“The Contractor shall comply with, and give all notices required by, any statute, any statutory instrument, rule or order or any regulation or bye-law applicable to the Works ….” 15. It is common ground that the relevant statutory regulations include theBuilding Regulations 2000 (Tab 30 of the Authorities Bundle). Regulation 4 requires that: “(1) Building work shall be carried out so that – (a) It complies with the applicable requirements contained in Schedule 1; … (2) Building work shall be carried out so that, after it has been completed - (a) any building which is extended or to which a material alteration is made … complies with the applicable requirements of Schedule 1 or, where it did not comply with any such requirement, is no more unsatisfactory in relation to that requirement than before the work was carried out.”
“19. The structure supporting the original sign and original soffit board comprised the vertical original fascia and horizontal original soffit timbers, connected together to form a structural frame of L-shaped cross section. This predates the fit out works ... probably by many years. 20. Factual and photographic evidence from Mr Tutt’s examination of the inclined facade about three weeks after the collapse indicates that there was likely to have been a line of about 10 horizontal screw fixings between the original fascia and the inclined facade, about 75mm below the top of the original fascia. These fixings are likely to have comprised steel screws that passed through the wood frame of the original fascia and into plugs in the inclined façade. The fixings relied on shear strength to support load from the original fascia. Mr Tutt’s limited inspection from ground level of the remains of the fixings on the inclined facade indicated that five of the plugs pulled out entirely, leaving holes without remnant of plug or screw, in the inclined facade; and five plugs were still in place, with evidence of a fractured screw in one of the plugs. 21. Level with about mid-height of the original fascia, it is evident from an un-painted band along the inclined facade that there had been at some time a substantial horizontal member along the inclined facade. Vertical staining patterns serve as evidence that this member must have been in position for some time, and numerous holes in the inclined facade show where it appears to have been fixed to the inclined facade. If this horizontal member had been in position behind the original fascia at any time, it may then have provided horizontal restraint to the original fascia. On information from Mr Tutt, however, there were no signs of any corresponding fixings attaching the original fascia to this horizontal member, and Mr Tutt did not find such a member in the debris from the collapse. The member can also not be seen in the gap between the original fascia and the inclined facade in photographs taken during the fit out works. It is not possible to say when or how this member was removed. 22. On information from Mr Tutt, there was a line of vertical fixings at the back of the overhang, near the shop window and roller shutter, and there was a small number of vertical fixings in an irregular pattern elsewhere in the overhang, but it is not known which of these were fixings for the original soffit timbers and which supported the ladder frame to which the rear of the new soffit board was attached. 26. All experts agree that the top fixings are likely to have carried the greater part of the weight of the original fascia. 27. It was necessary and important for the original fascia to have horizontal restraint on at least two levels. The fixings referred to in paragraph 20 above provided horizontal restraint at an upper level. The original soffit timbers will have provided horizontal restraint, preventing the original fascia from moving horizontally at the lower level. 28. The relevant external works comprise the modifications to the original fascia ... replacement of the original sign with the new sign, and the fitting of an awning within the new awning box. 29. ODA drawing 154/WAO2 showed a general arrangement of the design of these works. This drawing contained no information to show how the work to the original fascia should be undertaken, and a dimensional check indicates that the awning box could not fit under the original fascia. This appears only to have been discovered during the fit out works. 30. ODA drawing 154/ WAO2 showed a general arrangement of ODA's design intent, based on what must have been ODA's assumptions about the original fascia and whatever lay behind it. This was a schematic design without any essential design or construction details. Opening up on-site (i.e. removing the original soffit board to allow visual inspection) was necessary before all the essential details could be generated. But, before opening up, it should have been self-evident that modification of the original fascia was needed before the awning box could be fitted, and this was not shown on ODA’s drawing. 31. Opening up the original soffit board provided some of the information on the original construction, in particular that when cutting the original soffit timbers, the remaining part of the original fascia would only be fixed at the top. We would have expected either the architect or the engineer to have been advised by Active of the construction discovered, and to have then produced suitable details. However, it appears that Active took it upon itself to carry out this element of the design. Who ever undertook the design of the modified fascia had three main options: (a) to design a new soffit structure and awning box to support all the loads and forces acting from the modified fascia, new sign, awning box and awning; (b) to investigate the condition and adequacy of the fixings to the front part of the original fascia, and to take this information into account in its design; or (c) to replace the original fascia in its entirety. None of these options was implemented in the design and construction of the modified fascia. 32. When Technical Sign made a dimensional survey on11 February 2005 , at least four of the original soffit timbers had already been cut. It is not known when these were cut, although it is likely that they were cut by Active or its agents in preparation for the modifications to the original fascia. Cutting the three remaining original soffit timbers from over the doorway at the left, and cutting away the roughly 250mm height from the bottom of the original fascia, were part of Active’s works. 33. Between the dimensional survey on11 February 2005 and the new sign being fitted on09 March 2005 , a height of something like 250mm was cut away from the bottom of the full length of the original fascia, and a new timber member was fitted to it to form a new lower edge. This was the modified fascia. 34. The awning box could not have been fitted in the position where it was fitted, generally as shown in the ODA drawings, without the modifications described in paragraphs 28 and 33 above. 35. The awning box was constructed from medium density fibreboard (MDF), and comprised a horizontal top board fixed to the underside of the modified fascia, and a vertical rear board fixed to the inboard edge of the horizontal top board. The bottom of the rear vertical board was fixed to the top surface of the new soffit board, approximately 250mm from the front edge of the new soffit board. There was no front to the awning box, but the awning had a vertical outer edge board, which closed across the front of the awning box when the awning was retracted. 36. The awning box was held in its intended cross sectional shape at the two ends only. This was accomplished by MDF end boards. The available photographs show no evidence that the end boards were fixed to the concrete surrounds. 37. The new soffit board, the front of which formed the base of the awning box, was about 50mm lower than the original soffit board. It was supported behind the awning box, not by horizontal timbers as before, but by a vertical timber ladder frame at the rear, just in front of the roller shutter, and by the bottom of the awning box at the front. The photographic evidence shows no other supports for the new soffit board. 38. Horizontal restraint to the lower edge of the modified fascia now relied on resisting forces being transmitted through the depth of the awning box, then the new soffit board, and finally through the vertical ladder frame into the shop front overhang. 39. The modifications will have resulted in a modified fascia with less horizontal restraint than the original fascia, one that was therefore susceptible to increased dynamic loading, such as that exerted by wind on the awning while in its extended position. 40. This new arrangement will not have provided the necessary horizontal restraint to the lower edge of the modified fascia or the necessary resistance to twisting of the awning box caused by the extended awning. 41. The awning was supported by four metal brackets fixed to the rear board of the awning box. 42. The awning box was supported by its attachment to the lower edge of the modified fascia. Photographs show that there were no other vertical supports or horizontal restraints for the awning box. 43. When the modified fascia collapsed, the awning, the rear vertical board of the awning box and the new soffit board, all attached to each other, appear to have been prevented from falling to the ground because (i) one end of this assembly came to rest above the top of the doorway to the upper floor flats; (ii) the middle jammed against a circular metal post supporting the structure above …; and (iii) the new soffit board remained attached to the vertical ladder frame at the rear. The available photographs suggest that, were it not for these unintended supports, the awning and the whole of the awning box would have fallen to the ground with the modified fascia. 50. Absent any undiscovered additional means of support, the original fascia was, on any reasonable standard, inadequately supported. Though not at the point of collapse, its margin of safety was likely to be seriously deficient, and therefore it was likely to be excessively vulnerable to structural failure if any modification added loads to it and/or further weakened it. 51. The modified fascia and the awning were dependent solely on the top fixings for vertical support. 52. Cutting the original soffit timbers removed the necessary second line of horizontal restraint, allowing the modified fascia to move horizontally when any horizontal forces acted on it, causing prying action on the top fixings. 53. Twisting actions on the awning box, and horizontal forces on the base of the modified fascia, caused prying actions on the top fixings. 54. Attaching the awning and the awning box to the modified fascia caused the following additional actions on the awning box and the base of the modified fascia: (i) vertical forces from the weight of the awning; (ii) twisting actions from the weight of the extended awning; (iii) dynamic horizontal forces when extending and retracting the awning; (iv) twisting actions when using any physical force to try to extend or retract the awning when it was malfunctioning; and (v) large vertical and twisting actions from wind forces on the extended awning. 55. The additional actions referred to in paragraph 54 increased the pull-out tension forces and vertical shear forces on the existing fixings at the top of the modified fascia. 56. On balance of probabilities, the principal cause of the collapse was that (a) the modifications to the original fascia further weakened the fixings along its top edge; and (b) the awning and its operation caused additional forces to be applied to the existing fixings at the top of the modified fascia. 57. The relative effect of the above over a period of time led inevitably to the collapse. 60. All the experts agree that the new sign weighed about the same or a little less than the old sign, and did not therefore create any additional loads or forces on the modified fascia.”
“14. Active have accepted that they are in breach of the Building Regulations and therefore section 5.1 of the incorporated JCT terms – B5/T192/1967. Their concession expressly accepts that it failed to ensure that “the support of the fascia was maintained and not reduced by the carrying out of the works, in that: (a) the modifications made by [Active] resulted in the fascia having less horizontal restraint and being susceptible to increased dynamic loading such as that exerted by wind acting on the awning whilst in its extended position; (b) the resulting dynamic forces applied through connection between the fascia, awning box and awning resulted in additional forces being applied to the existing fixings at the top of the fascia and thereby contributed to the mechanism of failure of those fixings which resulted in the collapse of the fascia.” 15. It is therefore expressly accepted by Active that it was in breach of its duty to the Claimants and that it was in “breach of the terms of its contract with [Maison Blanc] (sections 1 and 5.1)” 16. By its concession, Active also accept that it is “liable to [Maison Blanc] in respect of [Maison Blanc’s] additional claim against [Active] to make a contribution towards the Claimants’ claims and costs. For the avoidance of doubt, [Active] do not accept or admit that they are liable to provide a complete indemnity to [Maison Blanc] by reason of the matters set out in their Defences and in the Additional Claim against [Maison Blanc].”
“9. Cluttons were appointed as the contract administrator for the refurbishment works at 125 and 127 High Street. I had day-to-day responsibility for the project, although Timothy Lawn, a partner in Cluttons, had overall responsibility for the contract. 10. After the Foundation decided to refurbish the upper floors 125 and 127 High Street, Cluttons prepared drawings and a specification to produce an invitation to tender document … The … contract was awarded to … R&J. 12. In addition to the conversion and refurbishment … into flats, the contract between the Foundation and R&J involved the provision of new roof coverings, replacement of the windows and minor exterior decorative work. The provision of the new roof did not include replacement of the timbers. 13. The exterior works … were undertaken on both the front and rear elevations. The works required the erection of scaffolding to provide access to the areas where the works were to be undertaken. Under the contract R&J were responsible for the design provision of the scaffolding. 14. The contract works started in August 2006 and were initially for duration of 16 weeks, but this had to be extended as it was not possible to bring in the new utility services from the High Street, and it was eventually necessary to reroute them via the rear of the property. 15. The contract did not involve R&J in undertaking any work to ground floor or basement areas, except in the short section of corridor from the front entrance of 125 High Street, which led to the stairs to the upper floors. 16. I visited the properties on a weekly basis and there were also regular site meetings with R&J, which were scheduled at least fortnightly. Timothy Lawn also visited the properties on occasions during the course of the contract and attended most of the formal (once a month) site meetings. 18. Both Maison Blanc and Cancer Research UK were kept advised of developments, and they had telephone numbers and e-mail addresses for the Cluttons staff involved in the project to contact should the need arise. They were also in regular contact with R&J’s site manager, Terry. 19. The scaffolding for the works to the exterior was erected on …27 September 2006 … The scaffolding was not attached to, and did not touch, the fascia of 125 High Street. When the scaffolding was first erected, Maison Blanc did complain that the scaffolding obscured their shop signage and, following discussion with them, Cluttons obtained new advertising banners which were attached to the front of the scaffolding. 20. The scaffolding to the front elevation was taken down by16 December 2006 , and, following this, no exterior works were undertaken on the front elevation, although exterior works continued to the rear of the property. The works to the interior of the property had not been completed when the scaffolding was taken down, and these continued, although by then the interior works were largely complete. Following the removal of the scaffolding, Maison Blanc started to use their awning again on a regular basis. 21. The works … were largely completed by the end of January 2007, although some minor works, together with the provision of the new utility services … continued after this … I received no complaints whatsoever from the management or staff at Maison Blanc regarding “banging and crashing” or cracks appearing in walls and ceilings in early 2007, or at any other time during the course of the works.” 25. Save as regards the last sentence of paragraph 20 of his witness statement (to which I shall refer below), I accept Thomas Hunt's evidence cited above as an accurate statement of the general background and circumstances relating to the work which R&J carried out to the first and second floors of the premises between approximately August 2006 and approximately January 2007. It is to be recalled (as noted in paragraph 5 above) that, by the time of the PTR in these proceedings, the parties had accepted that there was no causal link between the work which R&J had carried out and the events which later occurred on23 June 2007 . Thus, no complaint was made in the course of the trial about R&J’s work. 26. Maison Blanc’s observations and complaints in 2007, to30 March 2007 In paragraph 4 of his witness statement (page 2/464) Matthew Ashmore, who was Maison Blanc’s interim operations director at the time, stated: “I cannot recall exactly when the scaffolding was taken down. However, I believe that damage was observed to the premises upon it being removed. I became aware of the damage during the course of one of my routine visits to the shop, and immediately referred the problem to Jeremy. It was clear on my first visit following the removal of the scaffolding that damage had been caused to the awning box, which had shifted away from the shop front and become twisted, meaning it was no longer parallel with the shop window. The retractor mechanism had also failed, meaning the awning/ canopy could not be properly used by staff.” 27. The key contemporaneous documentary evidence about the observations and complaints made by Maison Blanc personnel in 2007 is as follows: (1) On or about22 March 2007 , Florent Arcin, who was Maison Blanc’s area manager with responsibility for the premises, spoke with Jeremy Brecknock (who was apparently his line manager), as a result of which Jeremy Brecknock wrote an e-mail to Florent Arcin as follows (page 5/148/1913): “Reference our conversation earlier, before I contact the landlord, please confirm that the extent of the “damage” relates to the awning and nothing else. Regarding the damage, are you saying it is caused by debris falling onto it during the works above as this is the only way I can imagine it could be damaged.” (2) Florent Arcin replied to Jeremy Brecknock a little later (18:27) on22 March 2007 as follows (page 5/149/1914): “Jeremy This is the shop frontage that needs attention some building work has been carried out in the flat above two weeks ago and that's when the damage seems to have occurred. This maybe difficult for us to prove that they are responsible for it but it did happen at the same time. The awning itself is fine but that is the frontage of the shop that have suffered.”
“Hi Einar I am not sure whether you still have responsibility for this property? Please advise ... I had to visit today to investigate what appears to be damage to the protruding front structure which houses the awning. It appears that the unit has slipped forward during the works Cluttons/its contractors were going on the first floor. Also as a result of the works there has been some internal movement to some piping coming from the first floor to our unit probably caused by the vibrations during the demolition work you were undertaking. This has resulted in loose plaster coming off the areas where the pipes come from the first floor. Finally, this morning I counted 8 refuse bags left on the pavement in front of the entrance to the first-floor flat - this is also in front of our shop. As you are aware rubbish cannot just be left in the street. This is obviously impacting the image we try and portray to our customers. Could you please investigate these points and if it is not your remit anymore, please direct me to someone within Cluttons who has assumed responsibility for this property. Many thanks” (4). Einar Roberts replied briefly as follows (page 5/153/1920): “Thank you for your e-mail. Andrew Forrester has responsibility for this client and building. He is presently away on annual leave; returning Thursday. The works to the upper parts are being overseen by Thomas Hunt from our projects department and I have asked that he call you on receipt of this e-mail.” (5) Arrangements were then made for Thomas Hunt to visit the premises on Friday,30 March 2007 : see Jeremy Brecknock’s e-mail to Thomas Hunt of27 March 2007 (page 5/1921). (6) On29 March 2007 Matthew Ashmore visited the premises: see paragraph 6 of his witness statement (page 2/465). (7) Following his visit, on30 March 2007 Matthew Ashmore wrote an e-mail to Jeremy Brecknock as follows (page 5/155/1922): 25. Secondly, visited Putney yesterday and I know you have seen the canopy damage for yourself which was definitely not there before the scaffolding went up. Max pressure needs to be put on Cluttons to resolve this one, especially as we had to suffer loss of trade and inconvenience whilst the scaffolding was up. Will await further update on this one …”
“I believe that the problem with the awning is that the retracting mechanism has moved slightly. This is causing the awning to catch on the side of its frame and therefore is unable to fully retract back into its original position. I will ask the contractor to investigate this problem in order to get it rectified.”
“Awning/landlord chased. No reply yet. However, the awning does work." (4) There is then a gap in the documentary history until21 May 2007 when Jeremy Brecknock wrote an e-mail to Florent Arcin as follows (page 5/165/1933): “I called in at Putney on Saturday morning and thought it an idea to give you a "heads up" on my visit. 1. Awning: Not being used as although it works they seem unhappy to use it due to the apparent movement from the wall. I will follow up with the landlord but have you told them not to use it?” (5) Also on21 May 2007 Jeremy Brecknock wrote an e-mail to Thomas Hunt chasing progress as follows (page 5/166/1935): “The contractor hasn't been to site yet. Can you get them to confirm a date for this? An alternative is that I get a contractor and cross charge you/the landlord. Let me know how you wish to proceed this week please." (6) The same day, Thomas Hunt sent an e-mail to Paul French of R&J as follows (page 5/168/1938): “2. Did you investigate the problem of the awning fully retracting into the shop beneath 125. I have the tenant chasing me re this. We may need to have a chat about this. I think I know what the problem is and should be simple to fix." (7) That elicited the following reply from Paul French later on21 May 2007 (page 5/169/1939): “Re the awning we did re-visit this and the tenant called out the specialist under their contract. I will get Terry to clarify though … we'll get back to you asap … (8) On29 May 2007 Thomas Hunt wrote again to Paul French as follows (page 5/174/1944 & 2/69/983): “4. Awning to shop front of 125. The tenant has confirmed that they did not get any of their contractors to have a look at the awning. I think that this could be fixed by unrolling the awning and pulling it to the right so that it retracts in a straight line and doesn't get caught on the edge of its frame. Perhaps you could give me a call to discuss these items when you have a chance." (9) Paul French replied on30 May 2007 as follows (page 2/69/983): “Re the awning. The tenant did call out the service engineers to attend to a previous fault with the operation. We did assist and give access to the body of the unit because we had exposed the unit from above. We do not really wish to tamper with it as the service agreement may be invalidated. However, if this is not the case we are willing to take a look but with no guarantees?" (10) Then on7 June 2007 Florent Arcin wrote an e-mail to Jeremy Brecknock, copied to Matthew Ashmore, as follows (page 5/176/1946): “Dear all, I have attached some close-up of the Putney frontage. I hope this will help in some ways in the repair/claim process." Later that day Jeremy Brecknock forwarded that e-mail to Thomas Hunt adding the following message (page 5/177/1950): “Further to my recent (unreturned) calls/e-mails. Clear evidence of the damage caused by your contractors which will need specialist attention and recharge to yourselves (to follow). (11) Also on7 June 2007 there was a conversation between Jeremy Brecknock and Thomas Hunt. Thomas Hunt’s attendance note is as follows (page 5/160/1928): “ 125 and 127 Putney High Street Telephone Conversation with Jeremy Brecknock Spoke to Jeremy re the awning. I told him that the contractor had inspected the awning and was unwilling to tamper with it as they did not want to invalidate any service agreement they have with the maintenance contractor. I recommended that he should call upon the maintenance contractor to assess the problem. Telephone Conversation with Jeremy Brecknock Re the costs I said that this is something that we could deal with at another time if there is any call out costs.” (12) On18 June 2007 Matthew Ashmore wrote an e-mail to Jeremy Brecknock as follows (page 5/180/1954): “I have asked D&M to visit the shop and provide estimate of repair cost. I will then come back to you. Don't think it's worth calling Dean’s as the problem is the box not the canopy which is in OK working order." 31. The photographic evidence Between pages 2/543 - 549 is a series of copies or prints of photographs of the exterior of the premises which Thomas Hunt took on various dates between4 May 2006 and25 June 2007 ("the Cluttons photographs"). The photographs he took on9 January 2007 are at pages 2/545-6. See generally paragraph 31 of his witness statement (page 2/522). 32. Between pages 2/511 -513 are copies or prints of three photographs which Florent Arcin took of the exterior of the premises ("the Arcin photographs"). 33. There was a dispute about the date of the Arcin photographs. At paragraph 6 of his witness statement, Florent Arcin stated: “I took some photographs a few months prior to the collapse of the false fascia. I attach three colour photographs … along with a covering e-mail dated7 June 2007 …”
“I believe that I took the photographs about ten days or so after the scaffolding was taken down after the refurbishment of the flats above the shop. I took them the first time I was back at the shop after the scaffolding was gone." 34. As regards paragraph 6 of Florent Arcin’s witness statement: the modified fascia fell to the ground and injured the plaintiffs on23 June 2007 . If, by the expression "a few months prior to the collapse of the false fascia", Florent Arcin meant a period of some 2 to 3 months prior to that event, that would date the Arcin photographs as having been taken between about mid-March and mid-April 2007. As regards paragraph 7 of his witness statement: the scaffolding was taken down on16 December 2006 : see paragraph 20 of Thomas Hunt's witness statement (paragraph 24 above). "10 days or so after the scaffolding was taken down" would thus date the Arcin photographs at or about the end of December 2006. 35. There is thus an inherent tension and/or inconsistency within Florent Arcin’s own witness statement as regards the date he took the Arcin photographs. As Florent Arcin was not called as a witness at the trial, it was not possible to examine such inconsistency in the course of oral evidence. 36. The contemporaneous documents establish that Florent Arcin sent the Arcin photographs to Jeremy Brecknock on7 June 2007 : see paragraph 30 (10) above. In my judgement, the language Florent Arcin used in that e-mail is revealing: he wrote “I have attached some close-up of the Putney frontage. I hope this will help in some ways in the repair/claim process." Had he taken the Arcin photographs at a materially or significantly earlier date than the date when he wrote that e-mail, it would have been reasonable or sensible for him to have made it clear in his e-mail that he was attaching photographs which he had taken on an earlier date. He did not do so. In my judgement the e-mail reads as if the photographs had been taken on or very shortly before the date of the e-mail. I therefore find as a fact that the Arcin photographs were taken on or very shortly before7 June 2007 . I therefore accept the statement of Matthew Ashmore in paragraph 13 of his witness statement that “Florent Arcin was also asked to take some photographs to document the damage, which he did on or about7 June 2007 ." 37. I should also observe that many of the prints or copies of photographs included in bundle 6, those of the Arcin photographs in bundle 2, and those of photographs included in bundle 3 (i.e. those exhibited to Mr Tutt’s report) were of such poor quality that they were of little or no practical use at trial. As a result the parties made available further and better quality prints or copies of some of the photographs in the course of the trial. 38. Observations by Maison Blanc of the frontage in general, and the awning box in particular, on and after30 March 2007 At paragraph 7 of his witness statement Matthew Ashmore stated: “I understand Cluttons viewed the problem as being with the retracting mechanism for the awning, which had moved slightly causing it to catch on the frame of the housing. I was of a different opinion, as I believe that it was the housing which had moved, but I accept that I am not a surveyor. In any event, I understood that Cluttons had agreed to get their contractor to investigate and rectify the problem. At no stage following their investigation was it suggested that the signage or awning box possessed an imminent danger ...." At paragraph 8 of his witness statement Matthew Ashmore stated: “There was a delay in response from the contractor and or Cluttons which led me to e-mail Jeremy again on19 April 2007 ... I had advised Florent Arcin that the awning should not be used in its current condition and pending a repair. I thought that this was a sensible precaution given that there was obviously some problem with it. ..." Although Matthew Ashmore stated in cross-examination by Active (DG/18) that “I would have advised Florent Arcin to inform the team not to use the awning from January onwards”, I have already found that the first time any of Maison Blanc’s employees became concerned about the operation of the awning box was shortly before the exchange of e-mails on22 March 2007 (pages 5/1913-4): see paragraph 28 above, and thus Matthew Ashmore was mistaken as to the date of his so advising "the team" at Putney. He was similarly mistaken when he stated in paragraph 13 of his witness statement that "the damage caused in the (Arcin) photographs was identical to that observed after the scaffolding was taken down." 39. In his cross-examination by Active (DG/19) Matthew Ashmore stated: “Q: What was your concern? A: It was slightly twisted. It didn't look as it should have done, so it was not up to standard, and I felt the damage had been caused when the work to the upper elevation had been carried out by Cluttons before Christmas, and they should repair the damage to the awning box. I did not want to interfere in that process by using the awning." 40. At paragraph 9 of his witness statement Matthew Ashmore stated: “Towards the end of May, I understand the response was received from R&J …”
“As to the complaint about the awning, from the e-mail Mr Brecknock had sent, and from my subsequent discussions with the manager of the shop, I understood Maison Blanc’s concern was that the awning was not retracting properly. During my visit to the property on30 March 2007 , I watched the awning being opened and retracted by the shop staff. I could see that the awning was catching on the left hand side of the box housing as it was retracting ... and at this edge was slightly torn ...." 46. Then, as regards what he was directed to see by the shop manager, and what he did in fact see, Thomas Hunt stated in his cross-examination by Maison Blanc (DG/49-51) as follows: “Q: There are three possibilities when you go and look: (1) either what Jeremy Brecknock says is inaccurate; or (2) what Jeremy Brecknock says is accurate; or (3) you don't know? A: Yes. Q: When you get back to the office, if it was (1) you should have said so? A: Yes Q: And if it was (2) you should have said so? A: Yes Q: And you didn't do either? A: Yes. Q: I suggest there was damage, and the awning box had slipped forward, and that was visible on30 March 2007 ? A: I do not recall seeing that on the30 March 2007 . I did not see anything protruding from the awning on my visit on30 March 2007 . Q: Refer to paragraph 25 of your witness statement, and your understanding: in the first line you are referring to the awning alone, and not to its structure; and you are not referring to it having slipped forward? What happened is that you got diverted to cosmetic issues, and ignored or forgot what Jeremy Brecknock had been saying? A: Not so. When I got there I spoke to the shop manager, and said I understood there had been an issue with the front awning, and he directed me to the front of the shop, where he showed me the awning retracting inwards and outwards, and where it was catching on the frame. Q: So your understanding of Maison Blanc’s complaint was that it was a cosmetic issue, and to do with retraction of the awning? A: Yes. Q: And that it was not a structural issue? A: Yes. Q: Nor a health and safety issue? A: No. Q: And that it was effectively a cosmetic issue? A: Yes. 47. Then, as regards his subsequent sight of the Arcin photographs on7 June 2007 , at paragraph 30 of his witness statement Thomas Hunt stated: “I have been shown photographs taken by Mr Arcin … which are said to show the condition of the front of the property in or about March 2007. At the time of my visit to investigate Maison Blanc’s complaint, I did not notice and do not believe there was any obvious sign of impact or other damage to either the fascia or the awning and do not believe the front of the property was in the condition shown in Mr Arcin’s photographs." In paragraph 32 of his witness statement he further stated: “I was contacted again by Jeremy Brecknock … on7 June 2007 . (He) e-mailed me copies of the photographs … which Mr Brecknock said showed clear evidence of the damage that R&J had caused." A: Yes Q: And if it was (2) you should have said so? A: Yes Q: And you didn't do either? Q: And that it was not a structural issue? Q: Nor a health and safety issue? Q: And that it was effectively a cosmetic issue? “I have been shown photographs taken by Mr Arcin … which are said to show the condition of the front of the property in or about March 2007. At the time of my visit to investigate Maison Blanc’s complaint, I did not notice and do not believe there was any obvious sign of impact or other damage to either the fascia or the awning and do not believe the front of the property was in the condition shown in Mr Arcin’s photographs." “I was contacted again by Jeremy Brecknock … on7 June 2007 . (He) e-mailed me copies of the photographs … which Mr Brecknock said showed clear evidence of the damage that R&J had caused." 48. In his cross-examination by Maison Blanc Thomas Hunt stated (DG/54-5) as follows: Q: Refer to paragraph 32 of your witness statement. Did you look at these photographs? A: Yes Q: But you don't say ‘Good grief: these photographs show a state of play inconsistent with my observations, and a marked deterioration? A: Well, I said that to Mr Brecknock. Q: Where do you say that in your witness statement? A: I don't. Q: The reason you don't is that they don't show a marked deterioration. They are wholly consistent with what you had seen? A: I don't agree. Q: If these photographs had shown deterioration, it would have been a marked deterioration on your evidence? A: Yes. … Q: And it follows that you would have raised an alarm? A: Which is what I did. Q: No; you did not. A: I spoke to Jeremy Brecknock and said there was nothing we could do, because it was not our responsibility. Q: Are you asking the court to accept that, when you saw these photographs and saw a marked deterioration, that your reaction to that was to tell Jeremy Brecknock that it was not your responsibility? A: I said there was nothing any of us could do. I remember being rather alarmed at what I saw." 49. Thomas Hunt is a relatively young man: he took a degree in building surveying at Reading University in June 2004, and began work with Cluttons three months or so later (DG/44). His job with Cluttons was thus his first job after qualification. When he became involved with the work which R&J were carrying out the first floor and the exterior, he thus had about two years postgraduate experience. As regards his evidence, I make the following findings of fact: (1) Although he had read Jeremy Brecknock's e-mail to Einar Roberts before he attended the premises on30 March 2007 , and thus initially understood that the e-mail reported damage to "the protruding front structure" (i.e. the awning box), and that the awning box had slipped forward, when he attended the premises he focused his inspection on the operation of the awning itself, rather than carrying out an examination of the awning box. (2) When he attended the premises on30 March 2007 he did not carry out any inspection of the general frontage of the premises. (3) His initial observation and analysis of the problem was as set out in his e-mail of2 April 2007 , namely that the retraction mechanism within the awning box “has moved slightly. This is causing the awning to catch on the side of its frame and therefore is unable to fully retract back into its original position." (4) Two months or so later, when he saw the Arcin photographs on7 June 2007 , he appreciated they depicted a marked deterioration in the situation from that which he had previously understood or appreciated to be the case. However, he did not make that point clearly, or at all, to Jeremy Brecknock when he spoke to him on7 June 2007 . Instead his observation and/or advice to Jeremy Brecknock was that Maison Blanc should get its own contractor to inspect. I reject Thomas Hunt's assertion in the course of his cross-examination (DG/54) that he told Jeremy Brecknock that the situation shown in the Arcin photographs was inconsistent with what he had seen in the course of his inspection on30 March 2007 . (5) I also reject Thomas Hunt's assertion that in the course of his telephone conversation with Jeremy Brecknock on7 June 2007 he "said there was nothing we could do, because it was not our responsibility". Such an assertion is quite inconsistent with the text of his contemporaneous attendance note set out at paragraph 30 (11) above. In my judgement, had Thomas Hunt made such a statement to Jeremy Brecknock, he would at the very least have recorded it, either in the form of an e-mail, or perhaps more appropriately in a more formal letter to Maison Blanc; he did neither. 50. Evidence about the frontage in general, and the awning box in particular, on or about30 March 2007 (1) The engineers were agreed that the Cluttons photographs, taken while the work to the first floor and exterior was being carried out by R&J, “ show that the top right-hand corner of the awning box had drooped down by then": see paragraph 69 of the engineers’ joint statement at page 3/1444; see also the blown up section of the photograph at page 3/1374, the photographs at page 6/2030 and page 2/545; and also Mr Price’s evidence in cross-examination (DG/73) where he stated: Q: Refer to the photograph at page 2/545: are you able to tell anything from this? A: It appears to show the same thing: close to the right-hand end of the awning box there is a slight increase in the width of that gap. Q: What can you see in the photograph at page 6/2030? A: It does confirm the same thing. The gap between the top of the awning box and the underside of the sign is very consistent and parallel all the way along, until you get very close to the right-hand side, where the top of the awning box appears to start to drop, and the gap becomes wider." (2) The engineers were also agreed that the Arcin photographs show that, at its right-hand end, the awning box had come away from the surrounding render. See paragraph 68 of their joint statement at page 3/1444, where they stated: “Damage to the ends of the awning box, and separation of the tapered end cover at the right-hand end of the modified fascia from the render surround of the inclined facade, are visible in photographs by Florent Arcin ..., the dates of these photographs are unknown." (3) As regards the left-hand end of the awning box, Mr Price stated in the course of his cross-examination by Cluttons (DG/96) as follows: “Q: Refer to the photograph at page 6/2030: is there any damage to the left-hand edge of the awning? A: It looks as though what should be a vertical side of the left-hand edge of the awning box, it looks as if the bottom edge is splaying out to the left i.e. it is not vertical, as is the sign above." 51. At paragraph 5.11 of their joint statement, the surveyors posed the following questions (page 4/1665g): “Did Cluttons fail to undertake any adequate investigation on30 March 2007 so as to determine the underlying causes of the movement/deformity that was evident in the shopfront? ... Did Cluttons on 30 March fail to investigate what had happened to the supporting structure? ... Did Cluttons fail to ascertain what steps were required to prevent further collapse and to restore the integrity of the shop front ...? They stated their answers to those questions as follows: “A Cluttons30 March 2007 inspection in response to the Maison Blanc complaint may have created a position of reliance by Maison Blanc. It was agreed that the extent of Cluttons duties arising from their inspection was a matter for the court. B. Should the fault to the awning seen on30 March 2007 have been minor, and reasonably able to be attributable to mechanical operation, Cluttons actions in requesting inspection from R&J were reasonable. However, this was a practical step for Cluttons to take following Maison Blanc’s complaint and it is for the court to decide the responsibilities of Cluttons in this scenario. C. Should the fault to the awning seen on30 March 2007 have been as the condition in Mr Arcin’s photographs, Cluttons should have recognised that there was movement of the awning and further risk. ... D. The condition of the front of the property, and in particular the support framing, on March 30 is a matter for expert engineering opinion and witness statements. Catching and tearing of the awning suggested that there may have been prior to March 30 some distortion of the awning mechanism or the mechanism fixing to the awning boxing. The ascertaining of any steps to prevent further collapse would require an identifiable reason for anticipating a collapse within the shop front and awning supporting boxings. To anticipate this would require sufficient external evidence of fault within the support construction or framing." 52. In his cross-examination by Active, Mr Tutt was asked about the Arcin photographs. He stated (DG/111): “Q: Refer to the Arcin photographs at page 2/511-13. A: These are similar in quality to those we saw when we had our discussion. Q: Regarding the dropping of the awning box: how does that relate to the gap shown in the Arcin photographs? Is it broadly similar or not? A: It is broadly similar. One cannot be quantitative about this, but the distortion is the same. Q: In his e-mail to Cluttons, Jeremy Brecknock had reported that the awning housing had slipped forward. Look at the Arcin photograph at page 2/511: does that show any forward movement of the housing? A: I would say: yes. If you look at the triangular infill piece, there has been separation at the rear of the piece, which I consider shows some forward movement." 53. Based on that evidence, and the contemporaneous documentary evidence to which I have already referred, I make the following findings of fact: (1) The Cluttons photographs depict a discernible drop (or droop) to the right-hand end of the awning box. (2) Photograph 2/511 of the Arcin photographs depicts the right-hand end of the awning box as having come away from the surrounding render. (3) Photograph 2/513 of the Arcin photographs depicts damage to the left-hand end of the awning box, in particular that the bottom of the left-hand edge of the awning box had splayed out to the left. (4) The damage shown in the Arcin photographs was consistent with the description given by Jeremy Brecknock in his e-mail of27 March 2007 that there was "damage to the protruding front structure which houses the awning. It appears that the unit has slipped forward …”