Paine v Catlins & Ors [2004] EWHC 3054 (TCC)

Case No HT04672004] EWHC 3054 (TCC)IN THE HIGH COURT OF JUSTICETECHNOLOGY AND CONSTRUCTION COURTVenue Royal Courts of Justice, Strand, London, WC2A 2LLDate Date: 21.12.04
Before
HIS HONOUR JUDGE PETER COULSON Q.C
Between
PHILIP JAMES PAINEClaimantS J O CATLINS & OTHERSDefendantsLLOYD’S SYNDICATES 1003DefendantLLOYD’S SYNDICATES 2003Defendant
Mr Andrew Bartlett QC and Mr Julian Field (instructed by Girlings) for ClaimantMs Sioban Healy (instructed by Nexus) for DefendantsHearing Hearing dates : 15 th, 16 th, 17 th, 18 th, 22 nd and 23 rd November 2004
Judgment

[1] INTRODUCTION

[1]The Claimant, Mr Philip Paine, is the owner of the Shant Hotel and Prince of Wales Public House, near Maidstone, in Kent (“the hotel”). On 13th September 2002, a fire broke out in the kitchen of the hotel and spread through the extract ducting where it ignited the roof timbers. As a result, the hotel was substantially destroyed. The likely cost of reinstatement and other losses are put by Mr Paine in the sum of £2 million. The Defendants, who are the relevant insurers, have a reserve of £1.6 million.[2]The fire started on the range plate in the kitchen when some butter over-heated. Above the range plate was a large stainless steel kitchen canopy, in the lowest part of which were six removable filters in two rows of three. These filters were designed to filter out grease rising from the range plate. Beyond those six filters, within the canopy itself, were some stainless steel baffle plates which were fixed in position and were required for the purposes of the extract ducting system. Above the baffle plates was a horizontal space formed by the baffle plates at the bottom and the inside roof of the canopy at the top, out of which led the vertical extract ducting. This horizontal area, the correct definition of which is the subject of a major dispute between the parties, has been referred to neutrally as “the canopy plenum/extract duct" and that is how I shall describe it in this Judgment. It was the accumulated grease residue in that area which dripped down onto the filters during the early stages of the fire, where the grease ignited and caused the fire to spread with such devastating effect.[3]At the time of the fire, Mr Paine had insurance cover with the Defendants for fire damage in respect of both the contents and the buildings that made up the hotel, pursuant to an annual policy which took effect from 19th September 2001. There was a condition of the insurance that Mr Paine would clean parts of the kitchen, including the canopy, “as necessary and at least once a month” and other parts of the kitchen, including extraction ducting, “at least annually”. The dispute between the parties centres on whether the canopy plenum/extract duct was caught by the monthly or the annual cleaning obligation, which itself depended on whether the area where the burnt grease residue was found after the fire could be described as part of the canopy or part of the extraction ducting.[4]By the time of the fire, the Defendants’ agents had already written to Mr Paine to say that they were “withdrawing from the licensed trade insurance market and will, therefore, not be offering terms for the forthcoming period of insurance”. Accordingly, the fire occurred just days before the Defendants ceased to provide insurance cover in respect of the hotel.[5]By a letter dated 19th February 2003, the Defendants’ solicitors wrote to Mr Paine declining to provide an indemnity under the policy on the grounds that Mr Paine was in breach of the condition precedent (they also called it a warranty) in respect of the cleaning of the kitchen. The letter said: “Our client’s investigations have revealed that on the balance of probabilities, you have not complied with the warranty or the condition precedent. In particular:-(a) The physical findings on site after the fire, and the evidence and opinion that has been obtained from Dr Charles (actually Christopher) Foster at Burgoyne & Partners (assisted by Stephen Boyce of Swift Clean Limited) suggest that at the time of the fire, there was a significant build-up of grease within the canopy hood which had probably accumulated over a significant period of time.(b) As a consequence, the experts’ conclusion is that no adequate monthly system of cleaning in respect of the canopy hood can have been implemented. Their view is that it would have been both reasonable and practical to have implemented an appropriate system of cleaning that would have achieved warranty and condition precedent compliance … In the circumstances, we are satisfied you were in breach of warranty and condition precedent. As a consequence our client was and remains automatically discharged from liability under the policy. Without prejudice to that position our client has no liability on the basis of your failure to comply with the condition precedent. In all other aspects our client’s rights remain reserved”.[6]By a Claim Form served on 5th November 2003, Mr Paine sought a Declaration against the Defendants that he “was and is entitled to an indemnity under the said contract of insurance in respect of the loss and damage caused by the fire in accordance with the terms and conditions of the Policy”. This Claim was defended on a variety of grounds, although they have at their heart the alleged failure on the part of Mr Paine to comply with his obligations to clean the canopy plenum/extract duct “as necessary and at least once a month”. It is important to note that the Defendants’ case on breach is limited to a failure to comply with this minimum monthly cleaning obligation: it is not alleged that Mr Paine failed to comply with the annual cleaning obligation.[7]Pursuant to an Order made by His Honour Judge Toulmin CMG QC, dated 2.4.04, the issue of liability was ordered to be tried first. This Judgment is therefore solely concerned with the issue as to the Defendants’ alleged liability to indemnify the Claimant in accordance with the terms of the policy and that, in turn, turns on whether or not the Claimant was in breach of two of the terms of the policy (Condition 3 and Condition 4(b)(ii)) so as to allow the Defendants to decline liability.

[2] MR PAINE AND THE HOTEL

[8]During the 1980’s, Mr Paine owned and ran two nursing homes in Kent, together with his own contracting and engineering company. In 1987, he bought a further property which was converted into a private convalescence clinic. In overseeing the operation of the nursing homes and the clinic, Mr Paine acquired considerable experience of managing catering kitchens. In particular, as he put it in his written statement: “I was fully aware of all matters concerning Health & Safety, plus hygiene within this area. Whilst in ownership of the nursing homes and clinic, we were accredited the “Clean Food Award” which was a very important aspect as far as I was concerned”.[9]Following the sale of the nursing homes, Mr Paine purchased the Shant Hotel on 19th September 2000. The purchase price was approximately £1m. This included the Prince of Wales Public House attached to the hotel and a private house in the grounds. At that time, the hotel had 16 letting rooms and 3 staff accommodation rooms. There was a busy restaurant, and the hotel also offered function facilities.[10]At the time of the purchase, Mr Paine said that he undertook a “very thorough examination of the whole building. That included the kitchen and washrooms. Regarding the kitchen I would have taken out the canopy filters”. He said he was “reasonably surprised” how clean it was inside, making it clear that his inspection was conducted using a torch. He said “what surfaces I saw looked reasonably cleaned.”[11]Following his purchase of the hotel, Mr Paine organised a general refurbishment of the kitchen and purchased new appliances, including all the ranges, three phase microwaves, and combination ovens. The refurbishment of the kitchen was part of a much more extensive refurbishment programme carried out by Mr Paine in the latter part of 2000 and 2001 which involved the staff quarters, the bedrooms, the public house and the front restaurant. An extension was also added.[12]At the time that Mr Paine purchased the hotel, the Head Chef was Mr David Carpenter but he left early in 2001 and was replaced by a new Head Chef, Mr Meacher. In July 2001, Mr Paine appointed Mr & Mrs Neal to act as joint General Managers, and they lived in the house in the grounds of the hotel. They left at the start of 2002. In April 2002, Mr Curchin became the General Manager. A few weeks later, in early May 2002, Mr McElligott became the Head Chef in place of Mr Meacher. The evidence was that, throughout Mr Paine’s ownership, the hotel was always busy. The restaurant could seat approximately 112, the function room 170, and an additional space, called Cucumber Hall, could hold another 60 people. [3] KITCHEN CLEANING REGIMES [3A] At The Shant Hotel

[3] KITCHEN CLEANING REGIMES

[13]The evidence from Mr Neal was that, during Mr Meacher’s time as the Head Chef, there were 3 cleaning regimes which were the responsibility of the kitchen staff. There was a daily clean, when (amongst other things) the grease filters in the canopy above the range were put through the dishwasher and the exterior of the canopy hood was wiped down. There was a weekly clean when all the walls and floors of the kitchen were jet-washed and pieces of equipment, like chiller units, were moved with cleaning taking place behind. The exterior of the canopy was again cleaned as part of this weekly cleaning regime. Finally, on a fortnightly basis (although it may have been more frequent) there would be a more extensive clean, which Mr Neal described as a “complete wash down”. As regards the area of the canopy, this involved the removal of the filters and cleaning in the area thereby made accessible, including the use of the jet wash on the underside of the baffle plates which were above the filter housing. Mr Paine recalled that the canopy was “pressure washed…either weekly or fortnightly, normally on a Friday“. Mr Curchin described the regime put in place by Mr Meacher as being “very good…they used the jet washes and everything.” He also thought that this regime may have involved jet washing the inside of the canopy every week.[14]When Mr McElligott became Head Chef he continued with Mr Meacher’s cleaning routine but, by late June/early July 2002 he had made a number of changes to it. One such change was the decision to carry out the fortnightly clean on a monthly basis because, as he explained, he did not feel it was fair to tired kitchen staff to expect them to do an extensive clean on a more regular basis. He said that they had been “so busy with weddings at weekends and so forth … I thought it very unfair to ask kitchen staff, who have worked all day, to stay an extra two or three hours when we were in such a busy period…”. Mr McElligott also explained that during this monthly clean the area below the baffle plates within the canopy “was jet-washed and wiped down clean where it was accessible using cloths and scouring pads as appropriate”. He said in cross examination that, in respect of the area beyond the baffle plates:
“all we could do was direct a hose beyond the baffle plates through the gaps and try and remove as much as we possibly could … We would spray the pressure hose on to the roof of the canopy up into the ducting until the water came back down at us reasonably clean.”
[15]Mr McElligott explained that the nozzle on the jet washer was about two feet long, and it was this that was directed up into the canopy plenum/extract duct. He was emphatic that this method was the best possible way of cleaning the canopy plenum/extract duct:
“If I had spent an hour and a half with a pressure hose going into the ducting and for an hour and a half the water still came at the same colour, then I have enough sense to go to my general manager and say ‘we are using a pressure hose. We need a clean’. That was never the case. I never had to do that.”
This was because, as he explained, he watched the jet-wash water running back from the canopy plenum/extract duct into the collecting tubs. The water was dirty to start with, but after a while it ran clean.[16]Following the fire, Mr McElligott produced a Cleaning Schedule which set out in detail the cleaning regimes which I have described. A version was attached to his statement. He confirmed it in cross-examination. Under numbered item 17, the relevant cleaning was described as follows:
“CANOPIES AND EXTRACTION SYSTEM These were cleaned every 4 weeks. The canopies were jet-washed with the appropriate degreaser, then by hand with a scouring pad any stubborn residue was removed before the canopies being jet-washed once more. It was then wiped down with cloths. The actual fan was just barely visible but out of hands reached so this was jet-washed with a slightly stronger solution. This task was completed on 26 July 2002 and 23 August 2002 and was always completed by the chefs and kitchen porters on duty. It would generally take us between 2-3 hours to complete. In all my experience in catering my staff had always done me proud in their professional methods of keeping our workplace clean”
. The accuracy of this description of the new regime was also confirmed by Mr Curchin in his cross-examination, and he said that the “inside the canopy and everything was done every four weeks.” I should also note that there was some doubt as to the precise accuracy of the two dates of 26th July and 23rd August, although it was not suggested that no such cleans had taken place. In cross-examination Mr McElligott accepted that one version of Mr Smith’s notes said the 27th July and 23rd August, and another the 26th July and 26th August, and that to the extent that the dates were Fridays, cleaning would probably not have occurred on those dates. I find that a monthly clean of the sort described by Mr McElligott was carried out on a date towards the end of July 2002 and a date about a month later, towards the end of August 2002. Those were the last 2 monthly cleans before the fire.[17]Mr Paine was content to leave the details of the cleaning regimes to his experienced staff, but he made clear that he carried out many inspections himself. He said that he “was inspecting the kitchen very thoroughly on several occasions, mostly when either the chef or the management were not about. This was after the shifts or very early in the morning sometimes as well.” He said he was aware of the change from fortnightly to monthly cleaning but that he was not concerned about it “because it was coming up to the very high standard it had been before”.[18]In addition to the daily, weekly, and fortnightly/monthly cleaning regimes performed by the kitchen staff, inspected by Mr Paine, and outlined above, there was also what was called an Annual Deep Clean. This involved a much more extensive clean of the kitchen and the equipment. In particular, it involved the cleaning of the whole extract duct system. On 19th November 2001, a professional cleaning company, the Olde English Cleaning Co carried out such a clean at the hotel. Their invoice described the work which they performed as:
“To clean and degrease all filters, canopies and ducting with concentrated degreaser. Check extractor is in good working order. Leave kitchen clean and tidy”
. It appears that this was the last deep clean before the fire. After the work had been completed, Mr Neal checked the top of the baffles with his fingertips to ensure that he could feel no grease.[19]On about 21st June 2002, Mr Curchin contacted another professional cleaning company which had been recommended to him, C & J Cleaning. Mr Curchin was clear that he had asked C & J Cleaning to come and look at the kitchen to quote for a deep clean operation, which, he said, included “cleaning below the plates and above the plates.” Certainly the quotation from C & J Cleaning dated 21.6.02 expressly offered an inclusive price “to undertake your kitchen deep cleaning requirements”. Moreover, the quotation, under the heading ‘cleaning’ sets out in detail the work that would be done:
“Remove and replace filters. Clean filters with high-pressure wash. Clean canopies. Clean with degreasers. Clean ducting. Clean with degreasers”
. The second page of the quotation contained, in diagrammatic form, an indication of the work that was to be carried out by C & J Cleaning, all under the heading “kitchen ducts air filter clean and stainless steel canopy”. Because this is the only drawing of the canopy prior to the fire, it is of some significance and I return to it later.[20]Mrs Carol King of C and J Cleaning was the individual who undertook the inspection. Mr Curchin said that, during that inspection, Mrs King “put her head into the extraction system to look up… she looked inside the canopy and she commented how clean the canopy was.” Despite all of this evidence, Mrs King maintained that she was quoting for something less than the annual deep clean and she suggested that what she was proposing was something similar to Mr McElligott’s monthly clean. She did not recall looking inside the canopy. Be that as it may, C & J Cleaning never in fact carried out the cleaning operation that they had quoted for. This was because, with a sad irony, the date that they had indicated for the deep clean was 16th September 2002. When they came to the hotel to carry out the work, they found a charred ruin.

[3B] Generally

[21]In the latter part of the 1990’s, the need for careful cleaning of kitchen ventilation systems began to become more widely recognised. This was reflected in a number of publications. This process began in 1998, when the Heating and Ventilating Contractors’ Association (“the HVCA”) produced a document called ‘Cleanliness of Ventilation Systems – Guide to Good Practice’, designated TR/17. This talked about the need for regular testing regimes for ventilation systems. Section 6 was entitled ‘Specific Considerations for Kitchen Extract Systems’, and Section 6.2, headed ‘Risk Factors’ said:
“Deposition of fats, grease and cooking oils occur in the body of the ductwork as the vaporised cooking oil condenses in the cooler part of the system. Accumulation of grease and cooking oils can develop presenting a significant fire risk as well as odour, hygiene and vermin problems.”
[22]Sections 6.4 – 6.8 of TR/17 dealt with Cleaning Schedules. These Sections recommended daily cleaning of cooker hoods and grease filters, with at least annual cleaning of kitchen extract ductwork. There was also a reference to specialist cleaning of the ductwork which, it was said, would depend on the level of usage of the cooking equipment. Section 6.7 warned that it was not normally practicable to clean kitchen extract systems to a “like new” condition. Although the evidence was that it was unlikely that Mr Paine or his employees had seen (or could be expected to have seen) TR/17, it seems to me that the cleaning regimes described in Section 3A above were broadly consistent with those outlined in this Guide.[23]Mr Nicholls, the cleaning expert called by the Defendants, referred to the fact that TR/17 talked about a surface contamination limit for grease in extraction systems of 180 microns, or 0.18mm. He agreed in cross-examination that the Guide did not link this figure to any question of fire safety. He also accepted that the Guide was not always followed, even amongst those who were aware of TR/17.[24]In 1999, the HVCA issued their Standard for Kitchen Ventilation Systems. This was designated DW/171: the ‘DW’ stood for ‘Duct Work’. This contained a lot of information in respect of canopy dimensions, types of canopy, grease filtration, and duct work. Section 25 of this document was entitled Cleaning & Maintenance. Section 25.12 read:
“In addition to daily cleaning and a weekly maintenance programme, periodic ‘deep hygiene cleaning’ should be undertaken by a specialist contractor to ensure that the food environment maintains a safe and clean standard. Due to the fact that standard techniques and chemicals used for daily cleaning do not remove the accumulations of carbon fat grease deposits and limescale in many normally inaccessible areas, all accessible main duct work runs and branches, including fitted equipment should be inspected and cleaned. To assist in the inspection of duct work, cleaning doors should be installed at regular intervals”
. Mr Nicholls explained that this meant that areas which were not normally accessible to kitchen staff, where accumulations of grease might be left behind, might be accessible to a specialist cleaning contractor.[25]In 2001, the Association of British Insurers produced a document which expressly linked cleaning to fire risk. This document, entitled “Fire Risk Assessment: Catering Extract Ventilation”, called for a daily, weekly, monthly, quarterly and annual cleaning regime. Under the weekly clean section in respect of canopies, the document recommended: “Remove access doors on the hood and inspect the interior with a torch. Visible deposits should be removed as far as possible (but note that this is not a substitute for regular cleaning of the entire system)”.[26]In June 2002 the HVCA produced a second edition of TR/17. This document is of limited relevance to this case because, on any view, the contract of insurance had been completed in all respects by June 2002, but it is of some interest because it is the first industry-generated document (as opposed to a document created by insurers) which provided a detailed analysis of the connection between the importance of cleaning and the question of fire risk. Section 6.1, entitled Specific Considerations for Kitchen Extract Systems was a significant development of its predecessor:
“The kitchen extract system presents particular hazards due to the potential for the accumulation of grease. Accumulated grease within an extract system forms a hidden combustion load. Under certain circumstances flame or very high temperature within the duct can ignite the grease causing fire to spread rapidly through the duct. Flame and heat within the duct can ignite surrounding materials at various points along the duct work path and transfer fire in ways that are difficult to predict and control by designers, installers and ultimately fire fighters. “. In addition, at Section 6.10, the Guide states: “It is essential that a kitchen extract duct work system, and canopy plenum, is provided with access panels of sufficient number, quality and size to enable unrestricted access for regular cleaning and inspection of the internal surfaces and in-line components”
. Mr Nicholls agreed that one of the principal differences between the first and second editions of TR/17 was the new emphasis on the need for access panels. He said that he recommended such panels every 3 metres.[27]It is important to note that, on the evidence, these various publications were not widely read. It appears that the first edition of TR/17 was bought by 360 members of the HVCA and 610 non-members, an amount agreed by Mr Nicholls as being “tiny” bearing in mind that there are some 8000 hotels in the UK and possibly as many as half a million premises where food is prepared. It appears that only one purchaser of the second edition was a hotel business, the Britannia Hotel chain. It was not seriously suggested that Mr Paine could or should have read any of these documents, let alone complied with their every recommendation. Mr Nicholls accepted that they were more relevant to duct work cleaning companies and larger chains of hotels.

[4] THE WIDER PROBLEM OF KITCHEN FIRES

[28]As noted in paragraph 25 above, at the end of the 1990’s, the Insurance Market had become concerned about the regularity and scale of fires which could be traced back to accumulated grease deposits in catering kitchens. This concern can also be identified in a number of the documents, which were exhibited to the experts’ reports. Two of the more significant are identified below.[29]At a Conference in 1999, a Mr Mark Newton of Sun Alliance Insurance presented a paper entitled ‘Insurance and Kitchen Extraction’. This took as its starting point a number of fires which caused extensive damage which were due to great deposits in kitchen extract ducts. The fires included those at Heathrow, South Mimms, the Royal Albion Hotel in Brighton and the fire in Whitney, in Oxfordshire, which destroyed the retail centre at the heart of the old town.[30]At the Ventilation Hygiene Conference in 2001 Mr Newton presented a further paper along similar lines, but with a much more extensive set of proposed solutions. The paper refers to the work being carried out by the HVAC in updating TR/17: as set out in paragraph 26 above, that was published in June 2002. As to risk, Mr Newton’s paper is candid:
“Different businesses will present differing degrees of risk. Catering establishments will usually require food preparation at peak times. Often small business will have a poor understanding of legislation and technical information, coupled with a corresponding lack of time and money to invest in cleaning. Many catering businesses occupy old buildings and ventilation systems are often adapted to fit around the structure. Seasonal premises can be problematic because of the variability of staff quality and their need for training”
. Mr Newton identified one of the chief risks of fire in a kitchen as “hot sparks [which] can ignite combustible deposits inside extract ducts”. He described one of the additional risk factors as “design aspects of the extract ventilation, such as length of ducts, length of horizontal ducts, type of fan, type and number of duct access panels”. Moreover, he also stated that an additional risk factor was the possibility that “cleaning contracts may only cover hoods and visible areas”.[31]Mr Newton’s 2001 paper is also of interest because it expressly deals with the frequency of cleaning. Under that heading, Mr Newton asked a series of questions:
“  How frequently do you clean the whole system?  How frequently do you clean parts of the system?  How is complete cleanliness verified? Firstly, as I think we will all agree, the frequency of cleaning the duct work system should be based on a considered risk assessment. The best way of doing this will be by measuring the quantity of grease deposited on the duct surface and establishing the rate of fouling. This is the method proposed by the HVCA in a draft document [The new edition of TR/17] which relates measured deposit thickness to various action levels. I believe that such a repeatable and verifiable method is likely to be the standard approach in the long term”
. Mr Newton plainly recognised that his detailed recommendations as to grease measurement and rate of fouling were, as he put it, for the “long term”. His conclusion confirmed this: “I think we all know that it will take quite some time for the food industry to move on from the current cheap and cheerful approach. However, given time and general acceptance of the need for progress, I believe that we will eventually see a reduction in fires and consequent loss of business, coupled with increased opportunities for the reputable contractor. Who knows, perhaps even insurance rates will stabilise?”  How frequently do you clean parts of the system?  How is complete cleanliness verified?[32]Today, it is apparent that these warnings are having at least some effect. Specialist duct work cleaning contractors, such as In depth Hygiene, have found business to be booming, as an article in the March 2004 edition of the Heating and Ventilating Review made plain. As the comment on the article stated:
“the potential for fire risk is there and insurance companies are beginning to take notice”
. In the article itself, Mr Richard Norman, the Managing Director of Indepth Hygiene, and the son of Mr Paine’s cleaning expert in this litigation, is quoted as saying:
“The only effective method of removing the grease is to gain access to the internal surfaces of the duct work and fans. This often involves cutting additional access panels and using specialist techniques such as rope access”
. However, the interview ends with an indication of the need, even now, for extensive continuing education: “Despite increased awareness among larger clients of the potential dangers of poorly maintained duct work, Richard believes that 90% of kitchen extract systems in the UK are never cleaned, an especially worrying statistic when applied to high risk buildings like hospitals and care homes. ‘Perhaps an even greater is that more than 30% of the grease extract systems we survey and find to be at least partially uncleaned are in catering facilities where the client is paying someone to clean the duct work’, says Richard”.

[5] THE INSURANCE HISTORY

[33]When Mr Paine bought the hotel in September 2000, it had the benefit of a pre-existing insurance policy in respect of the buildings and contents, which also provided Employers’ Liability cover. Mr Paine recalled reading it, and thought it included a cleaning warranty, which he brought to the attention of his kitchen staff because, he said, he was “very particular” about cleanliness, “not only to a policy that has probably been written, but to my high standards, which would be better than the policy.” This insurance was provided by the Groupama Insurance Company Limited and was called a Gauntlet Link Line policy. On 31st July 2001, Gauntlet Link Line wrote to Mr Paine to tell him that, although the policy fell due for renewal on 19th September 2001, it would no longer be underwritten by Groupama Insurance with effect from that date. The letter went on to say that they had arranged for G R Patrick Company & Limited (“GRP”) to arrange cover for Gauntlet Link Line customers.[34]On 5th September 2001, a Mr Matthew Emmett of GRP wrote to Mr Paine on behalf of Inn Sure – the trade name for the policy offered by the Defendants - and stated:
“We have pleasure in enclosing our Inn Sure 2000 Plus insurance policy, a new policy designed to meet your particular needs in the Licensed Free Trade underwritten by insurers at Lloyds. You policy is now due for renewal and you are, therefore, eligible for automatic transfer without the need for completion of a new proposal form”
. The Inn Sure 2000 Plus policy which was enclosed had a photograph of a 15th Century Inn on the cover with a half-timbered building next to it. The policy itself is the subject of a detailed analysis in Sections 10 and 11 of this Judgment below. Mr Paine could not recall “reading every word of that policy”, and could not recall specifically bringing it to the attention of his staff.[35]The letter of the 5th September indicated that a sum of £500,000 was proposed in respect of cover for any Loss of Earnings claim but, to ensure that that was adequate for Mr Paine’s requirements, two specific questions were asked in respect of the proposed sum insured and indemnity period. The letter went on: “In the event that levels of cover are found to be insufficient at the time that a claim is made, the settlement figure may be reduced by the portion of under insurance. If you require any alterations, please advise us immediately so that we may provide you with a quotation for the revised renewal premium”.[36]The new insurance policy was dealt with by GRP, who were cover-holders on behalf of the insurers, up to a maximum of £2m. The documents demonstrated that Mr Emmett had a number of conversations with Mr Paine in the latter part of 2001 in which, amongst other things, they discussed whether or not the building work then being carried out at the hotel (paragraph 11 above) would have any effect on the policy. On 5.10.01, Mr Emmett, on behalf of GRP, confirmed to Mr Paine that underwriters were “holding covered as requested in accordance with the attached schedule”. There were further discussions as to the detail of certain elements of the cover. In early April 2002, following the completion of the extension works at the hotel, Mr Roger Clugston from GRP visited the hotel. At this meeting Mr Paine completed and signed a Proposal Form. Revisions were made to the sums insured under the premium. The revised total sum insured was £1,985,200 which was just within GRP’s authority limit.[37]There was some debate at the Hearing as to the effective date and constituent parts of the contract of insurance. It seems to me clear that, on the basis of the history that I have recited, there was a binding contract of insurance in September 2001. However, that contract envisaged that there may be variations, because the offer letter of 5th September expressly envisaged possible changes to certain aspects of the policy. Those changes were agreed in April 2002. I therefore find that the proposal form, which Mr Paine signed in April 2002, was part of the contract of insurance, as varied in April 2002.[38]As noted in paragraph 4 above, on 14th August 2002, the Defendants’ agent wrote to Mr Paine to tell him that:
“We must advise that the past 12 months have seen a lot of activity in the insurance market, with insurers increasing their premiums, imposing higher excesses and more onerous terms, and in some instances, insurers are now declining to provide insurance against certain types of trade. These actions have been brought about by the continuing increase in claims costings throughout the insurance market, especially in relation to both Public Employer’s Liability claims, as well as the tragic events of 11 September last year. As a result of the above, your existing insurers have advised that they are withdrawing from the licensed trade insurance market and will, therefore, not be offering terms for the forthcoming period of insurance”
. Accordingly, Mr Paine’s contract of insurance with the Defendants was due to expire on 19th September 2002.

[6] THE FIRE AND ITS AFTERMATH

[39]At about 12.45pm on Friday 13th September 2002, Mr Ashley Hysted, one of the Under-Chefs, was melting 3 half-pound blocks of Anchor butter in a pot on the range plate beneath the kitchen canopy. This was to be used for glazing the vegetables for the lunch menu. Unfortunately, the butter over-heated and frothed over onto the surface of the range plate. The heat from this fire caused grease residues that had accumulated within the area above the baffle plates, (namely the canopy plenum/extract duct) to melt and drip onto the filters. There, the grease ignited. As a result flames spread quickly through the canopy plenum/extract duct and into the vertical extract ducting. It seems possible that further grease deposits here could have ignited and that flames could have escaped from the exhaust terminal.[40]The extract ducting passed through the roof void. The timbers within the roof void were ignited either because they were in contact with the hot extract ducting, or by exposure to radiant heat from the ducting, or as a result of the failure of the casing of the extract ducting, allowing the escape of flames from the ducting into the roof void. There was also the possibility that flames escaping from the exhaust terminal were blown back against the roof.[41]The above summary of the start and spread of the fire is taken from Section 2 of the Memorandum of Agreement signed by all the experts. It should also be noted that, whilst the experts were agreed that a fire ignited by butter frothing over onto the range plate or the burner beneath would result in a substantial flame, they were also agreed that the burning of 1½ pounds of butter would not generate substantial quantities of grease. Accordingly, the experts agreed that a key component in the spread of the fire was the pre-existing grease deposits in the canopy plenum/extract duct.[42]Fortunately, the evacuation procedures in the hotel worked well and nobody was injured in the fire. When the Fire Brigade arrived they had difficulty in accessing sufficient quantities of water, because of the lack of hydrants in the area. At one point they used water from a nearby swimming pool. The fire was not put out by the end of the day and the Fire Brigade returned on Saturday 14th September to carry out further works at the hotel. There were also a number of intruders to the site over the weekend and Mr Paine was obliged to arrange for site security.[43]On Monday 16th September 2002, the remains of the hotel were inspected by Dr Christopher Foster, of Burgoynes, the forensic scientists. Dr Foster, who has been at all times the Defendants’ fire expert, made an inspection of various parts of the site, in particular the area where the fire started. This inspection was not as extensive as Dr Foster would have wished because of the danger posed by an unsafe chimney in the kitchen area. Dr Foster made some manuscript notes that day: he also dictated some notes of what he found, which notes were later typed up. Dr Foster also talked to a number of Mr Paine’s employees, including Mr Hysted and Mr McElligott and made notes of those interviews. Dr Foster also took two wallets of photographs. He said that, even on that first visit, he was aware that there was a potential dispute as to “whether or not contractors had complied with their duty in terms of cleaning the extraction ducting.”[44]Also in attendance on the site that day, and playing a full part in most of the events noted above in conjunction with Dr Foster, was Mr Smith, who had been appointed by Mr Paine’s loss adjusters, the Balcombe Group. Mr Smith was a retired fire officer who regularly visited fire scenes, but he was not a forensic scientist. Mr Smith took his own photographs. He was present at the interviews with the employees and made his own notes.[45]Mr Hepherd, the Defendants’ loss adjuster, was in his car on the way to Wales on that Monday when he was told of the fire and turned round to drive to Kent. From his manuscript note of the same day, it appears that Mr Hepherd was aware of the cleaning Condition in the insurance policy (at least in general terms) when he visited the site. He discussed the Condition with Dr Foster at the end of the inspection, and sent him the text of the full Condition the following day. It also seems clear that when Dr Foster left site that day, he gave Mr Paine to understand that his return visit would be short; both he and Mr Smith seemed to Mr Paine to be “very happy with what they had actually found.”[46]On 17th September 2002 Dr Foster sent an e-mail to Nick Balcombe, Mr Paine’s loss adjuster, in which he agreed that it would be sensible to defer his further scene examination of the kitchen area until the demolition work was scheduled to commence. He went on:
“Essentially, I am interested in climbing over the extraction hood to confirm the layout and dimensions of ducting etc and conduct a more detailed examination of internal surfaces. I also wish to search for the canopy filters removed at the time of discovery of the fire. These are buried in the debris around the cooking range. This work, undertaken in situ, may take a few hours and I am reluctant to do this while the nearby chimney is still standing. It may be possible to lift out the canopy and attach the ducting as a single unit, and if that is possible then these items could be examined in an area that doesn’t interfere with the continuing work of the contractor”
. On the same day, Dr Foster wrote to Mr Hepherd and made a similar statement of intent. It was therefore clear that, whatever he might have said on site the previous day, Dr Foster was making it quite apparent that his second visit would be lengthy. In that letter he also said:
“I shall concentrate, in particular, on identifying the presence and degree of any burnt oil residues remaining in the duct.”
No such statement was contained in any letter or email to Mr Balcombe, or any other of Mr Paine’s advisors.[47]Also on 17th September 2002, Nigel Hepherd produced a preliminary Reserve Advice to the First Light Underwriting Agency which identified the figure of £1.6m. The Advice went on:
“Burgoynes have been requested to explore other aspects relating to the incident apart from causation, in particular the Assured’s compliance in respect of sub-paragraph b(ii) of paragraph 4 Conditions Precedent to Liability and the question of whether any right of subrogation might exist against Kent Fire Brigade and/or other official bodies”
. Again, at this stage, no mention was made of the compliance point to Mr Paine or Mr Balcombe.[48]At the same time, there seems to have been a dispute between GRP and First Light Underwriting over the level of Mr Paine’s cover. First Light wrote to GRP on 17th September to say that the total risk in September 2001 was £1,398,829 and that the mid-term adjustment effective from 3rd April 2002 had increased the sums insured quite considerably without the knowledge or consent of First Light. First Light said that GRP had exceeded their Binding Authority limit and went on to say that unless there was a reasonable explanation for the breach “we will have no alternative but to put your PI on notice of this loss”. In their reply of 18 December 2002, GRP rejected the allegation making the point that, in April, the revised total in sum insured was £1,985,200 “which was within our authority limit”. The letter concluded: “One last comment should be made at this point in that we notified the insured in August and again on 2 September that we are experiencing difficulty in seeking alternative cover for the premises due to the loss of our binding facility, and also reluctance by other insurers to provide terms. Cover on the risk would therefore cease on 19 September, and we suggested to the client that he should seek alternative insurance elsewhere”.[49]On 20th September 2002, Mr Hepherd sent his Preliminary Report to underwriters. This report stated that:
“We have requested Burgoynes to focus on the Assured’s cleaning regimes in order to ensure that compliance has occurred”
. In similar vein, the report concluded:
“Burgoynes are being commissioned to explore/investigate the following aspects: (a) Causation. (b) Warranty compliance – Burgoynes are endeavouring to obtain as much information as possible about the layout, dimensions and condition of the fume extraction system. They will be concentrating in particular on identifying the presence and degree of any burnt oil residues remaining in the duct. (c) Subrogation – Burgoynes consider it probable that the extraction ducting connected to the hood/canopy in the kitchen was lying either in contact with or very close to combustible components of the ceiling and/or roof structure. Witness evidence has indicated that the fire spread to the roof structures very soon after it had been discovered. Burgoynes will attempt to obtain information about the installation of the extraction system since there are clear guidelines in various codes and standards concerning separation between ducting and combustible materials”
. Mr Hepherd accepted in evidence that the report referred to the area where the burnt grease residue had been found as a “duct” and therefore focussed on the first half of Condition 4(b)(ii) (the annual clean) and not, as the Defendants now seek to do, on the second half of the condition, which was concerned with the monthly clean.[50]At the end of September, Nigel Hepherd produced a list of further information required of Mr Paine which he sent to his opposite number, Nick Balcombe. The list is dated 20th September 2002 but it appears that the information was actually not sought until 10 days later, on 30th September 2002, when the document was e-mailed to Mr Balcombe. The list of information sought was lengthy: “In the meantime, we would appreciate the following as soon as possible:• Detailed schedules in respect of trade content.• Copies of audited accounts supplied by the Vendors prior to acquisition and relating to the Insured’s trading operation subsequently.• Contact details in respect of the guests, accompanied by claim details.• Details of personal effects belonging to members of staff.• The names and addresses of the nursing homes, and the Highfield Clinic, together with the names of the companies that operated these ventures whilst the Assured had an association with such properties.• The names of any companies with which the Assured has had an association”.[51]Perhaps unsurprisingly, Mr Balcombe e-mailed back to Mr Hepherd stating that the requested information “seems to me a bit like the Spanish Inquisition? Would you be good enough and let me know the relevance of all the information you have requested? And I assume insurers will pay any costs over and above the sum insured for the supply from a third party of such information?” At the same time, unbeknown to Mr Balcombe, Mr Hepherd was writing to the Planning Department of Maidstone Borough Council asking them for details of all planning applications made by Mr Paine relating to the hotel premises.[52]Because of the continuing problem concerning the security of the site, Mr Paine was very anxious to get on with the demolition. It was his genuine understanding that Dr Foster’s second visit would be a short one, despite the fact that Dr Foster’s email of 17th September had referred to the inspection taking “a few hours”. Mr Paine therefore arranged for his contractors to come to the site to carry out the demolition as soon as Dr Foster had finished. The date set for this second inspection was Friday 11th October.[53]On Friday 11th October 2002, Dr Foster returned to the site of the hotel. There was a dispute as to precisely when he arrived. More significantly, Dr Foster said that he was “surprised” that Mr Smith was not there although he chose not to mention that surprise to Mr Paine, and he did not let Mr Smith’s absence stop, or in any way affect, his work that day. He set about carrying out an extensive investigation of the kitchen area which included the taking of another two wallets of photographs. He also made notes which, for the first time, recorded the dimensions of various elements of the kitchen canopy. He was there all day. The contractors that Mr Paine had on site waiting to start the demolition work were unable to do any such work due to the time that the investigation took. In addition, Dr Foster said that, because Mr Curchin happened to be present on site, he took advantage of that to interview Mr Curchin and made notes of the interview. Mr Curchin denied that there was any such interview and said that his only discussions with Dr Foster were informal and took place on his first inspection on the 16th September.[54]Dr Foster took no samples of the kitchen canopy or duct work, and did not cut out any parts of the steelwork with which this litigation is concerned. The only sample, therefore, taken from the site is a bag of carbonised grease residue, scraped from at least two different locations within the canopy plenum/extract duct. The visit came to an end in the unchallenged words of Mr Paine in this way:
“After he [Dr Foster] had completed his work, he told me, in front of Mr Curchin and other members of staff, that the site could now be demolished and made safe, and all the debris cleared away. He gave me no reason to believe that he had any concerns of any nature at all, or that the canopy and ducting should be kept for future examination”
. At some time on the afternoon of the 11th October, after the inspection was completed, Dr Foster rang Mr Hepherd. The short note of the telephone call made by Mr Hepherd did not indicate that Dr Foster had made any dramatic findings or come to any significant conclusions about the compliance point.[55]On Monday 14th October, Dr Foster spoke to Mr Hepherd again. On this occasion, Dr Foster said that there was grease residue present on what he expressly referred to as “the ducting within the cooker hood canopy”. He said that, in terms of the cleaning regime, he was “not convinced [they were] as thorough as they might have been”. At precisely the same time, although he was unaware of it, Mr Paine was also the subject of scrutiny by a private investigator, Mr Ray Flanagan, engaged by the Defendants. However, his manuscript report of 16.10.02 does not appear to contain any new information about Mr Paine at all.[56]In my judgment, the wide scope of the information sought by Nigel Hepherd on instructions from the Defendants (paragraphs 50 and 51 above), coupled with their use of a private investigator, clearly demonstrates that, in the immediate aftermath of the fire, the Defendants wished to explore every way in which they might legitimately be able to decline cover to Mr Paine. However, I accept that they were entitled, even obliged, to do so: the question for me is whether they were able to find a legitimate reason to reject his claim.[57]During the latter part of October and early November, Dr Foster was working on his first report. The final information that he required was the date of the last annual clean. At the same time, Nigel Hepherd asked Dr Foster to say when the fire extinguishers at the hotel had last been serviced. Dr Foster’s first report was eventually finished on 18th November 2002. That report has not been disclosed in these proceedings because it is said to be privileged. However, one drawing attached to that report, containing Figures 1 and 2, has been disclosed, and is of some significance. That is examined in greater detail in paragraphs 117-120 below.[58]By this time, Mr Smith, who had only attended the site on 16th September 2002, had produced his own report. The report bears a date of 1st October 2002 but there is uncertainty as to when the report was actually completed. It appears that it was not sent to Mr Paine until some time in November. Although it was not conceded by Mr Paine that this report was not privileged, it was disclosed at the commencement of the trial. I have found it a useful document. It considers a variety of relevant matters, in particular the cleaning condition in the policy and the system for cleaning at the hotel. The report does not conclude that there was a breach of the cleaning condition.[59]In late November/December 2002 there was an interesting exchange of correspondence between the loss adjusters. On 28th November, Nigel Balcombe wrote to GRP complaining that:
“Mr Hepherd seems clear in his mind that he intends to recommend to insurers that this claim be repudiated on grounds relating to the cleaning of the canopy and duck work … our mutual client actually undertook a most rigorous cleaning regime on a weekly basis and I understand from the forensic scientists representing our mutual client that Mr Hepherd’s forensic tried to put words in the Chef’s mouth, relating to the fact that there may have been a residual amount of fat left on the canopy, after the last clean. This is totally and utterly incorrect and must be most vigorously refuted immediately”
. In letters dated 28th November and 7th December 2002, Nigel Hepherd confirmed, and repeated, that he had not recommended that the claim should be repudiated. However, as set out in paragraph 5 above, on 19th February 2003, that was precisely what happened, when the Defendants’ solicitors wrote to Mr Paine alleging breach of warranty/condition precedent in respect of the cleaning and declining to provide an indemnity.

[7] THE ISSUES AND THE EVIDENCE

[60]I now turn to the Issues in the case. As a result of the abandonment of certain points taken by the Defendants in their opening, the number of Issues between the parties had been reduced by the end of the trial. The formulation of the remaining Issues was very largely agreed by Counsel: any differences in the wording were small questions of emphasis only. I therefore set out below the Issues which I must resolve: Sections 8 onwards of this Judgment will deal with these Issues, one by one.[61]The Issues between the parties now to be resolved are as follows:(a) (A) THE PHYSICAL CONFIGURATION OF THE CANOPY PLENUM/EXTRACT DUCT1.1 What were the circumstances in which the canopy plenum/extract duct were destroyed?1.2 What is the evidence available to the Court as to the likely configuration of the canopy plenum/extract duct?1.3 Having regard to the answers to 1.1 and 1.2 and to the burden of proof of breach of the terms of the insurance, is it either necessary or appropriate for the Court to draw inferences or decline to draw inferences as to the likely configuration of the canopy plenum/extract duct?1.4 In the light of the answers to 1.1-1.3 above, what are the Court’s conclusions as to the size, number and location of the baffle plates above and behind the six filters in the canopy and the size of the gaps between them?1.5 To what extent were the areas (i) the underside of the roof of the canopy plenum/extract duct and (ii) on the upper surface of the baffle plates, accessible to be cleaned?(b) (B) THE POLICY TERMS 2. CONDITION 4(b)(iii) 2.1 What is the true meaning and effect of the Condition, and in particular: (a) Were areas (i) at the underside of the roof of the canopy plenum/extract duct and (ii) on the upper surface of the baffle plates, covered by the first part of the Condition or the second part? (b) What is meant by “inspected regularly cleaned as necessary and at least once a month” and how should that obligation have operated in practice? 3. CONDITION 3 3.1 What is the true meaning and effect of the Condition and in particular: (a) Does it refer solely to Mr Paine, or also to his employees; (b) Is the second sentence a separate stand-alone obligation from the first sentence, or is it to be interpreted as an adjunct to or as part of the obligation to take reasonable precautions?(c) Would in breach of either the first sentence and/or the second sentence of Condition 3 be triggered by negligence or are the Defendants obliged to prove recklessness.(d) What is meant by “maintenance”? (C) CONDITION IN MAY/JUNE 2002: BREACH OF POLICY?4.1 What is the evidence available to the Court as to the likely condition of canopy plenum/extract duct in May/June 2002?4.2 In the light of the evidence at 4.1 above and having regard to the answer at 1.1 above and the approach adopted in answering 1.3 above, what was the condition of the canopy plenum/extract duct in May/June 2002?4.3 Have the Defendants proved that the condition of the canopy plenum/extract duct as set out in 4.2 above constituted a breach of Condition 4(b)(ii) of the contract of insurance?4.4 If so, what are the consequences of that breach? (D) CONDITION ON 13 SEPTEMBER 2002: BREACH OF POLICY? 5. What is the evidence available to the Court as to the likely condition of the canopy plenum/extract duct on 13 September 2002? 6. In the light of the evidence at 5 above and having regard to the answer at 1.1 above and the approach adopted in answering 1.3 above, what was the condition of the canopy plenum/extract duct on 13 September 2002? 7. Have the Defendants proved that the condition of the canopy plenum/extract duct as set out in 6 above constituted a breach of condition 4(b)(ii) of the contract of insurance? 8. Have the Defendants proved that the condition of the canopy plenum/extract duct as set out in 6 above constituted a breach of Condition 3 of the contract of insurance? 9. If the answer to Issue 7 and/or 8 above is Yes, what are the consequences of that breach?(e) (E) CONCLUSION 10. In the light of the answers to Issues 1-9, are the Defendants liable to indemnify Mr Paine under the terms of his contract of insurance or not?[62]Before dealing in general terms with the evidence, it is sensible to identify a number of important starting points. First, it is right to note that the burden of proof in this case is upon the Defendants. They need to establish that, on the balance of probabilities, Mr Paine was in breach of the second half of the cleaning obligation at Condition 4(b)(ii), namely that which related to those parts of the kitchen which required to be cleaned “at least monthly”. Secondly, and following on from that first point, it is no part of the Defendants’ pleaded case that Mr Paine was in breach of the first half of Condition 4(b)(ii), namely the part of the Condition that related to those elements within the kitchen which had to be cleaned at least annually. Thirdly, as Ms Healy pointed out during the course of her careful closing submissions, the experts have been able to agree a raft of matters relating to the fire and the cleaning regime and those agr00eements, set out in the signed Memorandum of Agreement, operate as clear parameters within which the Issues set out above must be decided. Factual witnesses: Claimant[63]On behalf of the Claimant, Mr Paine, I heard evidence from a trio of men who worked in the kitchen of the hotel at various times. They were Mr Neal, who had been the General Manager; Mr Curchin who was the General Manager at the time of the fire; and Mr McElligott, the Head Chef at the time of the fire. I find that all 3 men were entirely truthful witnesses who did their best at all times to provide assistance to the Court and who, where they were unable to remember incidents or events, would clearly say so. They were impressive witnesses and I accept the generality of their evidence. I also agree with the submission made by Mr Bartlett QC, on behalf of Mr Paine, that the small discrepancies between their individual accounts is precisely the sort of thing that is to be expected in these circumstances, and is, if anything, further confirmation of the general credibility of their evidence. I also heard from Mr Paine himself, who was a clear and straightforward witness whose evidence, again, I generally accept. In addition, there were written witness statements from Mr Relf and Mr Croxon which were not challenged, although I find that those statements were of peripheral relevance. There was a statement from Donna Whyte which was agreed on the basis that Ms Healy could make submissions on the content. I therefore deal with her evidence in its appropriate place at paragraph 148 below. Factual Witnesses: Defendants[64]The Defendants called two witnesses of fact: the loss adjuster, Mr Hepherd and Mrs Carol King from C & J Cleaning. As Mr Bartlett put it during his cross-examination of Mrs King, she was a popular witness because she had not only provided two signed statements to the Defendants but also one signed statement to the Claimant’s solicitors. Again, I considered both of these witnesses to be extremely helpful. Mr Hepherd’s involvement was relatively minor but his practice of making clear, albeit brief, notes of his important telephone calls is, in my experience, all too rare in the insurance industry. I find that Mrs King, who was understandably nervous when giving her evidence, was an entirely honest witness; where differences arose between her evidence and that of Mr Curchin, I find that those were entirely understandable differences of recollection relating to events that are now 2½ years old. In particular, I found Mrs King’s evidence as to the relationship between the practicalities of cleaning kitchens on the one hand, and the words of Condition 4(b)(ii) on the other, to be of considerable significance, and I refer again to that matter at paragraph 121-122 below. Expert evidence: Claimant[65]The Claimant called Dr Hawkins in relation to the fire and Mr Norman in respect of matters of cleaning. I find that both men complied at all times with their duties to the Court and were fair and balanced in their evidence. They made a number of important concessions which are referred to below. Expert evidence: Defendants[66]Mr Nicholls, the Defendants’ cleaning expert, was an impressive expert in the field of hygiene and cleaning of ventilation systems and, whilst I agree with Mr Bartlett QC’s submission that he did, at times, stray beyond his expertise, I find that this was the result of a laudable desire to help rather than anything else. His attempted extrapolation of the depth of pre-fire grease deposits from a few post-fire photographs was perhaps the most obvious example of this enthusiasm.[67]That leaves Dr Foster, the Defendants’ fire expert. For reasons which will become more apparent in the detailed analysis below, I consider that certain aspects of Dr Foster’s evidence were unsatisfactory. I am quite sure that at no time did Dr Foster ever set out to do anything other than comply with his professional duties to his client and his overriding duty to the Court. However, through a combination of circumstances, it seems to me that Dr Foster did not always follow proper or accepted practice during his investigations at the hotel site and in his interviews with some of Mr Paine’s employees. In addition, there were a number of occasions during his cross-examination when Dr Foster did not answer the questions put to him by Mr Bartlett QC, and instead endeavoured to take the opportunity to argue the Defendants’ case. This tendency was also highlighted by a number of instances in his reports when Dr Foster misrepresented or misquoted the views of others, the better to make his point in reply, an approach which led to complaints as early as November 2002 (paragraph 59 above). Whilst I do not say that these general criticisms mean that Dr Foster’s entire evidence was unreliable – as we shall see later, I rely on a number of important elements of it – the result is that there are particular aspects of his evidence, detailed below, which I am bound to approach with caution. [8] THE PHYSICAL CONFIGURATION OF THE CANOPY PLENUM/EXTRACT DUCT 69. Issue 1.1: What were the circumstances in which the canopy plenum/extract duct were destroyed?[68]This issue arises because both sides are agreed that a number of the disputes between them could have been resolved much more easily if the canopy had been retained or, at the very least, a joint inspection had been performed which noted down agreed measurements of all the elements of the canopy, including the baffle plates. It is also clear that a considerable area of dispute would have been obviated if samples had been taken of at least some of those parts of the canopy plenum/extract duct which contained the burnt grease residue.

[8] THE PHYSICAL CONFIGURATION OF THE CANOPY PLENUM/EXTRACT DUCT

[69]Mr Bartlett QC, on behalf of the Claimant, submits that I should answer this question only by reference to what happened on 11th October. I do not accept that submission. Whilst I agree that what happened on 11th October is the most important element of any consideration of Issue 1.1, I consider that it is right to have regard to the events prior to 11th October and in particular the events on 16th September 2002.[70]Ms Healy, on behalf of the Defendants, essentially seeks to argue that Mr Paine cannot really complain now about the destruction of the canopy following the visit on 11th October because, at the inspection on 16th September, he had been represented by Mr Smith; Mr Smith had undertaken a joint inspection on the 16th with Dr Foster, and Mr Smith had been able to produce his detailed report on the basis of that one inspection. Since that report dealt with the question of the cleaning regime, Ms Healy submitted that it must have been apparent to Mr Paine and his advisors that cleaning was always likely to be in issue, and therefore, if they had wanted to undertake further investigations to satisfy themselves that the cleaning Condition of the Policy had not been breached, then they were free to do so.[71]I accept that Mr Paine’s advisors were aware from the outset that the cleaning Condition within the Policy might be called into question. Indeed, Mr Paine confirmed that he was not surprised, when he received Mr Smith’s report, that it referred expressly to the Condition. I accept that, in consequence, Mr Smith took some photographs and made some notes on 16th September with that possible dispute in mind. But I think that it is expecting too much of Mr Paine and his advisors to conclude that, thereafter, they had effectively to look after themselves and second guess what particular lines of inquiry Dr Foster might pursue. After all, it is clear that Dr Foster was not himself satisfied with the investigation that he had been able to carry out on 16th September, because of the proximity of the dangerous chimney, and needed to make a further investigation (which in the event took all day) in order to reach a conclusion as to the breach of the cleaning condition. If Dr Foster needed to go back then it must follow that Mr Paine’s advisors did too. Moreover, as noted in paragraph 46 above, Dr Foster’s intention of concentrating, in his second visit, on the “burnt oil residues” was never made plain to Mr Paine and his advisors. On the contrary, as Mr Paine explained in cross-examination “it was not put over to Mr Smith that it [the grease reside] was a problem.”[72]Further, there was a clear difference in the experience of the respective advisors. Dr Foster was an experienced representative of Burgoynes, perhaps the most famous forensic science company in the country. Mr Smith was an ex-fireman who, according to Dr Hawkins, often made scene inspections immediately following a fire but, not being a scientist, was rarely retained thereafter. Accordingly, in the run-up to the further inspection 11th October, it does seem to me that it was incumbent upon the Defendants, and Dr Foster in particular, to ensure that at the very least, any further inspection was done jointly with a representative nominated by Mr Paine. I am confirmed in this view by the fact that Dr Foster himself said that he was “surprised” when, on re-visiting the site on 11th October, he found that Mr Smith was not present. Dr Foster did not say to Mr Paine that he was surprised that Mr Paine did not have a representative there; and Dr Foster did not indicate to anybody that it would have been much better if any investigation that was carried out on that date was done jointly, if for no other reason than to reduce the scope of possible disputes at a later stage.[73]Once he had made his investigation, Dr Foster then told Mr Paine that the canopy could be demolished, as set out in Mr Paine’s witness statement, the unchallenged words of which are set out in paragraph 54 above. I note that Dr Foster did not at that stage say to Mr Paine that, prior to the destruction of the canopy plenum/extract duct, it would be sensible for Mr Paine’s fire expert to have another look at it; nor did he make any reference to the “burnt oil residues” and their possible significance.[74]What made the destruction of the canopy plenum/extract duct so important was that, as Dr Foster accepted in cross-examination, he was already thinking on11th October that he might well be advising that there was a basis of a case on breach of condition. In cross-examination, Dr Foster accepted that, because there was a possible issue of compliance, it would have been proper to have taken exhibits from the canopy. Such samples would have been similar to those which Mr Nicholls produced from other kitchen extract ducts in connection with the cleaning of grease deposits, and to which I shall refer again below.[75]Accordingly, in answer to Issue 1.1, it seems to me that the canopy plenum/extract duct was destroyed in circumstances where Dr Foster had made a second inspection in the absence of Mr Smith; that this was an absence which Dr Foster found surprising but he did not mention his surprise to anyone; that the destruction of the evidence (and in particular the burnt oil residue) occurred at a time when Dr Foster was well aware that there may be a point about breach of condition in respect of which both the physical configuration and the precise condition of the canopy plenum/extract duct would be critical; and that no exhibits were cut from the canopy plenum/extract duct despite Dr Foster’s view that it would have been proper to have at least attempted to obtain such exhibits. I should also note that Dr Foster expressed his “regret that the canopy was disposed of” and candidly accepted that, from Mr Paine’s point of view, his conduct on 11th October was extremely unfair. Issue 1.2: What is the evidence available to the Court as to the likely configuration of the canopy plenum/extract duct?[76]In my judgment, there are two categories of evidence available to me as to the likely configuration of the canopy plenum/extract duct. The first category is the evidence of configuration before the fire. This comes principally from Mr Curchin, Mr Neal, and Mr McElligott. There is also evidence as to the pre-fire configuration from Mrs King of C & J Cleaning and it is Mrs King who supplied the only pre-fire drawing/diagram of certain disputed aspects of the configuration now available to the Court. In my judgment, this evidence is inevitably of greater weight than the evidence of the situation after the fire, for the obvious reason that the fire and collapse of part of the hotel altered the configuration irredeemably, so that the photographs and the measurements taken after the fire are inherently less reliable as a guide to the pre-fire configuration.[77]However, I accept Ms Healy’s submission that there is a substantial amount of evidence in relation to the position after the fire. The best evidence is the photographs taken by Dr Foster and Mr Smith. There are also the dimensions taken by Dr Foster on his second visit on 11th October (which, for the reasons outlined above, could be neither checked nor challenged by Mr Paine or his advisors). There are also the contemporaneous notes of the interviews with some of the individuals (particularly Mr McElligott) on 16th September, although these do not concentrate on the disputed aspects of the configuration and are, for reasons which I deal with in greater detail in paragraphs 154-160 below, inherently unsatisfactory.[78]This, then, is the evidence which I consider when answering Issue 1.4 below: the physical configuration of the canopy plenum/extract duct. Issue 1.3: Having regard to the answers to1.1 and1.2 and to the burden of proof of breach of the terms of the insurance, is it either necessary or appropriate for the Court to draw inferences or decline to draw inferences as to the likely configuration of the canopy plenum/extract duct?[79]For the reasons set out in paragraphs 86-105 below, I have reached a firm conclusion on the physical configuration of the canopy plenum/extract duct on the basis of the evidence outlined in answer to Issue 1.2 above. I have reached those views on configuration on the basis of that evidence and I have not felt it necessary to draw any particular inferences because of the destruction of the evidence. It will be noted from those paragraphs that my conclusions as to the physical configuration of the canopy plenum/extract duct are largely favourable to Mr Paine. Thus, on my primary view of the evidence, the inference point does not arise since, as Mr Bartlett QC put it in his closing submissions:
“If your Lordship were to take the view that these witnesses [of fact] had reasonable recollections and were doing their best to tell the Court the truth, then this issue [inferences] really does not arise because your Lordship would accept that evidence and then the conclusion is in the Claimant’s favour. It only arises if your Lordship would otherwise be disposed to draw a conclusion in the Defendant’s favour. We then say that your Lordship should draw back from drawing that conclusion because of the history that we have gone through.”
If (contrary to my primary view), I had been in any doubt as to the evidence as to configuration then, as a matter of principle, I consider that it would have been appropriate for me to draw certain inferences in favour of Mr Paine. Therefore, it is as well that I set out here my brief reasons for concluding that, had it been necessary it would have been right for me to draw particular inferences relating to configuration in favour of Mr Paine.[80]Mr Bartlett QC put his submission on this point, to the effect that, if relevant, inferences were to be drawn against the Defendants (or alternatively that the Court should decline to draw inferences contrary to Mr Paine’s position) by reference to the Court of Appeal decision in Post Office Counters Limited v Mahida [2003] EWCA 1583. In that case, the Post Office were pursuing the Defendant for monies arising out of alleged discrepancies in DSS payments. All the relevant documentation had been lost by the Post Office. In the circumstances, the appeal against the County Court’s judgment in favour of the Post Office was allowed. It does not appear that any authorities were cited to the Court of Appeal in support of the contention advanced by the Appellant but I consider that Mr Bartlett QC is right to say that this is a recent illustration of the rule in The Ophelia [1916] 2 AC 206. That was a case about missing documents, in particular the missing signal log of the ship. The Privy Council outlined the relevant principle as follows: “If anyone by a deliberate act destroys a document which, according to what its contents may have been, would have told strongly either for him or against him, the strongest possible presumption arises that if it had been produced it would have told against him, and even if the document is destroyed by his own act, but under circumstances in which the intention to destroy evidence may fairly be considered rebutted, still he has to suffer. He is in the position that he is without the corroboration which might have been expected in his case”.[81]Accordingly, Mr Bartlett QC contended that, given the destruction of the canopy in the circumstances outlined above, which destruction only occurred because Dr Foster expressly authorised it, the Court should, in any case of doubt as to the configuration of the canopy plenum/extract duct, draw inferences in favour of Mr Paine.[82]Ms Healy disputed that submission. She properly drew attention to paragraph 585 in volume 17.1 of Halsbury’s Laws which confirms that “an unfavourable inference will be drawn in the case of one who destroys or suppresses”. However, she submitted that the principle did not apply here because the actual destruction was carried out by Mr Paine (not the Defendants) and that permission had been given by Dr Foster who was not one of the parties to the action. I reject both those submissions. Mr Paine had never been in this situation before, whereas Dr Foster had extensive experience. The relevant evidence was only destroyed because Dr Foster said that it could be. Moreover, in giving that authorisation, Dr Foster was acting on behalf of the Defendants.[83]Ms Healy also said that, whilst with hindsight it might have been better for the baffles to have been retained, there was really very little that was destroyed that could not be proved in another way. Whilst I accept that what was lost was relatively small in the context of the whole hotel, for the purposes of this particular dispute, it was of some significance. Primary evidence as to the post-fire condition relating to the number, size and location of baffles was lost, leaving just one or two photographs in which baffles could be seen. This omission was not made good by Dr Foster’s measurements, for the simple reason that he did not take any of the baffles at all. As to the other measurements that he did take, the destruction of the evidence meant that those measurements could never be challenged by Mr Paine. Furthermore, I should note in passing that Ms Healy’s arguments in closing were really limited to the loss of the unmeasured baffles whereas, in truth, of far greater importance was the total loss of any evidence of the burnt grease residue, in respect of which it was agreed by Dr Foster himself that samples could (and certainly with hindsight, should) have been taken. That was the most important thing that was “lost” as a result of the destruction of the evidence. That of course relates not to the physical configuration of the canopy plenum/extract duct, but to the important issue as to the residue of grease and what, if anything, that indicated as to the relevant cleaning regime. I therefore refer to this point again at paragraph 152 below; it also underpins much of the analysis at paragraphs 166-177 below.[84]Ms Healy’s principal answer to Mr Bartlett QC’s case as to the destruction of the evidence was to go on to the attack herself and she invited me to draw inferences adverse to the Claimant because Mr Paine did not call either Mr Balcombe or Mr Smith. I do not accept that there are adverse inferences which could or should be drawn because Mr Paine did not call those two gentlemen to give evidence. Further, most of the inferences that Ms Healy asked me to draw as a result of their absence I would have found as facts in any event. For instance, I think it is plain from the documents that Mr Balcombe was aware of Dr Foster’s second site visit and that Mr Smith was aware from the outset that there might be a potential dispute about the cleaning regime: that is why he dealt with it in his report. But, as Mr Bartlett QC pointed out, all of that is essentially irrelevant to the loss of the evidence on 11th October 2002.[85]Accordingly, for these reasons, I have concluded that, had it been necessary, I would have drawn inferences in favour of Mr Paine in respect of the physical configuration of the canopy plenum/extract duct. But, for the reasons set out in paragraphs 86 -106 below, I have reached a clear conclusion as to the physical configuration of the canopy plenum/extract duct without the need to draw any such inferences. Issue 1.4: In the light of the answers to 1.1-1.3 above, what are the Court’s conclusions as to the size, number and location of the baffle plates above and behind the 6 filters in the canopy and the size of the gaps between them? The size of the gaps[86]The principal dispute between the parties relating to configuration concerned the size of the gaps between the baffle plates. The disputes about the possible number and width of the baffle plates were only relevant at all because of the dispute about the gaps between them and whether or not the area above the baffle plates – namely, the canopy plenum/extract duct - could be easily accessed for cleaning purposes.[87]I have no doubt at all that the gaps between the baffle plates were small, of something in the order of 4 or 5 centimetres, or 1½ - 2 inches. This would have allowed somebody to put their fingers vertically between the baffle plates and to run their finger tips along the top of the baffle plates. The gaps would not have allowed anyone to rotate their hand between the baffle plates. The plates themselves could not be moved; the evidence was that they were fixed into position, using rivets.[88]The principal evidence that leads inexorably to this conclusion is the evidence of Mr Curchin, Mr Neal and Mr McElligott, the men who regularly worked in and inspected this kitchen and who, for their different reasons, had reason to look into the canopy once the filters had been removed and to put their fingers between the baffle plates. In particular Mr Curchin said in his statement that “the gap between them [the baffle plates] was certainly not wide enough to get your hand through". In cross-examination, he said “you could not get your hand through the baffle plate, the gap was too small”. He said that the gap between the baffle plates was 1½ - 2 inches, a distance he repeated on three further occasions in his cross-examination.[89]Similarly, Mr Neal said in his written statement that “you could not get access to the ducting behind these plates”. In his cross-examination he said that “the gap was very small”, and that “it was a very restricted access”. When the gaps represented by the wooden model that was in Court, built by Dr Foster, were shown to Mr Neal, he said that the wooden model was nothing like the configuration of the canopy because:
“The gaps that you have between these wooden baffles you can more or less get up and climb up inside the canopy and clean it. And it is nothing like that at all, nothing like that size”
. Mr Neal confirmed that he did run his finger tips over the top of the baffles but that he could not get his hand in further because of the narrowness of the gaps. He said this exercise was limited to his finger tips. He made this check when the Olde English Cleaning Company had finished their work to ensure that he was satisfied with it before he signed it off. His evidence on this point contained this graphic summation: “All I could do after the clean that was done [by the Old English Cleaning Company], the big clean, was to aim a torch up the best I could and put my hand up or my fingers up to make sure I could not feel a massive amount of grease and I could not. It was a very restricted access. All I can say, it was not a gap that sort of size [as shown on the wooden model] because I could not get my hand through the gap. I mean, the gap you have got there you could get half your body through it, even somebody like my size”.[90]In his re-examination. Mr Neal showed me what part of his hand he could put between the gaps. He said “I could literally get my fingers through to probably the first knuckle and just tilt a little bit. I would not get any further down from here [indicating his first knuckle].” He also said that “I would not have got my hand in any further.” He was limited to feeling the top of the baffles with his fingertips.[91]Finally, Mr McElligott, possibly the most important witness of all, confirmed that “we did not have access to go above or beyond the baffle plates and once you go beyond the baffle plates, you are going into the extraction, into the ducting”. When he talked about the cleaning that was done in his cross-examination he said:
“All we could do was direct a hose beyond the baffle plates through the gaps and try and remove as much as we possibly could”
. He repeatedly said that he “could not see above the baffle plates.” Further on in his cross-examination he said: “I could not have got a scraper and scraped off above the baffle plates because I had no access to get my hands through the gaps and no accessibility to move around above the baffle plates … we could not go beyond the baffle plates. I could not go beyond the gaps in between the baffle plates”.[92]When it was suggested to him that the fan, which was down at one end of the canopy plenum/extract duct area, was only just out of hand’s reach, but that his hand could get between the baffle plates he reacted with some exasperation:
“I am sorry, you can suggest what you like. That is not correct and it is not true. I worked there, I know where the fan was. I know whether I could have reached it or not, and [if] I could have reached it… we would have washed it manually. We could not so we used a jet wash.”
[93]Whilst is was properly put by Ms Healy to each of these 3 witnesses that they were mistaken in their recollection, I consider that, given their detailed knowledge of this kitchen and their work within it, it is simply not realistic to contend that all 3 men were completely mistaken on the same basic point. It was not suggested to these men that they were lying or that they had embarked upon some sort of conspiracy to support Mr Paine’s case. Furthermore, it seems to me that any such suggestion would have been untenable given that, as Mr Bartlett QC pointed out, on certain other matters, their evidence could have been much more helpful to Mr Paine than it actually was.[94]Ms Healy properly pointed out that, in the interviews conducted on 16th September, none of those questioned raised this (or any other) problem of access. But Mr McElligott’s riposte to that was that it was not something that they had been asked about by Dr Foster. It is also not entirely right to say that the question of accessibility did not arise at all in those interviews: it is clear from Dr Foster’s notes of his interview with Mr Hysted that the latter did expressly raise the question of those areas beyond the filters that were “accessible” but Mr Hysted then changed the focus of the conversation to external surfaces and the matter was not revisited. Dr Foster confirmed that in his cross-examination.[95]The only evidence that potentially contradicted the clear evidence that I have identified above are the photographs taken after the fire. I have already made the point that the usefulness of these photographs is inevitably limited due to the fact that they were taken after a catastrophic fire. I regard it as unsafe to reach conclusions as to the gaps between the baffles by reference to photographs of baffles where at least one, and possibly 2, of the 3 baffles shown in the photographs are accepted as having been dislodged. Moreover, Mr Curchin said that the configuration as shown in the photographs was not how it looked before the fire; Mr Neal said that the photographs, and the wooden model which was based upon them, looked “nothing like” the situation before the fire; and Mr McElligott, who gave the same evidence, pointed out that the photographs being relied on by the Defendants were “of a canopy that has had a whole hotel smashed on top of it.” For all these reasons, I conclude that the gaps between the baffles were small and did not allow for a hand to be put between the baffles and rotated. Essentially, this finding renders academic my conclusions as to the number and size of the baffles but I set out below my conclusions on those points as well.[96]The importance of this finding was anticipated in the cross-examination of Dr Foster. He accepted, without qualification, that if I found that there were fixed baffles with small gaps between them – which I do – the opinions in his report “were on a wrong basis.” That important point needs to be borne in mind when considering all other aspects of Dr Foster’s evidence. Number of baffles[97]As I have pointed out in paragraph 76 above, there is one document which showed in diagrammatic form various aspects of the kitchen before the fire. That is the C & J Cleaning drawing, prepared by Mrs King in June 2002. As previously noted, this showed elements of the “kitchen ducts air filter clean and stainless steel canopy”. Mrs King agreed that it probably showed the 2 canopies in the kitchen (the main one with which we are concerned, and a smaller one over the fat fryers); and 3 filters within the smaller canopy. The drawing also showed what Mrs King agreed were likely to be the filters within the main canopy with the notation “6x”. Immediately above that diagram is a rectangle divided into 5 strips, with the fifth, right-hand strip deliberately drawn narrower than the other 4. Mr Bartlett QC put to Mrs King that, given that all the rest of the drawing/diagrams showed various aspects of the canopy construction, the 5 strips must be the 5 baffle plates, particularly since Mrs King could have seen into this area on her June 2002 visit because one of the filters was broken and not in place. Mrs King agreed that she could not identify what this drawing was showing if it was not the underside of 5 baffle plates.[98]In her closing submissions Ms Healy suggested that these strips might be shelves or grilles in other parts of the kitchen but this possibility was not put to Mrs King. Moreover it does not seem very likely since this page of the quotation was expressly concerned with the “kitchen ducts air filter clean and stainless steel canopy”. Ms Healy also argued that this drawing was rather thin evidence for the suggestion that there were 5 baffle plates. Of course, up to a point, that submission must be right, given that it is the only drawing or description that there is that might conceivably relate to the pre-fire baffle plates, and its author could not remember precisely what it was she was drawing. On the other hand, this is the only pre-fire drawing in existence of the parts of the kitchen with which this case is concerned. Moreover, nobody has been able to suggest any credible alternative to the proposition that the 5 strips shown in the drawing were the 5 baffle plates. Therefore, it seems to me that, as at June 2002, the evidence does indeed point to there being 5 baffle plates in the kitchen. That, of course, is entirely consistent with the evidence from Mr Curchin, Mr Neal and Mr McElligott, set out in some detail above, as to the narrowness of the gaps between those individual baffle plates. In addition, Mr Neal said that he thought there may have been 4 baffle plates. To that extent, therefore, the C & J Services drawing does not stand alone but is supported by and is entirely consistent with the evidence of the factual witnesses. I therefore find that, prior to the fire, certainly as at June 2002, there were 5 baffle plates above the filters.[99]After the fire, the photographs taken by both Mr Foster and Mr Smith appear to show no more than 3 baffle plates within the canopy. However, in the photographs, it is accepted that one, if not 2, of the 3 baffle plates have been dislodged as a result of the fire and the collapse of part of the masonry onto one end of the canopy. Furthermore, I also note that, by the time the photographs were taken, the remains were 3 days old and the site had been subject to the attentions of both the fire brigade and some unwanted intruders. It would therefore be wrong to assume that the photographs of 16 September necessarily showed the position as it was at the time of the fire. Dr Foster confirmed that there was no reference in his notes of either the 16th September or the 11th October about the number of baffles, and he agreed that if there were more than 3 baffles, the gaps must have been smaller than he believed.[100]In all the circumstances, it seems to me that the most I can say is that, from the photographs, there were at least 3 baffles within the canopy at the time of the fire. For the reasons which I have previously explained, I do not believe that this makes any difference to my conclusions as to configuration. Size of baffles[101]There was a good deal of evidence about the possible size of the baffles. The reason that this point was disputed at all was because, on the first visit on 16th September 2002, Dr Foster and Mr Smith did not take any measurements at all in respect of the canopy. When Dr Foster returned on 11th October, he did take a number of measurements in and around the canopy/duct area but he did not take any measurements of the baffles. Accordingly, there was no first hand evidence as to their width.[102]Again, in my judgment this point is largely academic since I have found that the gaps between the baffles were small. That must therefore mean that the baffles were present in such numbers and/or were of such width to ensure that the gaps between them were small. I have already found that there were as many as 5 baffles in place prior to the fire, and that is consistent with the evidence as to the difficulties of accessing the area beyond. As to the individual size of the baffles, in the absence of any actual measurements, the only option left was to try and calculate the dimensions from the photographs. The reliability of this exercise was disputed. It seems to me, based on Dr Foster’s evidence, and his cross-examination, that the width could not be less than 25cms. Dr Foster himself said that he thought “it might be around about 25cm.”[103]In my view, the baffles may have varied in size and were not less than 25cms wide. That figure comes from the extrapolation exercise which, in my judgment, is not wholly reliable. They could have been wider. They could also have varied in width. Summary on configuration[104]For the reasons set out above, I have reached the firm conclusion that the gaps between the baffle plates were narrow, and of the order of 4-5cms (or Mr Curchin’s 1½ to 2 inches). They were not wide enough to allow a hand to pass through and rotate. They were wide enough to allow a vertical alignment of a man’s fingers to pass between them so that the fingers could then be bent and the finger tips could feel part of the upper surface of the baffle plates. The number and width of the baffles were such as to give rise to those narrow gaps. In particular it would appear that, certainly prior to the fire, there were as many as 5 baffles in place and that those 5 baffles may not have been of an equal width. Issue 1.5: To what extent were the areas(i) at the underside of the roof of the canopy plenum/extract duct, and(ii) on the upper surface of the baffle plates, accessible to be cleaned?[105]I have essentially answered this issue above. These areas were not accessible for the purposes of ordinary hand cleaning. They could, however, be cleaned by the application of the jet-wash water to the extent that the jet-wash nozzle could be put between the narrow gaps between the baffle plates. This was how Mr McElligott said that he had, in fact, cleaned the canopy plenum/extract duct on the monthly clean, as set out in paragraphs 14 - 16 above.

[9] THE FACTUAL MATRIX AND POINTS OF PRINCIPLE OF CONSTRUCTION

[106]Before turning to construe the particular Conditions of the Policy which are at the heart of this dispute, it is necessary for me to identify both the factual matrix and the relevant principles which I must follow in construing the Conditions of the policy. I bear in mind the well-known dictum of Lord Hoffmann in Investors Compensation Scheme v West Bromwich Building Society [1998] 1 WLR 896 in which he referred to the factual matrix as generally including “absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man”. I also consider that it is appropriate to follow the approach to construction outlined by Colman J in King v Brandywine Re Insurance Co (UK) Limited [2004] EWHC 1033 (COMM). There, he said this:
“86. In order to identify the mutually intended meaning of these words it is necessary first to investigate the possible range of dictionary meanings, secondly to investigate the setting of the words in their contractual environment and thirdly to investigate the circumstances in which the contracts were negotiated, in particular the circumstances of the parties and the mutually known features of the market in which they were negotiating. This approach is consistent with that indicated by the House of Lords in Investors Compensation Scheme Limited v West Bromwich Building Society [1998] 1 WLR 896 and in particular in the speech of Lord Hoffmann at page 913: ‘(4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meaning of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax: See Mannai Investments Co Limited v Eagle Star Life Assurance Co Limited [1997] AC749. (5) The ‘rule’ that words should be given their ‘natural and ordinary meaning’ reflects the common-sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. Lord Diplock made this point more vigorously when he said in Antaios Compania Naviera SA v Salan Rederierna AB [1985] AC191, 201. If detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business common-sense, it must be made to yield to business common-sense’ 87. The reference to Mannai Investments v Eagle Star is particularly in point for in that case one finds Lord Steyn observing: ‘in determining the meaning of the language of a commercial contract, and unilateral contractual notices, the law therefore generally favours a commercially sensible construction. The reason for this approach is that a commercial construction is more likely to give effect to the intention of the parties. Words are therefore interpreted in the way in which a reasonable commercial person would construe them. And the standard of the reasonable commercial person is hostile to technical interpretations and undue emphasis on niceties of language’”
. If detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business common-sense, it must be made to yield to business common-sense’[107]In accordance with these principles, it does not seem to me to be generally relevant (or even admissible) that particular witnesses construed the Conditions in particular ways. Therefore, the fact that Mr Nicholls called the area in question part of the canopy (although he conceded that the first edition of TR/17 could be read as describing it as part of “the body of ductwork”), whilst Mr Norman regarded it as part of the extract ducting, seems to me to be neither here nor there. The label of ‘extraction ducting’ put on the area by Mr Paine’s employees is also immaterial. However, I consider that there was evidence from two witnesses called by the Defendants (Mrs King in respect of cleaning and Dr Foster in respect of fire) to which I ought to have regard, because I consider that, in their different ways, these witnesses provided a useful guide as to what the Conditions could reasonably have meant to a hotel owner in the position of Mr Paine.[108]In addition to the general principles set out in King v Brandywine, Investors Compensation Scheme, and the Antaios Compania to which I have already referred, there are two principles of construction referable to insurance contracts which I consider to be relevant. First, when construing contracts of insurance, the Court should be astute to avoid a construction which would deprive the Assured of cover or render the contract “practically illusory”. This principle was first identified by Lord Justice Lindley in Cornish v The Accident Insurance Company (1889) QBD Volume xxiii page 453. In that case, a policy of insurance against accidental death or injury contained an exception in circumstances where the accident occurred “by exposure of the insured to obvious risk of injury”. As Lord Justice Lindley pointed out: “The object of the contract is to ensure against accidental death and injuries, and the contract must not be construed so as to defeat that object, nor so as to render it practically illusory. A man who crosses an ordinary crowded street is exposed to obvious risk of injury; and, if the words in question are construed literally, the Defendants would not be liable in the event of an insured being killed or injured in so crossing, even if he was taking reasonable care of himself. Such a result is so manifestly contrary to the real intention of the parties that a construction which leads to it ought to be rejected”.[109]Secondly, where there is any real ambiguity in the words proffered by insurers, that ambiguity must be construed in favour of the insured. This rule, which is really just an aspect of the contra proferentem rule, is set out in detail in MacGillivray on Insurance Law 10th Edition, paragraphs 11-33 to 11-36. In particular, I note the following:(a) Ambiguity in the wording of a policy is to be resolved against the party who prepared it. In the majority of cases, this means the insurer.(b) ‘One must not use the rule to create the ambiguity – one must find the ambiguity first’: Cole v Accident Ins Co (1889) 5 TLR, 736, 737;(c) The words should receive their ordinary and natural meaning unless that is displaced by a real ambiguity either appearing on the face of the policy or, possibly, by extrinsic evidence of surrounding circumstances;(d) If the meaning of the words used is reasonably clear it should be followed even if it is unreasonable or operates harshly against the assured, although the more unreasonable the result the clearer the words must be in order to lead to it.[110]In respect of the factual matrix, it seems to me that the following points are relevant in this case:(a) Mr Paine was a hotel-keeper on a relatively modest scale. He was not running a chain of hotels.(b) Mr Paine took out an insurance policy which, pursuant to the terms of the letter of 5 September 2001, (paragraph 34 above) was directly aimed at people like him.(c) The insurance policy insured Mr Paine against specified risks including fire.(d) Mr Paine, and his staff, were aware of the importance of cleaning the kitchen.(e) Mr Paine would have had no particular reason to know of the various papers and guides as to cleaning and fire risk set out in Sections 3B and 4 above.(f) The Defendants would have had more knowledge than Mr Paine of the papers and other documents referred to in Sections 3B and 4 above and it was, therefore, open to the Defendants to draft their Conditions in a way that made reference to, for instance, DW/171 or the first version of TR/17. In this regard the evidence of Mr Nicholls at the end of his cross-examination was of some significance. He agreed that “it would help” if insurance companies specified, by reference to TR/17 and the ABI Fire Risk Document (paragraph 25 above) exactly what standards of cleaning they required, in exactly which areas, and to set minimum standards for access doors to allow such cleaning to be carried out.[111]Accordingly, with that factual matrix and those principles of construction in mind, I then turn to construe the Conditions in question. [10] THE POLICY TERMS: CONDITION 4(b)(ii) 114. Issue 2.1: What is the true meaning and effect of the Condition, and in particular: (a). Were areas(i) at the underside of the roof of the canopy/plenum extract duct and(ii) on the upper surface of the baffle plates, covered by the first part of the Condition or the second part?[112]As amended by the policy schedule, Condition 4(b)(ii) read as follows:
“It is a Condition precedent to liability under Standard Cover – Contents Supplementary Cover - Buildings Standard Cover – Contents Supplementary Cover - Buildings (b) Frying and Cooking Equipment including deep fat frying ranges (applicable to premises serving hot food on a regular basis). (i) … (ii) All flues exhausts and extraction ducting are cleaned in accordance with the manufacturers instructions and at least annually and all grease traps extraction hoods canopies sumps and filters are inspected regularly cleaned as necessary and at least once a month.”

Supplementary Cover - Buildings

[113]It is agreed that there were grease deposits on the underside of the roof of the canopy plenum/extract duct and Dr Foster also suggested that there were some grease deposits on the upper surface of the baffle plates. Both those locations were, therefore, on the other (or far) side of the baffle plates, beyond the narrow gaps which I have found existed between those plates, and in the area that we have called the canopy plenum/extract duct. The primary question of construction of Condition 4(b)(ii) is whether that area was part of the extraction ducting or the canopy or hood. I have reached the firm conclusion that those areas are properly described as extraction ducting and were therefore the subject of the first half of Condition 4(b)(ii), and not the second half. There are a number of reasons for this view and I set them out below.

[10] THE POLICY TERMS: CONDITION 4(b)(ii)

[114]I derive little help from the dictionaries. I note that the Chambers Dictionary defines ‘duct’ as “an air-passage”, which was precisely what the space above the baffle plates was designed to be. The Concise Oxford English Dictionary describes it as “a channel or tube for conveying liquid gas, cable etc.” There is also some assistance to be derived from the American Standard for Ventilation Control and Fire Protection of Commercial Cooking Operations, cited by Mr Nicholls in his report, which defines ‘duct’ as:
“A continuous passageway for the transmission of air and vapours that, in addition to the containment components themselves, might include duct fittings, dampers, plenums, and/or other items of air-handling equipment”
. The Concise Oxford English Dictionary describes a canopy as a “covering suspended or held over throne, bed, person etc,“ and a hood as a “canopy to protect user of machinery or to remove fumes etc.”[115]Of much greater practical assistance is the configuration of the actual canopy plenum/extract duct itself. There was a canopy above the range plate, the first function of which was to filter out as much of the grease vapour/condensation as possible. That was the particular task performed by the 6 removable filters. Above those filters there was a clear barrier or demarcation line, formed by the baffle plates with the small gaps between. Beyond/above the baffle plates, there was an air passage leading to the vertical extract duct. That was the only purpose of that part of the construction: to act as an air passage, as part of the ducting system. It seems to me, therefore, that since the baffle plates themselves were an integral part of the extract ducting system – that was their primary purpose, to help regulate air flow - the area above the baffle plates, which was itself an air passage, is properly described as part of the extraction ducting.[116]The Defendants’ case seemed to rely on a distinction between vertical and horizontal air passages, the suggestion being that extraction ducting could only be properly so called if – unlike the area in question - it was vertical. I reject that suggestion: indeed, I can find nothing in any of the guides or other documents that supports such a contention. It seems to me that ducting can be either horizontal or vertical.[117]That the canopy plenum/extract duct is properly construed as part of the extraction ducting was confirmed beyond any doubt by the evidence of Dr Foster. Furthermore, this was not a single piece of one-off evidence or an inadvertent slip during cross-examination. The contemporaneous documents demonstrated that, in his detailed investigations at the site and throughout the time leading up to the preparation of his first report in November 2002, when it might be thought that Dr Foster had a better knowledge than anybody as to the proper configuration and labelling of this part of the kitchen, he repeatedly referred to the relevant area as being part of the ducting.[118]The relevant pieces of evidence – through which Dr Foster was taken in detail in his cross-examination – were as follows:(a) The drawing of 11th October, sketched by Dr Foster, labelled the area with which we are concerned in this case, namely the space underneath the canopy roof, as “duct”.(b) Dr Foster’s dictated notes on 11th October again referred to the area with which we are concerned as “the extraction duct itself”.(c) Those same notes referred to photographs of the burnt grease residue which are again firmly within the area in dispute. Those notes refer to the burnt grease “within the duct”.(d) The notes referring to the “end box” dictated by Dr Foster on his visit on 11th October referred to the cut-out shape as being necessary “to accommodate the sloping fan filters in the profile of the extraction duct itself”. Dr Foster accepted in cross-examination that that was again a reference to the area that is in dispute in this case.(e) The dictated notes which referred to photograph number 3.35 referred to a hole in the top of the canopy which Dr Foster described as “the top of the extraction duct itself”.(f) The exhibit taken by Dr Foster, namely the scraped residues of burnt grease, were also said by him to have been taken from the “duct”.(g) As previously noted, Mr Hepherd’s telephone note of 14th October 2002 recorded Dr Foster as saying that there was grease residue present in the “ducting within cooker hood canopy”.(h) On 28 October, when Dr Foster was still chasing for information as to the annual clean, he said that he had full details from Mr McElligott “about cleaning regimes used for the filters and the extraction duct within the canopy itself, but not for the vertical length of ducting, including the extraction fan, that connected the canopy in the kitchen to the discharge terminal outside” (emphasis supplied).(i) This all culminated in the drawing produced by Dr Foster in November which was attached as Figure 2 to his report of 18 November. Although the report is said to be privileged and has not been disclosed to the Court, the drawing, and in particular Figure 2, has been disclosed. That showed the canopy and the filters. Above the filters, in the area below the roof of the canopy, the area is marked “Extraction duct” and the passage of air is shown (using black arrows) passing horizontally along that area before turning vertically into what Dr Foster called “the vertical length of ducting”.[119]These 9 separate documentary references referable to the period up to the production of Dr Foster’s first report made it plain beyond any doubt that Dr Foster was of the view that the canopy plenum/extract duct was properly and correctly described as “extraction duct”. This culminated in the following critical exchange during Dr Foster’s cross-examination:
“Q: Up to 18 November when you wrote your interim report, you thought that the area where you found the grease was properly described as “extraction duct”? A: I had described it as that. Q: And you thought that was proper? A: And that was a phrase that I felt described the construction that I was looking at, yes. Q: And properly described it? A: Well, in the sense that it is a conduit through which air flows, yes. Q: Yes, and it is an enclosed space? A: Yes”
. Accordingly, it seems to me that Dr Foster’s contemporaneous view – confirmed in his cross-examination - was that the area with which this litigation is concerned was properly described as “extraction duct”. It would therefore be caught by the first part of the cleaning Condition (in respect of which no breach is alleged) and not the second. Q: And you thought that was proper? Q: And properly described it?

Q: Yes, and it is an enclosed space?

[120]It seemed that, after the passage of cross-examination referred to above, Dr Foster may have realised the significance of his answers, because he seemed to suggest that he put the words “extraction duct” where he did on the drawing at Figure 2 because there was nowhere else they could go. However, he back-tracked from that suggestion pretty quickly: not only was it palpably untrue (the words could have been shown in a variety of other places if required), but it ignored the fact that Figure 2 was entirely consistent with the other references outlined in paragraph 118 above.[121]I have said that, in one important respect, I found the evidence of Mrs King of possibly the greatest help in trying to make sense of this inelegantly worded Condition. The Condition is concerned with cleaning and Mrs King was the only witness who gave evidence who had regular experience of this kind of kitchen cleaning. In her cross-examination, Mr Bartlett QC took Mrs King to the Condition and pointed out the two operative parts. Mrs King said that she would not normally get involved in the cleaning referable to the first part (annual) and that it was effectively the cleaning required by the second part (monthly) that she thought she would be carrying out for Mr Curchin. There was then this exchange:
“Q: If somebody in Mr Curchin’s position gave you a regular contract to come and clean what it says there in that second part, to come and clean the grease traps, extraction hoods, canopies, sumps and filters, what would you have understood was required to be cleaned? How far would your clean extend? A: Only to just – well, the filters and the plates behind it, there. That is all I would have done. Q: Only to the filters behind it. That is as far as you would go? A: Yes. Q: Why would you clean only that far? A: Well, I cannot get any further than that. Q: So to you if the person in the kitchen asks you to clean the canopy that means the accessible bits of the canopy, is it? A: That is right. Q: Cleaning beyond there would be a matter for the specialists to do once a year would it? A: Yes. Q: Suppose a customer asked you to clean above those plates where it is difficult to get to. Would you be expected to cut and fix access panels in order to get in there? A: I do not know. I have never ever gone beyond, above that, so I would not know what is behind it”
. Q: Only to the filters behind it. That is as far as you would go?

Q: Why would you clean only that far?

[122]It seems to me that this is graphic evidence, from a cleaning perspective, as to where a sensible division can be made between the two different cleaning regimes postulated by the Condition. The dividing line was, in Mrs King’s view, the baffles. Accordingly, her practical view of the provision was that the area above the baffle plates – the canopy plenum/extract duct - would be within the first half of the condition, and not the second. In that, therefore, her approach chimed precisely with that of Dr Foster.[123]Drawing the dividing line between the canopy and the extraction ducting at the baffle plates is also consistent with the factual evidence as to cleaning. Mr Curchin said that the monthly clean “covered everything inside the canopy and the jet wash would go through the gaps and would clean everything through the gaps. Above that steel plate, that was cleaned by the cleaning companies that would come in on an annual visit.” Mr Neal said the annual clean “got to where we could not get, basically … the area where we could not get to i.e. past these baffle plates.”[124]For all these reasons, therefore, I have reached the firm conclusion that the area referred to neutrally as the canopy plenum/extract duct was, as Dr Foster repeatedly described it, an area of “extraction ducting” and therefore covered by the first half of the relevant Condition and not the second. That is the commercially sensible construction of the Condition. However, if I had had any doubt about it (which I do not) I would have been driven to arrive at precisely the same conclusion, on the basis of the contra proferentem principle. If there was any doubt as to which half of the Condition covered the canopy plenum/extract duct, then that ambiguity arose because the words of Condition 4(b)(ii) were not clear and/or were not properly tailored to meet the particular configuration of this canopy. Dr Foster’s references to the area in question as “the extraction duct within the canopy hood” (paragraphs 55 and 118h) above) in circumstances where there were completely different cleaning regimes for extraction ducting on the one hand, and the canopy or hood on the other, might be thought to be a graphic illustration of this confusion. In such circumstances, if I had been in any doubt, I would then have been bound to construe any ambiguity against the Defendants on the basis that these were the Defendants’ words. If the Defendants had wanted to ensure that the canopy plenum/extract duct was cleaned on a monthly (rather than an annual) basis, then it would have been very easy for them to have drafted a Condition that said so. In addition, they could, if they had wanted, to have divided the cleaning obligation at the start of the vertical duct, making it clear that everything below the vertical duct was to be cleaned monthly. Since they did neither of these things, then had I had any doubt about it, I would have been bound to construe the provision against them and again to conclude that the area above the baffle plates with which we are concerned was covered by the first half of the Condition, and not the second.[125]Because I have concluded that the canopy plenum/extract duct was part of the extraction ducting and therefore covered by the first half of the Condition and not the second, it follows that the Defendants’ defence which relies on a breach of Condition 4(b)(ii) must fail. The only pleaded breach of this Condition is a breach of the second half of the Condition, on the basis that the canopy plenum/extract duct where the grease residue was found was part of the canopy or hood and not part of the extraction ducting, and thus the subject of the monthly clean. Since that claim fails, it follows that much of the rest of this Judgment may be of academic interest only. However, in deference to the clear submissions which I received from both Counsel in respect of all of the issues in the case, it is appropriate for me to set out my conclusions as to the other disputes that have arisen under Condition 4(b)(ii). Issue 2.1(b): What is meant by “inspected regularly cleaned as necessary and at least once a month” and how should that obligation have operated in practice?[126]The first point to make, of course, is that if I am right and the area where the grease residue was found is properly described as extraction ducting, then the second half of the Condition (from whence the words in this Issue are taken) has no relevance, because it is not alleged that there was a breach in respect of any parts of the kitchen (other than the canopy plenum/extract duct) that were covered by the second half of this Condition. Accordingly, it is sensible for me to approach the question of construction in Issue 2.1b) on the basis that I am wrong as to the proper definition of the area in question, and that the canopy plenum/extract duct was caught by the second part of the Condition, and required to be cleaned “as necessary and at least once a month.”[127]The real dispute under this Issue concerns the cleaning regime Mr Paine had to operate in respect of the canopy plenum/extract duct on at least a monthly basis, even though, based on my findings as to the physical configuration under Section 8 above, the area was not generally accessible. Mr Bartlett QC submitted that Mr Paine did not have to clean that which was not accessible. In addition to what he called the common sense of that approach, he relied on the ABI paper referred to at paragraph 25 above which talked about the removal of deposits “as far as possible”. The same paper also talked about the removal of “visible” deposits only; Mr Bartlett QC argued that there was nothing there requiring the cleaning of deposits which would be invisible because of the lack of access. He also referred to DW/171 (at paragraph 24 above) which again talked about the impossibility of cleaning “normally inaccessible areas”.[128]Ms Healy, on the other hand, contended that there was nothing in the second part of the Condition which qualified the cleaning obligation by reference either to what was accessible or what was possible. She said that, if the canopy plenum/extract duct was caught by the second half of the Condition, it would have to be cleaned whether it was accessible or not. Effectively, this would have meant that it was up to Mr Paine to cut access panels in the canopy roof so as to ensure that the canopy plenum/extract duct was accessible for cleaning.[129]I cannot accept that Ms Healy’s construction of this particular part of the provision would lead to a sensible or commercially viable conclusion. What Mr Paine was insuring with the Defendants was this hotel building in this physical configuration, as described in Section 8 above. The Defendants were not insuring the hotel on condition that the physical configuration which existed at the inception of the policy had to be changed in some way by the addition of access panels, or anything else which might have facilitated access. The Defendants did not qualify their provision of insurance cover by reference to the need for or even the desirability of any such panels. It seems to me that the Defendants must be deemed to have been satisfied that their cover was properly applicable to the premises which they insured. Indeed, in this case, the hotel had been visited on their behalf by Mr Clugston. In those circumstances, I do not believe that the Defendants can argue that there was any sort of implied term to the effect that, if areas were generally inaccessible, access panels would be cut so as to achieve the required accessibility.[130]Accordingly, it seems to me that a proper, commercially sensible interpretation of the provision would be that the canopy plenum/extract duct would have to be cleaned at least monthly, in accordance with good practice, having regard to the realities created by the physical configuration of the area. If a particular area was difficult to access, then reasonable efforts had to be made to do whatever cleaning in that location was possible in all the circumstances. For the canopy plenum/extract duct area, there was no evidence that any cleaning beyond the use of jet washers was reasonably possible. On the contrary, as set out above, the evidence was all the other way. For the avoidance of doubt I find that, in the light of the evidence summarised at paragraphs 86-104 above (particularly the points at paragraphs 88-92) no cleaning other than the use of jet washers was reasonably possible because of the access difficulties. As a result I consider that those parts of the Memorandum of Agreement which talk about the use of scrapers and cleaning back to bare metal are of no relevance to this Issue because, on the factual evidence, such cleaning was not possible in the canopy plenum/extract duct. Therefore, if jet washing was properly carried out, I find that that would have constituted “cleaning as necessary” in accordance with the second half of Condition 4(b)(ii). Therefore, the only remaining dispute can be whether the jet washing was in fact properly carried out, and that is addressed under Issue 4 (Section 12 below) and Issues 5-8 (Section 13 below).

[11] THE POLICY TERMS: CONDITION 3

[131]The relevant part of the Policy read as follows:
“(1) Your duty to comply with policy terms. Our provision of this insurance is conditional upon the observance by you of the terms of the policy. (2) Material facts …. (3) Reasonable precautions You and any other person to whom this policy applies will take reasonable precautions at all times to prevent injury, disease, loss destruction or Damage All property insured under this policy will be maintained in good condition”
. Our provision of this insurance is conditional upon the observance by you of the terms of the policy. …. You and any other person to whom this policy applies will take reasonable precautions at all times to prevent injury, disease, loss destruction or Damage All property insured under this policy will be maintained in good condition”.[132]At the outset of the trial, the Defendants were alleging a breach of the obligation on the part of Mr Paine to take “reasonable precautions”. However, in her closing submissions, Ms Healy made plain that that allegation was no longer maintained by the Defendants. Accordingly the Defendants’ case under Condition 4 was solely in respect of that part of it which referred to the obligation to maintain. Issue 3.1: What is the true meaning and effect of the Condition, and in particular (a) Does it refer solely to Mr Paine, or also to his employees?[133]Mr Bartlett QC submitted that the obligation in Condition 3 applied only to Mr Paine, and not to his employees. He cited abundant authority to that effect including Woolfall & Rimmer Limited v Moyle [1942] 1KB 66, Sofi v Prudential Assurance Co Limited [1993] 2 Lloyds Rep 559 and Frazer v Furman [1967] 1WLR898. It is not necessary to set out extracts from all these cases, and I take Woolfall and Rimmer just by way of example of the principle. There the clause in question related to Employers’ liability insurance and concerned the Plaintiffs’ obligation “to take reasonable precautions to prevent accidents.” The Court of Appeal decided that, on its true construction, this condition applied only to the personal acts of the Plaintiffs and that where the work that led to the accident had been entrusted to an experienced foreman they were not debarred from recovering under the policy. Lord Justice Goddard pointed out that if the obligation was extended to the Plaintiffs’ employees, the underwriters would effectively be saying:
“we will insure you against your liability for negligence on condition that you are not negligent.”
He said that the fallacy arose because of the insurers’ failure to appreciate that the Contract under consideration was between underwriters and assured, not between employer and employed.[134]Ms Healy contended that the obligation to maintain should not be read as being limited to Mr Paine himself and relies on the decision of His Honour Judge Richard Seymour QC in this Court in the case of Bonner-Williams & Others v Peter Lindsay Leisure Limited [2001] 1 ALL ER 1140. However, in that case, the Judge sets out with approval the authorities outlined at paragraph 133 above. And, whilst it certainly appears that the Judge made findings relating to the acts and omissions of employees, he made it clear that he did not regard the clause with which he was concerned as a “reasonable precautions” clause. Further, the particular wording of the detailed condition in issue in Bonner-Williams meant that what had to be done to comply with it depended on the operation or activity being performed. It is not, therefore, on any view, a case of general application. In addition, the assured in that case was a company (unlike here), so it was inevitable that the acts and omissions of its employees would fall to be considered.[135]I consider that I am bound by the principle set out in the cases at paragraph 133 above. Further and in any event there seems to me to be an entirely separate reason for concluding that Condition 3 related solely to Mr Paine. That is because Condition 3 is expressly addressed to “You [Mr Paine] and any other person to whom this policy applies …”. The Schedule to the Policy made clear that there were no people to whom it applied other than Mr Paine. It could have said, but did not, that it applied to his employees. In those circumstances, I do not think that it is a fair or proper construction of Condition 3 to make it applicable to anyone other than Mr Paine himself. Issue 3.1(b): Is the second sentence a stand-alone obligation from the first sentence, or is it to be interpreted as a adjunct to or as part of the obligation to take reasonable precautions?[136]Mr Bartlett QC argued that the second part of this Condition, beginning with the words “All property insured …” was not a separate stand-alone obligation but was part of the obligation to take reasonable precautions. Ms Healy, on the other hand, submitted there was a distinct obligation to maintain which was entirely separate from the obligation to take reasonable precautions. This was an important dispute because it related to Issue 3.1(a) above (the trio of cases relied on by Mr Bartlett QC were ‘reasonable precautions’ cases), and to Issue 3.1(c) below. It was also linked to Ms Healy’s argument that Condition 3 was not expressed to be, and was not, a condition precedent. Both Counsel relied on Potter L.J’s analysis of what does and does not constitute a condition precedent in George Hunt v Scottish Boiler [2002] Lloyd’s Rep 178. It seems to me, applying that analysis here that, whilst Condition 3 does not say that it is a condition precedent to liability, Potter L.J makes it clear that that is not of itself decisive, and the wording of Condition 1 (making the provision of insurance conditional upon compliance) and the potentially severe consequences of non-compliance, mean that, on a sensible reading of the Contract, Condition 3 was a condition precedent[137]I also consider that, as a matter of straightforward construction, Mr Bartlett’s QC’s submissions on the ‘adjunct’ issue must be right. The obligation to maintain is expressed under the clear heading "Reasonable precautions”; whilst care is always necessary when considering clauses by reference to their headings, it would be an odd result if the provision as to maintenance should be read as having nothing whatsoever to do with “Reasonable precautions”. This is particularly so given that the first part of the Condition is plainly concerned with ‘Reasonable precautions’ and the second part of the Condition is so obviously an adjunct to the first part that there is not even a full stop between the word ‘Damage’ and the word ‘All’. It follows on immediately. I note that, in other Conditions, including the preceding Condition 2, the various parts of the Condition are separated by breaks in the text where that was the draftsman’s intention. The absence of a full stop and the absence of a gap – indeed, the absence of any sort of division between the word ‘Damage’ and the part of the Condition on which Ms Healy relies - are the best possible reasons for concluding that the second part of Condition 3 was an adjunct to the first. Neither do I agree with the contention that this makes the last part of the Condition mere surplusage. The reference to maintenance was a specific example of the sort of thing which Mr Paine was obliged to do under the Reasonable precautions Clause. It is very common for commercial and insurance contracts of this kind to impose a general obligation and then to carry on to give an important or specific example of that obligation in practice. In my judgment, that is precisely the situation here. Issue 3.1(c): Would breach of the first sentence and/or the second sentence of Condition 3 be triggered by negligence or are the Defendants obliged to prove recklessness.[138]We can now discard the reference to the first sentence of Condition 3 because the Defendants no longer pursue a breach of that part of the Condition. The point as to recklessness arises out of the authorities referred to in paragraph 133 above. The principle is summarised by

Lord Justice Diplock, as he then was, in Frazer v Furman where he stated:

“In other words, it is not enough that the [insured’s] omission to take any particular precautions to avoid accidents should be negligent. It must be at least reckless, that is to say, made with actual recognition by the insured himself that a danger exists, and not caring whether or not it is averted. The purpose of the condition is to ensure that the insured will not, because he is covered against loss by the policy refrain from taking precautions which he knows ought to be taken”
. This explanation echoed Lord Justice Goddard’s paraphrase in Woolfall and Rimmer that the reasonable precautions clause should be construed as saying:- “We will insure you against the consequences of your negligence but please understand that we do so on the footing that you are not to regard yourselves as free to carry on your business in a reckless manner, but that you must take the reasonable precautions to prevent accidents which ordinary business people take, that is to say, you are to run your business in the ordinary way, and not in a way which invites accidents.”[139]Ms Healy contended that whilst this principle undoubtedly existed in respect of liability insurance, it has not been found to exist in other types of insurance. She relied in particular on Amey Properties Limited v Cornhill Insurance Plc [1996] Lloyd’s Reinsurance LR 259 which was a claim on insurance following the collision between a US aircraft and a tractor which was defective. The Defendant insurers denied liability on the basis that the insured had not taken all reasonable precautions to maintain the tractor in an efficient and roadworthy condition. Tucker J held that it was not necessary for the Defendants to establish that the Plaintiffs were reckless, and that ordinary negligence would suffice. He said: “In my judgment the cases show that the Courts have adopted different approaches to the construction of the words of exclusion clauses depending upon the nature of the policies in which they appear and in particular whether to give a wide construction would be repugnant to the whole purpose for which the policy was taken out. Thus in employer’s liability policies, the Courts have applied the standard of recklessness (see Woolfall & Frazer). The same test has been applied in property policies (see Lane, Devco and Sofi). In motor policies, on the other hand, the Courts have applied the test of negligence – it has not been held necessary for the insurers to establish that the insured was reckless, before liability could be excluded (see NFU, Brown, Liverpool Corporation, Conn, and Lefevre). In my view this distinction can be explained and justified by the fact that motor policies impose a positive obligation to maintain the vehicle in good repair, or as in the present case in a efficient and roadworthy condition. It is a clear, specific and sensible obligation to impose, and one with which it ought not to be difficult to comply. To hold that if the policy holder by his negligence, fails to comply with such a condition and thereby loses the protection of the policy is not in my opinion repugnant to the commercial object of the contract. The insurer is not covering and does not intend to cover the insured for liability arising out of negligent maintenance of the vehicle, but there is cover for liability arising out of the negligence uses of a vehicle which is properly maintained. The words of Condition II of present policy are plain. There is no need to put any gloss on them, or to restrict their meaning, in order to give proper effect to the terms of the policy”.[140]Mr Bartlett QC submitted that, whatever the position in relation to motor policies, as set out in Amey, the insurance in this case is a property policy and is therefore covered by the rule in Sofi v Prudential Assurance Co Limited [1993] 2 Lloyds Rep 559. In that case, Lord Justice Lloyd, as he then was, referred to Frazer v Furman and dealt expressly with the argument before him that the recklessness test only applied to liability insurance and not to property insurance. He went on: “I do not accept that there is any distinction between the two types of insurance. One can see at once the difficulties which would arise if that was so, especially in the case of a composite policy such as the present. How could the condition have one meaning in relation to Section 3 and a different meaning in relation to Section 11? … So I would hold that the recklessness test is, contrary to Mr Wadsworth’s argument, equally applicable whether Condition 2 is included in a property insurance or in a liability insurance”.[141]It seems to me that Sofi is binding on me and is authority for the proposition that, in property insurance cases, such as here, the relevant test under a clause of this sort is recklessness, not simple negligence. But even if that was wrong, I am not persuaded that the grounds on which Tucker J distinguished the motor policy in Amey can possibly be applicable in the present case. The maintenance of a hotel complex, and all the equipment, fixtures and fittings within it, is a very different thing to the maintenance of one tractor. Whilst in Amey the Judge concluded that a failure to maintain the one tractor would not require recklessness, I do not consider that the same could be said of Mr Paine’s obligation to take reasonable precautions in respect of the maintenance of this hotel. Furthermore, I consider that, just as in Woolfall, it would defeat the commercial purpose of this policy if Mr Paine could be deprived of the insurance cover for which he paid in circumstances where he (and on the Defendants’ case, his employees) had not been reckless but merely negligent. Accordingly, for those separate reasons, I conclude that it would be necessary for the Defendants to demonstrate recklessness on the part of Mr Paine in respect of this obligation. Issue 3.1(d): What is meant by ‘maintenance’?[142]Mr Bartlett QC contended that ‘maintained’ meant ‘kept in working order’, by reference to the Chambers dictionary definition that he cited in his written Opening. He said that maintenance was not synonymous with cleaning. He submitted that cleaning could only be included as part of maintenance if cleaning was required to keep that which was being maintained in working order.[143]Ms Healy appeared to contend that cleaning and maintenance were largely synonymous and that the evidence of grease deposits was such that – of itself - it demonstrated a failure to maintain. She relied on the second edition of TR/17 which, at paragraph 6.16, said:
“during cleaning maintenance it is essential to ensure that the mechanical and any fire integrity of access provision is maintained.”
[144]I consider that the word ‘maintenance’ is perfectly capable of being construed by reference to the dictionary definition noted above. Cleaning may be involved in maintenance in order to keep that which is being maintained in working order, but it is not an inevitable part of maintenance. Accordingly, the maintenance obligation in Condition 3 was not directly concerned with cleaning unless it could be demonstrated that the failure to clean the relevant equipment or part of the hotel resulted in that equipment or part failing to be in working order.

[12] THE CONDITIONS IN THE KITCHEN IN MAY/JUNE 2002: BREACH OF POLICY?

[145]The first point to note is that the condition of the canopy plenum/extract duct in May/June 2002 is only relevant to the Defendants’ case that this area was a part of the canopy or hood and therefore subject to at least monthly cleaning. Given my finding that the area could not properly be construed as being part of the canopy or hood but was instead part of the extraction ducting, and therefore covered by the annual cleaning obligation, there could be no breach of Condition 4 (b)(ii) in May/June 2002 as alleged. Accordingly, on my primary view of this case, the Issues at 4.1 – 4.4 below no longer arise. However, given the submissions of the parties and the clear conclusions that I have reached on these matters, it is appropriate for me to set out my findings on these issues. I do so on the basis that, contrary to my primary conclusion under Issue 2.1(a) above, the canopy plenum/extract duct was part of the “canopy” for the purpose of Condition 4(b)(ii) and was therefore the subject of the monthly cleaning obligation. Issue 4.1: What is the evidence available to the Court as to the likely condition of the canopy plenum/extract duct in May/June 2002? Issue 4.2: In the light of the evidence at 4.1 above and having regard to the answer at 1.1 above and the approach adopted in answering 1.3 above, what was the condition of the canopy plenum/extract duct in May/June 2002? Introduction[146]It is sensible to take these two Issues together. The general evidence as to the state of cleanliness in May/June 2002 comes from the evidence of Mr Paine and his employees and Mrs King. There is evidence as to the cleaning of the area above the baffle plates from Mr Neal, Mr Curchin and Mr McElligott. There is also the post-fire evidence, which includes the photographs and, crucially for these purposes, what Dr Foster said that Mr McElligott said to him on 16th September about the position in May/June 2002.[147]At the outset, I should say that, in my judgment, these Issues arise in a slightly curious way. There is no primary evidence available to the Court that the condition of the canopy plenum/extract duct in May/June 2002 was in any way unusual or even potentially in breach of Condition 4(b)(ii): see paragraphs 148 and 149 below. Neither has any specific exercise been undertaken by either Dr Foster or Mr Nicholls which purports to take the photographs of burnt grease residue after the fire in September 2002 and extrapolate from those photographs back to the possible condition in May/June 2002, so as to conclude that the position at that time, 3 months before the fire, must have meant that Condition 4(b)(ii) had not been complied with. Essentially, therefore, this issue only arises at all because of what Dr Foster said Mr McElligott said to him on 16th September 2002, about the condition of the canopy plenum/extract duct in May/June 2002, a conversation about which there is now a good deal of dispute. Evidence as to cleanliness[148]There was a large amount of general evidence as to the cleanliness of the kitchen and, to the extent that it could be accessed, the area above the baffle plates. It is sensible to set it out in chronological order. I have already referred to the evidence of Mr Neal who, before he signed off on the work carried out by the Olde English Cleaning Co in 2001 ran his fingertips along the top of the baffle plates to ensure that they were clean. Mr Neal, whose description of the fortnightly clean is set out in paragraph 13 above, said that “every area you could see under that canopy always looked clean and free of grease” although, because of what he called “the small gap between the baffle plates” he could not see “a great extent” beyond them. Mr Neal also said that Mr Meacher, the Head Chef before Mr McElligott, was very particular about cleaning and that chimed with Mr Paine’s description of Mr Meacher as “meticulous in his cleaning of the kitchen”. Ms Whyte, the waitress, said that, under Mr Meacher, “the kitchen always looked very clean and ordered” and she recalled the “big clean of the kitchen at the end of the weekend… the kitchen was literally full of water, everywhere was cleaned.” Mr Curchin said that the kitchen “was very clean” when he arrived in April 2001. In June 2002, the kitchen was inspected by Mrs King who confirmed to me that the kitchen at the hotel was one of the cleanest she had ever been asked to quote for. This was confirmed by the written statement of 16th September which confirmed that Mrs King had said to her partner, Jean Openshaw, that the kitchen was “spotlessly clean” in June. Although it was unclear precisely what Mrs King looked at during that visit, I find that it is more likely than not that she had at least looked through the missing filter to the bottom of the baffle plates, because of her drawing (paragraph 97-98 above) and she did not see anything that convinced her that the area was anything other than clean.[149]Lastly, but perhaps most significantly of all, there was the clear evidence from Mr McElligott that all that he could do in this area was to point the jet-wash nozzle up between the gaps between the baffle plates, and that this was always done as part of what became the monthly cleaning. This was more than a random spraying exercise, because Mr McElligott confirmed that he watched the run-off water collecting in the tubs: the water started off dirty, and he waited until the run-off water was clean before stopping the jet-wash process in the canopy plenum/extract duct area. Of course, as at May/June 2002, Mr McElligott had not yet put into place his own cleaning regime, but the evidence was that up until that time, he continued to operate the same regime devised by Mr Meacher, which also involved jet-washing where possible: the only real change was its frequency. In my judgment, for reasons previous given, this regime would constitute “cleaning as necessary” in accordance with Condition 4(b)(ii): the only remaining issue was whether the evidence of grease accumulation meant that this cleaning had not been properly undertaken. Evidence as to grease accumulation[150]It did not appear that the Defendants relied to any great degree upon the post-fire photographs of grease accumulation to support their case that the condition of the canopy plenum/extract duct in May/June 2002 (as opposed to its condition at the time of the fire) must have constituted a breach of Condition 4(b)(ii). But, to the extent that they did, I should say that, in my judgment, the few existing photographs do not support any such case. It was inevitable that, depending on where the kitchen was on the various cleaning cycles, there would be a certain amount of grease deposit in the area of the canopy plenum/extract duct. This was a point made repeatedly by Mr McElligott during his cross-examination. He said “there would always be expected to be a small amount of residue on the parts we were not accessible to … by only cleaning it with a pressure hose is not going to clean all the grease.” He also said by reference to the situation at the time of the fire “these photographs, the fire happened nearly three weeks after our last clean of the canopy, so you are going to get an accumulation of grease within that period.”[151]What matters for the purpose of this allegation is whether or not there was more grease in the canopy plenum/extract duct in May/June 2002 than there should have been. In other words, what was the clear evidence that the area had not been cleaned as necessary given the realities created by the physical configuration of the area? There was, in my view, no such evidence. In my judgment, samples cut from the canopy plenum/extract duct in the areas where the burnt grease reside was found, which would have been similar to the exhibits taken from other sites by Mr Nicholls, would have been the minimum necessary in order to allow an expert to say with any credibility that, even allowing for the effect of the fire, the burnt reside found after the fire demonstrated that the grease must have been present in such quantities that, for instance, the area had not been jet-washed for 6 months.[152]That there was no such evidence was a direct result of Dr Foster’s failure to take any samples. In this regard I note that chapter 6 of ‘Principles of Fire Investigation’ by Roy Cooke and Rodger Ide makes plain that somebody in Dr Foster’s position should have known that it was “vital to preserve and sample” evidential materials at the scene. Dr Foster accepted that it was “elementary” to “preserve and sample”; he accepted that it could have been done here; and after a certain amount of hesitation, he accepted that it would have been the proper thing to retain this canopy or at least take samples from the canopy. He said “it would have been better” than having no samples at all. His summary was that this omission was “regrettable but not malicious, most certainly.” The lack of any samples of the actual grease deposits, in my judgment, makes it almost impossible now for the Defendants to say that the burnt grease residue shown in the photographs means that grease was present in greater quantities than it should have been in May/June 2002. In any event, given that the lack of samples was accepted by Dr Foster as being a matter of regret, I would decline to draw any inference from the photographs that would lead to a conclusion that the amount of grease demonstrated any sort of breach of the Condition: see my conclusion on this point of principle at paragraphs 83-85 above.[153]Finally on this point, it seems to me that the true position as to the probative value of the photographs in trying to work out pre-fire grease deposits was summarised by Dr Foster in his dictated notes of his scene examination on 11th October 2002. He referred to one of the photographs of grease residue and he said:
“I believe there is clear evidence of some residues of grease but I cannot ascertain the original thickness of the material from this”
. He said that what he meant there by ‘original’ was ‘immediately before the fire’. It follows that if Dr Foster did not believe that he could calculate the thickness of the grease as it was on 12th September, he certainly could not calculate the thickness, if any, of the grease as it was 3 months earlier. It seems to me that that is the best possible reason why I cannot now do what an expert of Dr Foster’s experience expressly said that he could not do when he examined the site and the photographs of grease residue for himself. I therefore find that the post-fire photographs of grease residue are largely irrelevant for the purposes of Issue 4.2. However, to the extent that the photographs, and Mr Nicholls’ extrapolation therefrom are said by the Defendants to be relevant, I do not consider that they provide any assistance to the Defendants’ case for the reasons set out in paragraphs 168-177 below. Interview with Mr McElligott[154]Accordingly, the high water mark of the Defendants’ case as to the condition of the canopy plenum/extract duct in May/June 2002 was the interview with Mr McElligott conducted on site by Dr Foster on 16 September. There are two relevant passages in Dr Foster’s manuscript note of this interview. The first reads:
“When I did first clean, quite a lot of deposit. Over last 3 months, less and less. Probably up to circa 10 millimetres thickness of deposit. Kitchen in almost continuous use.”
The second relevant passage was as follows: “Re one monthly cleaning of extraction hood. Use pressure spray, sponge excess material, and wipe with paper towels. Do not use scrapers. Get about 75% of deposit out”.[155]Dr Foster stressed that these notes were not a verbatim account of the interview. However, on the basis of these two passages, the gist of which is also reflected in notes made by Mr Smith, although they are not worded in quite the same way, the Defendants ask the Court to conclude that, notwithstanding the evidence summarised at paragraphs 148 and 149 above, and the absence of any samples from the area in question, the condition of the canopy plenum/extract duct was such that Mr Paine was in breach of Condition 4(b)(ii) in May/June 2002. In my judgment, this secondary evidence is entirely unreliable and does not properly support any case on breach of Condition. There are three separate reasons for that: the way in which the evidence was obtained; the uncertainty about what Mr McElligott actually said or meant in terms of thickness of grease; and the uncertainty as to the area that he was describing. How the information was obtained[156]The interview with Mr McElligott (and others) happened on 16 September 2002, the first working day after the fire. Mr McElligott had just seen his workplace, home and job go up in flames. As he memorably put it, given this catastrophe, “our heads would not have been screwed on tightly.” In those circumstances, it seems to me that it is quite wrong and unfair for the things which Mr McElligott said in such circumstances to assume the importance that they now do. I note from the ‘Principles of Fire Investigation’ Guide by Rodgers and Ide that they recommend:
“If statements are taken early, there may be serious errors due to (a) emotional involvement or (b) overwhelming impressions which the observer cannot fully co-ordinate. Thus if subsequent enquiry reveals discrepancies, the interviewer must re-interview and try to extract reasons for them”
. I have no doubt at all that taking statements from witnesses such as Mr McElligott is an important part of a fire investigator’s job. But it is equally clear here that, out of simple fairness to Mr McElligott and, as it turned out, to Mr Paine too, Mr McElligott should have been re-interviewed, away from the site, at a later date, if reliance was going to be placed on the things that he said about the situation some months before the fire. Since that did not happen, in contravention of the principles in the Rodgers & Ide Guide, I do not regard the material obtained from Mr McElligott at the time as being reliable in principle. What was said[157]There is also a huge dispute about what Mr McElligott actually said. The passages that I have set out in paragraph 154 above were put to him. He repeatedly said that those were not his words. In particular, as to the reference to 10 millimetres, Mr McElligott said he did not know what 10 millimetres was. He said:
“I did not specify 10mm … Those are Dr Foster’s words … I did not specify to any of them any particular measurements in millimetres regarding anything at all because I do not know what a millimetre looks like… What I recollect is that I told Dr Foster that I did not know what any of these measurements were. Then Dr Foster with his fingers would indicate like so or whatever, about that much. I told him: “quite possibly”
. But again, I did not state it was 10 millimetres. Who is to say that if Dr Foster showed me that amount or even smaller, was that 10 millimetres? I do not know what 10 millimetres is”. It appears that what happened was that Dr Foster was indicating amounts of possible thickness with his thumb and forefinger. Dr Foster thought he had said “well, looking at my fingers, can you give me some indication of where I should stop as to what the thickness of the residue was?” Mr McElligott apparently indicated possible assent to a distance and that was noted by Dr Foster in his notes as “circa 10 millimetres”. Again, I have to say that such evidence obtained in this way is, in my judgment, of little or no value. It is contrary to Mr McElligott’s evidence that he “did not remember saying that when it was quite thick.” Further, I note in the Rodgers & Ide Guide that they are emphatic that a witness should not be led. I regard the questions asked by Dr Foster in relation to thickness of grease as being leading questions – because he was suggesting the answer - to which a confused but helpful witness like Mr McElligott was inevitably bound to give misleading answers. That is a further reason why I discount this evidence.[158]There is also considerable confusion about the location that Mr McElligott was indicating in his discussions with Dr Foster. Dr Foster agreed that his notes did not say where the deposit was, or where the 75% was referring to. I find that it is wholly improbable that Mr McElligott was talking about the area of the canopy plenum/extract duct. He himself said that “there was no specific area. He did not ask me for a specific area”. All of Mr McElligott’s evidence was consistent: that the area above the baffle plates was not an area that he could get access to and was therefore an area which was cleaned solely by reference to the jet-wash. The efficacy of this cleaning was measured by the dirtiness or cleanliness of the run-off water; the area could not be visually inspected, save with a torch, and Mr McElligott did not say that he used a torch. In those circumstances, it would be wholly inconsistent for Mr McElligott then to describe to Dr Foster any grease deposits beyond the baffle plates: on his case, he could not see them, let alone measure them. He confirmed this in his cross-examination:
“But that 10 millimetres does not necessarily say that it is 10 millimetres in the actual ducting because I do not know how much was up in the ducting. You are bound to get an accumulation, yes, which we tried to remove with the water pressure … If you clean an area on a regular basis then you are not letting any great amount of build-up of any grease or whatever within the canopy. That is common-sense. That is why we do the clean every fortnightly and weekly and a monthly clean. That is why we do it on a regular basis to keep the grease down in all areas accessible to us”
. As to the ‘75%’, I accept Mr McElligott’s evidence that what he was referring to was the reality that “there is always an element of grease left, there would always be an element…” He said later “… there was not sufficient there enough to make a risk for fire or immediate fire, that we would have cleaned a good percentage of the grease from the top of the hood.”[159]In those circumstances, it seems to me inherently unlikely that the reference to ‘circa 10 millimetres’ or the reference to ‘75%’ could be references to the canopy plenum/extract duct because it was Mr McElligott’s repeated evidence that he could not see or get to the area above those baffle plates and could only check cleanliness or dirtiness by reference to the colour of the run-off water. There was, for instance no suggestion that Mr McElligott and his staff could or did use scrapers, sponges or paper towels in the area beyond the baffle plates. That would therefore suggest that the second note made by Dr Foster related to the exterior of the canopy or at least the area below the baffle plates. Summary[160]For all the reasons set out above, I discount what Dr Foster accepted was the wholly impressionistic evidence of Mr McElligott about grease residues in May/June 2002. I therefore conclude that the condition of the canopy plenum/extract duct in May/June 2002 was as clean as could be expected given the necessary cleaning regimes put in hand by Mr Meacher and Mr Neal and, later, by Mr Curchin and Mr McElligott. The only cleaning that could be carried out in the canopy plenum/extract duct was the use of the jet-wash spray which was done on at least a monthly basis. Depending on the cycle of cleaning, therefore, some grease residue was inevitable in the area of the canopy plenum/extract duct. There was no evidence that the cleaning regime had not been properly carried out. Issue 4.3: Have the Defendant’s proved that the condition of the canopy plenum/extract duct as set out in 4.2 above constituted a breach of Condition 4(b)(2) of the contract of insurance?[161]For all the reasons set out in paragraphs 146-160 above, the answer to this question is No. Accordingly, even if my primary conclusion is wrong, and the canopy plenum/extract duct was caught by the second half of Condition 4(b)(ii), and therefore the subject of at least a monthly clean, I find that there was no breach of the Condition if such cleaning as was possible (given the configuration of the canopy plenum/extract duct) was carried out. I find that the jet-washing regime described above would constitute cleaning “as necessary” and that, if it was carried out as indicated by Mr McElligott, no further or different cleaning was required. Finally I find that there was no proper or reliable evidence that the condition of the canopy plenum/extract duct in May/June 2002 was such that I could conclude that the cleaning was unsatisfactory or inadequate or that the area had not in fact been cleaned as necessary. For all these different reasons, there was therefore no breach of Condition 4(b)(ii). Issue 4.4: If so, what are the consequences of that breach?[162]For the reasons set out at above, this Issue does not arise for consideration.

[13] THE CONDITIONS IN THE KITCHEN ON 13th SEPTEMBER 2002: BREACH OF POLICY?

[163]Of course, as regards the allegation of breach of Condition 4(b)(ii), the Defendants’ case in respect of the condition of the canopy plenum/extract duct on 13th September 2002 must fail, because of my primary finding that the canopy plenum/extract duct was caught by the first half of that Condition (in respect of which no breach is alleged) rather than the second half. Thus Issues 5, 6 and 7 no longer arise. Again, however, it is appropriate for me to address these Issues in this judgment, and I do so on the same basis as before, namely to assume that, contrary to my primary conclusion, the canopy plenum/extract duct should have been cleaned monthly. There is of course a further difficulty for the Defendants, namely my finding that the cleaning regime which was carried out prima facie constituted cleaning “as necessary”. Thus the Defendants can only prove breach if they can show that the burnt grease residue demonstrated that the cleaning had not in fact been properly carried out. Further, in respect of the condition of the kitchen on 13th September 2002, there is an additional allegation of breach of Condition 3, which I deal with in paragraphs 179 to 182 below. Issue 5: What is the evidence available to the Court as to the likely condition of the canopy plenum/extract duct on 13 September 2002? Issue 6: In the light of the evidence at 5 above and having regard to the answer at 1.1 above and the approach adopted in answering 1.3 above, what was the condition of the canopy plenum/extract duct on 13 September 2002?[164]It is again convenient to take these two issues together. I have found that jet washing between the gaps prima facie constituted cleaning as necessary in accordance with Condition 4(b)(ii). Was this cleaning regime properly carried out? Evidence as to cleanliness[165]The general evidence as to cleanliness is effectively the same as set out in paragraphs 148 - 149 above, the principal difference being that between May/June 2002 and 13th September 2002 there were at least two further jet-washes of the canopy plenum/extract duct with Mr McElligott checking the colour of the water in the run-off containers each time. This would suggest that the cleaning had in fact been properly carried out. Does the evidence of grease accumulation alter that view? Evidence as to grease accumulation[166]Again, I consider that the difficulties relating to any attempt to work out amounts of grease accumulation in September 2002 by reference to photographs, and without samples, are essentially those which I have addressed in paragraphs 150 - 153 above. All those findings are therefore applicable again. Grease was present in the area of the canopy plenum/extract duct although it should be noted that there is only one reference to it on the upper side of the baffles on Dr Foster’s notes. As Mr McElligott said, it was inevitable that there would be some grease in that area certainly until the next monthly clean. In cross examination, Dr Foster agreed that residues would accumulate during the 3 weeks and, having instinctively argued the Defendants’ case by saying that he “would be very surprised that within a month heavy resides would accumulate”, he then accepted that “this is not my core of expertise.” On the evidence, by 13th September, that monthly clean was becoming imminent so it is inevitable that there would have been an accumulation of grease in the canopy plenum/extract duct. The mere presence of grease – even in quantities that were described by Dr Hawkins as ‘looking substantial’ - does not and cannot demonstrate of itself that the kitchen had not been cleaned in accordance with the second part of Condition 4(b)(ii).[167]In my judgment, the general evidence of cleanliness identified in paragraphs 148, 149 and 165 above suggests that the condition of the canopy plenum/extract duct on 13th September 2002 was as clean as might have been expected given the problems of access referred to above and the fact that the last monthly clean had occurred some 3 weeks previously. The remaining question is whether the few photographs of burnt residue taken after the fire should lead me to a different conclusion, because it is on this issue that the Defendants rely heavily on Mr Nicholls’ extrapolation exercise. In my judgment, on a proper analysis, at least one of those photographs positively supports the primary conclusion as to Mr Paine’s compliance with the Condition which I have already reached.[168]Photograph 3.24 was taken by Dr Foster on 11th October 2002. It was not a photograph that Mr Smith was able to take on his visit the previous month. It shows two distinct sections of the canopy plenum/extract duct, separated by a join in the roof housing. As we look at the photograph, the area beyond the join seems to be clear of burnt grease residue. It gives the impression of having been cleaned. However, the area closer to the camera above the join in the photograph contains some clear examples of burnt grease residue, and in some instances that residue, having melted in the fire, has the appearance of a stalactite. Dr Foster accepted that there was a very marked difference between the two areas. The only possible inference that can be drawn from that photograph is that, where the jet-wash could clean the canopy plenum/extract duct, it did a good job, but where parts of that area were simply inaccessible, because of the presence of baffle plates, the area could not be cleaned as thoroughly by the jet-wash. In other words, I consider that photograph 3.34 is the best possible evidence of the effect of accessibility on the monthly cleaning regime. It seems to me that the photograph makes good the submission that the area was cleaned “as necessary”, given the physical configuration. As I have already pointed out, if the Defendants had required the entire area to be cleaned, including those parts that were inaccessible, they should have stipulated the installation of access hatches or, at the very least, have made it plain that they expected the area to be clean whether it was accessible or not. Having done neither of those things, the Defendants cannot now complain that, as demonstrated by photograph 3.24, the inaccessible areas were – for obvious reasons - not cleaned in the same way as the areas that were accessible.[169]Dr Foster did not accept the assumption that the marked difference between the two areas was caused by cleaning, but Mr Nicholls expressly said that it was so caused. On all the evidence, I find that it was. On that assumption Dr Foster accepted the proposition that it would be very odd to clean up to a straight line and then stop unless there was something restricting access or, as Mr Bartlett QC put it, “something straight that was in the way.” Dr Foster also accepted that that was consistent with Mr McElligott’s evidence that some residue would remain in the areas they could not get to, leading to patches of grease in some areas and patches of cleanliness in others.[170]The Defendants’ general case on the photographs was that the burnt grease residue was present in such quantities that it demonstrated that the Condition cannot have been complied with. The Defendants, of course, point to the fact that it was the grease which dripped from this area which played such an important part in the spread of fire. That, of course, is right but, as previously noted, there would always have been some grease in this location in any event, even if the Condition had been complied with in all respects. So the Defendants would need to go further and to show that the amount of grease in the area was what caused the fire and that that amount could only have been present if Condition 4(b)(ii) had not been met. In my judgment, for the reasons set out below, the Defendants have not begun to demonstrate any such thing.[171]Some express limitations should be noted at the outset. It was agreed by Dr Foster that the burnt grease residue was not evidence of a continuous layer of grease on the inside of the canopy plenum/extract duct. Dr Foster was also quick to say that “I have not suggested that one can accurately give a millimetre thickness of the residue” from the photographs. He later accepted that his suggestion that the grease deposit before the fire “was several millimetres thick” was speculation.[172]The closest that the Defendants got to quantifying the grease was the exercise undertaken by Mr Nicholls. He endeavoured to extrapolate thickness from the photographs and concluded that there was a possible range of between 1 mm and 1 cm of grease in the area before the fire. As I have already said, such evidence is, in one sense, immaterial since what actually matters is having a clear point of comparison: a figure for the thickness of grease that would have been there if the Condition had been complied with as against this estimated range which, on the Defendants’ case, was there because the Condition had not been met. There was no such clear point of comparison: whilst Mr Nicholls talked of an average build-up rate of 300 microns (0.3mm) of grease a year, he accepted that that was entirely dependant on the amount of cooking done on the range plate below. But in any event I am bound to say that I find his evidence as to the amount of pre-fire grease wholly unpersuasive. The first point to note is that, given that the only available evidence on which any exercise as to grease deposits could now be done are the photographs taken by Dr Foster after the fire, one would have anticipated that the lead in such an exercise would have been taken by Dr Foster himself. He said that he would have done it if he could, but he very fairly accepted that he could not extrapolate from the photographs to work out the thickness of the grease. This was partly because of the absence of a scale from the photographs which showed the burnt residue, a point he accepted in cross-examination. Moreover, as I have already noted in paragraph 153 above, his dictated notes of his examination on 11th October 2002 made plain from the outset that he could not ascertain the original thickness of the grease from the photographs. I have already dealt with the point that, realistically, this exercise could only have been attempted if exhibits had been cut from the canopy itself and that the absence of such exhibits meant that such an exercise was always going to be highly speculative.[174]However, the unreliability of the exercise was firmly put into focus by Mr Nicholls’ own evidence. He very fairly said that he could not give an indication of the actual thickness from the photographs and at one stage I wondered if he was going to accept that, beyond saying that there was a substantial amount of grease in place (which was not really disputed) he could not venture an opinion. However, he maintained his view that certain extrapolations could be done from the photographs. His cross-examination, however, revealed numerous uncertainties and estimates that he had had to make; the entire exercise seemed to me to be shrouded in such doubt that I concluded that Dr Hawkins was entirely right to describe the whole thing as “not science” but “guess work”.[175]The first problem with the exercise was that, as Mr Nicholls fairly accepted in cross-examination, he had no specific expertise in assessing pre-fire amounts of grease from post-fire investigations or photographs, and had never before endeavoured to compare grease residues before and after a fire. Secondly, Mr Nicholls’ exercise in this case was entirely confined to the photographs, whereas, as he explained, the best way of measuring grease deposits was by cutting out a sample of the ductwork with residue on it, removing a part of the residue back to bare metal, and measuring the depth of what remained. He was unable to do that in the present case for the reasons previously discussed. Thirdly, as Dr Hawkins explained, and I accept, there were uncertainties with any measurements taken from the photographs due to differing questions of scale, lighting, perspective and origin. Whilst Mr Nicholls maintained that, notwithstanding these points, his estimate of thickness of 1mm upwards remained reliable, he stressed that it was just that, an estimate. At one point he repeated:
“As I say, this is an estimation – as I said earlier, it is not a precise science. I tried to get some indications of scale. I appreciate it is not perfect.”
[176]I have already made the point that, even taking Mr Nicholls’ exercise at face value, there was no proper comparator: even if there was a deposit of grease of, say, 2mm in parts of the canopy plenum/extract duct at the time of the fire, it was wholly unclear what that could have been compared with, given variables such as the volume of usage of the kitchen generally (and the range plate in particular), the type of cooking etc. In addition, I have expressly found that the canopy plenum/extract duct was largely inaccessible, and that photograph 3.24 demonstrated the access difficulties in action. Access was therefore a major factor in any consideration of whether or not the burnt grease residue demonstrated that ‘cleaning as necessary’ had not been carried out, but it was not something which Mr Nicholls had even considered in his report.[177]It seems to me that the most that can be said of Mr Nicholls’ exercise is that it showed that there was a substantial residue in the area of the canopy plenum/extract duct. That therefore took the position no further forward, because it did not properly address the question of whether there was more grease than might be expected given the physical configuration and the fact that 3 out of the 4 weeks of the monthly cleaning cycle had passed. To that crucial question there was no real answer. Furthermore, given that the grease deposits were in the area shown on photograph 3.24 which was, as I have indicated, an area that appears not to have been accessible, as opposed to the area immediately adjacent to it, which was to all intents and purposes clean (and was therefore probably accessible for cleaning purposes) it seems to me that Mr Nicholls’ evidence did not demonstrate a failure to clean ‘as necessary’. Issue 7: Have the Defendants proved that the condition of the canopy plenum/extract duct as set out in 6 above constituted a beach of Condition 4(b)(ii2) of the contract of insurance?[178]For the reasons set out above, the answer to this Issue is No. Even if I am wrong on my primary view that the canopy plenum/extract duct was caught by the first half of the Condition, rather than the second half, it seems to me that, for all the reasons I have indicated, the area was cleaned as necessary on a monthly basis. In any event there is no evidence that the cleaning actually performed was inadequate or unsatisfactory. Accordingly, no breach of Condition 4(b)(ii) has been proved. Issue 8: Have the Defendants proved that the condition of the canopy plenum/extract duct as set out in 6 above constitute a breach of Condition 3 of the contract of insurance?[179]I have set out above at paragraphs 131 to 144 my answers to Issues 3.1(a)-(d), which were concerned with various disputes of construction. It follows from those answers that the claim in respect of Condition 3 fails in its entirety for a variety of different, threshold reasons.[180]Firstly, the presence of grease in the canopy plenum/extract duct was an inevitability, given questions of accessibility and the position of the 13th September in the monthly cleaning cycle. Such grease residue did not affect the proper working of any part of the extract duct system, and there is no evidence to the contrary. There was therefore nothing to maintain or, to put it another way, the presence of grease in the canopy plenum/extract duct could not amount to a failure to maintain. On that basis, even if I am wrong on Issues 3.1(a)-(c) it makes no difference whatsoever because there has been no breach of any maintenance obligation.[181]If the presence of grease in the canopy plenum/extract duct was, contrary to paragraph 180 above, a matter of maintenance, then I find that, in any event, there was no breach of Condition 3. There are a number of reasons for this. I do not believe that it could be seriously argued that Mr Paine deliberated courted the fire by failing to instigate or put in hand a proper cleaning regime in the area of the canopy plenum/extract duct. Such a view would be entirely contrary to the evidence of Mr Paine and the impression that he made in the witness box. Mr Paine was doing all that he thought he should do in respect of cleaning, and his staff did the same. Accordingly, I find that Mr Paine was not personally reckless and that therefore, for the reasons previously explained, there can be no breach of this Condition.[182]However, let us now assume that this Condition relates to the acts and omissions of Mr Paine’s employees (contrary to my conclusion under Issue 3.1(a)) and let us also assume that (contrary to my conclusion under issue 3.1(c)) it is unnecessary for the Defendants to show recklessness, and that they can establish breach by reference to a lower standard of care, as per the decision in Amey. Let us also assume that, contrary to Conclusion under Issue 3.1(d), a failure to clean is somehow synonymous with a failure to maintain. In my judgment, the Defendants have still wholly failed to prove any breach of this Condition. They point to no negligence or error on the part of the employees in carrying out the work. They cannot say that more than jet-washing was possible, let alone appropriate. Indeed, it appears that the Defendants’ submission is based on the fact that, because grease was present in the canopy plenum/extract duct, there must have been negligence and/or a breach of Condition 3. But as I have already explained, that cannot be right; cleaning maintenance must have regard to the practical realities imposed by the physical configuration, in particular questions of access. Further and in any event, the argument ignores the inevitability of at least some grease accumulation in the area because of the position in the 4 week cleaning cycle. For all these reasons, therefore, it seems to me that, even if Condition 3 is construed in the way most favourable to the Defendants, they still have not made out any breach of it. Issue 9: If the answer to issue 7 and/or 8 above is yes, what are the consequences of that breach?[183]It is unnecessary for me to deal with this Issue since, for the reasons which I have given, the Defendants have failed to prove breach and the answers to issues 7 and 8 above is No each time.

[14] CONCLUSIONS

[184]It seems to me that, even if the canopy plenum/extract duct was caught by the monthly cleaning condition (a submission which I have rejected), there were two essential difficulties in the Defendants’ case. The first was the argument that the words ‘cleaned as necessary’ imported an obligation to clean regardless of accessibility, a construction which could not in my judgment be said to be commercially sensible.[185]Secondly, the Defendants needed to argue that the very presence of grease residue in the area of the canopy plenum/extract duct constituted a breach of these Conditions. It is doubtless for that reason that the Defendants’ ‘translated’ Condition 4(b)(ii) in their Re-Amended Defence to plead that it was an express term of this policy: “… that all grease traps and extraction hoods and/or extraction canopies would be inspected regularly and cleaned and as to the extent necessary to remove there from any deposits of fat or grease which, if not removed, would lead to a risk of combustion”.[186]That, of course, is not what Condition 4(b)(ii) (or Condition 3 for that matter) actually says. The term as ‘translated’ in the Re-Amended Defence would place an impossibly onerous burden on Mr Paine and would have required him to ensure that after every meal, and possibly even during the preparation of each meal, the canopy plenum/extract duct was kept free of grease. Such an obligation would, in all the circumstances, be unworkable; more importantly, it is not what the contract of insurance provided for. In essence, therefore, the Defendants’ case was flawed from the outset because it depended upon the mere fact that there were quantities of grease in the canopy plenum/extract duct to demonstrate breach of Condition 4(b)(ii) or Condition 3. For the reasons which I have set out above, the presence of such grease residue, by itself, did not and could not demonstrate breach of either of these Conditions.[187]In the light of the answers to Issues 1-8 above, I have reached the firm conclusion that the Defendants are liable to indemnify Mr Paine under the terms of his contract of insurance. I therefore give a declaration to that effect. Any points of detail as to the wording of the Order to be made consequential upon this Judgment (and any dispute as to costs) will be dealt with when this Judgment is formally handed down.

Cited in 1 later judgment