There are lessons to be learnt about the gathering of evidence and the use of experts in the judgment in Stoke-on-Trent College v Pelican Rouge Coffee Solutions Group Limited.
Stoke-on-Trent College v Pelican Rouge Coffee Solutions Group Limited was a classic “battle of the experts” Techonology and Construction Court (TCC) case, in which Mr Justice Davies’ judgment demonstrates the difficulties of establishing causation in fire damage cases in circumstances where there is no positive evidence regarding the seat of the fire.
See the full judgment here.
A fire occurred on 23 December 2009 at the Stoke on Trent College Building. The college (the Claimant) considered that fire originated from a drinks vending machine. It, therefore, brought a claim (for breach of statute, contract and negligence) against the supplier, operator and maintainer of the vending machine (the Defendant).
The Defendant, for its part, considered that the fire started in a ceiling void, containing electrical wiring, directly above the drinks vending machine.
The agreed quantum of the claim was £265,008.75.
Ultimately, Mr Justice Davies concluded that the Claimant had established that the fire originated from the drinks machine. In so finding, Mr Justice Davies accepted that it was not possible to determine what the mechanics of the fire were; in particular which specific electrical component within the drinks machine started the fire. However, Mr Justice Davies concluded “it is not necessary for me to make positive findings in this respect in order to be satisfied that the claimant’s case has been established on the balance of probabilities in circumstances where I am satisfied one way or another this is what happened on the balance of probabilities”.
This case is a clear example of the importance of carrying out thorough investigations and properly instructing experts. This is particularly the case in circumstances where a case can be won or lost on the strength of factual evidence, and it may not be immediately clear at the start of the evidence gathering process what information will ultimately become crucial.
For example, Mr Justice Davies was particularly critical of the Claimant for not contacting the company responsible for monitoring the smoke detectors for a record of which smoke detectors were activated on the day of the fire. Mr Justice Davies also criticised the Defendant, albeit no adverse inferences were drawn, for being “careless of its disclosure obligations” for its failure to extract and safeguard information stored in a monitoring device which recording issues with the vending machine.
The following lessons can be learned:
- Ensure instructed experts undertake reconstruction exercises to properly evidence their position, particularly in circumstances where the other side’s expert has done so.
- Carefully review expert reports to ensure the expert has properly set out a detailed analysis of his/her position and has also considered the position contrary to his/her position and has carried out a detailed analysis as to why that position is rejected.
- Instruct experts early and ensure sufficient site investigations are carried out. Judge Davies was particularly critical of the Defendant’s expert’s failure to properly consider evidence against his opinion regarding the seat of the fire concluding that “in my view..there is little if any cogent independent evidence of the fire starting in the ceiling void”.
- Check witness statements against pleadings and expert reports for factual discrepancies (no matter how small) as a Judge will draw inferences where discrepancies exist. In this instance a key witness set out in his witness statement that he had seen a “tiny drip of water” from the pipe associated with the vending machine and that this had led the witness to conclude that this was the source of a leak of water, that was thought to have caused the fire. This was at odds with the amended defence which stated that there was “no leak observable”. In light of the discrepancy, Judge Davies concluded that the witness had “made an assumption about where the water had come from” based on what he had seen.