this usual in my experience. Separately to BAU activities, it is common for Sky to receive important visitors or be filming within the building for example from the mezzanine floors above Sky Street. On these occasions the General Managers will send notices out to say that we are unable to carry out even fairly minor maintenance or cleaning activities in the area, to avoid disruption.”

“Extra Expense The Insurers shall indemnify the Insured for costs and expenses (Extra Expense) incurred by the Insured, if at any time during the Period of Insurance any, or all the Property Insured, suffers physical loss or damage indemnifiable under this Section of the Contract of Insurance, Extra Expense includes: (i) the reasonable extra expenses, incurred temporarily to continue the Project as nearly normal as practicable; (ii) the reasonable extra costs of temporarily using property or facilities of the Insured or others. Any value remaining in property obtained in connection with (i) or (ii), above, shall be taken into consideration in the determination of the physical loss or damage indemnifiable hereunder. In no event shall Extra Expense include: (i) loss or expenses indemnifiable elsewhere in this Contract of Insurance, (ii) costs which normally would have been incurred in completing the Project, during the same period, had no physical loss or damage indemnifiable hereunder occurred, (iii) the cost of permanent repair or replacement of property that has been physically lost or damaged. The Insured agrees to use any suitable property, or service owned or controlled by the Insured, or reasonably obtainable from other sources, to reduce the Extra Expense incurred under this Section. The indemnity provided by this Memorandum shall not exceed the Sub Limit stated in the Risk Details for this item.”