Harooni & Anor v Rustins Ltd [2011] EWHC 1632 (TCC)

[2011] EWHC 1632 (TCC)Case No HT-09-521
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 29 th June 2011
Before
MR JUSTICE AKENHEAD
Between
(1) FARZAD HAROONIClaimants(2) FEDERAL MOTORS MANUFACTURERS LIMITEDClaimantRUSTINS LIMITEDDefendant
Stephanie Barwise QC and Robert Clay (instructed by Beale & Co.) for ClaimantsAndrew Bartlett QC and Alexander Antelme (instructed by Davies Arnold Cooper) for DefendantHearing Hearing dates: 9-12, 16-18 May 2011
JUDGMENT
[1]In the early hours of 30 April 2005 a devastating fire spread through a number of attached warehouses which comprised the former Gamages toy warehouse in North London at Waterloo Road, NW2. The fire started in one of three interconnected carpet warehouses owned by an organisation called NTC and spread within a relatively short time to the physically connected paint storage warehouses owned by Rustins Limited (“Rustins”), the Defendant, at the south end of the warehouse block and to the motor car parts warehouse owned by Mr Farzad Harooni and occupied by his company, Federal Motors Manufacturers Limited (“Federal”), the Claimants. The whole warehouse was burnt to the ground notwithstanding the professional efforts of the Fire Brigade; there was no loss of life or injury and adjoining properties were saved from fire. The cause of the fire is and remains unknown, albeit arson seems unlikely. Mr Harooni has lost everything and, due to several unfortunate administrative errors, his and Federal’s insurers have declined to cover them. It is difficult to feel anything other than a very real sympathy for Mr Harooni and his wife for the all pervading loss which they have suffered.[2]They bring this claim against Rustins on the basis of a cause of action founded on the case of Rylands v Fletcher and an originally broadly based case in negligence, albeit much curtailed by the end of the trial. The Rylands v Fletcher cause of action is based on the presence of over 200,000 litres of flammable and a lesser amount of very flammable materials in the Rustins warehouse which at one or more stages of the fire ignited and, it is said, caused the fire to spread from Rustins to the Federal warehouses. A key issue is whether the fire spread from Rustins to Federal, as argued by the Claimants, or, as contended, by Rustins the fire spread from and through different parts of the NTC warehouses directly to the Federal warehouse.[3]There were a large number of eye witnesses, not least a number of fire officers of different seniority. A large number of photographs were taken during (and indeed after) the fire, there being more than 8 lever arch files’ worth available to the Court and at least three videos, two taken by members of the public. Much turns on the timing of when different parts of the warehouse complex were seen to be alight.[4]The Claimants’ case depends on them establishing on a balance of probabilities that the fire spread from Rustins to Federal and in effect that Federal would not have burnt down in any event. The Premises[5]The respective warehouses, constructed in the 1930s, were comprised in effect in a block measuring about 110 by 72 metres. The external walls were in brickwork. The site was bounded by Waterloo Road to the West, Coles Green Road to the East and Streakes Field Road to the North. Further to the North was the North Circular Road. To the South, there was a residential Block, Delta Court, accessible from Coles Green Road; Delta Court’s plot stretched westwards about 50 metres from that road. To the South also but between Delta Court and Waterloo Road, there were Rustins’ factories (as opposed to warehouses) where Rustins manufactured various paint products which were to be stored in its warehouse to the north which was to be burned down. Separating Rustins Factories from the warehouse block was a yard, known as Yard A; separating Delta Court from the warehouses was a concreted area known as Belmont Valley.[6]The roofs of the warehouse block comprised 6 gables which spanned East to West. From the Waterloo Road frontage, to the South was the Rustins warehouse (No 51); its dimensions were some 37 metres by 55 metres; it was three gables’ width wide and its length spread to about half way across the overall block. Next at No 57, Waterloo Road was part of the NTC warehouse, known in these proceedings as “NTC B”; it was 18 wide by 55 metres long and was one and a half gables’ width wide sharing a gable with Federal (at No 55) which was of the same dimensions to the north, which also had one and half gables comprising its roof. From the Coles Green Road frontage, at the north end there was a warehouse owned by a company called Magicwell, whose premises measured about 25 by 48 metres, except for a small set of premises occupied by “Maine Wear” in its North-East corner which comprised an area of about 12 by 15 metres. The Magicwell and Maine Wear premises were two gables width wide. To the north of Magicwell and Maine Ware was a further area known as “NTC F” also occupied by NTC whose dimensions were 12 by 48 metres; NTC F opened onto NTC B to the West and to NTC D to the South. NTC F was one gable’s width wide. NTC F went into NTC D via what was called the “Indian Room” which was a two floor area which presumably housed Indian carpets; the Indian Room was about 20 by 12 metres in dimension. NTC D was three gables’ width wide and, apart from the Indian Room and another area occupied by a company called Almo, was about 55 by 36 metres in dimension. NTC D was thus bounded to the North by NTC F with which it was interconnected and to the West by Rustins warehouse. Almo’s unit measured about 12 by 12 metres and was in the North East corner of NTC D.[7]Federal and Mr Harooni’s warehouse at the North-Western corner of the block thus shared party walls with NTC B to the South and Magicwell to the East; the party walls were of blockwork which went up to roof height. It was internally a single storey unit and was used for storing motor parts, albeit that they were packed in cardboard; I infer that there were some pallets because there were two fork lift trucks on the site. It was about 18 by 55 metres in dimension. The roofing comprised, like the rest of the block, triangular lattice type steelwork supporting wooden boarding. The roof covering on the northern gable was corrugated iron type sheeting; the gable which it shared with NTC B appears to have had a slate roof. In terms of entrances, the northern gable end wall facing onto Waterloo Road accommodated an entrance porch and door which was flanked by two cupressus type trees, about 20 feet tall. In the next gable, shared with NTC B, in its half, there was a door and also a roller shutter door. The external walls of Federal were clad in green coloured steel sheeting.[8]NTC B was part of the NTC carpet complex at this site. It shared party walls to the North with Federal and to the South with Rustin’s warehouse. It also had a roller shutter door in the gable which it shared with Federal. In the other gable end to the South, the openings comprised one small door, a larger glass door and a window. It was clad on the front with the same green metal sheeting as Federal. There was a flag post at the apex of the southern gable end roof, which shows up on some of the photographs taken during the fire. The roof covering was slate. NTC B was a single storey and there was a partial mezzanine floor abutting the party wall with Rustins to the South mezzanine floor. The carpets were at least in part stacked on pallets.[9]Rustin’s warehouse had three brickwork gable ends fronting onto Waterloo Road each of which contained a roller shutter door; there was an ordinary door also in the middle gable end wall. These three gable roofs (referred to as U1, U2 and U3) continued to the East and continued over NTC D. The party wall to the North (NTC B) was a full height block work wall. The front of the warehouse was partly separated from the back by a brick wall which ran North to South; this separating wall, one brick (nine inches) thick, was penetrated by three c. 5 metres square openings. The roofs between the gable end wall fronting onto Waterloo Road and the separating wall to the east were again on lattice style steel work on which there was wooden boarding over which there was profiled steel sheeting. The roof back eastwards from the separating wall was tile over wooden boarding and was set slightly lower than the metal sheeted roof which ran from the Waterloo Road end to the separating wall. There were no internal walls running East to West and the roofing was supported by two sets of very substantial RSJs in that direction. The dividing full height party wall to the East with NTC D was a two brick thick wall with a 12 inch (or slightly more) cavity between the two leaves of brickwork.[10]To the immediate south of Rustin’s warehouse was Yard A from which Waterloo Road was accessed. In plan, Yard A tapers from a width of about 10 metres at the entrance on Waterloo Road to about 5- 6 metres at its end. Yard A housed an LEB electrical sub-station at its entrance and it ran some 55 metres beyond (to the East) beyond the Rustin’s/NTC D party wall. Mostly empty or water filled large plastic containers were placed although several barrels of flammable solvent containers were present at the time of the fire. At the eastern end of Yard A, but within the curtilage of the Rustin’s factory units, there were various elevated bulk storage chemical tanks; these held flammable solvents. A drencher system had been installed and was in working order at the time of the fire; photographs, taken after the fire show drencher nozzles around and above the tanks. This system was alarmed with a clanging bell powered by water pressure.[11]So far as contents in Rustin’s warehouse were concerned, there was a variety of products stored, including paint, wood dyes, turpentine, thinners, brush cleaner liquid, wood knotting liquid, French Polish and the like. The containers were tins, glass bottles and plastic containers. The quantities of product on the night of the fire are not known with absolute precision, although some stock lists were produced but there must have been more than two hundred thousand litres. It was stored on pallets on metal stillages which in places at least were up to 13 to 15 feet in height. There were fork lift trucks and vans and a free standing pallet wrapper and strapping machine present on the night of the fire. Most of the product stored was flammable whilst some thousands of litres were highly flammable, such as thinners and turpentine. Most of the flammable product was in the area at the back, that is in the area to the East of the separating wall. There were storage products at the front on racking. There was no fire alarm but there was an intruder alarm connected to a service supplier.[12]NTC D immediately to the east of Rustins had similar roofing to that over Rustins, tiles over wooden boarding supported by steelwork. The roof gables, U1, U2 and U3 continued from the Rustins warehouse. The eastern gable ends abutting Coles Green Road contained two roller shutter doors 12 to 14 feet in height; there was a door and window set on the southern gable end between the roller shutter door and the southern wall. There were mezzanine floors over most of the interior of NTC D save for a central “L” shaped area; in particular, there was a mezzanine floor measuring about 36 by 15 metres immediately adjacent to the party wall with Rustins to the West. It was full of carpets. NTC was attached to NTC F through and by the Indian Room which was formed between the back (West) wall of Almo and another block wall to the West. It contained a mezzanine floor. There was an intruder alarm much of which was activated by sensors around the NTC premises and this was probably located in the Indian room. At the time of the fire, the owners of NTC were seeking to sell the premises. Several vehicles were parked inside on the night of the fire. To the South of NTC D was Belmont Valley whose entrance onto Coles Green Road was about 10 metres wide; it opened out to about 15 metres wide at the end which abutted the back end of the Rustin’s factory buildings. At the end was a small empty industrial unit, which backed onto yard A.[13]Almo had no mezzanine floor. Almo stored metal castings. There was a large door and at least one window in the eastern gable end. There was a brick chimney stack which protruded above the roof line. The roof was the same as NTC D’s and was the eastern most end of gable U1. It shared party walls with NTC D and NTC F.[14]NTC F was open plan with NTC B to the West and part of it, the Indian room, protruded over and into the floor space of NTC D. There was a glazed window and entrance door in the gable end fronting onto Coles Green Road; this was substantial and about the same size as adjacent roller shutter doors. It was one gable’s width wide. There was some mezzanine flooring on the north and south sides just past the line of the Indian room. The roofing was the same as the adjacent NTC D roofs and ran through over NTC B to the West. Two vans were parked in NTC F on the night of the fire. It had party walls (over a few metres with Almo to the South, and Maine Wear and Magicwell to the North). Its eastern wall was clad in grey profiled sheeting.[15]Maine Wear housed clothing, mostly shirts. It had a glazed entrance door and a grey clad frontage. At least the front part of the roof was flat, although to the West, the gabled roof was as the adjacent NTC roofs. The roofing here was profiled or corrugated metal. Maine Wear had party walls with Magicwell to the North and West and NTC F to the South.[16]Magicwell’s entrance was through a roller shutter door through its eastern brickwork frontage on to Coles Green Road. From one gable’s width at the eastern end, it widened into a two gables’ width warehouse to the West of Maine Wear. It had party walls with Federal to the West, and Maine Wear and NTC F to the South. Its roof was profiled sheeting on wooden boarding. There were some windows on the frontage with Streakes Field Road to the South. The Witnesses[17]I did not find that any of the witnesses were dishonest in the sense that any deliberately told untruths to the Court. However, there were some undoubted discrepancies between what some of the witnesses said in terms of timing compared with what some clear and virtually unchallengeable evidence indicated.[18]My impressions of the witnesses were as follows, first in relation to the Claimants’ witnesses:(a) Mr Harooni: of Jewish and Iranian extraction, he had built up the Federal business and was obviously a competent businessman. As he himself accepted, the fire on the night and thereafter was a very distressing experience. He had certainly convinced himself that his timings of what he saw and when he saw it on the night of the fire were correct but other more reliable evidence suggests only that he was wrong by the best part of an hour. His faulty recollection was confirmed by his inability to remember such important details as whether he was involved in the insurance declarations and the names which he used at the time; although these matters were tangential to what happened on the night of the fire, they demonstrate a mind set which suggests some unreliability in his evidence of the events of the night.(b) Mrs Harooni: again, the fire and its consequences for the family have been very serious. Although honest, she has clearly convinced herself as to the timings of the fire, which are at odds with more reliable evidence as to when things happened. Her evidence that she could, from her car whilst driving on the North Circular, see that the fire was in Rustins and not yet in Federal was not credible. Whilst she might generally have seen a fire, she could not have seen much, looking across her passenger husband as she drove the car from some 150 metres away presumably at 30 mph or more with such precision. There were some other examples of exaggeration(c) Mrs O’ Keeffe: she lived with her husband in Coles Green Road, No. 141. She was woken on the night of the fire and was outside their house just before the fire engines arrived at about 12.51 am. She took some photographs which were in evidence and gave independent evidence as to where she saw the fire, at the front of NTC F. She seemed sensible.(d) Mr O’ Keeffe: his evidence largely corroborated his wife’s evidence and was credible; he was hardly cross-examined at all.(e) Mr Jennings: he was a fire officer who knew the site and his was one of the first crews to arrive at the fire scene shortly before 1 am. I formed the view that he was level headed and sensible. Witness statements from him were obtained by both parties and his reliability is not in issue.(f) Mr Hussain: he was a local resident, living in Ballards Road about 200 yards from the North West corner of the warehouse block. He took a video of the fire from where he was which was not, so far as this case is concerned, an ideal standpoint. He was decent and honest.(g) Mr Donaghey: he is a fire officer who arrived at the fire site at about 1 am. His statements, obtained by each side, were admitted into evidence because he was abroad at the time of the trial. Obviously without him giving evidence in court, it is difficult to form a view about his reliability as a witness. Therefore to the extent that his evidence is supported by other evidence, I can safely rely upon it.[19]The Defendant’s witnesses were as follows:(a) Mr Murray: he had been the works manager at Rustins from 1980 to 2008. He gave evidence about the use of the warehouse and the likely contents. He did arrive at the fire scene at about 2.30 am by which time on almost every account the whole warehouse block was ablaze. I formed the view that he was honest, down to earth and sensible; he made some concessions that there might be some solvent in Yard A.(b) Mr Cox: his was the first appliance to arrive at the fire scene and he was initially in charge. I formed the view that he was straight, decent and conscientious and a reliable witness.(c) Mr Butler: he arrived at 1.23 am on site. He was a senior fire officer and was competent, businesslike and impressive in giving evidence.(d) Mr Philpotts: he arrived at the fire scene at the same time as Mr Butler and he later took over from the previous officer in charge about 20 minutes later. I was impressed with him as a down to earth and sensible person who gave his evidence in a helpful and believable way.(e) Mr Gridley: he was an experienced photographer who worked for the London Fire Brigade and he attended the fire scene. He took a key series of timed photographs between 1.45 and 2.30 am. He gave the impression of being sensible, professional and competent. I have no difficulty in accepting his evidence.(f) Mr Carey: he was not involved on the night of the fire but participated in the post-fire investigation into the cause; he was open, professional, sensible and not prone to exaggeration. Although he was wholly honest, I exercise some caution in relation to his evidence as it is the Court’s job to decide on a number of matters which he investigated.(g) Mr Pandoria: he was a longstanding warehouse manager at Rustin’s warehouse. He had locked up the warehouse the day before the fire but was called to the fire scene; he walked around the warehouse block. I formed the view that he was good natured, he answered directly questions put to him, he had a good memory and was fairly emphatic in the giving of his evidence.(h) Mr Arjan: he worked for Rustins albeit in the adjacent factory. He lived locally and went out to see the fire and its progress. His view was from where Ballards Road meets Waterloo Road and he had a view of the fire from some distance. He gave his evidence in a clear and firm way.(i) Mr Kerai: he has worked for Rustins now for some 15 years and was a quality controller. He actually lived on Waterloo Road. He joined up with Mr Pandoria on the night of the fire and they walked around the warehouse block. He gave his evidence in a clear and palpably honest way.[20]So far as each party’s fire expert was concerned, Mr Williamson, for the Claimants, was a very experienced and senior fire officer (37 years) who has now retired and provides expert evidence and fire investigation services. Mr Bourdillon, for the Defendant, is a very experienced fire investigator and over 27 years of practice in this field has been involved in over 1500 fire investigations. Although Mr Williamson’s views merited respect, I preferred the evidence of Mr Bourdillon which I felt was significantly more measured than that of Mr Williamson who I felt was almost trying too hard at times. Also, large parts of his report were submitted to support a negligence case which was abandoned by the end of the trial and I felt that his report should have made clear that he could not support a case that a careful warehouse owner had been careless in almost very respect. The Cause and Origin of the Fire[21]The cause of the fire is simply not known although it was common ground that the fire started in NTC D or possibly just in NTC F. It does not truly matter so far as the disputes between the parties to this litigation are concerned.[22]The precise source of the fire is a matter of more issue between the parties. At the beginning of the trial, the Claimants’ position was that it started at a position adjoining the party wall on the mezzanine floor in NTC D. However by the end of the trial, there was no real issue that the probable source was in the Indian Room, albeit that the Claimants said that it was on the mezzanine floor and the Defendants on the ground floor. The Claimants ultimately accepted that one could not say where the source was. On balance, I am of the view that the fire probably started in the Indian Room. This is corroborated by the evidence about the NTC alarm system which had been activated the afternoon before the fire. This sophisticated burglar system was not triggered before communication between the alarm panel and the remote monitoring units was lost (at 00.49am); the sensors around the NTC units would probably have picked up any fire and set the alarm off. Therefore, the fact that communication was lost with the alarm panel which was in all probability fixed in the Indian Room suggests that the fire effectively attacked the panel; this suggests that the fire started close to the panel. Other strong supporting evidence, which I will come to later in this judgement, is the evidence both of Mrs O’ Keeffe that she saw fire in NTC F in effect adjacent to the Indian Room and of Mr Cox who saw fire also in that area before it burst through the roof. It is impossible to say as a matter of probability from any direct evidence whether it was at floor or at mezzanine level, although Mr Carey’s investigation revealed that it could have been at mezzanine level. The Spread of the Fire-the Evidence[23]I will first summarise the evidence, initially of the lay witnesses and then of the Fire Brigade witnesses. I do not summarise the whole of the evidence but only the more important parts of it.[24]Broadly, Mr and Mrs Harooni corroborated each other. Mr Harooni left Federal after 10 pm on the 29 April 2004 and, after a restaurant dinner with his wife, he returned home (St John's Wood); they retired to bed. He said that he was contacted at 1.14 am by a Mr Bazargan, a builder who was restoring a property of his on Waterloo Road with a voicemail message that there was a fire visible at the warehouse site. He rang Mr Bazargan back at 1.16 am who told him that he had heard an explosion and that he could see flames over the roofs of the warehouses on the site; Mr Bazargan did not think that there was any danger to Federal and Mr Harooni asked him to keep an eye on things. At 1.25 Mr Bazargan phoned back to say that the fire was getting more severe and that it had reached Rustins warehouse. The Haroonis then decided to drive to the Waterloo Road site. Mrs Harooni drove and, to access the site, they came onto the North Circular Road and he said that from there he could see a "massive fire coming from the NTC/Homewise warehouse…and also from Rustin’s warehouse on Waterloo Road”. They drove their car into Apsley Road (which came out on to Waterloo Road opposite the southernmost gable end and roller shutter door of Rustins warehouse). They parked their car at about 1.45 am. He said that from there they could see that the "flames were much higher than the top of Rustin’s roof and I heard explosions frequently”. He said, and it was common ground from almost all the witnesses, that there was a strong north easterly wind blowing towards Waterloo Road from Coles Green Road. There were two fire engines in Waterloo Road and water was being pumped into the warehouse roof and into Yard A.[25]Following several phone calls to his brother at 2.05, he said that Federal was not on fire. Rather at about 1.55 am, he heard an explosion “which visibly caused the flames to increase in height and intensity and the fire spread from Rustin’s warehouse northwards towards” NTC B. He went on to say that "within a few minutes the whole of [NTC B] at the Waterloo Road end was alight”. He said that he and his wife continued to watch from the Apsley Way area and that within about 20 minutes he saw flames spread to the roof of Federal. At this time he said that the Fire Brigade were not pumping water into NTC B or Federal. Some time later he received a message that his brother had arrived at a point to the north of the warehouse block and he went west down Apsley Way and round to the junction between Waterloo Road and Streakes Field Road. By this stage, which on his timings, must have been 2.30 am or later, he saw flames across the whole of the roof and frontage to Federal and that in effect no attempts were being made at that stage to extinguish the fire in Federal; this came later. He remained in the area until about 4.30 am when he left "exhausted, shocked and confused", which is not at all surprising. He seems thereafter to have made no effort to contact the people who monitored his fire alarm system, which might have provided some forensic assistance in relation to when fire first reached Federal. He believed that it was up to his solicitor to get this information if required.[26]His solicitors wrote to Rustin’s on 23 December 2004 saying that the fire had spread to Federal "by about 02.00”. Under cross-examination, he said that he had "no idea" why his solicitors said this when it was his recollection that it was after 2 am. He believed, when questioned, that the timing on the photographs taken by Mr Gridley, which directly contradicted his timing, must have been wrong.[27]He went on to describe various steps he took over the following two or three years, including sending a round robin questionnaire to people in the area as to the events of the night on which the fire occurred. No disclosure was made in relation to that and it does not appear that anyone who responded gave evidence.[28]Mrs Harooni broadly corroborated what her husband had said about the timings. She said, however, that “shortly after our arrival the fire increased in intensity following a loud explosion from within Rustins. This caused the fire to spread to [NTC B]. From there the next warehouse to catch alight was [Federal] and this occurred within about 20 minutes”. The increase in intensity occurred, she said in evidence, about five minutes after arrival (that is, about 1.50 am on her timings) and it was 10 minutes or so later that she first saw that the fire had spread to NTC B (that is, about 2 am on her timings). She said that it was another 15 to 20 minutes after this that she first thought that Federal was alight (that is about 2.20 am). She went on to say that it was only about "sometime after 03.15” that the whole roof of Federal caught fire. She had said that, whilst in their car on the North Circular "I quickly glanced and saw that the fire was visible however it appeared not to have reached [Federal’s] warehouse." She went on in evidence to say that, shortly after her arrival at Apsley Way, she saw a glow behind or through Rustins Waterloo Road Roller shutters. She said that she saw no fire-fighting at Federal until 3:15 am. She also believed that the timing on Mr Gridley’s photographs was incorrect.[29]Mr and Mrs O’ Keeffe live and lived at 141 Coles Green Road. She was woken by her husband and son on the night of the fire and told that there was a fire in the warehouses opposite. Their house was opposite NTC D. She saw from the window fire at roof level in NTC D and also in effect at NTC F; she said that initially there were only "very small flames coming from the roof". There was no fire apparently coming from Almo. They went outside and several minutes later the first fire engines arrived (this being recorded in the incident log as at 00.51 am). There was, she said no fire apparent in Maine Wear or Magicwell. They then moved their cars to a safer area and thereafter came back and she began to take photographs. After about 30 minutes after the fire brigade’s arrival, they were asked to evacuate their house which they did; this would on her timings be at about 1.20 am. Mr O’ Keeffe gave similar evidence.[30]Mr Hussain was in his house in Ballards Road, which is one block to the West of Waterloo Road and about 100 metres South of Apsley Way. He and his family became aware of the fire at the warehouse block but it is not wholly clear when he started to video what was going on. He said frankly in his witness statement and when giving evidence that he thought that he and his family were evacuated from their home at around 2.00 am but could not remember the precise time; he would not as such have disagreed with a time of 2:30 am but he did not see what the time was. His video, which I have viewed several times, seems only to show with differing degrees of clarity the three gables of the Rustin’s warehouse fronting onto Waterloo Road. The roofs appear to have been destroyed by the fire but there is clearly the glow of fire further to the east, albeit the view of that part of the warehouse block is obstructed mostly by the Rustin’s factory building. What one can not see, really at all, is what was happening at the northern part of the warehouse block namely in NTC B and Federal. The video is not very clear, although on at least one occasion there appears to be a sudden major conflagration in the centre of Rustin's. The video runs for a few minutes and some of it is undoubtedly confused and out of focus; my comments should not be taken as involving any criticism at all of Mr Hussain because he was not a professional photographer.[31]More video footage was provided by a Mr Barnett who lived in Delta Court to the south of NTC D. He had unfortunately died and his video was accepted as admissible evidence. It is common ground that his video was shot probably at some stage before and possibly up to about 1.42 am because Delta Court was finally evacuated by about that time. The video of the fire runs for a slightly longer time than Mr Hussain’s. Again there are some obscure and out of focus shots and a fair amount of the view is obscured by a number of trees, in leaf, between Delta Court and the warehouse block. Mr Barnett, obviously untroubled by the fact that a raging fire was only 30 to 40 m away, says at one stage that it is "nice and warm". He focuses from time to time on the fire brigade officers in the Coles Green Road and one sees a number of hoses being directed at the flames from that location. For the first half of the fire footage, one can discern apparently that the gable roof closest to Delta Court, that is the southernmost gable, is not apparently alight; therefore, the fire that one can initially see is of either or both of the gables over NTC D to the north. It is impossible to say from his footage whether or not NTC F, NTC B or Federal is ablaze. In the latter half of the video, it appears that the westernmost end of the closest (southernmost) gable is ablaze because one can see fire emerging through various roof lights. By this stage the fire in NTC D appears to have reached approximately the easternmost line of the empty industrial unit in Belmont Valley; however it is not clear whether, or probable that, it has reached, let alone penetrated beyond, the substantial party wall between NTC D and Rustin's warehouse.[32]I next turn to the factual witnesses called by Rustin's. Mr Pindoria finished work on the day before just after 4:30 PM and locked up at about that time; he set the intruder alarm as he left through one of the front doors. He was contacted by Mr Arjan’s mother in the early morning of 30 April 2004 who told him that her son had been called by a friend who had seen "a fire close to Rustin's". He contacted Mr Kerai and they both decided that they would go down to the warehouse block together. They parked in Ballard's Road and looking from Waterloo Road to the South of the warehouse block they could see that none of the Rustin's buildings were on fire. They walked from there by way of Crest Road to the south into Coles Green Road down to the warehouse block at its eastern side. There was, he said, one fire engine there with hoses pulled out onto the road and some fire fighters were fighting the fire at NTC. A fire officer currently in charge wearing a white fire helmet asked them for details about the premises and he then asked them to show him round the premises. The three of them then walked north down Coles Green Road turning left into Streakes Field Road where, he said, there were firemen with three fire hoses shooting water onto the roof of the Magicwell and Federal buildings. He saw as he passed the northernmost side of Federal that the cladding panels "were glowing red" and the glow of fire through the windows of Magicwell. The three went round on to Waterloo Road and, he said there was no fire fighting on Waterloo Road and "no visible evidence of a fire at the western side of the Site". He said at this time there was no evidence of fire in any of the Rustins’ buildings. They then walked back together back to Coles Green Road.[33]Mr Kerai’s evidence broadly corroborated that of Mr Pindoria. He said that the total time spent with the fire officer was about 20 to 30 minutes. He said that, as the key holder for the purposes of the intruder alarm, he was called by the alarm monitoring station at about 2 am with the report that the intruder alarm in the Rustin's warehouse had just been triggered, although he accepted under cross-examination that it could have been later, possibly as late as 2:52 am. He believed that on the night of the fire the bell from the drenching system over the solvent tanks was going off (and one can hear possibly that bell on the Hussain video). He did not see a fire engine or fire hoses lying around Waterloo Road when he walked up and down it.[34]Mr Arjan and his brother walked down from Ballard's Road on the night of the far to Waterloo Road. It looked, he said that the fire was at the north east corner of the site and that he could not see fire along Waterloo Road all the way down. He first saw fire on Waterloo Road when, he said "the fire reached the frontages of NTC B and Federal". The sequence was, he said that the fire first became visible around there and then subsequently around the Rustin's warehouse; There was "very much a sense of the Fire coming south along Waterloo Road toward us at Ballard's Road". There was a glow a lot further back from the Waterloo Road frontage of Rustins. There was, he said, a fire engine in Waterloo Road which partly obscured his view.[35]Before turning to the evidence of the fire officers, both parties by their Counsel made it clear that the parties attached no criticism at all of the way in which the fire brigade and individual officers tackled the fire. Indeed, if anything, they were to be commended. It is right to say that a primary concern of the Fire Brigade during the fire was to seek to prevent the spread of fire beyond the curtilage of the warehouse block. It was very quickly established by the fire officers that there was no human being within the warehouse block and, given the age and nature of the buildings, there was an understandable reluctance to commit fire officers to fighting the fire from within the curtilage of the buildings. There was some debate in evidence as to when and if the fire brigade operated a “defensive” approach but I consider that this was a relatively sterile issue. From the time that the first fire engines arrived at the site, at Coles Green Road, hoses were trained initially on and into NTC D.[36]The uncontroversial Fire Brigade Incident report logged the precise times when people and equipment were deployed; key times were: 01.49 The fire brigade was mobilised by a 999 call 01.50 3 fire appliances arrived at Coles Green Road; fire officers included Mr Jennings and Mr Cox 01.56 Mr Cox called for 4 appliances 01.01 He called for 6 appliances as well as a hydraulic platform (HP) 01.05 Mr Cox asked for Central Risk Register (CRR) information on the warehouse properties. 13 fire appliances were attending a fire. Mr Donaghey was present.. 01.06 Mr Cox reported that 60% of "warehouse of 20m x 20m” alight 01.10 CRR information Re: Coles Green Road “No Risk” 01.19 15 fire vehicles in attendance 01.23 Mr Butler and Mr Phillpotts arrived at the fire 01.27 Mr Cox handed over to ADO Ware 01.28 21 fire appliances present including HP soon deployed at the South- East of block in the Coles Green Road 01.41 Timed photographs began to be taken by Kelly and later Mr Gridley 01.43 Mr Phillpotts assumed command 01.44 25 vehicles present 02.05 CRR information on Rustin's requested 02.14 “A range of four single warehouses covering 100 x 75 metres 100 per cent alight…” 03.02 A request for 20 fire engines in total was made.[37]Mr Jennings arrived in the first batch of three fire engines at Coles Green Road. He knew Rustins because he had visited it four or five times before the fire and he knew that the contents of the warehouse included flammable substances and posed a significant risk if it caught fire. He could see into the NTC D building and could see a severe fire about 10 minutes after he arrived. The southernmost shutter door had been knocked in by fire officers. He walked up into Belmont Valley and a fire jet was positioned there to fight the fire and the jet was concentrated on the area around the party wall between NTC D and Rustins because, as he said "this is where the fire seemed most severe. The fire, he said, had not breached the roof of NTC D when he first arrived but it "very quickly broke through" about 10 minutes after his arrival (that would be just after 1.00 am). The wind was blowing strongly diagonally across the site towards Waterloo Road from NTC D towards Rustin's. He decided to take his fire engine and crew round to Rustins via Streakes Field Road and parked it close to Yard A. There was no evidence of fire at any of the frontages of the properties on Waterloo Road at this stage he instructed his fire fighters to get water onto the middle of the warehouses at the approximate location of the party wall between NTC D and Rustin's and on the tanks in Yard A (within the curtilage of Rustins Factory). When he arrived at Waterloo Road, he said that the flames were ferocious in the mid-section of the warehouses roughly in line with the party wall and that the fire did appear to be in Rustin's warehouse at this time; he did accept that he could not see exactly where the party wall was. He heard several explosions from around the middle of the warehouses close to Yard A between NTC D and Rustins; because of the risk and the intensity of the fire in this middle area, his crew was pulled back the safety, although hoses were left playing on the tanks. Thereafter the fire spread quickly within Rustins and was very severe.[38]Mr Donaghey arrived just after 1.00 am and could see an opening through the front of NTC D. About 15 minutes later after assessing the fire, he was asked to walk round to Waterloo Road and as he passed Federal he could not see that it or NTC B was on fire. He withdrew fire fighters in Yard A who were working jets on to the area of the party wall between NTC D and Rustin's. He could see a significant fire coming from “the middle of Rustin's and [NTC D]” but he did not know that there was a party wall. For the remainder of the fire, he was in the area around Rustins warehouse, Yard A and the buildings going further south down Waterloo Road. He did not recall hearing explosions. He said that the focus was to stop the spread of fire to the Rustin’s factories. He could not say when Federal caught fire and he did not recall any particular development in the intensity of the fire throughout properties. He was later to tell fire investigation officers after the fire that the fire had spread up Waterloo Road from Federal to NTC B and then to Rustins warehouse.[39]Mr Cox was on site at the beginning at 00.51 am. He had observed the fire from the junction of the North Circular Road about half a mile from the premises and early observations en route indicated that the fire had already breached the roof. On arrival, he said that he observed fire within the building behind a roller shutter at the goods entrance to NTC "approximately midway along the east face of the building in Coles Green Road” (this would put him at the NTC F entrance); fire had already breached the roof in that area. To make a more accurate assessment of the fire situation, he instructed his crew to pitch a ladder, probably, on the North side of the central gable above NTC D, at the South party wall of Almo (separating Almo from NTC D). He observed flames diagonally to his right; the diagonal view would have been across to NTC F to the north west of his vantage point. He estimated that the collapse of the roof that he could see and the area of flames at roof level extended to a depth of about 60 metres along the premises of the carpet warehouse towards Waterloo Road. Notes made by Mr Bourdillon on 4 May 2004 of an interview with Mr Cox record that he looked through a glazed opening of NTC F and saw flames within that building; he said in evidence that he could see the roof collapsing "all the way back towards NTC B as well”. The fire he said had got into NTC B and for that to happen "it means the fire has been in there for a fair while". The fire had not initially got into Almo (although possibly there was “a little bit of fire coming through” at roof level into Almo), Magicwell or Maine Wear. He was cross-examined closely as to whether the ladder was placed another gable’s width to the South above NTC D and, honestly, whilst accepting that possibility, his recollection was that the ladder was placed on or by the gable close to Almo. He told two of the crews to go to Waterloo Road, not least because he needed to divide his limited fire fighting resources available at that early stage; this was standard procedure and was not directly concerned with the flammable contents of Rustin's. After handing over command, he stayed on the Coles Green Road side and had no knowledge of precisely what was going on at the Waterloo Road side. Nothing suggested to him during the six hours he was on site that the contents of Rustin’s warehouse contributed in any way to the development or spread of the fire. He and associated crews concentrated on fighting the fire at NTC D.[40]Following his arrival at the site and a briefing given by the officer in charge at 1:43 am, Mr Butler was deployed as the sector commander for the Waterloo Road sector thereafter. He walked down Streakes Field Road; it was clear to him that there was a well developed fire within the warehouse complex at that stage. He got to Waterloo Road, he said, at around 1.55 to 2:00 am. There was no evidence of fire on Waterloo Road at this time but there was a lot of smoke spreading; there was a great glow in the sky, however it was not wholly clear where precisely this emanated from. Two fire engines were in attendance there with two fire jets being directed in the area of NTC B. The strategy in part involved the setting up of an aerial appliance as a water tower at the corner of Waterloo Road and Streakes Field Road; this was done, he thought probably with the first hydraulic platform which had arrived shortly before 1:30 am (he later said in evidence that this could be an aerial platform, as opposed to a hydraulic platform); the fire officers on it had to be removed quickly because the flames within Federal and NTC B grew to a substantial height. Shortly thereafter fire broke through the frontages of Federal and NTC B; he timed this in evidence at approximately 2.30 am. He said that fire spread was very rapid and fire was intense and that within 30 minutes of his arrival on Waterloo Road the full frontage of Federal, NTC B and Rustin's Warehouse was alight; this on his timing would be about 2.25 to 2:30 am. In Yard A, he accepted that the drenching system above and around the solvent tanks was operating but the fire brigade continued to deploy water jets into that area. His "clear recollection" was that the fire broke out at the front of Federal and NTC B first and then spread south up Waterloo Road towards Rustin's, although he could not see how the fire was developing within NTC B or at the back of Rustin's. He was sure that Federal was involved in the fire "at a very early stage in the fire and certainly prior to fire breaking out of the front of” Rustins. He accepted that during his time at this fire the Fire Brigade operated a defensive mode, which largely, but not entirely, involved the prevention of spread of the fire beyond the curtilage of the warehouse block; this mostly involved securing that the fire did not spread into Rustins factory and over Yard A.[41]Upon his arrival in the Coles Green Road area Mr Philpotts saw that there were flames at roof level involving the East section of the building but he could not see the extent to which the rest of the building was involved, this being in the first few minutes after his arrival. He took over control at 1:43 am (remaining in command for about 30 minutes) and he determined that a defensive mode of fire fighting was appropriate to prevent the spread of fire to other properties and to avoid subjecting fire fighters to undue risk. The first aerial appliance had been positioned at the south-east corner in Coles Green Road, close to NTC D. The second was positioned in Waterloo Road. Sometime after 2:12 am, he went round to the Waterloo Road side. The suggestion that the fire only spread to Federal "because of the contents of the Rustin's Warehouse" and that but for those contents the Fire Brigade would have stopped the spread of fire to Federal did not accord with his recollection of the fire.[42]Mr Gridley was the fire brigade photographer; the Fire Brigade log shows him arriving at 1:02 am at the site; a fire investigator Mr Kelly arrived at 1:35 am and he also took some photographs which were timed. He said that the digital camera which he used on the night was regularly serviced by him; the cameras were checked on each change of shift in the morning and evening. He was confident that the dates and times on the photographs which he took on the night were accurate and correct; because the clock on the camera was checked against another timepiece, he estimated that the timings on the photographs were correct to within a tolerance of "a couple of minutes either way"; it was not 15 minutes or half an hour. He did not change the sequence of photographs and would never tamper with photographic evidence; it was not suggested to him that he had done so. All photographs were immediately saved onto a disc and the photographer had to sign and date the disc when created; the disc is not tampered with. He took photographs and video on the night of the fire, which were both in evidence. There was a trainee photographer, Mr Downing, who attended also and took some colour but untimed, photographs. I will return to Mr Gridley’s photographs later in this judgement but he started a series of photographs at the Coles Green Road side and worked his way round Streakes Field Road into Waterloo Road. The timings of his photographs were reasonably comparable with those of Mr Kelly’s photographs, once Mr Kelly’s timings were adjusted (he had apparently not adjusted his camera for British Summer Time).[43]Mr Carey with Station Officer Townsend carried out the investigation into the fire. This was started in early May 2004 and led to the production of a fire investigation report which went through a number of "iterations" over the next 2 to 3 years. He visited the site, talked to a number of fire officers and other people, considered the photographs and carried out other investigations. From information received from NTC’s security firm, he believed that the alarm panel was located in the apex of the roof above mezzanine floor level in the Indian Room.[44]Mr Gridley’s and Mr Kelly’s timed photographs between 1.44 am and 2.12 am provide a reasonably clear picture of the progression of the fire. Mr Kelly’s photograph taken at 1:44 am (as adjusted for Summer Time) from a South-easterly direction outside the Delta Court shows fire within NTC D; there is fire within NTC D under the southernmost gable but the roof slope facing Delta Court does not appear to be alight. The fire stretches to or beyond the third, the northernmost, gable of NTC D and Almo appears to be alight because there is a glow of fire through the openings. His photographs at 1.45 and 1.47 am show fire on the ground floor of NTC D under the southernmost gable as well as very obvious fire within Almo and to the West. Mr Gridley’s photograph of 1.48 am shows the fire at NTC D within the southernmost gable both of the ground floor and at roof level; the fire is certainly stretching to a line close to the party wall with Rustin's. Mr Kelly at this time took a photograph from within Belmont Valley close to the empty industrial unit looking eastwards and the sloping roof facing towards Delta Court was by this stage alight. Mr Kelly’s photograph at 1.51 am was taken from the outside of NTC F and clearly shows a well-established fire behind; one can not see any roof still present over the gable end. A similar state of affairs is shown by Mr Gridley’s photograph taken six minutes later.[45]Mr Kelly’s photograph, timed at 1.52 am and taken from Coles Green Road looking to Streakes Field Road, appears to show, although not perfectly, fire in the roof, either of Federal or Magicwell. His photograph two minutes later shows a well-established fire in the northernmost gable of Federal. By 1.54 am. Mr Kelly’s photograph from the junction of Streaks Field Road and Waterloo Road is showing the glow of fire from within Federal; a minute later a photograph taken from that point down Streakes Field Road shows the whole length of the Federal roof alight and possibly Magicwell’s also. Two more of his photographs taken within seconds the shows a well-established fire within the now destroyed shutter doors of Federal under the gable shared with NTC B; hoses are being sprayed by the Fire Brigade through the entrance at the fire. His photograph taken at 1.56 appears to show no fire at the Rustins three gabled frontages. At 2.00 am Mr Gridley’s photograph shows fire within Federal and the fire hoses still being directed through the shutter entrance and fire in the NTC B gable roof; his photograph timed at2.01 am taken from behind the firemen directing the hose in through the open Federal entrance and dramatically shows the well-established fire within Federal, as well as the fire on and above the NTC B gable adjacent to the northernmost gable of Rustin's. His photographs timed at2.02 and 2.04 am show a well-established fire within NTC B, apparently spreading, with the wind, to the northernmost gable roof of Rustin's. By 2.07 am, fire can be seen to have spread to the roofs and the frontages of the first two gable roofs and frontages of Rustin's. By 2.10 am, Mr Kelly’s photograph taken from down Waterloo Road to the South looking North shows the roof of the southernmost gable above Rustin's Waterloo Road frontage brilliantly alight. Mr Gridley’s photographs taken at 2.10 and 2.12 show firstly this roof of the frontage well alight as well as the roof above Rustins to the East alight. These photographs were set out in Exhibit 10 prepared by Rustin’s legal team.[46]I will not spend a great deal of time analysing in detail what each of the experts said, not only in relatively (but not unnecessarily) lengthy reports but also in evidence. Mr Williamson’s thesis was initially based on the fire starting at a high level within NTC D close up to its party wall with Rustins; he had to modify his views about that and accepted that it was, at least, not possible to say where the fire did start and he certainly got relatively close to accepting that it may well have started in the Indian Room. He then had the fire breaking through the roof in NTC D at or shortly after 00.55 am and making its way rapidly, fanned by the wind, to Rustins where, he said, it would have rapidly engulfed the whole building and, with flammable, highly flammable and hazardous materials stored by Rustins in its warehouse, there would have been a major increase in intensity with the fire creating its own path or “wind path” allowing it to escape from Rustins and spread to NTC B and then on to Federal.[47]Mr Bourdillon’s overall view was that the major ignition of flammable liquids and combustible materials within Rustins occurred a significant period of time after Federal had already become involved in the fire. He has seen no evidence that demonstrated that the contents of Rustins contributed to the establishment of fire within Federal. He had been involved in the fire investigation for insurers and had indeed attended site on the afternoon of 30 April 2004. Over the next few weeks he conducted an investigation at the site as well as having interviews and meetings with relevant people who had been involved directly or indirectly with the fire and the premises. Discussion and Findings[48]It is axiomatic that the Claimants must establish their case on a balance of probabilities. That means in context that they must prove that the fire within the NTC premises spread first from and through NTC D to Rustin's, that, by reason of the conflagration of its contents, the fire spread from there through or over NTC B into Federal and that Federal burnt to the ground as the result of that. Effectively, also, they must establish that, even if that was the route of the fire, Federal would not have been irredeemably destroyed by the fire in any event.[49]It is not necessary to analyse the authorities on the standard of proof but, in another fire case in the TCC, Fosse Motor Engineers Ltd v Conde Nast and National Magazine Distributors Ltd [2008] EWHC 2037 (TCC) the Court reviewed this, largely in the light of the House of Lords case of Rhesa Shipping Co v Edmunds [1985] 1 WLR 948. It is not enough that there are just possibilities and the Court does not have to accept the highest ranked possibility as probable unless it is the probable cause or event as the case may be.[50]With this in mind, I then need to turn to consider what the most reliable parts of the evidence show. I was particularly impressed with and accept the evidence of Mr Gridley generally and in the sense that I do not consider that there is any real doubt that, give or take a "couple of minutes", the timing on his photographs is broadly accurate. It is corroborated by other photographs and in particular those of Mr Kelly which, after taking into account the fact that his camera must still have been on Greenwich Mean Time and therefore his photographs should be moved forward one hour, tie almost to the minute with those of Mr Gridley. Their earlier photographs taken just after 1.40 am at the Coles Green Road side of the block are not inconsistent with the video taken by Mr Barnett no more than a few minutes before. Their latest photographs taken at about 2.10 am are not inconsistent with the video taken by Mr Hussain, although he was further away than they were.[51]These photographs demonstrate that in all probability the fire had strongly taken hold in Federal no later than 1.52 am. For the fire to have been burning so strongly and in such an established way as demonstrated by Mr Kelly’s photographs taken at 1.53 and 1.55 am, the fire must have got to Federal a good number of minutes before then. Rustin’s Counsel suggested based on some evidence that this could have been about half an hour before and that estimate is probably not be far out. Given the fact, accepted by both experts, that the nature of the materials (metal motor parts) within Federal would have given rise to a slower development of fire within Federal than in Rustins, the fire must have been initiated within Federal well before 1.52 am when Mr Kelly’s photographs show a well-established fire within Federal. Mr Bourdillon considered that the fire must therefore have arrived in Federal within 15 to 45 minutes before Mr Kelly’s 1.52 am photograph; Mr Williamson did not disagree with a period of about 30 minutes. That would give an initial ignition time in Federal at about 1.20 am. That is consistent with a rapid spread of fire from NTC F to Federal.[52]The evidence demonstrates that the intruder alarm in Rustins lost its connection with its central monitoring station at 1.49 am. It is not known decisively where the alarm panel was within Rustins. However, the fact that the alarm was not triggered before 1.49 am suggests that no major conflagration had then engulfed Rustins, because if it had the connection would have been lost earlier. The Barnett video, whilst not timed, must have been taken at some stage or stages between about 1.00 am and 1.42 am, when Delta Court was reported as evacuated. As indicated above, because the timing on this is equivocal, although it is likely that it was shot towards the later than the earlier time, it can not demonstrate that the fire had reached the party wall between NTC D and Rustins earlier than about 1.20 am, when Federal must have been alight. The fire within NTC D must have been delayed in all probability by the party wall between it and Rustins, Mr Bourdillon’s “hunch” on this being possibly between 5 to 15 minutes, albeit it could be more. The timing on the photographs coupled with the intruder alarm evidence suggests that the ignition of fire within Rustins probably occurred after about 1.45 am. On that basis therefore, and given the timings for fire in Federal, the ignition of Federal could not have been caused by the conflagration at Rustins.[53]One needs then to consider how and by what route or possible routes the fire reached Federal. In effect, there are three possible routes. The first is from NTC F to NTC B and then into Federal; the second is from NTC F into Magicwell and then into Federal; the third is NTC D to Rustins and then through or over NTC B into Federal. The first two of those are suggested by Rustins and Mr Bourdillon and the third by Mr Williamson and the Claimants.[54]It is clear, and I find, that the source of the fire was in the Indian Room. This is wholly consistent with the evidence of Mrs O'Keeffe and Mr Cox by reason of their evidence that there was fire visible in and in the roof above NTC F, albeit also at an immediately adjacent part of NTC D. I was particularly impressed with the evidence of Mr Cox who on a number of occasions under cross-examination convincingly explained that he could see the fire and the roof collapsing, stretching back within NTC F towards NTC B. The alarm evidence corroborates the likelihood of the fire starting in the Indian Room. This was an open plan area and there is no good reason to suppose that the fire would not have moved each way, that is North into NTC D and South into NTC F.[55]The wind is an important factor in the spread of this fire but it is not a wholly determinative one. Whilst the wind direction from the North-East would blow fire from the Indian Room area towards Rustins, I accept Mr Bourdillon’s evidence that the wind would not be a material factor until the roof had been breached; there is no real evidence that there were substantial holes in the roofs before the fire breached them. Another factor to bear in mind in the context of the wind is the fact that the roof gables ran in an East-West direction and they contained flammable wooden boarding. There is no reason to suppose that the fire would not also follow along flammable routes as well as to where the wind was blowing. Of course the contents of NTC F, NTC B and NTC D were, largely, carpets on wooden pallets which were likely also to burn strongly once alight. Both experts accepted that burning timbers would fall from the burning roofs on to the flammable material within the warehouses which would then ignite. There are two other pieces of evidence which also suggest that the direction of the wind was not exclusively determinative. The fire reached fairly quickly the south-east corner of NTC D from the Indian Room area and that was in effect against the direction of the wind. Similarly, even if Mr Williamson’s thesis was correct, the fire would have to be directed from Rustins northwards against the force of the North-easterly wind. I found Mr Williamson unconvincing however in his suggestion that there would have been a wind path from Rustins towards Federal. Mr Bourdillon disagreed with the notion. Mr Williamson himself accepted that the phenomenon would not cause a fire to travel in one direction rather than another; one would have thought that the effect of the "natural" wind blowing from the North-East to the South-West would militate against a wind path against and into the teeth of the wind.[56]There is no reliable direct evidence that Rustins suffered a major conflagration before Federal caught fire. In effect, the highest one can put the evidence of the fire officers from the Coles Green Road side is that a substantial fire was moving across NTC D towards Rustin's but they could not tell whether it had got into Rustins; this is not inconsistent with Mr Barnett’s video. The evidence of the fire officers from the Waterloo Road side, supported by photographic evidence, is that at the very least the Waterloo Road front of Rustins had not caught fire for some time and they could not see until after about 2.00 am that Rustins was definitely ablaze, although at the very least there was a fierce fire in the area of the party wall between NTC D and Rustin’s. All the photographic evidence shows that this party wall was a substantial and full height one and it is likely that this would have delayed the spread of fire for some time, although it is not possible to say for how long it actually did do so. Both experts accepted, and Mr Bourdillon perhaps even more readily than Mr Williamson, that once the fire had taken hold in the roof of Rustin's, there would soon have been a conflagration which would have engulfed the whole of Rustins. In that case, it is surprising, if the Claimants’ case on spread of fire was correct, that fire was not visible at the frontages on Waterloo Road before about 2.00 am. The videos and still photographs are relatively neutral as to when major conflagrations within Rustins actually occurred; by major conflagrations, I mean here substantial ignitions of combustible material which would arise relatively suddenly and manifest themselves well above the roof line. A number of photographs and Mr Hussain’s video do show what looked like sudden and substantial emissions of fire into the night sky above Rustin’s but it is not clear when these occurred.[57]The photographic evidence, particularly of Mr Gridley and Mr Kelly, and the evidence of Mr Butler, demonstrates that in all probability the fire spread to Federal and from there spread southwards. This is partly corroborated by what Mr Donaghey was to tell investigators in 2004 as well. This sequence is further supported by the evidence of Mr Butler, Mr Arjan, Mr Kerai and Mr Pandoria. It is almost beyond doubt that there was fire at the Federal frontage on Waterloo Road before there was fire at the Rustins frontage. If the fire had reached Rustins first, one would have expected to see fire manifesting itself at the Rustins Waterloo Road frontages before it emerged at the frontages and indeed in the roofs of NTC B and Federal. It was asserted on behalf of the Claimants that the fire did reach Rustins first but was constrained within the larger rear section of Rustin's, divided from the front section by the internal wall. However, that internal wall had three substantial openings in it and would have provided a relatively insignificant barrier to the spread of fire to the front section; the fire would spread, as both experts accepted, both laterally and vertically and, as Mr Williamson himself accepted both in his report and under cross-examination, ignition in Rustin's would lead to the fire rapidly engulfing the whole of the building, particularly since the contents of the rear part were or included highly flammable materials[58]I found Mr Bourdillon’s evidence about the lateral and vertical spread of fire convincing. He said that the fire would spread both vertically and laterally. Whilst the predominant spread of fire would be upwards, there would also be significant lateral spread of fire. Fire will spread to combustible materials and if there are combustible materials above and beside a particular point, the fire will go in both directions. He attached importance, as I do, to Mr Cox’s evidence that the fire was spreading within NTC F to the West when he saw it. In addition, his evidence and that of Mrs O'Keeffe that the roofs of NTC D and NTC F were breached by about 1 am shows that the fire was spreading laterally in the roofs as well. Mr Bourdillon said in cross-examination that, although once the fire took hold of the underside of the roof “it would burn pretty furiously and the wind would have a significant effect on the spread of fire towards Rustins…but I think it is equally possible that the fire could also be promoted, spreading westerly down NTC B”. He went on to say that, once the fire had ignited the roof, burning timbers “would drop down onto the combustible material and any combustible mezzanine timber”. In essence, what he was saying was that, given that the source of fire was in the Indian Room, the fire would spread up to the roof and also laterally; both NTC D and NTC F would have been ablaze at roof level and internally and the fire would spread both towards Rustins and to NTC B. He also said in evidence, which I accept, that, in relation to the route from NTC F to NTC B, "unimpeded fire development along the roof of the under-cladding, supported by the fuel of the under-cladding, is a more direct and I would have thought would be a quicker route of fire spread"; of course, there was no party wall between NTC F and NTC B, unlike between NTC D and Rustins. There was some difference between the experts as to whether there might have been a "flashover" effect within the Indian Room; flashover tends to occur where there is no free ventilation and a large amount of very hot "volatiles" (in effect gases) builds up at the ceiling or roof level which ignite when the flames reach them. Mr Bourdillon was of the view that this effect was unlikely but that even if it happened the flashover would go in all directions, that is, both into NTC D as well as NTC F; I accept his evidence on this point. Flashover probably did not happen but, if it did, it would have facilitated the spread of fire both within NTC D as well as NTC F and, therefore, its occurrence or not does not particularly support Mr Williamson’s theories of the spread of fire.[59]It follows from this that it was unlikely that the fire, emanating from the Indian Room, spread in effect only in the direction of Rustins; it also, probably, spread within NTC F towards and into NTC B and then on to Federal. Mr Bourdillon put forward a theory that the fire might have got into Federal via Magicwell; partly, this was based on damage noted after the fire to the party wall between Magicwell and Federal. Whilst I accept that this was a real possibility, the evidence for this being the route rather than through NTC B is not conclusive by reason of the timing of the photographs. Whilst photographs taken by Mr Gridley and Mr Kelly show Federal well ablaze by 1.52, they do not clearly demonstrate that Magicwell was similarly well ablaze if at all by then. But it is clear in my judgement that the fire reached Federal via NTC B or Magicwell, in relative terms, significantly before it reached Rustins.[60]The findings which I have made above do involve a rejection of the evidence of Mr and Mrs Harooni about timings and the sequence of the break out of fire within the various premises. As I have said before, I do not consider that either was dishonest in the giving of their evidence but, I do consider, their evidence was mistaken; whether this is due to the lapse of time or to their convincing themselves about the timing and sequence of which they speak, I can not determine. It is perhaps telling that their solicitors’ letter of a few months later expressly said that the fire had reached Federal by about 2.00 am and that is much more consistent with the Gridley/ Kelly photograph timings than the Haroonis’ timings given in evidence; he had no credible explanation as to why his solicitors might conceivably have got that wrong. Their evidence as to timing and sequence is inconsistent with those photographs and with the evidence of almost all the other witnesses that the fire spread from Federal southwards.[61]It follows from my findings that the Claimants have simply failed to discharge their burden of proof. Not only that, the probability is, for the reasons given above, that the fire in Federal was not caused by any emission of fire from Rustins at all. I should add that, even if I had been able to find that some fire damage had been caused by a spread of fire from Rustins, I would have been unable to find that Federal would not have been burnt down in any event, irrespective of that.[62]That effectively disposes of the Claimants’ case because it is accepted that their case, both based on Rylands v Fletcher and in negligence, was dependent upon establishing that Federal was destroyed by fire which emanated from Rustins.[63]Out of deference to the arguments put forward onRylands v Fletcher and negligence, I will summarise what my views would have been if I had been persuaded on the balance of probabilities that Federal had been destroyed by fire emanating from Rustin's.[64]Of the nine allegations of negligence pleaded by the Claimants, all bar one were abandoned effectively when Mr Williamson conceded that in effect Rustins could not be criticised as falling below any requisite standard in those eight respects. The lone allegation which is maintained is the failure to have a fire alarm. It is common ground that there was no fire alarm. I do not accept that such an alarm was mandatory by reason of the Fire Precautions (Workplace) Regulations 1997; the primary purpose of a fire alarm in the workplace is to give some early warning to occupants, workers or visitors that there is or might be a fire so that they can leave the premises or at least take other measures to protect themselves. The scope of any duty which might encompass a requirement to provide a fire alarm would extend primarily and probably exclusively to people within Rustins; it would not extend to the provision of a fire alarm in effect to warn or protect the neighbouring warehouses. In any event, there was little or no evidence that the existence of a fire alarm within Rustins would in any way have altered what happened that night. The Fire Brigade was mobilised at 00.49 am and the fire had not reached Rustins on any account by then. There was no evidence as to what sort of fire alarm should have been provided and when or how it would have been activated. There is no conceivable causative connection between the absence of a fire alarm and the spread of fire to Federal which has begun to be established.[65]In the interests of proportionality, I am not going to embark upon a detailed exegesis of the law relating to Rylands v Fletcher (1866) LR 1 Ex 265, affirmed (1868) LR 3 HL 330. The original rule was that there was liability against a person "who for his own purposes brings on his land and elects and keeps there anything likely to do mischief if it escapes [who must] keep it in at his peril and, if he does not do so, is prima facie answerable for all the damage, which is the natural consequence of its escape"; this was restricted in the House of Lords to circumstances where the defendant was effecting "a non-natural use" of the land in question. Fault as such does not have to be established. However over the years, as the editors of Clerk and Lindsell on Torts (20th edition 2010-Paragraph 20-46)) state, a relatively restrictive approach to the doctrine has been adopted, although it has not been narrowed as such. Even in the Rylands v Fletcher case itself, Blackburn J’s judgement which was substantially upheld in the House of Lords referred to the fact that a non-natural use of land "must be some special use bringing with it increased dangers to others, and must not merely be the ordinary use of land or such a use as is proper for the general benefit of the community." There have been a number of authorities which suggest that various industrial uses do not or do not necessarily involve non-natural use of land. In Transco v Stockport MBC [2004] 2 AC 1, the House of Lords suggested that there had to be "extraordinary and unusual" uses to meet the requirement of non-natural user.[66]In my view, simply because one has on one's land products which are flammable, and possibly even highly flammable, that does not necessarily involve a non-natural use of land. Thus, many ordinary people and businesses have on their land a motor car which has petrol in it or a can of paint and some turpentine. I do not consider that the rule in Rylands v Fletcher is engaged simply in those circumstances. There may come a moment however when so much flammable or explosive material is brought on to a person’s land that there can be said to be a non-natural use (see e.g. Cambridge Water Co Ltd v Eastern Counties Leather PLC [1994] 2 AC 264, per Lord Goff at page 309). In LMS International Ltd v Styrene Packaging and Installation Limited [2005] EWHC 2065, HHJ Coulson QC as he then was summarised the principles, based on an analysis of the previous cases:
“a) In cases concerned with fire, the rule in Rylands v Fletcher requires two things. First, the defendant must have brought onto his land things which were likely to cause and/or catch fire, and kept them in such a condition that, if they ignited, the fire would be likely to spread to the claimant's land. To put it another way, those things must represent a recognisable risk to the owners of the adjoining land. Secondly, the actions on the part of the defendant must arise from a non-natural user of the defendant's land: see Mason and Transco. b) This rule, although carefully restricted in recent years, has twice avoided complete abolition: see Cambridge Water and Transco. c) A non-natural user should be considered by reference to contemporary standards. The existence of statutory regulations relating to the storage of the dangerous thing(s) may preclude the operation of the rule in a particular case: that was Lord Hoffmann's first factor in Transco. The existence, or otherwise, of insurance may be a relevant factor, although, as set out above, this was a matter on which the House of Lords emphatically disagreed. d) In the two leading cases of the last decade or so, it has been held that a pipe containing water for domestic purposes was not a non-natural user of land (see Transco) but that the storage of chemicals for the purposes of industrial tanning was a non-natural user (see Cambridge Water). Respectfully, I do not regard either conclusion as exceptionable. In addition, it was held, in both Mason and Hobbs, that the storage of inflammable materials was sufficient to trigger the rule in Rylands v Fletcher. e) Fire is plainly dangerous. Therefore, if the escape of fire from A's land to B's land was the (foreseeable) result of the storage of dangerous things that comprised a non-natural user of land by A, then, subject to the qualifications set out above, A is prima facie liable to B under the rule in Rylands v Fletcher.”
I do not see any reason to depart from these principles as put forward other than to comment that I am unconvinced that the requirement for foreseeability is necessary for the purposes ofRylands v Fletcher; that is more consonant with a cause of action in negligence.[67]I am however also impressed with the argument, which it seems to me is rooted in common sense as well as authority, that where the defendant is not responsible for the fire, for instance where the fire begins on someone else's land and merely spreads to the defendant’s land, and the fire merely passes through or over the defendant's land, albeit burning some flammable material on its way (see e.g. Perry v Kendricks Transport Ltd 1956 1 WLR 85 and cases cited by Singleton and Jenkins LJJ), there is no liability.[68]All things being equal, I would have found that the storage on Rustins of over 200,000 litres of flammable, including some 25,000 litres of highly flammable, products, was a non-natural use and, if Federal had only burned to the ground by reason of the conflagration of such substantial quantities of flammable material and the consequential escape of fire from that conflagration on to Federal’s premises, there would have been a liability under Rylands v Fletcher as against Rustins. However, such an escape is not what happened in this case. If, furthermore, as here, the fire from NTC D and NTC F would have spread directly to Federal and destroyed it, even if there had been coincidentally such a conflagration and escape from Rustins, there would be no liability on causation grounds because Federal would have been destroyed in any event irrespective of the escape. Conclusion[69]It follows from the above that the Claimants’ case must be dismissed and judgement entered for the Defendant. I express again my sincere sympathy for Mr and Mrs Harooni in the predicament in which they have found themselves but I acknowledge that my sympathy will not provide any consolation for them; unfortunately, sympathy towards a party does not alone enable a judge to give judgement in that party’s favour.

Cited in 2 later judgments