Titanium Polyurethane Seal Company v New Forest District Council [2008] EWHC 2510 (TCC)

[2008] EWHC 2510 (TCC)Case No HT-07-386
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 7 th August 2008
Before
HIS HONOUR JUDGE DAVID WILCOX
Between
TITANIUM POLYURETHANE SEAL COMPANYClaimantNEW FOREST DISTRICT COUNCILDefendant
Digital Transcription by Marten Walsh Cherer Ltd.,12-14 New Fetter Lane, London EC4A 1AGTelephone No: 020 7936 6000. Fax No: 020 7427 0093Email: info@martenwalshcherer.com
MR ALEXANDER HICKEY (instructed by Pannone LLP) for ClaimantMR GRAEME SAMPSON (instructed by New Forest District Council Legal and Democratic Services) for Defendant
JudgmentHIS HONOUR JUDGE DAVID WILCOX:
[1]In August/September 2004 the claimant ("TPS") carried out work on three sports hall floors in leisure centres at Totton, Applemore and Ringwood. That work consisted of scrubbing and cleaning the floors, and then resealing them using two coats of heavy duty polyurethane. TPS provided the defendant, New Forest District Council ("NFDC"), with a maintenance sheet, explaining that the newly-sealed floor should be swept and vacuumed daily to remove dust, dirt and grit, and additionally given a weekly clean using a neutral detergent. By the end of November 2004 NFDC complained that the floors had lost their slip resistance and complained that TPS's seal was responsible.[2]TPS directors took the matter very seriously. They investigated the matters promptly and had discussions with NFDC officials on 29th November 2004. It was appreciated that the local authority had a duty to their users, the leisure centres, to ensure that the sports halls were safe to use for multisport activity and that the appropriate safe level of grip was maintained.[3]TPS reported that NFDC were not following the recommended maintenance routines and that the floors had greasy and dirty surfaces. They recommended a thorough clean to degrease the surfaces and advised that their cleaning regime was strictly followed. Additionally, they advised that oil-based cleansing products should be avoided and that the state of the floor should be monitored.[4]On the night of 6th/7th December 2004 TPS cleaned the floors using an industrial scrubber/drier machine and a neutral cleaning detergent. A meeting was held at Totton with the assistant manager, Mr Pooley, who had become the spokesman for other sports hall managers and officials. The meeting was planned to take the form of a training session for the future cost-effective maintenance of the floors.[5]Totton's cleaning was the responsibility of Mr Pooley, who had taken the cleaning in-house as part of his project - a project of continuing improvement for Totton. Ringwood and Applemore cleaning routines were administered by a cleaning services group, part of the local authority, but who had competed with private bidders for the contract to clean. This group was led by MrBarry Gardner and Mrs Anne Pugh.[6]The assistant manager at Applemore, Mr Tabor, and the assistant manager at Ringwood, Mr Coote, also have some responsibilities in respect of cleaning. They all gave evidence as to their understanding of what went on at various times at their respective leisure centres, as did Mr Pooley in relation to Totton.[7]Of the battery of cleaning men and women employed at the three centres, only one retired lady, Mrs Barbara Russell, was called to give evidence as to how the task of cleaning was in fact carried out at various times. There is an issue as to the cleaning regimes followed by NFDC between September 2004 and March 2005.

Cleaning Regimes

[8]On 1st January 2005, TPS undertook a scrub and reseal of the whole floor area at Totton. In February 2005 NFDC sought the advice of Dr Bailey and, on the basis of his testing on 10th February 2005, they closed the sports centres as being unsafe, there being a health and safety risk arising from the slippery nature of the floors. They contended that the floor seal was defective and needed to be replaced.[9]TPS carried out a reseal in February 2005 at Ringwood and Applemore and, when Dr Bailey retested Ringwood on 22nd February 2005, he concluded that the state of the floor was satisfactory from a safety point of view. During March there were further complaints as to the state of the floors, and ultimately NFDC took the decision to replace the floor surfacing by sanding and applying four coats of polyurethane, a radical and different process to that which they had instructed TPS to undertake in August and September 2004.[10]NFDC contend that the floor seal applied by TPS was not fit for purpose, and maintain a counterclaim against the claimants for loss of profit arising out of the closure of the centres whilst they were made safe and during what are contended to be the carrying out of remedial works.[11]The claimants' monetary claim is modest. It is for the cost of investigating the slippiness, the cleaning of the floors and resealing in January and February 2005, together with the travel costs and the costs of materials. They also seek the following declarations: i) a declaration that the TPS seal applied to the floors of the centres was suitable and conformed to BS 7044 for slip resistance in dry conditions; ii) a declaration that TPS's seal or workmanship was not the cause of any deterioration in the slip resistance of the floors at the centres.

The Sealant Used

[12]The polyurethane seal was developed through a wholly-owned subsidiary of the Curtiss-Wright Corporation, a division of an international company, the Metal Improvement Company. It is manufactured to ISO 9002 standard, and each batch of the seal is credited with a certificate of conformity and samples retained as part of the ISO 9002 accreditation system.[13]The seals used at Totton, Ringwood and Applemore I am satisfied were tested and accredited to BS 7044 standard for resistance, and a certificate of conformity to that standard was issued for each batch by the manufacturer, E/M Coating Services. In addition, samples were sent to the Independent Centre for Sports Technology for further testing. Those samples passed the stiff resistance tests for BS 7044. Samples of seals used were therefore available to be retrieved for the purposes of testing.[14]BS 7044-4: 1991 stipulates that the surfaces used for multisports should have a slip resistance to a pendulum test value ("PTV") of between 60 and 140. United Kingdom Slip Resistance Group guidelines categorises values of between 35 and 65 as low potential for slip and values about 65 as extremely low potential for slip. It is accepted by the experts that, for the purposes of sports halls, 60 is the appropriate guideline for a reasonable period during use after the cleaning process.[15]Independent laboratory tests used by the Centre for Sports Technology show that the samples of TPS seal applied to the block floor in these sports halls gave an average slip resistance PTV of 70.5. Subsequent retests of one of the samples in March 2007 gave higher results with an average PTV of 83.2. In my judgment, the seal clearly complies with the requirements of BS 7044 when applied, and there is no evidence of deterioration in laboratory conditions.[16]Dr John Ashworth, the expert instructed by the claimants, retained a sample and found that after ten months no change was discernible. There was no evidence of degradation. Dr Bailey, in the course of discussions with the New Forest District Council in February 2005, expressed the view that the seal might be subject to degradation. It was a term that he used in the course of giving his evidence before me, and, when asked about it, he was constrained to accept that there was no evidence of degradation of the sealant and that he had not meant to use the term as meaning some deterioration of the surface causing slippiness.[17]Dr Bailey was instructed by New Forest District Council in February 2005 and advised them as to the state of the floor. What is striking about his evidence was that at no stage, until late in his investigations, did it occur to him that any slippiness that he found upon the floor might have been caused by dirt, grit, dust, grease or oil. He said that he was told by Mr Ed Pooley, the assistant manager of Totton Leisure Centre, who has no satisfactory experience of cleaning sports hall floors and maintaining them to the standard of BS 7044, that there was a satisfactory cleaning system in operation. Hence, his testing was on the assumption that the floors were clean floors. He said, had there been any grease at the points where he tested with the pendulum, he doubtless would have noticed some build up on the shoe. However, he was not looking out for alternative causes of slippiness, and when he did his measurements it was on the basis of "as found".[18]A proper scientific approach would have been to take an "as found" reading and then to compare it with the reading on a degreased and cleansed floor. He did not do this at the outset because he was not conducting any scientific investigation. He was advising "his client" from whom he had accepted an assurance as to the cleaning routines in place and their effectiveness. He did not enquire what those cleaning routines were.[19]Dr Bailey sold a Slip Alert machine to NFDC in February 2005 so that they could themselves monitor the state of the floors at each of the leisure centres, the object being to see whether there would be any deterioration in the state of the floors as he anticipated there might be. I heard a great deal of evidence about this device. A small four-wheeled cart is designed to run down a ramp, then over the floor surface to be tested for slip resistance. The underside of the cart has fixed to it a pad, and its contact with the surface transmits the measured resistance to the top of the cart, enabling it to be read by means of a table expressed in PTV terms.[20]In his expert reports Dr Bailey omitted to mention his commercial connection with NFDC or the fact that more than 20% of his time is spent developing his Slip Alert business. In his report of 14th February 2005 at paragraph 2 he described measurements of slip resistance at three leisure centres on 10th February 2005, when he had used the TRL pendulum and an appropriate slider complying with the measuring requirements of BS 7044-2. He then goes on to say this: "Independent checks were made at Totton and Applemore using a different type of machine, namely, a slip alert in order to verify the pendulum reading." (My emphasis.)[21]The Slip Alert may be said to be a handy means of achieving an approximate, indicative PTV reading. The device, independently tested by the Health and Safety Executive, whilst it has some utility, nonetheless has shortcomings. It was accepted by Dr Bailey that it was best used in wet conditions. When pressed, he accepted that it gave approximate indicative resistance readings and not determinative PTV readings and that the presence of dust, grease and dirt could well affect the readings.[22]I am satisfied that, unless it is carefully used by personnel directed as to its shortcomings, a significant understatement of slip resistance may be encountered. It is remarkable, therefore, that Dr Bailey could assert that the slip alert indicator was an instrument that could be used to verify the precision of pendulum readings.[23]Dr Bailey is a well-respected expert and the terms of his original engagement and retention were not that of an independent court expert. It was only much later that he assumed that role. When he did, in his later report and in his evidence, I did not discern that independence and objectivity I am confident that Dr Bailey normally shows when giving evidence. Neither did he show a careful dispassionate approach to his investigation of the cause of slippiness in the early stages by ignoring what should have been an obvious consideration as to what his client had caused to be put upon the floor during usage and in the cleaning process. That affected the validity of his measurements throughout, and thereby the basis of his findings as to the degree of slip resistance in the various floors.[24]Dr Bailey agreed with Dr Ashworth that the TPS seal, when tested immediately after application, showed compliance with BS 7044-4 slip resistance. Joint tests by the two experts also showed that the TPS seal, when applied to previously coated panels and kept in controlled conditions, had not deteriorated spontaneously when examined after nine days or so. Samples of the sealant used have been retained. There was no evidence that would suggest that it chemically breaks down or degrades in any manner. Dr Bailey was not able to point to any evidence that warrants such an inference.[25]I am satisfied by the evidence that led to this certification, and by the evidence of Dr John Ashworth, that, not only was the seal used compliant with BS 7044-4 slip resistant at and shortly after its application, but also that it was stable, and throughout complied with the requirements of the standard. There is no evidence that the workmanship in applying the sealant can in any way be impugned. It has not been part of NFDC's case, and both experts agree, that there is no evidence that workmanship was a cause of the loss of slip resistance.

The Recommended Maintenance Regime

[26]I turn now to the topic of the recommended maintenance regime. It is implicitly accepted by the claimants that their obligation was not merely to supply and apply a BS 7044 compliant floor surface with a pendulum test value (PTV) of at least 60: their obligation was to apply a product that, when used, would be safe for the type of use made at a sports hall by a customer of the local authority. The floors bore markings for various games, such as badminton and more vigorous team sports such as hockey and football involving intensive foot use. Such activities as aerobics and the like were also conducted upon those floors.[27]Clearly the state of the floor after use would not be the same as when laid or deep cleaned. It was vital, therefore, that there should be in place a cleaning regime that took account of both light use and heavy use, whereby dust, grit, body fat and other substances would be deposited on parts of the sports hall floors and which could diminish slip resistance. The claimants had an obligation to give advice as to the maintenance of the floor to ensure that it remained safe and compliant with BS 7044 slip resistance requirements.[28]TPS were dealing with a large and sophisticated organisation who were responsible for many public buildings and, in all, some five sports centres. They were entitled to assume that the authority, through its responsible officials, were aware of basic cleansing and maintenance routines for such floors.[29]Mr Tustin and Mrs Dobson-Humphries gave evidence as to how they approached the task of communicating the maintenance requirements to the various local authority employees. They dealt with Mr Chris Dathan, an assistant building surveyor, and Mr Ed Pooley in the first instance. The initial written maintenance advice was comprehensive and easy to understand. It required that, after a minimum period of 18 hours' curing of the sealant, daily maintenance should be undertaken:
"Daily Maintenance. Floors are to be swept and vacuumed to remove dust and dirt, grit etc. It is very important that every effort is made to remove abraded material to minimise scratching and premature wear of the finish. In exceptionally heavy use areas it is suggested this operation is carried out twice daily. All liquid spillages - for example, fruit drink - should be removed from the floor as quickly as possible using mop and bucket and a wet vacuum machine or a scrubber/dryer to reduce the possibility of staining and/or sticky areas which will attract dirt to the surface. For confined spillages and dirt, the floor should be spot cleaned using a neutral detergent applied diluted to an absorbent cloth. For large areas neutral detergent may be applied directly onto the floor in workable sections, allowed to stand for approximately one to two minutes and then scrubbed using red or blue floor maintenance pads under a rotary floor machine or scrubber/dryer. All slurry created by this process should be removed as quickly as possible. A dry floor may be buffed using tan or red pads in a simple buff and shine maintainer to enhance the floor's appearance. We do not advise the use of polishes on floors for sports use. All chewing gum should be removed daily."
[30]Regular Maintenance: "We strongly advise that floors be scrubbed regularly using a neutral detergent, in conjunction with mop bucket and wet vacuum machine or scrubber/dryer and red floor pad to thoroughly cleanse and degrease the surface. This will minimise the possibility of dirt build up which would detract from the overall appearance of the floor".[31]Periodic Maintenance:
"Due to the extremely heavy use the floors are subjected to, it is advised that the condition and the finish be monitored approximately every six months and, when it proves necessary to do so, apply further coats to the finish."
Note:
"Despite regular maintenance, after a period of time your floor will require refinishing in order to restore the appearance and to offer future protection."
A telephone number is given for specialist advice.[32]I have set out at length what advice the local authority had from the outset. In my judgment, that advice was both clear and practical having regard to the use of these floors in NFDC's leisure centres. I am satisfied that, if complied with, the state of the floors during use would have been well within the slip resistance requirements of BS 7044.[33]I was impressed by the evidence of Mr Tustin, who struck me as a painstaking and conscientious man who was prepared to bend over backwards to assist NFDC. I was also impressed with his co-director, Mrs Dobson-Humphries, who provided advice on the telephone and gave back-up. I am satisfied that they were accurate and truthful in their recollections and in their account of their dealings with the various officials of the NFDC.[34]Following complaints from Mr Pooley on or about 28th November 2004 as to the slippy nature of the floor at Totton and two other recreation centres, Mr Tustin attended a meeting and inspected each of the three sports halls. A traction inspection machine was used and readings were recorded in the low 40s. Mr Tustin candidly admitted that his assertion that this was in the acceptable range for sports hall traction at that stage was mistaken because he had confused the standards with another standard.[35]It is accepted by NFDC witnesses that all three sports halls presented as having a film of smear, the presentation of an oily substance having been smeared on the seal surface. At Ringwood Sports Hall excessive dust levels were also found and areas of pickled sealant were observed at the Totton Sports Hall. Mr Tustin proposed that all three floors should be thoroughly cleaned using the industrial scrubber/dryer machine and a neutral cleaning detergent on the night of 6th/7th December, such work to be carried out by TPS at a time convenient to Mr Pooley.[36]A meeting was arranged with the contract cleaning manager at 0600 hours at Totton after completion of the cleansing, and it was proposed that this meeting should take the form of a training session for future cost-effective maintenance for all three centres. Mr Tustin also undertook that TPS would return at a convenient date to Mr Pooley to abrade and reseal the pickled area of floor found at Totton Recreation Centre. These were not in fact caused by TPS, but I am satisfied were historic defects.[37]The arrangement was confirmed in a letter written by Mr Tustin on 30th November to Mr Pooley. He made it clear that the work would be provided free of charge, and made it clear that TPS could not be responsible for future traction problems if oil-based cleansing products continued to be used in the maintenance of these floors. He asked Mr Pooley to convey that information to the managers of the three centres and the building surveyor.[38]The reference to oil-based cleaning products was to the use of Grangel, an oil-based product that had been used for many years by New Forest District Council. I am satisfied it was used at all three sports centres between September and December 2004, and at Applemore probably until March 2005, by Mrs Barbara Russell. I am satisfied that there was no systematic instruction given to the cleaners incorporating TPS's advice. Mr Chris Dathan, the assistant building surveyor, clearly had no experience of the maintenance of sports hall floors, and although he attended meetings with TPS, he left the discussion and arrangements to Mr Ed Pooley.[39]Mr Dathan, on 2nd December 2004, replied to Mr Tustin's letter of 30th November stating:
"As you are aware, the sports hall floors have been cleaned using chemicals which our managers first checked as acceptable to use with you on site and which you confirmed as being fully acceptable for use during our meeting of 29th December" (he got the date wrong). "
Once the traction problem was highlighted, our staff once again contacted you for further instructions on cleaning, which again was followed. In view of this, I am unsure of the meaning behind your comment, 'We cannot be held responsible for future traction problems if oil-based cleaning products continue to be used for the maintenance of the floor'."[40]I am satisfied that Mr Tustin, on his visit to Totton on 29th November 2004, found Grangel in the cleaning cupboard and pointed it out to Mr Pooley. I am satisfied that Mr Pooley was made clearly aware that this should not be used on floors because it was oil based. I am satisfied at no time did Mr Tustin or Mrs Dobson-Humphries advise the use of Grangel on the floors. That there was a state of confusion is solely the responsibility of the employees of New Forest District Council, and in particular Mr Pooley and Mr Dathan.[41]There was an extraordinary exchange of internal emails, showing that the assistant sports hall managers with responsibility for cleansing saw themselves as the subject of criticism in Mr Tustin's sensible letter of 30th November 2004 when he emphasised that no oil-based cleaners should be used. Mr Taylor, on 1st December 2004, emailed Mr Pooley and other colleagues, saying that the Tustin letter of 30th November 2004 "seems to indicate that we smeared oil-based products on to the floor". He went on to say:
"We have only followed their instructions", and then words to which I give emphasis, "or done the cleaning as before. The paragraph seems to indicate some fault on our part. Am I being paranoid?"
I am satisfied what happened at Applemore was that cleaning in fact was done as before by Mrs Russell in the same way that she had done it for years prior to the new floor being applied by TPS.[42]Mr Pooley replied to Mr Taylor's emails and, referring to Mr Dathan, wrote:
"Chris and I have the notes to the meeting held with TPS, who accepted that they had advised us to use Grangel on the floors in the first place. I think this is covered. However, I will touch base with Chris."
[43]In his sworn statement Mr Pooley asserts:
"I do not recall being told by Mr Tustin not to use the Grangel product. As far as I am aware, we have not used Grangel since we took over responsibility for cleaning the centre in April 2004."
When pressed upon the contradiction in his email that they had been instructed to use Grangel by Mr Tustin, he said he preferred to stick by his email.[44]I did not find Mr Pooley to be an accurate or truthful witness. He dissembled. Where his evidence conflicted with that of Mr Tustin and Mrs Dobson-Humphries, I preferred their evidence. It is clear that when Mr Pooley was given unambiguous advice on cleaning, even in writing, he preferred to recast it and then omitted to disseminate the advice in a timely and systematic way to the cleaners. I am satisfied that at Totton Grangel continued to be used until December.[45]Mr Pooley's cleaner, Kieran, confirmed to Mrs Dobson-Humphries that it was being used as late as November, and she advised him that this should stop. Grease smears were also observed on the floors at Totton by a solicitor member of a squash club who used the centre and reported the matter to the local authority.[46]On 6th/7th December 2004 Mr Tustin and Mrs Dobson-Humphries attended the three centres and the thorough cleansing programme, as agreed, was followed. It was noted that the floors became very much less slippy and complied with the British Standard. The maintenance sheet was amended by TPS following the meeting of 6th December 2004. It was tailored to the limited resources of New Forest District Council. There was a scrubber/dryer at Totton which had been purchased by Mr Pooley. Originally there had been only been one for all of the five leisure centres. That was a complaint by Mr Gardner in the course of his evidence.[47]On 1st January 2005 Mr Tustin went to the Totton Centre and scrubbed and resealed the whole area. Between 23rd and 28th February 2005 Ringwood and Applemore were cleaned and resealed. On 25th January 2005, NFDC complained to TPS that the floors had become slippery again. Six days later they had taken quotes from a company called Courtship, for the re-sanding of each of the three floors and application of four coats of sealant[48]On 11th February 2005 the three halls were closed following testing by Dr Bailey and the local authority, using both the pendulum and one of Dr Bailey's Slip Alert machines. It was noteworthy that after Ringwood was cleaned and resealed, Dr Bailey pendulum tested it and found it BS 7044 compliant.[49]On 26th February 2005 Mr Tustin noticed that a member of the staff was using an oil impregnated wipe on a scissor mop to clean a newly-resealed floor. He took several examples of the so-called "static cloths" for testing. It is clear beyond doubt, in my judgment, that TPS, in the light of the knowledge given to them by New Forest District Council, gave timely and effective maintenance advice tailored to the requirements and resources of NFDC. The approach of NFDC to cleaning in relation to Totton, Ringwood and Applemore was confused and unco-ordinated.[50]It seems that scissor mops were used to sweep the sports halls at Applemore. An 800 square foot area was divided into two and cleaned each morning by Mrs Russell, between the hours of 6.00 am and 8.00 am. She used Grangel throughout and it was left to dry upon the floor. Mrs Pugh, her supervisor, says that she only had time to clean one half of the hall at a time.[51]It appears that after resealing by TPS, Mrs Russell found difficulty using the anti-static wipes and stopped using them. She was unable to use a heavy scrubber/dryer. In any event, Applemore did not possess one. Someone came in over the weekend and cleaned. The regime that he or she followed was not clear.[52]At Ringwood the cleaning was undertaken by the services company administered by Mr Gardner and Mrs Pugh. There was no direct evidence from cleaners as to what regime in fact was followed. Mr Dathan observed that there were considerable problems with dirt, grit and dust deposited by builders who used the hall as a passageway whilst undertaking substantial construction works that went on over a considerable time at the centre. The assistant manager, Mr Coote, defensively contradicted this evidence. I preferred the evidence of Mr Dathan, which confirmed that of Mr Tustin.[53]At all three centres oily smears were observed by Mr Tustin. This was accepted by NFDC as set out in Mr Tustin's letter of 30th November 2004. I observe, too, the complaints of the squash club. It is clear that, whatever system was put in operation from time to time at the various sports halls by the various personnel under the so-called supervision of the assistant managers, it was not sufficient to deal with the material which enhanced the slippiness deposited upon the sports floors during use. Had TPS's cleaning regime been followed, this would not have been the case.[54]A picture also emerges of floors being part cleaned only, because there was insufficient time to clean the whole floor. The consequence, now accepted in cross-examination particularly by Mr Gardner and Mrs Pugh, is that this serves to spread any accrued material causing slippiness from one part of the hall to another. It is clear that Grangel was used in all three centres. It was never dried off and the floor buffed thereafter. A build up resulted[55]Mrs Russell's evidence as to what really happened at the sharp end of the cleaning process is instructive: she went on as before; there was really no difference between the cleaning regime before the floor sealant was applied and after; and no detailed instructions as to a changed maintenance regime percolated down to her.[56]One can readily understand the cost implications of following a rigorous maintenance schedule. The use of Grangel is significantly more cost effective than the Sportsclean product recommended by TPS, because its dilution is considerably less than that of Sportsclean. I am satisfied that this was a consideration that affected Mr Pooley who had undertaken cleaning in-house and doubtless wanted to show that economies could be made. It was also a consideration with Mrs Pugh, who had to show the local authority that the cleaning service she helped to administer was more cost effective than that of the private sector.[57]These are all proper considerations, but they must be balanced against the risk to public safety. A cleaning regime which focuses its main effect between 6.00 am and 8.00 am cannot be sensitive to the pattern of use in a particular sports hall over the next 24 hours. Extensive use by school children or team sports is likely to deposit more slippy agents than lighter users such as badminton.[58]I accept that the local authority must be sensibly aware of the cost of employing teams of cleaners throughout the day. It must be balanced against the risk to the users. I am satisfied that the cause of the slipping was the inadequate cleaning of each of the halls by the personnel of the local authority.[59]"V" or scissor mops were used on the hall floors. There is a conflict of evidence as to whether and when they were washed and the grease taken out of them. There is a conflict of evidence as to how often scrubber/dryers were used. I am satisfied that there were insufficient scrubber/dryers available until the spring of 2005. It is evident that an appropriately rigorous regime of cleaning, including use of mechanical equipment, is now followed on the reinstated floor. It contrasts with what happened before.[60]I turn, finally, to the expert evidence. Dr John Ashworth was unable to give evidence before me because he has had a serious heart operation. His reports were before me. I remind myself, of course, that they were not cross-examined upon. Dr Bailey, who is a professional colleague in the field of floor slip research and investigation, made it clear that he accepted the laboratory findings of Dr Ashworth and the readings obtained by Mr Froude of the Independent Centre of Sports Technology, of which he is a senior consultant. The centre is a leading independent laboratory devoted solely to the testing of synthetic sports surfaces and sports equipment, both in the laboratory and on site.[61]The readings he took at Applemore Sports Centre on 14th February 2005 exemplified the scientific approach that should be taken to ascertaining pendulum test values, namely, "as found" and when dusted or cleaned. I have commented earlier upon the approach taken by Dr Bailey, which contrasts with the dispassionate scientific approach of Mr Froude, who tested "as found" and after dusting and cleaning. His evidence informs the evidence of Dr Ashworth.[62]There are four more specific issues where the experts disagree: firstly, as to the validity of tests carried out to show whether there was conformity of the floors with BS 7044 or not; secondly, as to whether material used was subject to degradation; thirdly, as to the effect of antistatic cloths; and, fourthly, as to the effect, if any, of the use of the product Grangel upon the floor. I deal with these individually.

The Validity of the tests

[63]Dr Ashworth adheres to the view that the proper approach to the measurement of pendulum values is that followed by Mr Froude, namely, in the "as found" condition and the dusted or cleansed condition. I accept the evidence of Dr Ashworth and Mr Froude on this issue. I cannot see that the approach of Dr Bailey's evidence, given the anecdotal assurance by his client that the floor was clean, evidences a scientific or dispassionate approach to the assessment of slip resistance. I reject his reliance upon the Slip Alert as a verifying instrument to the pendulum. It follows that the closures of the sports halls in February 2005 may well have been based upon unreliable evidence. I accept of course that, when confronted with such advice, NFDC would have no choice in the matter.

Degradation

[64]There is no evidence whatsoever to support the assertions of Dr Bailey in his earlier reports that the sealant was in any manner unstable and was a sealant that could or would degrade in some manner. This was an unsupported speculation by Dr Bailey. The evidence which I have referred to before flatly contradicts this assertion. The use of antistatic wipes.[65]It is evident on the disclosed material that there were two types of antistatic wipes used by New Forest District Council: one larger in size and impregnated with carob oil, and its replacement somewhat lighter and with a different vegetable oil impregnated in it. I accept the careful evidence of Mr Tustin as to his discovery of the use of these wipes on 26th February 2005, and how, in consequence, TPS tailored their maintenance advice to New Forest District Council, thereafter incorporating a prohibition upon their use.[66]The careful chemical analysis by Dr Ashworth I also accept. Dr Bailey, in my judgment, was unable to replicate the precise type of oil used or its quantity. I prefer the evidence of Dr Ashworth as to this issue. As to use, it is clear that after September 2004 they were not in use at Applemore, but they continued to be used at Totton and Ringwood. It was clear that Mrs Pugh was not aware of the change of specification. It was not drawn to her attention and there is no reason why she should have been put on enquiry.

Grangel

[67]This was a product that was attractive on account of its comparative cheapness. Despite the fact that it is oil based, it can effectively be used to clean sealed floors, provided dilution is carefully achieved and that it is not left to dry and build up on the surface of the seal. It should be removed and, ideally, buffed. Mrs Russell was clear in her evidence in relation to Applemore that she never wiped it off and she never buffed it off. Furthermore, she used her scissor mop, which became greasy, and only from time to time would she take it home and wash it. I do not think that the regime of washing scissor mops every two or three days spoken off by Mrs Pugh was ever followed at Applemore or at Ringwood.[68]The joint tests by Dr Ashworth and Dr Bailey showed the cleansing products Sportsclean and Granclens, as with Grangel, when used in accordance with manufacturer's instructions, did not affect slip resistance to any significant degree. I accept the evidence of Dr Ashworth that shows that, when Grangel was simply mopped on to floors, as spoken of by Mrs Russell on one occasion, it did reduce slip resistance, and, in my judgment, the use of Grangel, unwiped that is, unremoved over a period of time, contributed to the accretion and build up of grease and smear upon the floors of each of the three centres.[69]In my judgment, NFDC have not established that the floor sealant supplied and applied to floors at the sports centres at Totton, Ringwood and Applemore were not fit for purpose and did not comply with BS 7044, as supplied. Had they been maintained in accordance with the reasonable advice of TPS, they would have continued to provide a good and safe surface. I am satisfied that loss of slip resistance was solely and wholly the responsibility of NFDC and their neglect to follow the cleansing regime advised by TPS and tailored to their resources.[70]I turn to the question of quantum. It is right that I should say something about the claim put forward by NFDC. Firstly, there is a loss of profits claim. This seems to be based upon a comparison with the previous year for a period chosen by the managers of the leisure centres. Showing an extraordinary reticence, New Forest District Council felt unable to disclose figures for other years or to afford the defendant to the counterclaim, or the court, any comparison basis upon which to consider the validity of the figures put forward.[71]Mrs Joanne Bailey, the manager of Applemore, in her written evidence had given two figures £10,000 apart, and was not in a convincing way able to show the court why there were two estimates and explain satisfactorily the basis of her choice for the comparator period that she had chosen. She provided her figures to Mr Millard,her superior, who incorporated them into a report to councillors some time later. They did not seem to tally. Miss Bailey was unable to throw any light upon what appeared to be disparity, and asserted that it was not her business to look at reports by her superiors to the councillors who represent members of the public. The basis of comparison was wholly unsatisfactory. Had there been a finding in favour of NFDC on liability, the court, doing the best that it could, would have given a nominal sum - say, £100, in respect of each of the three halls.[72]In relation to the claim for remedial works, I am satisfied that they were not in fact remedial works. They constituted a significant betterment. The specification for the job was radically different from that undertaken by TPS. It was a back-to-the-wood sanding, and the application of four layers of sealant. I observed that TPS and the others who quoted for the original job did not consider it necessary to take off the earlier sealants. It is not known what these sealants were, save that they complied, presumably, with BS 7044.[73]I observe that NFDC approached the firm who undertook the fresh works in April 2005 as early as January when the matter was being reasonably investigated by TPS and steps over and above any contractual requirement were being undertaken by TPS in good faith to assist the local authority. On the present evidence before me, a sum of £10,000 would have been appropriate to undertake remedial works that might have been necessary, together with an uplift contingency of £7,500. Any sum over that, in my judgment, represents a substantial betterment.[74]It is apparent upon the evidence that, by January 2005, with the engagement of a competitor company and Dr Bailey, NFDC were committed to the alternative scheme and, in reality, were not going to permit TPS the opportunity to further deep clean and demonstrate what the true cause of the enhanced slippiness was. It follows that NFDC took the benefit of the cleaning and resealing in January and February 2005. It would be unjust to permit them to have such benefit in the light of their settled intention and it is appropriate to award the claimant restitution for the services and materials for the period from 1st January 2005. That is a sum to be agreed or assessed in the absence of an agreement.[75]I also make the declaration sought. Declarations, of course, are of the greatest value to the claimants in this case, since the integrity of the claimants' product was called into question by Dr Bailey and NFDC. The claimants have not marketed it pending resolution of the disputes and the counterclaim. A lengthy pre-claim protocol has been followed in which the claimants have been open-handed and candid as to all matters technical and evidential.[76]NFDC did not prosecute its claim and an important part of TPS's business, namely, the sale and use of its own sealant, has been dormant for an unduly long time. The commencement of the action by the claimant for a declaration and its financial claim has been the only way in which the ongoing dispute could be crystallised and resolved. The opportunity was afforded at an early stage for the defendants to produce technical evidence as to its product and stability and it has failed to avail itself of that opportunity.[77]My conclusions. i) I give the declaration sought. ii) Reimbursement to TPS of sums expended on services and materials from 1st January 2005, including travel expenses and the like, to be agreed and, if not agreed, assessed. iii) The counterclaim is dismissed. iv) There should be an order for costs in favour of the claimant, and I will hear the parties further as to the basis of such costs. My provisional view is that, having regard to the conduct of this litigation by NFDC and the considerable delay, this should be an indemnity costs order. I give liberty to apply in relation to this matter, and I will hear further argument should it be necessary.[78]A written copy of my judgment will be available to the parties in the next ten days. I observe that the representatives of both parties have been vigorously taking a note. I am sorry to put you to that trouble. Should there be any applications arising out of this, I give leave for them to be made within fourteen days of the receipt of the written judgment.