England and Wales High Court (Technology and Construction Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT

		St. Dunstan’s House, 133-137, Fetter Lane, London, EC4A 1HD
		12 April 2002

H.H. Judge Richard Seymour Q. C. :

Introduction

1. The Claimant, Britannia Zinc Ltd. (“Britannia”), carries on business as an operator of what is called an imperial smelting furnace (“ISF”), in which are produced both lead and zinc. The production process involves the heating of ore together with coke to temperatures in excess of 1000(C. In order to create such high temperatures a machine called a blower, manufactured by the Howden Donkin division of a company called James Howden & Co. Ltd., is used. A blower is essentially just a giant fan. It is powered by electricity, in the case of that at the premises of Britannia in Avonmouth, Bristol, an 11kV supply. The 11kV electricity supply to the blower at Britannia’s premises was carried by a paper-insulated cable (“the Cable”). The blower blows air into the furnace through a series of pipes and ultimately through nozzles in the furnace itself called “tuyeres”.
2. At the end of May 1999 Britannia was having construction work carried out at its premises at Avonmouth. In the course of those construction works, on or about 27 May 1999, the Cable was damaged. Britannia employed the Second Defendant, Connect South West Ltd. (“Connect”) to repair the damage to the Cable. Connect is, and was from about January 1999, a subsidiary of the First Defendant, Southern Electric Contracting Ltd. (“Southern”). There seems to have been some uncertainty on the part of Britannia when this action was commenced whether it was Southern or Connect with which Britannia had entered into a contract for the repair of the Cable after the damage caused in May 1999. However, it is now accepted that the relevant contract was made between Britannia and Connect. The claim against Southern originally made in this action has been discontinued. It was common ground that it was a term of the contract made between Britannia and Connect that Connect would undertake the repair of the Cable with reasonable care and skill.
3. On or about 8 June 1999 Connect, by Mr. David Gill, undertook the repair of the Cable. On 20 August 1999 that repair failed and power to the blower was lost. It was accepted on behalf of Connect shortly before the trial commenced that the reason for the failure of the repair of the Cable on 20 August 1999 was that the repair made on about 8 June 1999 had been carried out otherwise than with reasonable care and skill.
4. In the Re-Amended Particulars of Claim in this action damages were originally claimed under two main heads, namely in respect of damage to property belonging to Britannia and in respect of what was described as “business interruption loss”. The claim in respect of “business interruption loss” was struck out as a result of the failure on the part of Britannia to comply with an “unless” order made by H.H. Judge John Toulmin C.M.G., Q.C. on 14 March 2002. H.H. Judge Toulmin C.M.G., Q.C. by an order made on 27 March 2002 declined to grant relief against the consequences of the failure to comply with the terms of the “unless” order.
5. The claims which Britannia sought to pursue in this action were pleaded at paragraph 5.1 of the Re-Amended Particulars of Claim as follows:-

“5.1.1 Damage to the furnace was caused as a result of the power failure. In particular, tuyeres in the furnace became blocked with slag. Work took place to unblock some of the tuyeres and some 11 out of 18 tuyeres needed to be replaced, at a cost of about £54,600.

5.1.2 The damaged cable required excavation and further repair, at a cost of about £33,665.

5.1.3 In order to prevent further damage and to facilitate the restarting of work in the shortest possible timeframe after restoration of power, the claimant kept hot the condensers and stoves at a cost of about £20,592.”

6. It was submitted on behalf of Connect by Mr. Julian Field, who appeared as its Counsel at the trial before me, that it was not open to Britannia to pursue the claim pleaded at paragraph 5.1.3 of the Re-Amended Particulars of Claim as that claim was caught by the striking out of the claim in respect of “business interruption loss”. It is fair to say that it was originally under that head that the claim now pleaded at paragraph 5.1.3 was first pleaded. However, it was accepted by Mr. Field in his further written submissions presented in advance of the start of the hearing before me that the purposes of keeping hot condensers and stoves at Britannia’s premises were both to avoid further damage to Britannia’s plant and to enable production to be resumed as soon as possible. That notwithstanding, Mr. Field persisted in submitting that the cost of keeping hot condensers and stoves:-

“19….is not of itself physical or material damage but is consequential on the other damage caused by the failure of the cable and furthermore, was incurred at least in part in order to facilitate the resumption of production.

20. Accordingly, this head of loss is irrecoverable following the striking out of the business interruption loss.”

7. It was common ground that in the course of discussions between Mr. Christopher Wilshere, a loss adjuster instructed on behalf of Connect, and Mr. Peter Shortland, a loss adjuster instructed on behalf of Britannia, on 3 April 2002 an agreement had been reached that the losses sustained by Britannia in respect of the heads of claim which it was open to Britannia to pursue in the light of the striking out of the “business interruption loss” claim amounted to £78,000. Miss Natalie Baylis, who appeared as Counsel on behalf of Britannia, submitted that the effect of the making of that agreement was that the claims for damages which it was open to Britannia to pursue had been compromised and that Connect was bound to pay to Britannia the sum of £78,000. Mr. Field contested that submission on the ground that the agreement was not binding on Connect. I had therefore to decide what was the significance of the making of the agreement. In other words, was the agreement binding on Britannia and Connect, and therefore dispositive of the matters before me, or was it at best evidence of what, subject to the other points available to Connect, was the appropriate measure of damages? Mr. Field submitted that in fact I should take no account of the agreement at all. He submitted that it was not an agreement between experts appointed on behalf of the parties, as Mr. Shortland had not been appointed to act as an expert witness on behalf of Britannia. Insofar as it was an agreement not made between experts acting potentially as witnesses on behalf of the parties Mr. Field submitted that the agreement needed to be proved as a matter of fact and that no witness had been called to prove it.
8. I did not consider that the submission of Miss Baylis as to the effect of the agreement between Mr. Shortland and Mr. Wilshere was well-founded. Equally I do not accept the submissions of Mr. Field that I should take no account of the agreement at all. To require the agreement to be formally proved when it was common ground that it had been made and what were its terms seemed to me to be otiose. There was a considerable degree of confusion as to the exact status of Mr. Shortland. In some contexts and for some purposes it had been contended on behalf of Britannia that Mr. Shortland was an expert witness on its behalf, while in other contexts and for other purposes the intention to treat him as an expert witness had been disavowed. Whether formally Mr. Shortland fell to be treated as an expert witness on behalf of Britannia or not, the fact of the matter was that the expert instructed on behalf of Connect in relation to matters of quantum was Mr. Wilshere, a loss adjuster, Mr. Shortland shared that discipline, and the terms of paragraph 4 of the order of H.H. Judge Toulmin C.M.G., Q.C. made on 14 March 2002 envisaged that discussions would take place between experts instructed on behalf of each party in relation to narrowing quantum issues. What H.H. Judge Toulmin C.M.G., Q.C. had directed in paragraph 4 of the order to which I have referred was:-

“By 4 p.m. 22^nd March 2002, experts to consider the Schedule of Loss in order to narrow quantum issues, subject to liability. Mr. Wilde to be available to attend that meeting in order to assist the experts.”

It appears that it was in the context of that direction that Mr. Shortland made contact with Mr. Wilshere and discussed with him the quantum of Britannia’s claim. Thus in my judgment it is appropriate to treat the agreement made between Mr. Shortland and Mr. Wilshere as at least analogous to an agreement made between experts pursuant to a direction of the Court under CPR 35.12.

9. By CPR 35.12(5) it is provided, in relation to discussions between experts which take place pursuant to a direction of the Court, that:-

“Where experts reach agreement on an issue during their discussions, the agreement shall not bind the parties unless the parties expressly agree to be bound by the agreement.”

It was suggested by Miss Baylis that Connect had expressly agreed to be bound by whatever Mr. Wilshere might agree with Mr. Shortland was the amount of the loss which Britannia had sustained in relation to the elements which it was open to it to pursue. She relied on correspondence between the parties’ respective solicitors as having that effect, and in particular upon the terms of a paragraph in a letter dated 15 February 2002 written by Messrs. Davies Arnold Cooper, solicitors acting on behalf of Connect, to Messrs. Reynolds Porter Chamberlain, solicitors acting on behalf of Britannia which was in the following terms:-

“In respect of the claim for material damage we suggest that a similar position be adopted with this element of your client’s claim and that our client’s loss adjuster Mr. Wilshere of Crawford & Co, meet with Mr. Wilde to discuss the claim for material damage and again produce a statement of those issues that they are able to achieve agreement upon and restrict his evidence to any points which remain in dispute between the parties.”

However, it seemed to me that that paragraph, and the other letters written by Messrs. Davies Arnold Cooper on behalf of Connect upon which Miss Baylis relied, in fact envisaged no more than the usual discussions with a view to narrowing issues which take place between experts on behalf of parties to litigation, where such experts are instructed, and not negotiations with the aim of compromising the claims of Britannia. Miss Baylis relied in support of her submission on the fact that on no view was Mr. Wilde an expert. That, of course, is so. However, he was the person upon whose evidence Britannia relied to prove its alleged loss, and it was plain to me that the purpose of the discussions contemplated by Messrs. Davies Arnold Cooper was simply to see to what extent disputes about particular elements within Britannia’s claims could be eliminated.

10. In correspondence Messrs. Reynolds Porter Chamberlain suggested that it was implicit in the appointment of Mr. Wilshere as an expert witness on behalf of Connect that he had authority to enter into a binding agreement on behalf of Connect as to the quantum of damages recoverable. However, in my judgment it is plain from the terms of CPR 35.12(5) that implied authority is not sufficient to enable a party’s expert witness to bind it by any agreement which he might make with an expert acting on behalf of an opposite party. Consequently, the making by Mr. Wilshere of the agreement upon which Miss Baylis sought to rely, if treated as an agreement between experts of the nature contemplated by CPR 35.12, did not involve such agreement being binding on Connect. It remained open to Connect to adopt the position which it did in fact adopt before me that it was for Britannia to prove the damages which it sought to recover. As to that, the agreement made between Mr. Shortland and Mr. Wilshere was some evidence, it seems to me, whether formally an agreement made pursuant to the provisions of CPR 35.12 or not. However, the evidential value of the agreement, in my judgment, was very small. No doubt the services of loss adjusters are of considerable utility to insurers and of assistance in settling claims. However, once litigation has been commenced and has come to trial it seems to me that there is very limited scope for the Court to derive help from the evidence of a loss adjuster. The nature of the expertise of a loss adjuster is essentially in evaluating evidence of loss. By the time an action comes to trial the evaluation of such evidence is the function of the Court. It is the assessment of the trial judge, having heard or seen relevant evidence of loss, which matters at that stage, not the opinion of a loss adjuster. As to the contention advanced by Messrs. Reynolds Porter Chamberlain in correspondence, it seems to me ludicrous to suggest that merely by appointing a person to act as an expert witness in litigation a party is impliedly clothing that person with authority to enter into a binding agreement on its behalf in settlement of the claims made in the litigation.
11. The basic position adopted on behalf of Connect by Mr. Field in relation to the claims for damages which it was open to Britannia to pursue was that it was for Britannia to prove (a) that a particular piece of work the cost of which was claimed had been done, or particular goods the cost of which was claimed had been supplied; (b) that the reason for the doing of that work or for the supply of those goods was the failure of the Cable on 20 August 1999; and (c) what was the cost of that work or those goods. I do not think that Miss Baylis dissented from that analysis in principle. In any event I consider it to be correct. Mr. Field went on to submit that a consideration of the material relied on on behalf of Britannia indicated that in relation to each item of expense claimed at least one of the three elements which he submitted Britannia had to prove had not been proved.
12. In the result, the issues which I had to decide were, first, whether it was open to Britannia to pursue claims under paragraph 5.1.3 of the Re-Amended Particulars of Claim in the light of the striking out of the claims in respect of “business interruption loss” and, second, what loss it was established on the evidence Britannia had suffered in relation to heads of damage which it was open to it to pursue. I therefore turn to consider the evidence adduced before me as to loss allegedly sustained by Britannia as a result of the failure of the Cable on 20 August 1999.

The evidence of loss

13. The evidence which was put before me in relation to the losses allegedly sustained by Britannia as a result of the failure of Connect to repair the Cable with reasonable care and skill was simply that of Mr. Brian Wilde, who is employed by Britannia as a costs accountant, and documents attached to his witness statement dated 9 April 2002. No other evidence was called on behalf of Britannia. No evidence at all was called on behalf of Connect.
14. Before considering the detail of the evidence it is convenient to address Mr. Field’s submission that it was not open to Britannia to recover damages in respect of the claims pleaded at paragraph 5.1.3 of the Re-Amended Particulars of Claim because the losses there claimed were, properly analysed, “business interruption loss”, and thus stood struck out. What Mr. Field submitted was that, on the evidence, the bulk of the costs claimed represented the cost of fuel alleged to have been consumed in order to heat the condensers and stoves, that the evidence of Mr. Wilde in cross-examination was that the condensers and stoves would have needed to have been kept hot anyway, at least if production of zinc and lead had been continuing, and thus the true nature of the complaint was that expense which would have been incurred in any event had not generated the production, and thus the income, which it would have in ordinary circumstances. He further submitted that the only reason for wishing to avoid any damage to Britannia’s condensers and stoves was to enable production to recommence as quickly as possible after the restoration of power to the blower. Finally, in relation to this part of the case, Mr. Field submitted that the expenditure which Britannia sought to recover was in the nature of expenditure in mitigation of loss and therefore it was for Britannia to prove that it was reasonable to incur such expenditure. Mr. Field submitted that no evidence, or at any rate no evidence of a satisfactory nature, had been adduced on behalf of Britannia to show that expenditure on keeping condensers and stoves hot had been incurred reasonably. All Mr. Wilde had said when cross-examined about the implications of not keeping the condensers and stoves hot was that the damage to the condensers and stoves, had that not been done, would have been very substantial in financial terms. Mr. Wilde did not, and was not able to, quantify what the loss would have been. Mr. Field’s approach seems to me to be wholly artificial. As a result of an emergency created by the breach of contract on the part of Connect power to the blower was lost and production from the ISF could not continue. The options at that point open to Britannia were either to let the condensers and stoves cool down, which, if nothing more were done, would have resulted, on the evidence of Mr. Wilde, to which I refer in more detail later in this judgment, in those pieces of plant becoming clogged with solidifying lead, or to keep the condensers and stoves hot and avoid that consequence. There was no suggestion that any proved expenditure on keeping condensers and stoves hot was only referable to enabling production to recommence as soon as possible and would not have been incurred if the only aim had been to avoid further damage to Britannia’s plant. Any expenditure on keeping condensers and stoves hot which was proved would have been necessary, it seems to me, even if the only aim of incurring it was to avoid further damage to Britannia’s plant. In my judgment it was entirely reasonable for Britannia to have wished to avoid the consequence of having its condensers and stoves clogged with lead without having to prepare an economic justification for such decision at the time or to prepare retrospectively such a justification for the purposes of the trial before me. I reject the approach suggested by Mr. Field. In my judgment it is open to Britannia to recover as damages, notwithstanding the striking out of the “business interruption loss” claim, any loss which it was proved Britannia had suffered as a result of heating condensers and stoves so as to avoid further damage to its plant.
15. The evidence of Mr. Wilde as to the losses sustained by Britannia was not, in my judgment, at all satisfactory. In his witness statement, which constituted the bulk of his evidence in chief, Mr. Wilde said this:-

“1. I am a costs accountant of the Claimant Company, and I make this Witness Statement to verify the losses sustained by the Claimant following the failure of a joint repair on the 11khz cable which supplied the Main blower to the Claimant’s Imperial Smelting Furnace (“ISF”) on 20^th August 1999. That repair had been made by the Defendant in this action.

2. I confirm that the documents exhibited at “BW1” to this witness statement are true and accurate records which support the loss claimed by the Claimant. References to page numbers below are to that exhibit….

4. The Material Damage loss claimed comprises three elements, namely:

4.1 Rectification of damage to the blower house cable so as to restore the power to the blower house and therefore enable the ISF to recommence operations.

[Schedule of Items comprising this element is at BW1, Page 3 and at Page 45 (last 5 items), Page 46 (First 4 Items) and Page 48].

4.2 Damage caused within the ISF itself immediately consequent upon the failure of the cable and resultant loss of power. This included the necessary digging out of the slag and the un-blocking of the ISF tuyeres. (The tuyeres are the means by which superheated air is fed into the ISF) [Schedule of Items comprising this element is at BW1, Pages 1 and 2, and at Page 40 (First 19 items), Page 42 (items dated 05 OCT 99 and 06 OCT 99), Page 43 (Final 4 items), Page 44, Page 45 (first 2 items)]

4.3 Prevention of further damage to condensers and the facilitation of restarting the work in the shortest possible time-frame after restoration of power [Schedule of items comprising this element is at BW1, Page 2, and at Page 40 (Last 2 items), Page 41, Page 42, Page 43 (First 4 items), Page 47 (3Item)]

5. The Material Damage claim is directly caused by the failure of the cable due to the nature of the ISF and related plant. Put simply, the Claimant produces both Zinc and Lead through the operation of the ISF, which heats the raw material ore, together with coke, to temperatures in excess of 1000º C. To achieve the high temperatures necessary for the smelting to take place a piece of machinery known as a Blower (in practice a giant fan) blows air into the ISF through a series of pipes, ultimately entering the ISF through the tuyeres. It is this heating which causes both the lead and the slag to become molten. It is the power cable to the Blower which failed and gives rise to this claim.

6. As it is the Blower which maintains the temperature in the ISF within the operating range, once the power failed, causing the ISF to suddenly come off-line, the temperature within the ISF immediately fell. As a result, the lead within the ISF, which was at that stage molten, cooled and solidifying, both within the ISF itself, and within a number of the tuyeres. Once solidified, the only means to remove the lead and slag was to physically dig it out.

7. In addition to the production of molten lead within the ISF itself, the Claimant also produces zinc. To extract the zinc, condensors which are located immediately above the ISF are utilised. The condensors are in effect brick-lined baths which contain molten lead. During the operation of the ISF zinc vapour is produced, which in turn rises up the shaft and over the condensors. The lead within the condensors is constantly agitated so as to produce lead droplets, onto which the zinc vapour condenses. At a later stage in the process, the zinc, being lighter than lead, is then skimmed of [sic] the surface of the lead before being refined further.

8. Once the power to the Blower failed, it was of great importance to maintain the heat within the condensors, in order to ensure that the lead remained molten. If this additional heat was not maintained, then the lead would have, as in the ISF, have solidified. If this had occurred, further material damage would have been caused to the condensor linings. In addition, by maintaining the heat within the condensors, delays upon restarting production once the power supply was restored where [sic] avoided.

9. To maintain the heat in the condensors, additional and extraordinary fuel costs of £20,592 were incurred. A break down of these costs is shown at page 2, together with supporting invoices at pages 4 to 48. [See BW1, Pages 16 – 21]

10. Turning to the actual costs of the Material Damage claimed for, this can be broken down as follows:

10.1 Cost of restoring power to the furnace blower including the re-routing of the cable: £33,665. The relevant invoices are at pages 4 to 48. [See BW1, pages 22-24, 36, 38-39]

10.2 The cost of the removal of slag and solidified lead from the furnace, together with the replacement of those tuyeres which had become blocked with solidified slag and lead: £54,600. The relevant supporting invoices are at pages 4 to 48. [See BW1, Pages 4 to 14]

10.3 The prevention of further damage to the condensors and the facilitating of the early resumption of production following the restoration of power: £20,592. The relevant supporting invoices are at pages 4 to 48. [See BW1, Pages 16 – 21]

11. As can be seen from these vouched figures, the total Material Damage sustained by the Claimant as a result of the cable failure totaled [sic] £108,857.”

16. What I have set out in the preceding paragraph of this judgment is the totality of Mr. Wilde’s evidence in chief in his witness statement in relation to the quantum of the material damage claim pursued on behalf of Britannia. It will be noted that in the narrative of his statement Mr. Wilde gave no explanation, other than in very general terms, of what damage Britannia in fact sustained to its property as a result of the failure of the power supply to the blower on 20 August 1999. Again, Mr. Wilde gave no explanation, other than in very general terms, of what work had to be undertaken as a result of the failure of the power supply, who undertook that work or when it was done. Essentially the purpose of Mr. Wilde’s statement seems to have been to put before the Court the documents which were referred to in it. The statement as originally served did not contain the words in bold type in square brackets at the end of paragraphs 4.1, 4.1, 4.3, 9, 10.1, 10.2 and 10.3. Without those words, which were added to the statement as a result of an order made by H.H. Judge Toulmin C.M.G., Q.C. on 14 March 2002, the way in which Britannia’s case was presented through Mr. Wilde was to say to Connect and to the Court, in effect, “The sums claimed are all supported by references somewhere in pages 4 to 48 of the attachments to the statement. You find them.”
17. The references to specific pages in the attachments in the latest version of the statement of Mr. Wilde produced confusion rather than illumination. Pages 1 to 3 inclusive of the attachments showed the breakdown of the sums claimed under each of the three heads set out at paragraph 5.1 of the Re-Amended Particulars of Claim under the heading “Britannia Zinc Claim 20/8/99 Details of Material Damage Items”. What exactly this three page document was, who produced it, or why did not clearly emerge in evidence. On its face the document seems to have been produced in connection with the action. It did not seem itself to amount to proof of anything. Mr. Wilde in supplementary oral evidence in chief did explain that the document came out of a maintenance schedule produced from computer software used by Britannia, but he did not go so far as to suggest that he had prepared it himself or that the information contained in it had been distilled by him from records which he had seen. He made clear that he personally was unable to shed any light on the contents of the document. In the original version of Mr. Wilde’s statement, that without the additions in bold type, the document, being pages 1 to 3 inclusive of the attachments to the statement, was not referred to specifically at all. The documents relied upon as evidence were those at pages 4 to 48 inclusive of the attachments. In fact the document at pages 1 to 3 inclusive seems first to have seen the light of day so far as Connect and the Court were concerned when it appeared as Appendix A to Additional Particulars of Quantum served on 10 August 2001 pursuant to an order made by H.H. Judge Toulmin C.M.G., Q.C. on 20 July 2001. Hereafter in this judgment I shall refer to the document at pages 1 to 3 inclusive of the attachments to Mr. Wilde’s witness statement as “the Particulars”.
18. Pages 40 to 48 inclusive of the attachments to Mr. Wilde’s statement was a document expressed to be a listing of “Transactions by Job Number”. On its face the document seems to have been prepared on 12 November 2001 by someone called S. Lee and to relate to a period described as “01/2000 to 12/2000”, although most of the individual entries in it related to the period 24 August 1999 to 21 December 1999. The document appears to have been some sort of computer print-out. In supplementary evidence in chief Mr. Wilde told me that it was a type of document produced by Britannia’s stores department from software which it used. Who S. Lee might be, why he or she produced the document, or based on what data, did not clearly emerge in evidence. Mr. Wilde told me that the information contained in the print-out would have been provided by individuals on site as they raised requisitions. I shall refer hereafter in this judgment to the print-out copied at pages 40 to 48 inclusive of the attachments to Mr. Wilde’s witness statement as “the Print-out”. Miss Baylis relied heavily on the Print-out as evidence of the sums claimed by Britannia in this action and as proof that work was done and goods were supplied as detailed in the Print-out as a result of the failure of the Cable on 20 August 1999. Mr. Wilde told me in oral evidence that the job number recorded in the Print-out, S0007145, was that allocated by Britannia to dealing with the consequences of the power failure. Miss Baylis seemed at one point to be submitting that, in the light of that evidence, there could be no possible doubt that the information recorded in the Print-out was correct. That seems to me to be far too superficial an approach. Errors can be made by those charged with inputting information into a computer in recording the job number. Those whose function it was to decide what job number should be allocated to particular work or goods can make a mistake in determining the appropriate allocation or in recording the allocation when made. Errors can be made in inputting other information, such as costs, into the computer. For all these reasons a computer record is not, by itself, a self-proving document. It is necessary, in my judgment, if a computer record is to be relied upon as evidence in support of claims such as those in the present action, for the accuracy of the record to be verified by someone who created it or at least by someone who was responsible for ensuring that it was accurately prepared. Mr. Wilde was not, on his evidence, the person who created the Print-out, nor did he have any responsibility for ensuring that it was accurate. Where it is possible to check the accuracy of the Print-out against other material there are grounds for doubting that it is a correct record, as I indicate later in this judgment. In the result I am not satisfied that the Print-out is a document upon which I can safely rely. The consequence is that in respect of those items of alleged loss the only evidence of which is the Print-out, which in substance was reproduced as the Particulars, there is no evidence which I accept in support of them. Those items therefore all fail for want of proof.
19. Of the pages in the attachments to his statement specifically mentioned by Mr. Wilde in the latest version of the statement, only those on pages numbered between 4 and 39 appeared to be copies of contemporaneous documents. The documents copied between those pages identified as being relied upon in support of the individual items of claim pleaded at paragraphs 5.1.1, 5.1.2 and 5.1.3 of the Re-Amended Particulars of Claim, respectively, did not support the precise figures claimed in any instance.
20. The unsatisfactory position in which I found myself, as it seemed to me, was having to do the best I could to interpret, without assistance, various invoices, orders and timesheets to see whether the description of the work or goods and the date upon which the work was apparently executed, or the goods apparently supplied, indicated that the work or goods in question, and thus the cost, seemed to have some relation to what Mr. Wilde indicated in very general terms had been necessary as a consequence of the failure of power to the blower at Britannia’s premises on 20 August 1999, bearing in mind that Britannia’s pleaded case was that power was restored on 25 August 1999. While, in my view, that task had to be undertaken with an appropriately sceptical eye, it did not seem to me that I should adopt as pedantic or unrealistic an approach to the evaluation of the material before me as Mr. Field appeared to be suggesting. Rather I felt that I should consider the material against a background of common sense, a course suggested in another context by Glidewell LJ in Galoo Ltd. v. Bright Grahame Murray [1994] 1 WLR 1360. I therefore turn to the contemporaneous documents relied upon in respect of each head of claim in turn. Hereafter in this judgment references to pages without more are references to pages in the attachments to Mr. Wilde’s witness statement.

(a) The claim in respect of the alleged cost of restoring power to the blower

21. The contemporaneous documents relied upon in support of the claim in relation to the alleged cost of restoring power to the blower were pages 22, 23, 24, 36, 38 and 39.
22. Page 22 was the first page of an invoice dated 14 October 1999 rendered to Britannia by Anstee & Ware Ltd. (“A&W”). The descriptions of the various items of work to which the invoice related, which totalled £16,975.26 on the first page, indicated that just one, “Install cable tray to reroute Blower 11 KV & 6.6KV cables”, in an amount of £2,107.20, might have anything to do with the restoration of the power supply to the blower. That understanding seemed to be confirmed by the fact that an item of such amount appeared in the Print-out at page 46 and it also appeared in the Particulars at page 3.
23. Page 23 was a copy of an invoice dated 29 September 1999 rendered by Connect to Britannia “IN RESPECT OF REPAIRS TO TRANSFORMER AND HV CABLE AS QUOTED” in the sum of £11,675, exclusive of Value Added Tax. That work appeared to have been undertaken pursuant to an order dated 13 September 1999 placed by Britannia for “DONKIN BLOWER TRANSFORMER AND CABLE WORK QUOTE NUMBER QU0658B TO SUPPLY AND CONNECT 11KV PILC TO REPLACE EXISTING CABLE TO BE RAN [sic] OVERGROUND PLUS 6.6KV CABLE TO BE REPLACED” at a cost of £11,675, of which a copy was at page 36.
24. Page 24 was a copy of a timesheet for two men, called, respectively, Leonard and Hodges, in respect of working 7.6 hours each on each of Monday to Friday in the week beginning 6 September 1999, and charging £171.67 for equipment and £98.45 for materials. The total amount of the timesheet was £1,214.42, exclusive of Value Added Tax. The timesheet did not include any indication of the exact work to which it related. The Print-out at page 46 recorded two amounts, respectively of £22.28 and £1,192.14, which total £1,214.42. Each item had the description “Uncover Blower Cable Day Work as the time taken to get quote would take too long. Estimate 2 men x 2 days plus equipment”. As I have said, the time sheet seemed to relate to 5 days’ work by two men and to be a factual record of something. The mystery deepened when one considered page 3 of the Particulars. There the item of £22.28 appeared with the description “Uncover Blower Cable”, but the item of £1,192.14 was said to be “Additional Cost”. A further item of £377.72 was listed as “Uncover Blower Cable”.
25. Page 36 was a copy of an order dated 2 September 1999 placed by Britannia with Cape Contracts Ltd. for “Scaffold access to Main Blower Cable Trays and Supports” in the sum of £2,334.18 and for a “Boom” in the sum of £270.
26. Page 39 was a copy of an order dated 18 October 1999 placed by Britannia with ERA Technology Ltd. (“ERA”) by which Britannia requested ERA to “Investigate mode of failure of cable joint” for the sum of £2,000. The report produced by Mr. Mark Coates of ERA pursuant to that order was the report relied on by Britannia in this action as expert evidence in support of its case in relation to liability.
27. Doing the best I can with the material to which I have referred, I am satisfied that it has been demonstrated that Britannia incurred expense totalling £16,386.38 in respect of the repair of the Cable after the failure on 20 August 1999. That sum is made up of the sum of £2,107.20 charged by A&W for installing a cable tray, the sum of £11,675 charged by Connect and the sum of £2,604.18, being the value of the order placed with Cape Contracts Ltd. in relation to scaffolding. I am not satisfied that the timesheet for the week beginning 6 September 1999 for Messrs. Leonard and Hodges relates to anything with which I am concerned. The sum spent on obtaining an expert’s report from ERA, which I am satisfied was spent, was not, in my judgment, referable to the need to repair the Cable, but to a consideration on the part of Britannia of whether it had any claim against Connect such as has been made in this action. That expenditure is recoverable, if at all, as costs in the action, as Mr. Field submitted.

(b) The claim in respect of the alleged cost of removing solidified slag and lead

28. The contemporaneous documents relied upon on behalf of Britannia in support of the claim in relation to removing solidified slag and lead were pages 4 to 14.
29. Pages 4 and 5 were copies of an invoice dated 27 August 1999 rendered by Drillserve Ltd. to Britannia in the sum of £8,534 plus Value Added Tax in respect of drilling work undertaken between a Friday and a Tuesday.
30. Page 6 was a copy of the third page of an invoice from A&W the date of which was not reproduced. One of the items on the page was “Remove & refit tuyeres” in an amount of £469.12. That was the only item on the page which seemed, from the description given, possibly to relate to the removal of solidified slag or lead. However, in the Print-out at page 42 an item of £469.12 appeared with the description “Supply labour & equipment to change No 9 & 10 tuyeres from short to long”. If that is the same item as that recorded in the A&W invoice, as seems likely, I do not know how the change of two tuyeres from short to long was related to the removal of solidified slag or lead.
31. Page 7 was a copy of an invoice dated 24 August 1999 rendered by Avonmouth Rubber & Plastics Co. Ltd. to Britannia in relation to the supply of two nipples. The total cost before discount was £404.64, one nipple costing £180.72 and the other costing £223.92. However, a discount of 2.5% was allowed, so that the net total of the invoice was £394.52. The two nipples were listed both in the Print-out and in the Particulars, but in neither case was there any indication as to why they had been required.
32. Page 8 was a copy of an invoice dated 25 August 1999 rendered by Howden Donkin in relation to inspection of “Main Blower”. The amount of the invoice was £667.37, exclusive of Value Added Tax.
33. Page 9 was a copy of a timesheet of Britannia relating to work done by a number of employees on the Friday, Saturday and Sunday of the week beginning 16 August 1999, so work done on 20, 21 and 22 August. The total of the timesheet was £1,533.82 for labour and £1,020.00 for equipment, making a grand total of £2,553.82. The Print-out included at page 44 an item with the value £2,553.82. The description of that item was “Supply labour and materials to carry out cleaning for ISF power cut estimated cost.” The reference to an estimated cost is puzzling, as on its face the timesheet was a factual record.
34. Pages 10 to 14 inclusive were copies of invoices rendered to Britannia by S.E.M. Construction (Bristol) Ltd. (“SEM”). The invoice copied at page 10 was dated 17 September 1999, those copied at pages 11, 12 and 13 were each dated 14 September 1999, and that copied at page 14 was dated 18 October 1999. The invoice copied at page 10 bore upon it the legend “To carry out repairs as per the above numbered order”. The value of the invoice was £1,266.50. In the Print-out at page 44 an item of £1,266.50, given the same order number as that upon the face of SEM’s invoice dated 17 September 1999, was described as “Supply labour & equipment to repair the following: “Y” pieces, south forehearth brick work, knock in and rebrick S/E bomb door & knock in and rebrick No 2 & 3 cowper stove burner ports as requested during ISF power failure”. The invoice copied at page 11 contained two items. One, for 6 keys, seemed to have nothing to do with removing solidified slag or lead. The other, “Call Out – Repairs to No 10 Tuyere Lead Lining and Forehearth Repairs”, was in an amount of £200. The SEM invoice copied at page 12 was said to be in respect of “Cast Tuyere “Y” Pieces”, “Repair Zinc Tapping Lip” and “To replace East Holding Bath Tapping Block”. The first of these items was charged at £605.09 each for two pieces, making a total of £1210.18. The other two items were charged at £80.47 and £169.02, respectively. At pages 44 and 45 of the Print-out beside order numbers the same as that appearing on the invoice copied at page 12 appeared each of the three items set out on the invoice copied at page 12. The remaining two SEM invoices related to more tuyere pieces, charged at £605.09 each. The total number of pieces covered by the two invoices was 4, and the total value of the invoices, net of Value Added Tax, was £2,420.36.
35. Doing the best I can, I am satisfied that the charge levied by Drillserve Ltd. related to the work of removing solidified slag and lead, as did the inspection of the blower, the work the subject of SEM’s invoice dated 17 September 1999, the repairs carried out by SEM to No. 10 Tuyere Lead Lining and Forehearth and to the zinc lapping tip, the replacement of the East holding bath tapping block and the casting of a total of 6 tuyere pieces at a cost of £605.09 each. That makes a total under this head of £14,547.90. I am not satisfied that the work of changing Nos. 9 and 10 tuyeres from short to long was necessitated by the need to remove solidified slag or lead. Without any explanation I am unable to understand what nipples have to do with removing solidified slag and lead. In the light of the comment in the Print-out concerning the Britannia timesheet for the week commencing 16 August 1999 as being an “estimated cost” I am not satisfied that it represented a true record of that which it purported to set out.

(c) The claim in respect of costs allegedly incurred to avoid further damage to plant

36. With one exception the documents included at pages 16 to 21 inclusive were copies of invoices rendered by Tincknell Fuels Ltd. to Britannia for the supply of gas oil. The total amount of those invoices, of which there were five, was £6,228.73. Of the five invoices, three were stamped as having been paid on 14 September 1999. Of those three, on the copies of two put before me it was possible to see the despatch date. Those dates were, respectively, 23 August and 24 August. The two invoices which did not bear a stamp as having been paid on 14 September 1999 had no indication on their respective faces as to when they had been paid, if at all. One had an indication that the load to which it related had been despatched on 15 September 1999, which was well after the date upon which, on Britannia’s pleaded case, power to the blower had been restored. That invoice bore upon it what looked like a “Received” stamp date of 22 September 1999. The other invoice did not contain any visible indication of when the delivery to which it related had been made. It did have a “Received” type date stamp date of 1 October 1999, which suggests that the delivery in question had been made after 15 September 1999, as the delivery apparently made on that date produced an invoice which seems to have been received on 22 September 1999. Doing the best I can I am satisfied that the three fuel invoices stamped as having been paid on 14 September 1999, which total in value £4,701.56, relate to fuel which was purchased in order to prevent further damage to Britannia’s property by keeping condensers and stoves heated. However, in the Particulars the total sum claimed in respect of these three invoices was £4,571.45. Mr. Wilde was asked about this discrepancy and gave an explanation which I did not really understand to the effect that the computer record was of the anticipated cost at the time of requisition, rather than the actual cost. Miss Baylis submitted that it did not really matter what the explanation was because the sum being claimed was less than the total shown on the relevant invoices. She accepted that Britannia’s claim was limited to the amounts shown in the Particulars. Mr. Field submitted that I should not allow anything in respect of the gas oil the subject of the invoices to which I have referred because the difference between the sums claimed in the Particulars and the amounts of the invoices raised doubt as to whether the sums claimed were properly recoverable, especially when viewed in the light of the invoices in respect of which claims were made but which seemed to relate to deliveries made after power to the blower had been restored. He also drew to my attention that there was no evidence of how much oil had been in the relevant oil tank or tanks at Britannia’s premises before power failed on 20 August 1999 or how much was left after power had been restored on 25 August 1999. I reject Mr. Field’s submissions for a number of reasons. First, it is possible to confirm from looking at the quantities of fuel delivered as recorded on the relevant invoices, on the one hand, and in the Particulars, on the other, that the deliveries correspond, although the sums claimed in the Particulars are different from the amounts of the relevant invoices. Second, insofar as it is possible from the delivery dates indicated on the copy invoices put before me to discern a pattern of deliveries, it is that deliveries were made each day in the period 23, 24 and 25 August 1999 of quantities of the order of 10,000 litres (on 23 and 24 August) and 15,000 litres (on 25 August 1999). That indicates, in my judgment, consumption at a rate on average somewhat in excess of 10,000 litres per day. The invoices in respect of which I am satisfied that it is appropriate to allow a claim total 35,165 litres over a period of rather more than four, but less than five, days. That is an average of less than 9,000 litres per day, which I am satisfied takes adequately into account any amount in a tank at the moment of power failure. The invoice recording a despatch date of 25 August 1999 of a load of 15,050 litres of gas oil was copied at page 15. Although a claim in respect of such delivery was included in the Particulars, page 15 was not mentioned by Mr. Wilde in his witness statement as a copy of a document relied on in support of the claim under paragraph 5.1.3 of the Re-Amended Particulars of Claim. It is not obvious that the failure to mention it was a mistake. That suggestion was not put to Mr. Wilde. 25 August 1999 was the day power was restored to the blower, so fuel required after the restoration of power could not have been necessary in order to keep hot condensers and stoves which were not in production. It thus may be that Mr. Wilde’s statement is correct in not referring to page 15 and that the Print-out is in error in including it. At all events I am not satisfied that an amount in respect of that invoice should be included in the calculation of the damages recoverable by Britannia under the heading of compensation for the cost of avoiding damage to Britannia’s condensers and stoves. However, the fact, of which I am satisfied, that 15,050 litres of gas oil were delivered to Britannia’s premises on 25 August 1999 indicates that the tank or tanks of Britannia were then sufficiently empty to receive a delivery of that size, and thus that the fear expressed by Mr. Field that an amount of oil was left in the tank or tanks when power was restored for which Connect should have credit is illusory. In the result I am satisfied that an element of £4,571.45 should be included in the damages awarded to Britannia in respect of the claim under paragraph 5.1.3 of the Re-Amended Particulars of Claim relating to the cost of gas oil.
37. The one document relied upon in support of the claim for the cost of preventing further damage to Britannia’s plant which was not a fuel invoice was a copy of an invoice rendered by Heat Applications Ltd. to Britannia dated 31 August 1999 in the sum of £2,950, exclusive of Value Added Tax. The narrative of that invoice read:-

“TO:

The supply of manpower and equipment to hold the temperature in cowper stoves 2 & 3 from 21/8 to 8.00pm 23/8

Additional site time: from 8.00pm 23/8 to 12 noon 25/8 – 40 hours @ £30.00 per hour ”

I am satisfied that the work so described was undertaken and was necessary as a result of the failure of the power supply to the blower in order to prevent further damage to the condensers and stoves at the premises of Britannia.

38. In my judgment it has been proved on behalf of Britannia in relation to the third head of its claims that it has suffered damage amounting to a total of £7,521.45.
39. It was suggested by Mr. Field to Mr. Wilde in cross-examination that during the period over which the blower was out of action there would have been some saving to Britannia in relation to the cost which it would otherwise have incurred in respect of electricity to run the blower. Mr. Wilde agreed with that suggestion, but said that the saving would have been very small in the context of the total consumption of Britannia of electricity. Mr. Field did not pursue this matter in his closing submissions. There was no plea in the Amended Defence that Britannia had made a saving in electricity costs in respect of which Connect was entitled to credit. No disclosure had been sought from Britannia in relation to electricity costs. In my judgment it was far too late for the issue of a possible saving to have been raised for the first time only in cross-examination of Mr. Wilde. I do not see any reason to consider this question further.

Conclusion

40. In the result, for the reasons given earlier in this judgment, I assess the damages payable by Connect to Britannia at a total of £38,455.73, being £16,386.38 in respect of the first head of claim, £14,547.90 in respect of the second head of claim and £7,521.45 in respect of the third head of claim.