Corus UK Ltd v Cavendish (UK) Ltd & Ors [2009] EWHC 2058 (QB)

[2009] EWHC 2058 (QB)Case No HQ07X022859
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 07/08/2009
Before
MR JUSTICE FOSKETT
Between
CORUS UK LIMITEDClaimantCAVENDISH (UK) LIMITED1 st Defendant…3 rd DefendantWOODS BUILDING SERVICES LIMITEDDefendant
Mr Michael Fealy (instructed by Edwards Angell Palmer & Dodge UK LLP) for ClaimantMr Oliver Campbell (instructed by Kennedys) for 1 st DefendantMr Yash Kulkarni (instructed by DRG Solicitors LLP) for 3 rd DefendantHearing Hearing dates: 8 th, 9 th, 10 th, 11 th& 15 th June 2009
Judgment

Introduction

[1]This case arises from the circumstances in which work to remove asbestos from one of the Claimant’s major buildings took place in 1997. The building concerned was the Administration Building at the Claimant’s works in Corby, Northamptonshire.[2]The work relating to the asbestos removal was carried out by the Third Defendant (“Woods”) as the asbestos removal sub-contractor for and under the supervision of the First Defendant (“CUK”), CUK having been employed by the Claimant to carry out the asbestos removal and encapsulation work (see paragraph 16 below), to replace the ceiling and to rewire and replace the lighting in the building. Cavendish Laboratories Limited (“CLL”) (the Second Defendant to these proceedings) was retained by CUK to carry out analytical work in the context of the asbestos removal. At the time, CUK owned 30% of the shares in CLL. The claim against CLL has been resolved.[3]It was not until 2007, some 10 years after the work was done, that concerns arose about whether it had been completed satisfactorily, those concerns giving rise to these proceedings.[4]Against that background, amongst other issues raised on the merits, the question of limitation has been raised by both Defendants. In circumstances I will mention later (see paragraph 48), the trial has essentially been confined to liability.

The background – what happened

[5]The Administration Building was built in the early 1960s and on each of its eight floors was a suspended plaster ceiling, known as the Expamet ceiling (which stands for ‘expanded metal’). Above the Expamet ceiling was a void through which ran concrete beams that supported the concrete floor above. Wells (or recesses) were cut into the ceiling in order to install lighting and the ceiling was sprayed with asbestos for fire protection purposes. The asbestos adhered to the underside surface of the ceiling itself but some also passed through the light wells into the ceiling void above and adhered to the concrete base or soffit of the floor above. The asbestos that passed through the light wells in this way is known as ‘overspray’.[6]The asbestos used was Chrysotile or white asbestos. Whilst blue and brown asbestos are often regarded as the most dangerous forms of asbestos, white asbestos is regarded as a major health hazard. This would not necessarily have been appreciated when the Administration Building was built, but there has been a growing appreciation of the dangers over the years.[7]The expression ‘ACM’ is used to describe an asbestos containing material.[8]In 1997 an internal Asbestos Identification Report dated 19 February 1997, prepared as part of an ‘asbestos audit’, confirmed that the Expamet ceiling contained ACMs. The relevant part of the report describing the sample taken from the “office ceiling” was in these terms:
“This sample was of a sheet material [approximately] 5mm thick with a density of approximately 390Kg/m³. The sheet was manufactured from a mixture of particles and chrysotile fibres and had been painted on one face. The sample provided was extremely weak and readily crumbled releasing asbestos fibres. If the material which the sample represents is of similar strength it will be easily damaged causing the release of asbestos fibres. It is recommended this material be replaced by an asbestos free substitute. Any work on this material should be in accordance with the Control of Asbestos at Work Regulations.”
[9]A few days later a laboratory report confirmed the presence of ACMs in the samples.[10]This discovery coincided with an appreciation of the need to update the lighting in the building to meet contemporary Health and Safety Executive guidelines on lighting in the workplace. A complete rewiring was required and there was also a need to install an updated fire alarm system in the building. None of this could be undertaken until the asbestos issue had been resolved.[11]Under the in-house responsibility of Mrs Janet Fellows, then the Facilities Manager for the Administration Building at Corby, the asbestos removal and the subsequent rewiring was put out to a combined tender in May 1997. Mrs Fellows said in her witness statement that her objective was “to remove the asbestos to ensure that the rewiring could take place, and also to ensure that future works could be taken in and around the office ceilings without the need for costly asbestos management procedures.” I have no reason to doubt that that was indeed the objective, although it will become apparent that, in the events which happened, a complete guarantee that there would be no need for asbestos management procedures after completion of the work could not have been given. Indeed, whilst it may have been an objective, it was not carried forward into any of the contractual documentation: see, in particular, paragraph 14 below.[12]CUK submitted a written proposal (carrying the reference 5076/1) for the work dated 17 June 1997. Under a paragraph headed “Objective” the following was noted:
“The main objective of this project is to safely rewire and replace light fittings and provide protection from Asbestos fibres during these works to all operatives and employees of British Steel. In the approach to this project 3 options are available: 1. Total Removal of the Asbestos containing ceiling on an occupied phased programme and replace with new lights and ceiling. 2. To allow ACM to remain and replace wiring/lights under controlled conditions. 3. Item 1 with a vacated building. We strongly recommend option 1 for the following reasons: (We also believe this would be the local authorities view once they are informed) a. The extensive logistics, specialist equipment and disruption would have to be repeated if the material were disturbed or refurbishment carried out at some future date. b. Employee awareness of the project, post announcement, will cause concern over any ‘dust’ found in the future. c. Due Diligence statement for any future sale would have to include a statement. d. Annual inspection checks and labelling of ACM will have to be carried out together with supporting documentation, which will be audited by the local authorities. e. Maintenance procedures will be difficult and all maintenance staff should be trained on handling the material and health monitored.”
In the approach to this project 3 options are available: a. The extensive logistics, specialist equipment and disruption would have to be repeated if the material were disturbed or refurbishment carried out at some future date. b. Employee awareness of the project, post announcement, will cause concern over any ‘dust’ found in the future. c. Due Diligence statement for any future sale would have to include a statement. d. Annual inspection checks and labelling of ACM will have to be carried out together with supporting documentation, which will be audited by the local authorities. e. Maintenance procedures will be difficult and all maintenance staff should be trained on handling the material and health monitored.”

In the approach to this project 3 options are available:

[13]The price for Option 1 was quoted as £332,821 payable in 9 instalments, 8 as and when each of the eight floors was finished and one final payment in respect of other matters.[14]This quotation was accepted by the Claimant’s Purchase Order dated 26 July 1997, the material parts of which for present purposes being in the following terms:
“This contract is placed generally as your proposal 5076/1 option one. For the total removal of asbestos containing ceiling with encapsulation and labelling of over-spray, replacement suspended ceilings, complete rewire of lighting and power circuits and replacement recessed lighting to category 2 standard. All electrical work to comply with the IEE wiring regulations 16th edition 1991.”
[15]The Programme of Works that formed part of the Purchase Order included at item C “Asbestos remove, spray and seal”, mirroring the expression “Asbestos removal, Spray Seal” used by CUK in the quotation in the description of the ‘Method’ to be used in relation to Option 1.[16]Although the word “encapsulate” was not used in the quotation in connection with Option 1 or the method identified as being necessary to carry it out, it was used in the Purchase Order as indicated in the quotation from it referred to in paragraph 14 above. Mr Garland, the expert called for Woods, defined “encapsulation” as “the process used in the asbestos industry to stabilise the surface of an asbestos containing product or a material contaminated with asbestos.” Essentially, it is the process by which asbestos is prevented from escaping from a surface to which it is attached by applying a sealant over or around it so that it is captured or enclosed.[17]The expression “total removal of asbestos containing ceiling with encapsulation and labelling of over-spray” in the Purchase Order demonstrates that what was intended was(i) the complete removal of the ceiling and(ii) the encapsulation of the asbestos in the roof void caused by the overspray, with its location identified by labelling. It was presumably what was intended by the expression “spray and seal” in the Programme of Works referred to in paragraph 15 above and the expression “Spray Seal” in the statement of the ‘Method’ to be adopted in relation to Option 1.[18]Pausing at this point, it seems entirely clear that, at least from the contractual point of view as between the Claimant and CUK, the obligation on the part of CUK was to remove the ceiling completely (and, of course, replace it), encapsulate any asbestos caused by overspray, label it, and secure the completion of the rewiring. The Purchase Order also confirmed that CUK would act “as the Principal Contractor and the Planning Supervisor and … manage all aspects of the contract including … site management of sub-contractors …”. This general approach to the work is reflected also in the original Method Statement of Woods which described the general nature of the works as involving the removal of the “asbestos coated expanding wire acoustic ceilings” and the encapsulation of what was described as “limpet sprayed” chrysotile. The encapsulant to be used was identified as Idenden ET 150 Spraycote. Mr Garland described this as the version of an encapsulant in the form of a white acrylic emulsion with some water resistant properties that was used for external (by which, I imagine, he meant “exterior”) applications to obtain what he called the “permanent” encapsulation of an asbestos containing product.[19]At all events, as I have indicated, there can be no doubt that, from the contractual point of view, encapsulation and labelling of the areas affected by overspray was contemplated.[20]I have emphasised that conclusion as drawn from the documents constituting or evidencing the contract. Mrs Fellows, who did not claim any in-depth experience of asbestos, accepted that she understood that encapsulation of small traces of asbestos “that may be left in the rough concrete … in the light wells above the Expamet ceiling” was part of the initial agreement and that the “purpose of the encapsulant was to seal the asbestos”.[21]I should interrupt this narrative by noting that the contract between the Claimant and CUK and between CUK and Woods each contained a liquidated damages clause stating that “liquidated damages will be charged at 5% per day up to a maximum of 15% for late completion of each floor”, the exception to this being in relation to the 6th floor which, in the contract between the Claimant and CUK was said to be “used by the contractor to evaluate the shift pattern to be worked.” I am not called upon to determine the precise meaning and effect of these clauses, which might present some difficulties, but CUK and Woods would have been aware that time constraints were placed upon them with potential financial consequences. Indeed this is confirmed in a letter from Mr Allen of CUK (see paragraph 22 below) to Mr Lovitt of Woods (see paragraph 23 below) dated 3 September, shortly after the problems referred to below arose.[22]The preliminary arrangements for the work took place over the weekend of 23 and 24 August with a view to the stripping work commencing on Monday, 25 August. Work did indeed commence that day, but within a relatively short while there were complaints from members of staff within the Administration Building that they were suffering excessive noise and vibration as a result of the operations. Mrs Fellows accepted that this was a genuine problem and described herself the thudding noise that apparently occurred. Mr Stephen Allen, the Managing Director of CUK, had his attention drawn to the problem by his site agent during the afternoon of Tuesday, 26 August, and also in a conversation with the foreman of Woods. According to Mr Allen’s first witness statement, the problem was explained to him by the Woods’ foreman as concerning the dust levels in the enclosure (i.e. the “tent” arrangement put in place around where the ceiling was being removed), the ceiling slabs (which were wired to each other) being very difficult to remove. Mr Allen, in his oral evidence, said that his recollection was that it was noise that was the principal problem and that he did not recall the “amount of dust” being an issue. To the extent that it matters (and I am not sure that it does), I think the contemporaneous documents do demonstrate some concerns about the dust as well as the noise. The letter written by Mr Allen on 29 August (quoted in paragraph 27 below) confirms this.[23]Mr Ismail Majid, who was Woods’ project manager at the time and the effective right-hand man of Mr Ian Lovitt, then owner and Managing Director of Woods, said this in his witness statement and I have no reason to doubt it:
“I was present on site when the operatives were working to the original method (cutting out the Expamet ceiling) and I remember very clearly that from the very start of the job it was apparent that the proposed method was not workable. It had been anticipated that the ceiling would cut and break relatively easily, but it did not. This meant that a very high level of heavy cutting was necessary. This caused high noise levels in parts of the building that remained in use as offices. British Steel [was] not happy with this.”
[24]In his witness statements Mr Allen said that he asked Woods’ foreman to try what he described as “a wet strip method” applied directly to concrete surfaces using Astrip (a surfactant) and a large scraper. According to Mr Allen, in due course the foreman rang back to say that this method was a good alternative and that the asbestos coat “peels off easy” and that the “wet strip” method worked well. Mr Allen then discussed this with Mr Lovitt who agreed that this new method would also be more acceptable to the Claimant. It was agreed also, according to Mr Allen, that the dust levels in the enclosure would be reduced for workers’ safety and that a lot more encapsulant would be needed to encapsulate the Expamet ceilings for “the subsequent seal”. Mr Allen confirmed in his oral evidence that he suggested wet stripping to try to see if it was a solution to the problem because he and Mr Lovitt, who had worked together for a number of years on other projects, had used wet stripping previously. It was developed apparently when endeavouring to deal with a problem in asbestos removal at the Ford plant at Aylwood. Mr Lovitt was, Mr Allen said, comfortable with the change. The wet strip process means scraping and wire brushing the relevant surface and, according to Mr Allen, was “an HSE approved process”.[25]It was against this general background that Mr Allen went to the Claimant’s premises on Thursday, 28 August, and a meeting took place to decide how to deal with the problems that had arisen. The meeting was attended by Mr Allen, Mr Graham Taylor (the Senior Project Manager of CUK) and Mr Russell Knott (CUK’s Site Manager), Mrs Fellows, Mr Andy McGibbon (the Corby Works Manager of the Claimant) and a Mr Brodie of the Claimant. I do not know Mr Brodie’s position within the Claimant, but he appeared to be taking a critical stance vis-à-vis CUK’s management skills.[26]It is not in dispute that the working method was changed following that meeting and that the wet stripping method (see paragraph 24 above) was thereafter adopted. There is a dispute about precisely what was said at the meeting and with what emphasis. I will deal with those matters later, but for present purposes will record what the contemporaneous documents reveal.[27]Someone from the Claimant (and it is not clear who) prepared a Minute of the meeting, to which I will refer in paragraph 31 below. However, as Mr Allen said, I do not think it is likely that he would have seen that Minute when he prepared his letter of 29 August to Mrs Fellows which is in these terms: “Further to our site meeting yesterday, I write to confirm the points discussed. The method used to remove the complete ceiling has proved difficult, as the ceiling is in fact a prefabricated slab with metal reinforcing, necessitating power tools and excessive labour. Health and Safety problems are created both in the enclosure and on the floors below. The risk from this method is unacceptable and needed to be reviewed. Air tests on the floors below and above proved to be within the clearance limit of 0.01 f/ml. Cavendish tabled a new method for discussion. This method was agreed in principle and is set out as attached. British Steel expressed their concern that not all the asbestos would be removed. A “trial” room will be offered for their inspection as soon as possible. British Steel are seeking an undertaking that all asbestos will be removed. Cavendish are prepared to give such an undertaking subject to certain caveats, ie.  Does not include other asbestos material, other than the decorative coat. [When he gave evidence, Mr Allen confirmed that the “decorative coat” referred to here was the covering of asbestos on the Expamet ceiling.]  Areas that are totally inaccessible. These would be sealed or further building works would be required to expose e.g. Director’s Lounge.  Any hidden areas we are not aware of are missed. Subject to this method being agreed, the weekly programme could be met and will resume with the 5th floor on 8/9/97. The 6th floor being complete on 6/9/97. The HSE will be advised of the change to method once approved by British Steel.”  Does not include other asbestos material, other than the decorative coat. [When he gave evidence, Mr Allen confirmed that the “decorative coat” referred to here was the covering of asbestos on the Expamet ceiling.]  Areas that are totally inaccessible. These would be sealed or further building works would be required to expose e.g. Director’s Lounge.  Any hidden areas we are not aware of are missed.[28]The reference in the letter to the “new method” was to a sequence of events set out on an accompanying document setting out how it was proposed that the new approach would accomplish the task. Mr Allen preferred to call it a “checklist”. There were 14 numbered paragraphs, three of which were as follows:
“8. Manually scrape asbestos decorative coating from ceiling. 9. Ensure all material is removed, including overspray. 10. Spray with ET10 encapsulating material on surface of ceiling, light boxes and suspect areas.”
[29]ET10 encapsulating material was a reference to Idenden ET10 Sealcote Encapsulant, an encapsulant that, according to Mr Garland, was used for interior application only.[30]The final version of the new method document that was sent to the Claimant on 1 September was that CUK would “air test, visually inspect and give clearance”. Reference to CUK meant in practice that CLL would perform these tests.[31]The material parts of the Minute to which I referred in paragraph 26 above were in these terms:
“… The following points were made by S. Allen:- An “interesting” week had passed with some considerable problems encountered. The ceiling was found not be plaster on mesh with reinforcing rods but was a structure of 6ft x 3ft concrete panels, bolted together, suspended to ceiling and then over sprayed. This was therefore considered a structural slab on where the asbestos had been sprayed. This had caused some major problems which were:- A major change in the method of removal which caused excessive vibration on the floor and ceiling above and below due to the need to use power tools to remove and cut the slabs into easy to handle pieces. A major concern was the vibration on the ceiling of the floor below. Air testing facilities had been stretched to the limit. All readings on the floors below or anywhere had shown no significant figures. (Highest was 17, normal ambient is 8). Graham Taylor confirmed along with Steve Allen that given this exceptionally “heavy” method of removing the ceiling structure they were concerned primarily with the possible high risk of some part of a ceiling falling in an inhabited office – “a disaster waiting to happen”
. The options left open until yesterday were: 1) to proceed as described but to sheet the ceilings to catch possible dislodged asbestos. 2) Evacuate the floor below. 3) Work night shift. However a successful trial had been undertaken spraying the ceiling using a surfactant to assist penetration and wetting and removing by scraping. The concrete was cleaning up perfectly, with the wet scrapings easily bagged. A minor problem with leaving the slab up was that the new suspended ceiling would be lower. … S. Allen confirmed that with this new method of removal he could see no problem in achieving one floor per week. It was agreed that the programme would be re-scheduled, completing the 6th floor by next Friday and then following floors on the weekly programme. … It was confirmed by Cavendish that they would rewrite the method statement and submit an urgent copy to British Steel and the HSE. J. Fellows confirmed that British Steel wished to inspect the stripped ceiling by the new proposed method of removal prior to electrical work commencing. Steve Allen could see no problems with this new method of removal giving as good a removal, if not better, than the previous method. A. McGibbon required in writing a confirmation that this method of removal was as good as if the total ceiling area had been removed as in the previous proposal, and that the completed job was as good, if not better, than in the previous specification. This was essential for the future management and development of the building in respect to the qualificationof an asbestos free structure. …” The following points were made by S. Allen:- This had caused some major problems which were:- 1) to proceed as described but to sheet the ceilings to catch possible dislodged asbestos. 2) Evacuate the floor below. 3) Work night shift.

This had caused some major problems which were:-

[32]Given that these matters are being investigated nearly 12 years after the material events, it is unfortunate that there is no clear evidence of when that Minute was sent to Mr Allen (though he accepts that he did see it at some stage) and of his contemporaneous response to it. Equally, it is unfortunate that the letter Mr Allen sent to Mrs Fellows was not responded to: indeed it was not in the disclosure given by the Claimant and Mrs Fellows said in evidence that it must have gone missing. On what is said to be a crucial issue, namely, the quality of the result promised following the changed method of work, precise contemporaneous reactions to these documents would have been helpful.[33]I will return to my findings about these matters later (see paragraphs 72-78 below), but comparing the two documents to which I have been able to refer does demonstrate plainly that the Claimant was concerned that the new method would not result in the total removal of the asbestos. Logically, of course, an arrangement that left the Expamet ceiling in place would have an apparently lower prospect of efficient removal of all the ACMs than total removal of the ceiling and its replacement with a new one. Again, I will return to this later.[34]The works were, however, carried out in accordance with the new working pattern and completed, it appears, in about November 1997. CUK and Woods agreed to share the cost of the encapsulant that would be needed (which, of course, would have been in greater quantities than originally required). The encapsulant in fact used was a PVA/Emulsion mix. An issue arose during the trial as to the acceptability of this as a substitute for the ET10. I will deal with this matter later (see paragraph 89 below), but my conclusion is that it is a non-issue so far as the merits of the case are concerned.[35]The works were inspected by CUK and representatives of the Claimant after completion and it is accepted that once they had been completed and “signed off” the roof voids were never inspected again until the matters referred to in paragraph 41 below arose. Things were done in the roof voids in the meantime (see paragraph 50 below), but no inspection of its condition as such was ever undertaken subsequently until the events of 2007.[36]Payment in full was made in accordance with the agreed figure (see paragraph 13 above).[37]It is worth recording at this point the combined view of the experts instructed in this case about the changed working method. It is as follows:
“It was agreed that it was a reasonable decision to change the method from dismantling the entire “Expamet” ceiling to scraping and sealing with encapsulant considering the issues encountered on site.”
[38]It follows, therefore, that whatever other issues arise for consideration, no-one is criticising the proposal made by Mr Allen, and accepted by others, that this revised method was a reasonable way forward given the circumstances that arose.[39]As will be apparent from the way in which this revised method was to be carried out, a new suspended ceiling had to be put in place below the Expamet ceiling which was to be left in situ. The effect of this was to create two roof voids, one new one directly above the new suspended ceiling and one that had existed above the Expamet ceiling. This is why the expression ‘roof voids’ will be used henceforth when describing the state of what is to be found above the new suspended ceiling.[40]I will move forward in the chronology for present purposes to the discovery of the matters that have given rise to these proceedings.[41]In March 2007 a workman installing a fire alarm system entered the ceiling void in one of the offices in the Administration Building and reported seeing debris that caused him to believe that there were asbestos fibres present. A sample was taken and on 22 March 2007 it was confirmed that it consisted “mainly of sandy lumps of material with a quantity of cellulous (e.g. wood) fibres”. The report on the sample, however, indicated that “there were also a small but definite number of asbestos (Chrysotile) fibres, mostly bound together in a white material (similar to plaster or white paint).” The report concluded with the assertion that the test was “positive” in the sense that “the sample does contain asbestos.”[42]Monitor Environmental Ltd (‘Monitor’) was instructed to assess the ceiling voids, the reason for the assessment being “the condition of encapsulation to the spray coating above the suspended ceilings” in the Administration Building. It did so on 22 April 2007, the instructions having been given by Mrs Fellows, and reported on 22 May 2007. As I understand the report, the assessment was that the sprayed coating on the Expamet ceiling was damaged, gave an incomplete seal and that the Chrysotile was in a condition that required urgent attention. It was also noted that ACM debris was to be found on the surface of the new suspended ceiling that had been put in place below the Expamet ceiling.[43]For reasons that are not entirely clear to me, after receipt of the Monitor report, the Claimant’s Group Surveyor, Mr Andy Pickford, engaged a firm of property consultants, Budworth Brown. The person dealing with the matter there was a Mr Banks, a Chartered Building Surveyor. Mr Banks invited a company called Ensafe Consultants Limited, whose interests included Asbestos Surveying and Project Management, to review the Monitor report with a view to providing “an independent opinion of the risk posed by the identified … ACMs …within the ceiling void … and taking into account the current use of the building and proposed/required infrastructure works … to provide an opinion as to the most appropriate remedial option.”[44]Ensafe recommended that the building be vacated whilst all suspended ceilings were removed, the structural soffit was decontaminated and some of the original studwork walls were removed. It was estimated that this would take 30 weeks and a budget figure for planning purposes of £1.1 million (ex VAT) was put forward.[45]It was also recommended that a “full Type 3 survey”, as it was called, should be carried out immediately to identify the presence of any further ACMs. This was indeed carried out at the cost, it was accepted on the Claimant’s behalf, of many thousands of pounds.[46]As I understand it, it was not the view of those with experience of asbestos internally within the Claimant that anything as drastic as was suggested by Ensafe was required, nor was it required by the Health and Safety Executive. Indeed all the experts in this case agreed that “the building could be made useable adopting much less far reaching measures” and that “it is not necessary to remove the Expamet ceiling, or undertake further cleaning of the surface”.Indeed Mr Garland and Mr Peacock were of the view that the recommendations reflected “an exaggeration of the true risk”. Mr Petri, whose company CW Environmental Limited now owns Woods as a wholly owned subsidiary and of which he is Managing Director, is clearly of the view that it represents far more than is necessary.[47]At all events, it was against this background of the advice of Ensafe that the present proceedings were issued in August 2007. The Particulars of Claim served in February 2008 claimed that the Claimant had “been advised that it will cost in the region of £2.4 million (excluding VAT) to remove the ACMs that should have been removed” and to make good the damage which will be done to the building in the course of the remedial works.[48]At a relatively late stage in these proceedings (indeed only a matter of weeks before the trial) the Claimant asked the court to separate the issues of liability and quantum because, having regard to certain decisions made about the Administration Building, it was not in a position to forward its case in relation to damages. To that extent these issues are of limited relevance to the matters before me. However, not unreasonably, the 1st and 3rd Defendants draw attention to the fact that it was against the background of the advice given by Ensafe and the financial consequences of that advice that these proceedings were launched and that the position now is far from clear.[49]I have not received any evidence from the representatives of Ensafe or Monitor who examined the premises in 2007. In order to make findings about the true state of the roof voids as revealed then it is necessary to consider such lay evidence as may be helpful about what has been observed and, of course, the expert evidence.

The state of the roof voids 10 years or so after the work

[50]I should, perhaps, say at the outset that there is no substantial disagreement about what has caused the ACM debris referred to in paragraphs 42 and 43. In her witness statement Mrs Fellows reviewed various purchase orders for works done in the Administration building between 1999 and 2007 which may have involved work in one or other or both of the roof voids. A number would have involved running wires or cables over the upper surface of the Expamet ceiling.[51]Mr Garland described in his report the process by which the debris came to be found on the surface of the lower ceiling. He put it this way:
“The upper void has essentially been used as a cable tray to support the heavy fire cables. The very act of installing these cables (when pulled through the light wells) has abraded the encapsulated edges of the Expamet causing debris to drop on to the secondary suspended ceiling. The cables will have also pulled asbestos overspray from the upper void, creating the debris now seen on the secondary suspended ceiling. Virtually all visible debris lying on the upper surface of the secondary suspended ceiling tiles [is] immediately below the light wells and does not extend more than a 200mm beyond. In my view all of the debris on the suspended ceiling has been caused by these uncontrolled cable projects.”
[52]This description appears to have been accepted by the other experts because the following appears in the Joint Statement:
“It was agreed that debris on the back of new suspended ceiling was likely to have occurred as a result of the uncontrolled works (with regard to asbestos considerations) within the void (specifically running cables in the upper void and pulling them through to the lower).”
[53]Mr Garland and Mr Peacock were also of the view that since the visible debris they observed was close to the edge of the Expamet ceiling around the light-wells it was consistent with having been dislodged from the upper surface by physical force or abrasion (e.g. by cabling and other works within the voids since 1997) and was not consistent with the material coming from the surface of the ceiling. Mr Hodgkiss said that he had not seen enough evidence to agree with this assertion, but it does seem to me to be the most likely explanation.[54]It follows, therefore, that the mechanism by which the asbestos discovered in 2007 came to be where it was in the condition it was has been clearly established. I will return to the implications of this shortly, but in order to gain a better appreciation of what it is that is said to evidence or constitute the breaches of duty, contractual or tortious, upon which the Claimant relies, other evidence relating to the condition of the roof voids needs to be considered.[55]I will deal with what the various experts say shortly, but I will begin by referring to Mr Petri’s observations. He was not, of course, involved in the works carried out by Woods in 1997. He was, however, concerned that he might find himself having to deal with the consequences of a job done badly since he had no means of passing the claim back to Mr Lovitt, any indemnities within the purchase agreement having expired. Woods had no professional indemnity insurance (which was not unusual for asbestos contractors if they did not, as Woods did not at the time, carry out asbestos surveys) and what insurance it did have had been placed with a company that had ceased to trade following insolvency. Undoubtedly, he would have been looking at the roof voids with an anxious eye.[56]He first heard about the claim in October 2007 and in, I believe, December 2007 he went to view the situation for himself. His unchallenged description of what he saw was expressed as follows:
“What I viewed was a job that appeared to have been properly undertaken. Those parts of the expamet ceiling that I was able to view were visibly clear of the sprayed asbestos coating, and the surface of the ceiling was encapsulated. The areas in the void above the expamet ceiling, around the lightwells, had also been encapsulated. I did observe some debris on the top of the secondary suspended ceiling. These (sic) debris were predominantly beneath the lightwells, and were of a size and composition that lead me to believe that they had come from the upper void, or possibly from the edges of the expamet ceiling, where the lightwells had been cut-out. The debris had clearly not come from the surface of the expamet ceiling which was a relatively smooth, stable and hard surface. I can readily accept that debris originating from the upper void might contain asbestos. There was certainly oversprayed asbestos within the voids. I have returned to the site on several occasions since my initial inspection, and my view has not changed. The surface of the ceiling has been thoroughly cleaned, and what residues remain have been encapsulated. There is clearly overspray which has penetrated through the numerous lightwell openings and settled on to the void above. This has also been encapsulated.”
[57]Mr Peacock, the expert instructed on behalf of CUK, first carried out a visual inspection of a selection of ceiling voids (totalling 12) from within the Administration Block on 26July 2008, accompanied by, inter alia, Mr Petri. As part of the process an independent UKAS-accredited laboratory (Thames Laboratories Limited) carried out reassurance air monitoring during the accessing of the ceiling voids to confirm that no increase in fibre levels occurred. (‘UKAS’ stands for United Kingdom Accreditation Service and it should be noted that CLL was similarly accredited.)[58]He attended the site again on 6 December 2008, together with Mr Garland and a Mr Thomas, an occupational hygienist formerly employed by the Claimant but at the time an independent consultant to the Claimant. Mr Allen and Mr Petri were also present as well as representatives of two UKAS-accredited companies who were there to carry out reassurance air testing in areas examined, including background, reassurance and clearance air testing in Room 215 on the second floor. The relevance of room 215 was that an enclosure was erected in the room by Woods to allow examination of what was thought to be some of the original sprayed coating which had been between a partition wall and the Expamet ceiling. However, no sprayed ACMs were found. It was apparently suggested to Mr Thomas that one of the analytical companies on site should carry out a “disturbed air test” inside the enclosure by vigorously brushing the surface of the Expamet ceiling in order to release any asbestos fibres present on the surface. This would have enabled an assessment of the likelihood of any residual or trace asbestos fibres still present on the Expamet ceiling being released into the environment and would have constituted a test of the efficacy of the remaining encapsulant. However, facilities for this were denied. Mr Hodgkiss, who was not present at that site visit, agreed that there was no good reason not to carry out such a test.[59]Mr Hodgkiss was not instructed until March 2009 and first visited the site on 23 March when he recorded part of his visual inspection by video camera. There are two assertions in his report that, whatever else might be said, are at variance with all the rest of the evidence and which he disowned in his oral evidence. They are as follows:
“From my inspection in March 2009 I saw no evidence that an encapsulant with the appearance of an emulsion was applied in 1997. The majority of the surfaces that I inspected did not have a visible sealant encapsulating the remaining asbestos.” “Given what I saw in March 2009, I believe that Woods failed to complete its work to the standard that one would have expected competent professional asbestos removers in 1997. Woods’ work left asbestos in exposed and friable condition and asbestos on the surface of the expamet ceiling. If Woods applied any ET10, it did not do so properly or in sufficient quantities as I could not detect any evidence of any encapsulant in March 2009.”
[60]In the Joint Statement he is recorded as saying that he “considered encapsulant to be entirely absent in places and generally insufficient”, which suggested that he had identified encapsulant, though he regarded it as inadequate. Indeed his own video footage demonstrated its existence in places. I am not entirely sure how these obviously wrong statements were made and found their way into Mr Hodgkiss’ final report. He did appear to believe that any encapsulant used would have been clear, but I do not fully understand how that could have led to these assertions. I am bound to say that this was one feature of his evidence that shook my confidence in its overall reliability. However, leaving that to one side for present purposes, there is no issue about the proposition that Woods did apply encapsulant in 1997. The issue is whether it was sufficient and whether it represented the discharge by CUK of its contractual obligations to the Claimant.[61]I have recorded what the experts have concluded about the work necessary to deal with the situation discovered in March 2007. It does not involve further cleaning of the surface of the Expamet ceiling. Equally, I have indicated my view that the debris discovered on the upper surface of the new suspended ceiling is unlikely to have come from the surface of the Expamet ceiling. It follows from this that any residual ACM’s there might have been on the Expamet ceiling will not have contributed to the “problem” identified in March 2007. The experts are agreed that there are “patches of raised material (probably containing asbestos) … still present on the [lower surface of the] Expamet ceiling.” There was a division of view about how prevalent they were: Mr Garland and Mr Peacock said they were “sparse and infrequent”, Mr Hodgkiss said that they were “widespread”. However, even if they were widespread they would not, as a matter of fact, have contributed to “the problem”. Mr Garland said that these patches of raised material were not necessarily patches of asbestos, but merely areas of unevenness of the underlying Expamet ceiling which contain no more asbestos than the surrounding “flat” areas. Mr Garland said that he had carried out a microscopic examination of two samples from raised areas such as these and found them to contain the same material as the underlying surface. Although Mr Fealy sought to suggest that this represented the view of one expert only and that Mr Garland was isolated from the views of his colleagues on this issue, I thought that his general conclusion was supported by Mr Peacock. In his report, Mr Peacock’s conclusions on this general matter, derived at least in part from his own observations in December 2008, were as follows: 8.7 The “bottom” surface of the Expamet ceiling has a relatively rough finish. … On some of the lower floors (Fourth to First e.g. Room 301) there are occasional small “patches” commonly one to two centimetres in diameter, thickness less than 1.5 mm, and sealed with PVA, which may contain residual sealed asbestos material. 8.8 It is my opinion that it is likely that during the original works in 1997 that these “patches” on the Expamet ceiling would have been difficult/impractical to remove and they were sealed with a PVA based adhesive after the visual inspection of the area/s and the subsequent air tests were passed by the analyst/s on site employed by Cavendish Laboratories. 8.9 The removal of all ACMs is never a realistic option for this type of material due to the nature of the product which gets into small crevices, cracks, etc and can never be completely removed without demolishing the structure.[62]Mr Fealy said that Mr Peacock “did not advance the view that the patches were part of the substratum” and, as I have indicated, that “[alone] among the experts, Mr Garland says that the raised patches are substrate.” I do not consider that to be an accurate representation of Mr Garland’s view. What he and Mr Peacock were saying, as I understood them, was that the volume or content of any residual traces of ACMs on the underside of the Expamet ceiling within these raised areas (which, of course, had been encapsulated) was no greater in extent simply because the area was raised: the fact that the area was raised was merely a function of the unevenness of the underlying surface. Mr Peacock said that his assumption “that in 1997 these patches, which now look like they could be removed, were presumably held much more firmly to the substrate of the Expamet” was, albeit to some extent a speculation, one to which he adhered. Given the evidence that the effectiveness of encapsulant generally weakens over a period of 10 years or so, this seems a reasonable inference to have drawn.[63]At all events, on this issue, and indeed on all matters of observation, I have to say that I prefer the evidence of Mr Garland and Mr Peacock to that of Mr Hodgkiss. Their evidence is also consistent with that of Mr Petri who I regarded as a reliable witness. The “disturbed air test” referred to in paragraph 58 might have yielded some answer to this general issue, but it was not carried out because of objection taken on the Claimant’s behalf. In those circumstances, it is difficult for the Claimant to complain of a finding to this effect.[64]Irrespective of that conclusion, Mr Hodgkiss accepted that over 99% of the asbestos that had been in the roof initially had been removed successfully since 1997 and that what was left represented “traces of residue”. This conclusion, of course, relates to approximately 4000 square metres of ceiling area. Because of the danger that arises from asbestos fibres, it is plainly important not to be carried away by a statistic of this nature – a residual 1% in the wrong place and insufficiently encapsulated could represent a significant danger. However, the statistic and the word “trace” do give a clear flavour of the overall effect of the works. It is against that background that the issue of breach of duty needs to be judged.[65]The question of the danger posed by any residual asbestos is something also that needs to be taken into account. Air tests in the vicinity of presumed ACM’s will give an appreciation of any danger, the measure concerned being whether the airborne fibre concentration is less than a certain level. The level taken for this purpose is less than 0.01 fibres per millilitre and is called the “clearance level”.[66]Both Defendants make the point that, with the exception of the Ensafe tests, all air tests carried out in 2007 and 2008 did not exceed the clearance level. This was also the effect of the CLL testing at the time of the works in 1997 and the Defendants do suggest that, even with the disturbance caused by the uncontrolled works (see paragraphs 51-52 above), the levels still remain within acceptable limits. It seems to be accepted by Mr Hodgkiss (as Mr Garland also suggested) that the Ensafe tests were not necessarily reliable without electron microscopal confirmation that the fibres detected were in fact asbestos fibres rather than, say, carpet fibres or other cellulous fibres. Against that background, I do not think I can place any reliability on those tests.

Summary of findings so far

[67]Before considering the issue of what was said by Mr Allen at the meeting of 28 August 1997 (see paragraph 25) and its potential significance, and before considering the potential legal consequences of any findings of fact that have been made, it is useful to summarise those findings.[68]These findings can be summarised thus: i) It was known to the Claimant, even on the first version of the contract with CUK, that not all asbestos would be removed and that encapsulant would be used as a sealant to prevent the escape of such traces of asbestos as were to be left in the remaining roof void. ii) Under the revised version of the contractual arrangements, those considering the position within the Claimant at the time must have appreciated that a larger number of areas enclosed by encapsulant, including areas on the retained Expamet ceiling, would be the consequence of those arrangements. iii) The revised approach was an entirely reasonable approach to adopt. iv) The works were in fact carried out (including the provision for new electric cables) without an asbestos hazard being created. v) The “asbestos problem” that manifested itself in 2007 was caused by the “uncontrolled” dragging of wires and cables through the two roof voids in the intervening period. vi) The “asbestos problem” in 2007 was one that could be solved by means that do not require the removal of the Expamet ceiling or further cleaning of its surface.

The way the Claimant’s case against the First Defendant is put

[69]Whilst I cannot conclude the analysis of the arguments in this case at that point, it does have to be observed that, given what is now acknowledged to be the relatively modest nature of the works needed to rectify the “2007 problem” it is unfortunate that the costs of a trial on liability alone have had to be expended. Whilst I am not, of course, dealing with matters of quantum, it is likely that the costs of any remedial works (if any are found to be necessary) will be relatively modest in the scale of things, the starting point for which is likely to be the cost of re-encapsulating the patches on the surface of the Expamet ceiling that may contain ACMs.[70]I will return to the question of what, if any, breach of duty has been established arising from the matters to which I have referred when I have considered further the way the Claimant’s case is advanced.[71]Although the Particulars of Claim contained an allegation that CUK was in breach of contract by failing “to effect the removal of ACMs from the ceilings within the [building] and proper encapsulation and labelling”, it was acknowledged in the Reply that any such claim was statute-barred and that no reliance could be placed on Section 14A of the Limitation Act 1980. However, an attempt was made at the commencement of the trial to reintroduce the contractual claim by alleging “concealed fraud”. I ruled against the introduction of that argument and, accordingly, the case has proceeded on the basis of the pleadings as they were at the commencement of the trial, subject to the “negligent misstatement” claim to which I will now turn.

(a) negligent misstatement

[72]A further application was made by Mr Fealy at the commencement of the trial to allege that what, on his case, Mr Allen said on 28 August 1997 (see paragraph 25 above) constituted a negligent misstatement affording the basis for a claim against CUK. Objection was taken to the proposed amendment by Mr Campbell, supported by Mr Kulkarni, on the grounds that, if made and substantiated, he would, on behalf of CUK, wish to bring a Part 20 claim against Woods. Whilst he was content to do that, he was aware, in particular, of the concerns that Woods had about that because of the non-availability as a witness of Mr Lovitt. Whilst I am not sure why the allegation of reliance on a negligent misstatement could not have been made earlier, in my ruling I took what I described as the “pragmatic approach” of proceeding on the basis that the amendment had been made with a commitment that I would revisit the question of any prejudice that might arise from it if the prejudice was established during the trial. In the event, the matter was fully canvassed and I do not think that either Mr Campbell or Mr Kulkarni could suggest that their clients were prejudiced by the consideration of the issue.[73]The Claimant clarified in writing before the trial that the basis on which it contended that Mr Allen’s advice was inaccurate/misleading was that under the revised method traces of asbestos would be left on the underside of the Expamet ceiling. I will turn to what Mr Allen said at the time. I have already recorded the contemporaneous documentary evidence about it (see paragraphs 27-31 above) and have commented that it is unfortunate that the records from each side of the argument (i.e. the Claimant, on the one hand, through the Minutes referred to in paragraph 31 and Mr Allen’s letter of 29 August, on the other) were not commented on or responded to by the other, at the time. That would have been of substantial assistance in resolving the issue of fact that arises some 12 years after the material events.[74]A material starting point, in my judgment, is that no-one suggests now that what Mr Allen (in conjunction with Mr Lovitt and his men on site) suggested as an alternative method of working was unreasonable in the circumstances: see paragraph 37 above. Indeed, standing back, one can see why it had its attractions for the Claimant. Whilst it is possible that Mr Allen has had to wait for all the experts in the case to give the alternative process a “clean bill of health” as a process, he will have seen that eventual combined view as confirmation of what he (and Mr Lovitt) had always believed to have been the case. Since I believe (and find) that Mr Allen himself genuinely believed that from the moment it was suggested, it follows that, at the time, he would not necessarily have seen the need to “sell” the new arrangement to the Claimant. Mrs. Fellows spoke in terms of Mr Allen having “sold” the new method to the meeting on 28 August, but I am unable to accept that it was quite in the terms that she suggested. I am prepared to accept that she personally believed that the Claimant was going to get “an equal job with the new method”, but within the limits of an arrangement that left the Expamet ceiling in place compared with an arrangement that resulting in its total removal. I think that is indeed what the Claimant obtained.[75]There has been a debate, which I regard as somewhat arid, about whether what Mr Allen suggested was that the “result” of the new method would be as good, if not better, than the “result” of the original method – or whether it was a representation that related to asbestos removal per se. The debate seems to have arisen from the way the negligent misstatement allegation is pleaded, namely, by reference to the “result”. A word such as “result” does connote something wider than merely asbestos removal. The need to close down the administration building whilst the Expamet ceiling as a whole was removed would undoubtedly have been an unwelcome “result” of any changed method. To that extent, the new method, which did not require the shutting down of the premises, was “as good as” the originally planned method provided, of course, it did not increase materially the risk of any asbestos release. I use the expression “materially increase the risk of any asbestos release” because there is no doubt that under the original proposal some traces of asbestos were to be left within the roof voids. Mrs. Fellows, who had limited experience of asbestos-related matters, understood this. It would certainly have been understood clearly by Mr McGibbon and Mr Murdoch, both of whom understood the issues clearly, the evidence indicating that Mr Murdoch had considerable experience in asbestos-related matters. It must have been plain to them all, particularly Mr McGibbon and Mr Murdoch, that any new arrangement that resulted in more areas being encapsulated left more residual ACMs within the building. However, they would have understood that, provided the lower surface of the Expamet ceiling was cleared of ACMs as far as reasonably practicable and any relevant areas of trace residues were encapsulated competently, efficiently and with suitable encapsulant, there would be no material increase in risk of asbestos being released. Indeed since, as I have already concluded (see paragraph 53), such problem as was identified in 2007 was not caused by asbestos from the lower surface of the Expamet ceiling, it does seem to me that this objective was indeed achieved.[76]This approach to the conversation that took place on 28 August 1997 is, in my view, borne out by a further feature of the analysis. Mr McGibbon is recorded by the Minute-taker (see paragraph 31 above) as requiring confirmation that the new method would result in the “completed job… [being] as good, if not better, than in the previous specification” because this was “essential for the future management and development of the building in respect to the qualification of an asbestos free structure” (see paragraph 31 above). Since neither the Minute-taker nor Mr McGibbon has been called to give evidence (nor indeed has Mr Murdoch), it is not known what was meant by “an asbestos free structure”. However, given that it was the common understanding that under the first working method asbestos traces arising from the overspray would be encapsulated, the building could not be entirely free of asbestos. Provided the encapsulated areas remained undisturbed then, so long as the encapsulant was effective, there would be no risk of airborne fibres. That would not absolve the Claimant from managing those areas, something inherent within the concept of “labelling” the overspray (see paragraph 14) but essentially the building would be “asbestos free”. If that is what Mr McGibbon meant (on the assumption that his comments were accurately recorded) then, given the role that encapsulation was to play under the new method (see paragraph 28), then his requirement would probably be met. If, however, something more than this was contemplated by the expression then, I am bound to say on the basis of the evidence I have heard, any such expectation would have been unrealistic. Anyone with knowledge of ACMs would know this. Mr Ilko, the Claimant’s Works Engineer, confirmed that there were a number of individuals in-house who had expertise in asbestos management: Mr McGibbon and Mr Murdoch would undoubtedly have been included amongst them, yet I have heard from neither. If one or other had come to court and said that he had been misled by something that Mr Allen said, I might have attached more significance to this part of the case. However, that has not been so. Given that the Minute has been in the Claimant’s possession since the beginning of these proceedings, it is surprising, as I have already indicated, that the allegation of negligent misstatement was not made fully in the original Particulars of Claim (in the sense that pleaded reliance upon it was placed by the Claimant) and not effectively at the last minute before trial.[77]Overall, I am not persuaded that there is anything in this allegation. I am sure that Mr Allen must have used some kind of expression at the meeting that suggested that the Claimant would not be losing out by permitting the adoption of the new method. Indeed it was accepted in the Defence that he did and he accepts that he must have done. However, I am quite unable to accept that whatever he said (and the burden of proving anything material in this sense is on the Claimant) was such as to give any kind of guarantee of an “asbestos free structure” in the sense that every single trace of asbestos was removed. He accepted in his evidence that his letter (see paragraph 27 above) contained an undertaking that all the asbestos on the Expamet ceiling would be removed. However, he plainly believed that undertaking excluded trace elements – and, in my view, Mr McGibbon and Mr Murdoch, if no-one else within the Claimant, would have understood that. It is, in my view, necessary to keep one’s feet on the ground when looking at words and expressions used in the kind of context with which this case is concerned, particularly given the identity of the participants in the discussions at the time. Mr Allen himself accepted that if he had said that the new method of removal “would give as good a method of removal as the old method”, that that would have been wrong and no reasonable person in his position could have said it. I do not accept that any words he used were either intended to convey that literal message, or that the words he used were understood (or could reasonably have been understood) to convey such a literal message. It is, perhaps, noteworthy that Mr Allen did not use the expression “asbestos free structure” in his letter.[78]I have addressed this allegation on its merits and I have rejected it. Had I been satisfied as to its merits, I would not have been satisfied that there would have been any basis for “passing on” the claim to Woods. As I have said, there is no criticism of the choice of “new method”, which both Mr Allen and Mr Lovitt were satisfied would offer an acceptable alternative method of achieving what the Claimant wanted. Mr Allen did not suggest that any words he may have used at the meeting on 28 August or in his subsequent letter would not have been used but for Mr Lovitt’s encouragement. In paragraph 24 I recorded what happened. I have no reason to doubt that, as Mr Allen has said, Woods’ foreman said that the new method (which had been tried and tested before) worked well and, on the findings I have made as to the cause of the “2007 problem”, it did.[79]I will address the limitation issue concerning this allegation (in the event that I was wrong about its merits) when dealing with the limitation issues more generally (see paragraphs 92-102 below). (b) other claims in negligence against the First Defendant (and the Third Defendant)[80]The asbestos removal works carried out were carried out by the Third Defendant. It follows that any claim against the First Defendant in negligence must derive from its supervisory role as main contractor.[81]This case seems to be encapsulated in two specific averments in the Amended Particulars of Claim. The first is in paragraph 26 supplemented by paragraph 26.2. Paragraph 26 reads as follows:
“… the First Defendant and/or the Third Defendant each was in breach of its duty of care in tort in failing to exercise reasonable skill and care in removing the ACMs from the Building and in damaging the Building by leaving ACMs in a disturbed and loose condition.”
[82]Paragraph 26.2 reads as follows:
“The First Defendant failed to carry out a thorough visible inspection to ensure that all visible traces of asbestos debris was removed from the Expamet ceilings.”
[83]In other words, a failure in CUK’s supervisory role as main contractor is relied upon, albeit in a tortious context rather than a contractual context.[84]Mr Fealy submits that CUK owed the Claimant a concurrent duty of care in tort to exercise reasonable care and skill in providing the services that it contracted to provide, one of those services being to manage all aspects of the contract including site management of sub-contractors (see paragraph 18 above). In providing those services, CUK was obliged in tort to exercise reasonable skill and care to avoid causing the Claimant the damage that it would suffer if it failed to do that which it undertook to do. This duty of care is said to be a duty to avoid causing economic loss as well as physical damage, the analysis in paragraphs 9-053 to 9-058 of Jackson and Powell on Professional Liability (6th edition, 2007) being relied upon for this proposition.[85]Leaving aside the merits or otherwise of those allegations, Mr Campbell submits that the CUK’s duty in tort is limited to a duty to ensure that it did not cause damage to the Claimant’s property other than property which was the subject of the contract, relying in particular upon D & F Estates v Church Commissioners for England [1989] AC 177 per Lord Bridge at p 206 and Murphy v Brentwood District Council [1991] 1 AC 398 per Lord Bridge at pp 474-476.[86]In view of the conclusions I have reached on the facts, it is unnecessary to analyse these competing submissions in detail. Had it been necessary to do so I would, with respect, have said that the analysis in Jackson and Powell represents the effect of the balance of contemporary authority.[87]I should, perhaps, say for the sake of completeness that had it been necessary for me to decide whether the works carried out by Woods “damaged” any part of the Claimant’s building, I would unhesitatingly have decided that it did not. The approach adopted by Mance J, as he then was, in Losinjska Plovidba v Transco Overseas (The “Orjula”) [1995] 2 Lloyds Reports 395, 399, would have led me to the view that the issue is one of fact and degree and that the facts here would not support such a conclusion. Mr Majid (see paragraph 23) described the suggestion that the Wood’s work had damaged the ceiling as “beggaring belief” and “incredible”. That may have been a little over-stated, but it came from an experienced operator in the asbestos removal world and it does sum up the position as I see it. Leaving a piece of work such as that carried out here not done as fully as it should have been (which would have been the inevitable conclusion if the evidence had supported it) would not, in my view, amount to “damaging” the property upon which the (inadequate) work was done. At all events, in my judgment, the issue does not arise.[88]I am not satisfied that what came to be revealed in 2007 evidenced unsatisfactory work carried out in 1997. Whilst there is no doubt that some ACMs were dislodged by the “uncontrolled works” (see paragraphs 51-52) in the intervening period, that was from an area where it was inevitable that the overspray would have been encapsulated (which was always part of what was to be left after the works) and thus susceptible to releasing asbestos fibres if heavy cables were dragged across the surface where the encapsulated areas were. Since I am satisfied, on the balance of probabilities, that the debris found in 2007 did not come from the lower surface of the Expamet ceiling (see paragraph 53 above), it is not possible to conclude that the works to the Expamet ceiling were carried out other than competently. There is evidence that CLL checked that sufficient ACMs had been scraped from the Expamet ceiling before encapsulation took place and that disturbed air monitoring tests were carried out after the works. Air monitoring tests were carried out in 2007 and 2008 and all the results, with the exception of the Ensafe tests (see paragraphs 44-45 above), were satisfactory. This enabled Mr Kulkarni to make the justified submission that whatever had occurred between 1997 and 2007 a safe asbestos situation still existed some 11-12 years after the works were carried out. It supports the evidence given by Mr Majid, when challenged as to the extent and quality of the encapsulation, that he knew “that it was encapsulated at the time”. I accept that evidence.[89]Since I have reached the conclusion I have, the issue of the use of the PVA/Emulsion mix as a substitute for the ET10 encapsulant (see paragraph 34) does not truly arise for consideration: if my finding is correct, this substituted form of encapsulant did the job for which it was used. The three experts were agreed that it was an “acceptable [product] for encapsulating asbestos” although Mr Hodgkiss considered that it was “inappropriate to have used an emulsion/PVA to encapsulate residue insulation material on [a] porous substrate”. Mr Peacock and Mr Garland disagreed. When cross-examined, it was put to Mr Hodgkiss that a mixture of vinyl matt paint and PVA was “just as good as ET 10” to which he replied that he did not know as he was “not an expert on those products”. Mr Peacock and Mr Garland were supported in their view that the proposition put to him was justified by the data sheets for emulsion and ET10 which suggest their intrinsic composition is very similar. I prefer the evidence of Mr Peacock and Mr Garland which seems to be supported by this material.[90]It is clear, therefore, on these findings that I am not persuaded that either Woods or CUK were in breach of whatever duty might be said to be owed by each to the Claimant in respect of the asbestos clearance works carried out.[91]Woods plainly owed no contractual duty of care to the Claimant. It is not disputed that Woods owed the Claimant a duty of care in tort not to cause damage to its property. For reasons I have set out previously (see paragraph 87), even had I been persuaded that the works were carried out inadequately, I would not have concluded that “damage” in the form of physical damage had been occasioned to the building.

Limitation

[92]I have addressed this case essentially on the merits of the claim advanced by the Claimant. I have found the case on liability against both Defendants wanting for the reasons I have given.[93]Had I been wrong about that, or any aspects of it, it would have been necessary to consider at some length the limitation arguments raised by each Defendant. In case my decision on the merits should be the subject of challenge I will set out what would have been my conclusions had it been necessary to consider these arguments. I propose to do so relatively briefly.[94]As already indicated, it is accepted by the Claimant that any contractual claim against CUK is statute-barred and there is, of course, no claim in contract against Woods. The issue to be considered is whether any tortious claim that the Claimant may have against CUK and/or Woods is, notwithstanding that it is prima facie statute-barred, capable of being pursued by virtue of sections 14A and 32(1)(b) of the Limitation Act 1980.[95]I will not set out those provisions in detail, but subsection (10) of section 14A should be quoted. It provides that a person’s knowledge – “… includes knowledge which he might reasonably have been expected to have acquired(a) from facts ascertainable or observable by him; or(b) from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek; but a person shall not be taken by virtue of this subsection to have knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.”[96]This, of course, raises the “constructive knowledge” issue.[97]The short point taken by both Defendants is that, had the Claimant fulfilled the statutory obligations imposed upon it by virtue of the Control of Asbestos at Work Regulations 1987 and the Control of Asbestos at Work Regulations 2002 it would have become alive well before 20 August 2004 (3 years before the commencement of these proceedings) to such problems as were caused by the alleged inadequacy of the works carried out in 1997 and/or any negligent misstatement that might have been made prior to the adoption of the revised method of working after the meeting on 28 August 1997. Indeed it is suggested that its own Asbestos Policy, if implemented, ought itself to have led to an appreciation of any problems that arose after the work was carried out if there were any. That policy, in existence before 1997, required the manager responsible for an area known to contain asbestos to have in place an asbestos management system that recorded exactly where the asbestos was, involved regular inspection of its condition and ensured awareness on the part of anyone working near to it of precautions that should be taken.[98]The starting point for this purpose is the proposition that the Claimant must have been aware that the asbestos clearance works carried out, whether in the originally contemplated form or in the revised form, would leave encapsulated ACMs within the roof void, at least some of which would be labelled. The submission made by both Defendants was that after completion of the works the Claimant had a duty to manage the risks posed by the remaining traces of asbestos both to its employees and to its contractors. I do not think it was seriously disputed by anyone on behalf of the Claimant that “labelled” areas demanded monitoring and management. There was uncertainty about whether areas of trace asbestos that required encapsulating (as occurred in relation to the Expamet ceiling) required monitoring and management.[99]There is no doubt that there was a strengthening of the need to keep records of where ACMs were found and of the need to keep those areas under review over the period from the 1987 Regulations until the promulgation of the 2002 Regulations. However, there is equally little doubt that the Claimant, which had many buildings in which asbestos was to be found, was aware of these needs from well before the 2002 Regulations notwithstanding the strengthening of the obligations under those Regulations. Mr Peter Quinn, the Manager, Environmental and Chemical Services for the UK Operations of the Claimant’s tubes business between January 1999 and March 2004 and since then Manager of Environmental Policy and Strategy, effectively acknowledged that. He accepted that the way the 1987 Regulations were complied with was to have a register recording where asbestos was and a management plan for dealing with it. He indicated that this did not necessarily constitute “a file which contained within it every single element of a management plan”. When asked whether the register should have recorded “all asbestos including asbestos that had been encapsulated” he was less certain about the extent of the obligation.[100]I can understand that there has to be some element of judgment about these matters notwithstanding the seriousness of the effect that the release of asbestos fibres may have, but it does seem to me that on any analysis by the time the works were completed in 1997, bearing in mind that some areas in the roof voids were to be “labelled”, those areas should have been registered and should have been the subject of periodic inspection. Indeed, in one sense, the proof of the pudding was in the eating: it was, as is agreed, the “uncontrolled” works in the roof voids that caused ACMs to be dislodged from the areas where “labelled” patches existed. It does not seem to me to be in accordance with the extant Regulations, or indeed the Claimant’s own policy at the time, that those works were carried out where “labelled” patches of even trace ACM materials were to be found without those areas having been reviewed in the meantime.[101]Whilst those areas were elsewhere than the surface of the Expamet ceiling, if they had been inspected at some stage after 1997 it is inevitable, given their close proximity to the Expamet ceiling, that any deficiencies in the works to the ceiling (which has not, of course, represented my finding) ought to have been revealed. It seems to me, therefore, that the state of the Expamet ceiling represented a fact “ascertainable or observable” by the Claimant by virtue of its own properly implemented management plan, whether carried out internally or with the assistance of external experts. On that basis “knowledge” of any problems arising with the Expamet ceiling ought to have been revealed before August 2004.[102]That represents my short analysis of the position without recourse to the expert evidence. However, it is to be noted that Mr Hodgkiss accepted that that if the Claimant had been complying with its duties under the 1987 Regulations, the work carried out in 1997 in the ceiling voids ought to have been subject to regular assessment and, assuming that the assessments were done competently, the Claimant would not have permitted the “uncontrolled” works to occur. He accepted the proposition that the Claimant only had itself to blame for the uncontrolled works which damaged the encapsulant “because if [it] had complied with the 1987 regulations that would not have happened.” That seems conclusive recognition of the conclusion to which I would otherwise have come.

Conclusion

[103]It follows that the Claimant’s claim on liability must be dismissed.[104]This result means that the whole issue of quantum does not fall for consideration. I should, perhaps, record that His Honour Judge Stewart QC, who dealt with and acceded to the Claimant’s application for a split trial on 18 May, had directed a limited issue of quantum to be considered at this trial in the following terms:
“In addition, the court shall determine the following issue (if necessary): if the Claimant is entitled to damages in respect of remedial work, what remedial work would it have been reasonable for the Claimant to undertake on the basis of the case advanced by the Claimant and the Defendants prior to 18 May 2009 provided that the determination of this issue shall be without prejudice to such case as the Claimant or Defendants may advance at the quantum stage.”
[105]Whilst, as the evidence and argument has unfolded, I think it might have been difficult to isolate the matter in the way that, understandably, Judge Stewart might have thought would meet the Defendants’ concerns about the late splitting of the issues of liability and quantum, as it happens the issue does not arise for consideration.[106]I would conclude by expressing my appreciation to Mr Fealy, Mr Campbell and Mr Kulkarni for their very helpful written and oral submissions.