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

IN THE HIGH COURT OF JUSTICE
BIRMINGHAM DISTRICT REGISTRY
TECHNOLOGY & CONSTRUCTION COURT

		ST DUNSTAN'S HOUSE FETTER LANE LONDON
		Dates of hearing: 9 - 11, 16-19, 23-26 July and 11, 12, 14, 19 and 20 September 2007 Date of draft judgment: 31 October 2007 Date Of Judgment: 22 November 2007

 

1. This case concerns the consequences of asbestos contamination of Southfield School for Girls, in Kettering. The contamination resulted from electrical work undertaken during the summer holiday in 2003. The school engaged a firm of architects, namely Peter Haddon & Partners ("PHP") in relation to the electrical work to be carried out. PHP are the third defendant. The school engaged the first defendant, Briggs & Forrester (Electrical) Limited ("B&F") to undertake the work. B&W Asbestos Removal Specialists Limited ("B&W") the subcontractor to B&F, was engaged to remove asbestos ceiling tiles to enable the electrical work to be carried out. B&W are the second defendant.
2. Work began on 21 July 2003. On 20 August 2003 all work was halted because the school was found to have been seriously contaminated with asbestos. There was what has been described as an appalling failure to exercise any control at all over the work undertaken on site. The school was closed and did not reopen until spring 2004. Extensive decontamination and remediation work were carried out. Much equipment was destroyed or cleaned. School life was badly disrupted. It was a catastrophic event for the school.
3. In January 2006 the Governors of the school and Northamptonshire County Council ("NCC") commenced proceedings against B&F and B&W to recover damages for breach of contract and negligence, claiming £5.527m plus an indemnity against third-party claims, plus interest. PHP were subsequently brought into the action by B&W then joined by the claimants as third defendant. Each of the defendants denied liability to the claimants, and made cross claims against each other. On 9 February 2007 B&F paid £3.1m into court in respect of both claimants' claims. The £3.1 million was inclusive of interest. The claimants accepted that sum in March 2007. Costs have not yet been assessed. The claimants then settled with B&W and PHP, without payment of damages by either. (I set out later the position with regard to costs between the claimants and each of B&W and PHP). The defendants now pursue their claims against each other. The primary claim is by B&F who seek contribution or indemnity in respect of the £3.1m they paid into court and the costs liability consequent upon acceptance of that sum. They claim from B&W damages for breach of contract and a contribution pursuant to the Civil Liability (Contribution) Act 1978. Their claim against PHP is made pursuant to the 1978 Act only.
4. In April 2007 B&F, B&W and Mr Marcus Buckle (the managing director of B&W) pleaded guilty to various counts of contravention of the Health & Safety at Work, etc Act and of Health and Safety Regulations in relation to the events at the school. Each was fined substantial sums.
5. I have heard extensive evidence from many witnesses, including from the school and NCC, and from expert witnesses in the fields of asbestos and school funding, and from expert architects and quantity surveyors.

The parties' cases

6. B&F's case is that B&W carried out its work recklessly and with no regard for the safety of the operatives working on site or of visitors to the school premises. Their method for removing tiles was defective and dangerous. The choice of semi-controlled conditions and poor work practices caused the extensive asbestos pollution of the school which resulted in the claimants' claims.
7. B&F contend that PHP should have known that asbestos is lethal material and that work with asbestos must be strictly controlled on all sites. They should have satisfied themselves that methods of work would be safe. It was insufficient for them to have relied on B&W as experts. They failed to inspect during the course of the work and so failed to stop the reckless work practices on site.
8. B&W contends that it was not liable to the claimants and is not liable to either B&F or PHP. Their case is that they removed a limited number of tiles and did so carefully. It was B&F's operatives who removed the bulk of tiles and did so recklessly, causing the asbestos contamination. Alternatively, any liability (to any party) on the part of B&W is limited to that in respect of the very limited asbestos contamination that might have been caused by B&W's work which could and should have been remedied at modest cost. The cause of contamination at the school was the way in which B&F carried out its works (which inevitably caused contamination even if done carefully) which had been designed and approved by PHP and the school. In addition, B&F's operatives worked with asbestos carelessly and with a wanton disregard for appropriate health and safety procedures. The remediation work was excessive. The £3.1 million which B&F paid to the claimants was in excess of any reasonable sum that could be justified by way of compromise of the claimants' claims.
9. PHP's case is that their involvement was limited. B&F and B&W were apparently competent contractors. It is sufficient, in discharge of the responsibility he has to exercise reasonable skill and care, for an architect properly to appoint appropriate contractors whose specialist skills can be relied upon. The remediation work was excessive. PHP do not advance any evidence as to the precise damage caused to the school, which physically caused the damage or the quantum of claims arising from it. PHP did not accept the claimants' case as to quantum (bearing in mind it was challenged by B&F and B&W) but would accept the court's determination of the value of the claim.

Working with asbestos in buildings

10. As Mr Hodgkiss (asbestos expert called by PHP) explained, working with asbestos requires particular expertise: it is one of only three industries in the UK that require a licence from the HSE to operate (the other two being radioactivity and explosives.) The industry is closely regulated. Only a licensed contractor is permitted to work with asbestos containing materials (ACMs). The exception to that is when work is of a very limited nature (colloquially called the one-hour rule – see below.)
11. Southfield school had been built at a time when AIB and other ACMs were commonly used in the construction of schools. Prior to the 2003 incident the school had about 4,072 square metres of AIB ceiling tiles and other ACMs. AIB has the potential to release considerable numbers of fibres when disturbed. It is relatively fragile and will chip or break if handled roughly. It also degrades with aging. When ACMs are removed, fibres are released and can migrate.
12. HSE are an enforcement rather than approvals body. They do not generally approve work before it begins. The evidence suggested that HSE relatively infrequently either question a method statement which a licensed contractor must lodge (generally 14 days before beginning work) or visit a site.

The school and NCC

13. Prior to the events with which we are concerned, Southfield School had been a grant-maintained school. At material times, it was a foundation school, with just under 1,000 pupils. The school managed its own day-to-day business. NCC had overall responsibility.
14. Mrs Christine Pinder (head teacher from 1997 until she retired in 2005) learned, when she joined the school, that there were ACMs in the buildings, including AIB ceiling tiles in a number of locations in the buildings. The presence of ACMs was recorded in an asbestos register kept at the school.
15. In September 1999 Mr Hunt, NCC's health and safety officer, wrote to a number of schools including Southfield school offering a service to manage asbestos in school buildings. Southfield school chose not to avail themselves of that service: staff knew of the existence of asbestos in the buildings and knew already that they should take a cautious approach to any work which might disturb asbestos.
16. In 1999 the school made a five-year plan for work to the buildings, during 2001 to 2005. The plan included a modest budget to replace asbestos ceiling tiles when necessary, but there was no intention to replace these entirely because the school would simply be unable to afford to do so.
17. In 2000, asbestos rope was discovered around window perimeters when work to replace windows and cladding was undertaken. It is unlikely that any non-destructive survey would have identified the presence of that asbestos rope.
18. Staff warned teachers and pupils about the presence of asbestos in the buildings. There were numerous occasions when comments were made in assembly and regular bulletins were given in every classroom by form teachers, warning staff and students not to do anything which would disturb ACMs eg ceiling tiles or pin anything into them. However, as Mrs Pinder acknowledged, it was impossible effectively to control such activity. The evidence indicates that some ceiling tiles had been disturbed e.g. by pinning or sticking Christmas decorations to them. In one location, books and equipment had been stored on top of a cupboard very close to untreated asbestos ceiling tiles. On very rare occasions, a ceiling tile was damaged, by being chipped or nicked. Mrs Pritchard (who was responsible for the school buildings) reported this to NCC and was advised that the affected tile should be painted but not brushed or scraped at all. I accept, however, that, generally, the school treated ACMs with respect, undertaking regular visual inspections to ensure that these materials had not been disturbed.
19. Mr Hunt arranged for RPS Consultants Limited to undertake a non-destructive detailed visual survey at the school, to determine the condition of known ACMs and to establish whether there were other ACMs in the school's buildings. The RPS report dated October 2001 included the following recommendations:

"The regular inspection of all asbestos-containing materials identified in appendix 2 is recommended. Provided the materials found to contain asbestos are maintained in good condition and are not damaged or disturbed, they may remain in place. If any deterioration / damage is noted, then consideration will need to be given to repair or removal.

In the long term, consideration should be given to the removal of all asbestos materials, due to the potential for deterioration / damage.

NCC should ensure that no work on or affecting asbestos-containing materials is undertaken before an adequate assessment of potential exposure is carried out. Any such work will require precautions to be taken. In the majority of cases, it is advisable to have the asbestos removed by a licensed contractor."

Appendix 2 of that report identified ceiling tiles on various floors of the building, and categorised these with a priority score of 13, ie the category of materials which should be referred to the Asbestos Survey Control Officer at NCC.

20. In July 2003, NCC sent Southfield School a document prepared by HSE titled "Asbestos - an important message for schools." That document identified typical locations where asbestos might be found, including ceiling tiles.
21. Prior to the contamination in the summer of 2003, the school had no plan to remove all ACMs from its buildings. The school's approach was that, provided ACMs were dealt with properly, they could remain and need not be removed. It considered that these were in a good state of repair and there was no need to remove them. That approach has not been criticised. The school did not have the funds to remove them for the sake of it. The only work which the school had planned to undertake, and which involved the removal of ACMs, was the continued replacement of windows and associated cladding; that involved removal of asbestos rope from the perimeter of each window. The school never expected that NCC would provide funding for the total removal of ACMs. However, it is clear (eg from the school's finance and business manager, Mrs Lorentzen) that, if the school had been told that all asbestos ceiling tiles in the school had to be removed, then the funding would probably have been made available.
22. The school's health & safety policy required the school to make any contractor, employed to work on installation, modification or maintenance of plant and equipment in the school buildings, aware of various matters including the school's health and safety policy arrangements and any hazards known to the school including the extent of areas where asbestos was present.

The defendants

23. B&F are a large national firm with a good reputation.
24. B&W held themselves out as specialist asbestos contractors and, by their letter head, also as consultants in the field. At material times, B&W were licensed by HSE for asbestos removal. They had been on NCC's recommended contractors' list for a few years prior to the summer of 2003. B&W had carried out work previously to Southfield School, in December 2002 (see below).
25. The school engaged PHP on a three-year retainer in 1996. That was renewed in 1999 for a period of three years. Although the retainer was not formally renewed thereafter, PHP remained the architects used by the school for building and maintenance projects. Over time, within PHP Mr Graham Woods became the main contact for the school. Until the events with which we are concerned, the school had been entirely happy with the work which PHP generally and Mr Woods in particular had undertaken.

The tender and contracts for electrical work in summer 2003

26. In November 2002, the school arranged for Blandford Electrical to undertake a survey of the electrical distribution in the school following problems with circuits tripping. Blandford advised that extensive electrical upgrading work be carried out, to include a new distribution board. In their report, Blandford noted: "The type of ceiling tile in the corridors would have to be checked prior to the start of any works and specialist contractors engaged for the same removal if required. We are unable at this stage to give any idea of costs which may be incurred under this item."
27. On 4 December 2002, the school instructed PHP to take Blandford's quote, produce a performance specification and obtain tenders, "even though Blandford will get the work". (The school knew and had confidence in Blandford, and wanted them to do the work. PHP however advised that the size of the job was such that others should be invited to tender for the work.)
28. Meanwhile, during that same month, sparks were seen in the electrical fuse cupboard in block B. Mrs Pritchard and Mr Woods agreed that, as remedial work was modest and needed to be attended to urgently, it would not be necessary to invite tenders for work. Mrs Pritchard obtained from Mr John Hall, an asbestos survey officer at NCC, details of B&W, one of NCC's approved specialist asbestos contractors. The school instructed B&W to remove 16 asbestos ceiling tiles from the electrical fuse cupboard to enable the necessary electrical work to be undertaken. The ceiling tiles were removed, under fully-controlled conditions, during the course of one weekend, shortly before the end of the autumn term, and the electrical work was carried out during the holiday. No tiles were replaced and no new tiles fitted in the cupboard. Clearance tests were subsequently undertaken which confirmed that no asbestos contamination remained. B&W charged £719 excluding VAT for that work.
29. So far as the main electrical upgrade was concerned, Mr Woods approached NCC who provided the names of six approved electrical contractors who might be invited to tender to undertake the electrical work which Blandford had identified. Mr Woods chose three from that list and, on 9 May 2003, invited tenders from Blandford, T James Electrical and B&F. He based his invitation to tender on Blandford's report. He was aware that asbestos ceiling tiles would have to be removed, and set out the following in his specification:

"The contractor is to include for all builders work necessary in carrying out the operations described below, as well as all making good necessary.

Note: the ceiling tiles in the corridors contain asbestos. The electrical work will necessitate their removal. This must be carried out in strict accordance with Health and Safety Executive requirements. The existing tiles may be replaced in their original locations (subject to conforming with HSE requirements) otherwise new class 0 fire retardant MDF panels (shaped to match existing tiles) may be used and decorated to match existing. All disturbed finishes to be cleaned/redecorated such that the disturbance cannot be detected upon completion."

(In fact, it subsequently became clear that it would not be acceptable to put back asbestos tiles which had been removed. Replacement tiles would have to be fitted.)

30. Mr Geoff Braybrook of B&F dealt with PHP's invitation to tender. He had worked at the school briefly when he was an electrical apprentice during its initial construction in the mid-1960s. Mr Braybrook contacted Mr Brian Jones of Briggs and Forrester (Special Projects) Limited ("SP") with a view to SP's undertaking the work of removing the asbestos ceiling tiles. Mr Braybrook and Mr Jones visited the school on 20 May 2003. Mr Braybrook was unable to specify precisely how many ceiling tiles would have to be removed; he did not know, for example, whether there were any obstructions in the ceiling void. He suggested that Mr Jones assume that one in every three, or possibly one in every six, tiles would need to be removed to allow access to the electricians. (Mr Braybrook had a weak recollection of some of the events.) On a rough count, either Mr Braybrook or Mr Jones (it is not clear which) estimated that approximately 240 ceiling tiles would have to be removed.
31. Blandford prepared a tender dated 15 May 2003, for the sum of £49,400. This included a PC sum of £2,500 for asbestos related builders' work, indicating the uncertainty Blandford felt at that stage about the scope of asbestos-related work.
32. On 30 May 2003, Mr Brian Jones telephoned B&W. He spoke initially to Mr Buckle, who confirmed that B&W had previously removed asbestos ceiling tiles at the school. Mr Jones asked Mr Buckle to quote for the removal of approximately 240 ceiling tiles, mainly on the ground and first floor corridors and also from other locations. B&W sent a quotation, dated 30 May 2003, numbered ACO 1460, to Mr Brian Jones of SP. Relevant parts of the quotation are as follows:

"Costing for asbestos and remedial and environmental works at Southfield School for Girls, Kettering. The following costing is for the provision of qualified Asbestos technicians to undertake the following works at the aforementioned site. To the removal of asbestos containing ceiling tiles approximately 240 in total to the above site under semi controlled conditions. All access equipment has been included in the price. All waste will be transported in a sealed container to an appropriate landfill site and all relevant paperwork will be provided for the above project. Total cost for the above £725.

The above quotation and costing are in strict accordance with B&W's terms and conditions which are inclusive of however not limited to the following:

Price inclusive of: all relevant notifications; labour / supervision; materials; equipment; transportation; normal working hours (unless stated otherwise); disposal of toxic (special) waste."

33. I reject the suggestion now made by Mr Buckle that the quotation contained a typographical error: namely that 240 should have read 24. I deal with this in more detail below.
34. SP sent B&F a quotation dated 30 May 2003 for building works associated with rewiring at the school including the provision of qualified asbestos technicians to undertake removal of approximately 212 asbestos ceiling tiles under semi-controlled conditions and removal of waste to an appropriate landfill site. The quotation clearly drew on B&W's May 2003 quotation. (There is no explanation as to the difference between the number of tiles in each quotation, 240 or 212. The difference is not material.) The SP quotation provided for the replacement of tiles which had been removed, repainting and other necessary work. The total price was £6,445. SP noted as follows: "It may be cost-effective and remove future asbestos problems if the corridor areas where tiles are being removed were removed in total and placed with a lay in grid system." Sadly for all concerned, that advice was not followed.
35. T James Electrical's tender was dated 2 June 2003, for £42,741 23. It stated: "With regard to the remedial / builders' works, I am worried about the health and safety implications with regard to the asbestos tiles. I don't feel that we are able to quote for this work without knowing the extent of the asbestos, disposal of the said tiles, whether we are allowed to reinstate the tiles etc. T James (Electrical) are not sufficiently qualified to deal with the above problems and I suggest that an asbestos specialist should be employed to carry out a test and risk assessment for this contract. We would be only too willing to quote for the required works involved, although I would imagine that it would be cheaper to arrange this direct."
36. On 2 June 2003, B&F sent PHP their quotation for like-for-like replacement, rather than upgrading, of the electrical system. It included removal of asbestos ceiling tiles. The total cost, excluding VAT, would be £38,417. The quotation assumed that the ceiling space above false ceilings would be sufficient to accommodate the new cabling; an extra charge would be made for cutting structural beams and so on if this were necessary to give access. It also included for "provision of qualified asbestos technicians to undertake the following work: the removal of asbestos containing ceiling tiles under semi-controlled conditions. All waste will be transported in a second container to appropriate landfill site and all relevant paperwork will be provided." Expressly excluded were "background leak reassurance and clearance air monitoring."
37. Mr Woods telephoned Mr Braybrook to ask for a revised quotation to take into account the question of upgrading the system, as Mr Braybrook had suggested. Mr Braybrook, Mr Woods and Mr Brian Jones met on site on 5 June 2003. Mr Woods asked Mr Braybrook how B&F intended to remove the ceiling tiles. Mr Braybrook explained that B&F had chosen an asbestos specialist, an NCC approved contractor. Approximately one in six tiles would be removed in the corridors. This was to be done under semi-controlled conditions. That would involve using hand tools to remove the tiles, damping down the area and vacuuming above and around the opening created. The specialist contractor had confirmed that the methodology was acceptable to HSE. The asbestos tiles which had been removed could not be replaced; instead, Supalux, rather than MDF, tiles would be fitted. Mr Jones asked Mr Woods why all ceiling tiles were not to be replaced; the additional cost would not be great, but the advantage would be that any further work which the school carried out could then be done more quickly and cheaply. Mr Woods said that the school was on a tight budget, but asked Mr Jones to price for that work. They did so on 9 June 2003. That quotation was in the sum of £40,572 excluding VAT, to include upgrading of the electrical system. The asbestos removal element of the work remained as set out in B&F's quotation dated 2 June 2003 ie removal of some ceiling tiles under semi-controlled conditions.
38. On 11 June 2003, Mr Brian Jones met Mr Terence James, B&W's general manager, at the school. Mr Jones asked for a quotation for the removal of all asbestos ceiling tiles in the ground and first floor corridors. B&W sent SP a quotation, ACO 1460a, dated 12 June 2003, for the following work:

"Area 1 [ie ground floor corridor in the main four-storey block]: to the removal of asbestos containing ceiling tiles to the above site under fully controlled conditions. All access equipment has been included in the price. All waste will be transported in a sealed container to an appropriate landfill site and all relevant paperwork will be provided for the above project. Total cost for the above including air test: £2,425

Area 2 [ie first floor corridor]: to the removal of asbestos containing ceiling tiles to the above site under fully controlled conditions. All access equipment has been included in the price. All waste will be transported in a sealed container to an appropriate landfill site and all relevant paperwork will be provided for the above project. Total cost for the above including air test: £2,975.

Area 3: to the removal of approximately 50 asbestos containing ceiling tiles from various locations to the above site under semi controlled conditions. All access equipment has been included in the price. All waste will be transported in a sealed container to an appropriate landfill site and all relevant paperwork will be provided for the above project. Total cost for the above: £325."

39. On 13 June 2003 SP sent B&F a quotation for the removal of all asbestos containing ceiling tiles to ground and first floor corridors, and replacement with drop-in tiles, for £4,440. On the same day, Mr Braybrook of B&F sent PHP a quotation for removal of all asbestos ceiling tiles in the ground and first floor corridors and replacement with drop-in tiles for £5,472. (The higher cost was said to represent the additional cost of removing light fittings screwed into the existing asbestos ceiling tiles.)
40. On 4 July 2003, Mr Woods sent Mrs Pritchard the revised quotations from Blandford and B&F. Mr Wood had not asked T James (Electrical) to revise their quotation as they had excluded any work to do with the asbestos ceiling tiles, having felt insufficiently qualified to deal with such problems. Blandford's revised quote was for £48,720 and B&F's revised quote was for £40,572. While Blandford had excluded work relating to the asbestos ceiling tiles, B&F had included for specialist removal and for replacement with non-asbestos Supalux tiles. Blandford would be able to carry out the work during the autumn term, whereas B&F would be able to execute the work during the summer holidays.
41. Mrs Pritchard said that the school could not afford to remove all asbestos ceiling tiles in the ground and first floor corridors. B&F was, in effect, the only contractor prepared to deal with the asbestos, and they were able to undertake the work in the school holiday. Mrs Pritchard instructed Mr Woods to accept the B&F revised tender dated 9 June 2003. It was important to the school that work be undertaken during the summer holiday to avoid disruption during term time.
42. On 7 July 2003 PHP wrote to B&F to say that the school accepted B&F's tender of 9 June and inviting B&F to a pre-contract meeting at the school on 14 July 2003. That meeting was attended by Mrs Pritchard, Mr Braybrook and Mr Scott Middlebrook for B&F, and Mr Woods of PHP. B&W were not invited. Work was to commence on Monday 21 July 2003, and B&W were to begin work on 28 July 2003. The likely duration of B&W's work was said to be three days. The intention was that all work should be complete within the six-week summer holiday period. If, however, it could not be fully completed by the end of August, then reconnection and testing might be carried out during the half term week in October 2003.
43. I accept that, at that meeting, Mrs Pritchard asked how the ceiling tiles were to be removed. Mr Braybrook explained that tiles were to be removed under semi-controlled conditions. That meant that two men would be involved, both wearing protective clothing. An area would be sealed off. One tile would be taken down at a time. The edges would be sprayed with a solution to prevent the release of asbestos fibres. The men would then vacuum around the tile and the ceiling area. The tiles would then be sealed in a red bag and taken from the building. Mr Braybrook assured Mrs Pritchard that this was a perfectly safe procedure and that the school staff could continue to work in the school building whilst the work was undertaken. Mrs Pritchard commented that the description he had given did not accord with previous asbestos removal work, when the complete area in question had been sealed off, and said that she was not happy with the method proposed. Mr Braybrook reassured her that B&W had been approved by NCC and had confirmed that the proposed method of working complied with HSE requirements. Mr Woods told Mrs Pritchard that she should "leave it to the experts". Mrs Pritchard relied upon Mr Woods to assess whether the proposed method was appropriate; she assumed that he, in turn, would make appropriate inquiries of Mr Braybrook. At that meeting, Mrs Pritchard provided B&F with a formal order for electrical work as set out in B&F's quotation of 9 June 2003.
44. B&F sent B&W an order, dated 17 July 2003, to carry out removal of tiles in accordance with B&W's quotation ACO 1460, i.e. the first quotation dated 30 May 2003, for £725, noting that work was to begin on 28 July 2003.
45. Following the pre-contract meeting B&F and Mr Woods agreed that B&F would quote for installing some additional socket outlets. They did so on 18 July 2003, when Mr Middlebrook sent PHP a quotation for the installation of 156 additional socket outlets, for £17,000 excluding VAT. That quotation included removal of 54 asbestos tiles and replacement with decorated Supalux tiles. Mr Woods sent B&F a fax that day, enclosing an order, from NCC, accepting B&F's quotation for additional socket outlets. B&W knew nothing about that order for additional sockets until after the events with which we are concerned.
46. B&F began work during week commencing 21 July 2003. B&W first went to the school on 28 July. There is a fundamental difference between the parties as to what happened on site. I deal with that below.

Semi-controlled and fully-controlled conditions

47. It is now accepted by all that the work should have been undertaken under fully-controlled conditions. Briefly, this requires a licensed contractor to undertake the work within an enclosure, with a three-stage airlock. It requires a negative pressure unit, and a decontamination unit on site where operatives can change and shower. Clearance tests must be carried out after work is completed to check levels of contamination.
48. B&W's suggestion that the tiles could be removed under semi-controlled conditions was wholly inappropriate. They do not now seek to defend that approach. The description "semi-controlled conditions" (which B&W used in both of their quotations ie both the original quote and their revised quotation for removal of all tiles) is not recognised within the HSE legislation or regulations. Mr Buckle's and B&W's position within the HSE prosecution was that they, erroneously, considered that the work could be undertaken under what is colloquially called the one-hour rule. The so-called one hour rule arises from the Asbestos (Licensing) Regulations 1983 regulation 3. This regulation describes the circumstances in which a person who is not licensed may carry out asbestos-related work. It applies when the work is of very short duration. The regulation does not permit an already licensed contractor (as B&W was) to carry out work otherwise than in accordance with all relevant regulations and the terms of their licence.
49. Mr Buckle now says that the one-hour rule is what he had in mind when quoting to undertake the work under semi-controlled conditions. That is not credible: plainly - as B&W and Mr Buckle now acknowledge-- removal of 240 ceiling tiles could not conceivably have been carried out under the so-called one hour rule. It would have taken weeks to do the work in that way. I conclude that it is likely that Mr Buckle came up with the so-called one-hour rule as an excuse, when HSE began to investigate the contamination at the school, for having decided to undertake the work with an unacceptable methodology, and for having failed to notify HSE as B&W should have done.

HSE prosecution

50. The HSE prosecuted Mr Buckle, B&W and B&F alleging contravention of regulation 3(1) of the Asbestos (Licensing) Regulations 1983, various regulations within the Control of Asbestos at Work Regulations 2002, and breach of various sections of the Health and Safety at Work, etc Act 1974. At the Crown Court in Northampton on 4 April 2007, B&F pleaded guilty to charges under sections 2 and 3 of the Health and Safety at Work etc Act. B&W pleaded guilty to contravention of the Health and Safety Regulations and sections 2 and 3 of the Act. Mr Buckle pleaded guilty to contravention of the Regulations. All three pleaded not guilty to various other charges; those counts remain on the file. Each of the defendants in those proceedings was represented by counsel. The basis of B&F's pleas was that they relied on specialist subcontractors; nevertheless they accepted that they had an obligation to supervise and control the work; at least two B&F operatives or subcontractor for whom they were responsible had removed and/or damaged some AIB tiles. In mitigation, B&W and Mr Buckle accepted that the work should not have been carried out under semi-controlled conditions; that they had failed to undertake a suitable or sufficient risk assessment; and that they had failed to give notice to HSE in advance of undertaking work. Mr Buckle accepted that, as a result of his insufficient risk assessment, the consequential spread of asbestos had not been prevented or reduced to the lowest level reasonably practicable.
51. B&F were fined a total of £60,000 and ordered to pay costs of £30,000. B&W were fined a total of £30,000 and ordered to pay costs of £10,000. Mr Buckle was fined a total of £10,000 and ordered to pay costs of £5,000. In setting the level of fines, the learned judge made it clear that he had taken into account the financial circumstances of each of the companies and the financial and personal circumstances of Mr Buckle.

Preparation for and early stages of work on site

52. I accept that it is likely that Mrs Pritchard asked B&F to provide a formal method statement setting out how they were going to remove the asbestos ceiling tiles. As she said in giving evidence, it was likely that she would be asked to explain to others, e.g. school governors, how the work was to be undertaken. However, B&F did not provide such a method statement to the school or PHP and Mr Woods did not request one. Mrs Pritchard, understandably, assumed that Mr Woods had been reassured by what Mr Braybrook had said at the meeting on 14 July. B&W say that they prepared a method statement before they began their work, but I am not persuaded that they did. I deal with that below.
53. The duration of B&F's work was likely to be the whole of the summer holiday period. B&F considered that this was a project which did not have to be notified under the CDM regulations. I have heard some evidence as to whether or not notification should have been given pursuant to the CDM regulations. It seems to me that this is not material to the real issues between the parties.
54. B&F began work on site on 21 July 2003. Immediately they began work, the school was in semi darkness as power was switched off. B&F men worked with head torches.
55. Mr Braybrook had been responsible for getting the job to site. He handed over to Mr Middlebrook who then managed the job on site so far as B&F were concerned. Mr Braybrook had assessed roughly the way in which cables were to run when preparing B&F's quotation. When Mr Middlebrook came on to site to manage the job for B&F, he knew that Mr Braybrook had anticipated that one in three, or possibly one in six, tiles in the two corridors plus the odd tile in three or four rooms would need to be taken out. He knew that B&W had contracted to remove 240 tiles. Mr Middlebrook considered afresh what would be the best route for cables. He took the view that B&F were entitled to ask B&W to remove tiles from any location; he would hope to limit the number to be removed to 240, but if B&F needed more removed then that could probably be negotiated with B&W. Mr Middlebrook considered that they would be able to deal with the 54 tiles to be removed to enable B&F to fix the additional sockets within the overall 240 for which B&W had contracted.
56. A number of B&F electricians would be working on the project, some running new cables and some fitting new sockets. In addition to their own employees, B&F engaged Mr Kevin Morgan as a self-employed subcontractor for this project.
57. Mr Buckle went on holiday and left Mr Terence James in charge so far as B&W were concerned.
58. Mr Woods had little involvement with the project after the meeting on 14 July. He spoke to Mr Middlebrook by telephone about matters concerning the project (but unrelated to the tile removal) on a couple of occasions during the first two weeks of the job. He then went on holiday and returned after the problems had arisen.
59. I found Mr Middlebrook to have been candid in giving his evidence. He seemed somewhat out of his depth in relation to this project. He left much of the informal supervision of the work to Mr Mick Saunders, one of the B&F electricians, and sought advice from Mr Braybrook on some matters. Mr Middlebrook had received no formal training in respect of working with asbestos and had little awareness of the dangers of asbestos before the events of July and August 2003. However, he knew that B&F should not be removing ceiling tiles. I accept that he informed most of the B&F electricians at the beginning of the job that they were not to touch the ceiling tiles, saying "don't even look at them in a funny way." It appears that the warning was not, however, given to Mr Morgan, who was engaged in fitting sockets in classrooms. Nor did Mr Middlebrook give the warning to Mr Matthews, an apprentice who attended on Saturday 16 August.
60. It is common ground that B&W did not know of the school's order for provision of additional sockets. In my judgement, that additional work has no real impact on the events with which we are concerned. B&W had not contracted to remove tiles in any particular location. It was reasonable for both Mr Middlebrook and Mr Braybrook to have considered, as they did, that B&W were obliged to remove up to 240 tiles, in whatever locations B&F considered necessary. Mr Braybrook intended that, if possible, the 54 tiles to be removed to accommodate the additional sockets were to be included within the 240 total. Mr Middlebrook considered that he could absorb the 54 tiles into the overall total; if more tiles needed to come down, then there was some fat in the contract to cover that.
61. Overall, the work was to comprise replacement and upgrading of electrical wiring and sockets. New cable was to be taken from the electrical switch gear room, along corridors, up vertical ducts and then distributing out as necessary. The cables were of large diameter, fairly rigid and heavy. B&F planned to run these cables through the ceiling voids in corridors, across the tops of wooden joists or battens above the asbestos ceiling tiles. These joists were about 1m apart and were sufficiently sturdy to carry the weight of the cables. The tiles themselves were of AIB, and measured approximately 24 inches by 24 inches, or 600mm by 600mm. Pulling cables through is a heavy job, and involves a number of men. B&F's plan was to have tiles removed at intervals along the corridors. An operative would be able to put his head and shoulders through the gap and into the ceiling void and, in that position, assist with the pulling of cables over the top of the wooden battens in the void.
62. It is clear that the approach taken by both B&F and B&W was that B&F operatives would mark the tiles to be removed and that B&W would remove those tiles. I accept that Mr Mick Saunders, an experienced electrician working for B&F, marked tiles and showed B&W operatives what he had marked. Until tiles were removed, no one could be certain what lay above the tiles eg how big the voids were and whether there would be obstructions such as joists or battens. Once tiles had been removed, it would be possible to determine whether cables could be run in the ceiling void above the tiles. It turned out that, on the first floor corridor, there was insufficient room in the void. It was therefore necessary for all tiles in a continuous run along that corridor to be removed and for a noggin to be cut in each wooden batten to allow the new cable to fit into the void. B&F operatives cut the noggins.
63. Mr M Saunders and Mr John Saunders replaced fuse boards in distribution cupboards. They had to remove fittings from ceilings. Mr Morgan dealt with sockets in classrooms.

Events on site during w/c 28 July and w/c 4 August 2003

64. The job of removing tiles was not complex or difficult. An operative had to stand on a ladder, undo four screws and lift the tile out. In some cases tiles had been painted in and required to be eased out. Others came out easily. Care was needed because the tiles were brittle and fragile. Mr Irvine, B&W's asbestos expert, described this as every day work for a specialist contractor like B&W.
65. Different figures have been quoted for the total number of tiles removed before work was stopped in August 2003. Mr Jones of B&F says that he had ordered 176 replacement tiles. An Ensafe report suggested that approximately 200 to 220 AIB tiles had been removed; those seem to be the more likely figures. The differences between those figures are immaterial. B&F's case is that B&W took down all the tiles, except a very small number (possibly three) which they admit their operatives did take down, and that B&W removed the remainder of the tiles and did so recklessly.
66. B&W's case is that they attended on site to remove tiles on only three days: two men attended on 28 July but were unable to do any work; they returned to the school on 29 July and took down some tiles; two other operatives attended on 4 August 2003 and removed tiles. In total, these operatives took down only 60 tiles, and only from the first-floor corridor, not from classrooms or elsewhere. They say that they did this carefully, albeit under semi-controlled conditions. In addition, B&W operatives made two visits to the school, on 31 July and either on 4 August or shortly after that date, to collect tiles which had been removed by others. Other than the 60 tiles which B&W operatives took down, they say that the remainder of the tiles were removed, carelessly, by B&F operatives. B&W rely on the fact that they issued their invoice on 8 August, suggesting that this indicates that they considered that, by that date, their work was complete. (There is, however, no explanation as to why B&W invoiced for removing 240 tiles while maintaining, now, that they removed only 60 tiles.)
67. Mr Woods was on holiday between 7 and 18 August 2003. He did not attend site until after his return from holiday on 18 August, so did not observe the way in which the work was being undertaken.
68. I have heard evidence from all of the B&F and operatives and most of the B&W operatives who worked at the school in July and August 2003. Some of the school staff worked, on occasional days, at the school during the school holiday. Their evidence has been most helpful, particularly as this evidence was given neutrally so far as the three defendants were concerned. None of the witnesses from the school or NCC sought to attach blame more to one party than another – they were unhappy with the performance of all three defendants. The school staff were principally concerned with their own work and had no reason to pay particular attention to the detail of work being carried out around them. Some did, however, make most useful observations.
69. B&W rely on some evidence and seek to draw a number of inferences which, they say, indicate that it was more likely to have been B&F than B&W operatives who had removed the bulk of the ceiling tiles, which I set out as follows:
70. B&F admit that their men did take down some tiles and one of them drilled into a bulkhead which turned out to be made from ACMs.
71. Further, Mr Middlebrook instructed B&F operatives to go round the building, collect ceiling tiles which had been left lying around or propped up against walls and take them down to a basement room.
72. I accept that Mr Middlebrook told most of the B&F employees that they should not touch the tiles. I accept the evidence of the B&F operatives that, apart from Mr Matthews (and possibly Mr Morgan) they knew that they should not remove tiles. I accept that, save for the two exceptions to which I refer below, they did not do so. Mr Morgan prepared a statement but did not attend at trial to give evidence, so I treat his statement with caution. Mr Morgan admits to having removed one ceiling tile himself. It appears that this was a tile adjacent to a valve which had been removed and replaced previously. In his statement, Mr Morgan also says that he drilled through a bulkhead. He had been told that it did not contain any asbestos, but then realised that it was not plasterboard. It turned out to have contained asbestos.
73. Mr Matthews attended on Saturday 16 August. He assisted Mr. Morgan and helped with the pulling of cables. Mr Matthews took down a couple of ceiling tiles to assist with pulling cables through the void, and leant them against a wall. He does not recall how many tiles he removed.
74. Mr Middlebrook did not understand the dangers of handling asbestos until later in August 2003 when the school was closed. At that time, Mr Middlebrook accepted that he would have found it acceptable for an electrician to have removed a ceiling tile to have a quick look in the void: it was the sort of thing they might well do. Although he had instructed some B&F operatives not to work with the tiles, he nevertheless considered it acceptable to ask Mr Botterill and Mr Brunt to gather up unbagged loose tiles which had been left lying around and to take these down to a basement room. Mr Middlebrook said that he did not want tiles lying around. Indeed, as is accepted, Mr Botterill carried a tile by balancing it on his head.
75. B&W suggest that B&F were impatient with B&W who, as B&F saw it, were failing to undertake necessary work and thus potentially delaying B&F's work. B&W say that this indicates that they were quite prepared to remove tiles themselves if B&W were not proceeding as expeditiously as B&F wanted.
76. I bear in mind that B&W were an HSE-licensed contractor which had been used without difficulty previously by the school and which was on NCC's approved contractor list. B&W contend that their operatives were trained, in some cases by other organisations before joining B&W. They say that it is inherently unlikely that B&W operatives would have behaved recklessly as is now suggested.
77. I take those matters into account. There is, however, overwhelming evidence of poor working practices on the part of B&W operatives and worryingly poor record keeping. And there is also evidence of creation of documents after the event, which indicates that B&W were trying to cover their tracks and or fabricate a story after the event.
78. On Monday 28 July 2003, Mr Russell Davies and Mr Tony Nealon (both B&W operatives) went to the school. They were unable to remove tiles as they did not have the correct screwdriver bit to undo the screws holding the tiles. So, they went away. B&F had to chase B&W to get them to return to site. B&W insist that two of their operatives returned to the school on 29 July. I reject that. The evidence that they returned on 30 not 29 July is clear. In order to support their contention that they returned on 29 July, B&W concocted a file note supposedly recording a discussion that day between Mr Greenhough of B&W and Mr Brian Jones of B&F in which Mr Jones is said to have explained that the tiles "could be unscrewed because he had already taken some tiles out and if B&W operatives would meet him on site he would show them how to take them out." The document creation itself is clumsy. Furthermore, given that Mr Jones was not involved on site as an electrician and was in Slough on 29 July, I have no confidence in the authenticity of the document and find Mr Greenough's explanation of it simply incredible. I conclude that no such discussion took place. It is a matter of concern that B&W's approach is to fabricate a document if they think that this will assist their case (see below.)
79. Mr Buckle did not attend the site at all. Given his personal circumstances at the time, it was understandable that he was absent at material times and may not have paid as much attention to this project as he should have done. Having said that, I was troubled by much of Mr Buckle's evidence. He offered unconvincing and inconsistent accounts as to why his company had offered to remove 240 tiles under semi-controlled conditions – a methodology for which there could be no justification at all. When speaking to the HSE he said he thought that B&W were working on the revised quotation ACO1460A, dated 12 June 2003. That explanation does not bear any close examination.
80. Mr Buckle now blames Mrs Carol Stafford (who, at the time, had been responsible for the day-to-day running of B&W's office and administration) for preparing the quotation incorrectly. Mr Buckle's criticism of Mrs Stafford is unjustified. While she typed the quotation for him, I have no doubt that Mr Buckle had provided the necessary information, including the number of tiles to be removed, price and methodology. Mr Buckle was fully responsible for the quotation of 30 May 2003.
81. Mr Buckle now says that the quotation contained a typographical error, namely that 240 tiles should have been written as 24 tiles. That excuse is absurd. The method statement which B&W prepared (though I have some doubt about the date on which that document was prepared) envisaged removal of a substantial volume of tiles – probably close to 240 and certainly not only 24. B&W invoiced B&F in August 2003 for the removal of 240 tiles. I accept the evidence of Mr James, B&W's contracts manager, that he queried with Mr Buckle the scope of work to be carried out for the contract price. Mr Buckle said he wished to proceed, notwithstanding that the job could not be done profitably for £725, because, he said, he hoped that the project would be a loss leader and enable B&W to obtain more work from NCC. When Mr Buckle spoke thus to Mr James, he must have known that he had committed his company to removing 240 tiles.
82. B&W rely on records to support their case. However, I have no confidence in any record or document produced by B&W whose accuracy or authenticity cannot be verified by other means. B&W appear to have kept exposure records for each operative. One can understand the importance of such records in relation to monitoring workers' exposure to asbestos fibres. However, the exposure records which B&W kept were carelessly dealt with and are unreliable. It is clear that operatives worked with asbestos for longer than the records suggest, and indeed worked at the school on dates for which there is no exposure record at all. There is conflicting evidence as to who within B&W prepared the various sections of the exposure records. Mr Buckle, unfairly in my view, sought to blame his workmen for some of the deficiencies in the records.
83. B&W rely on supposed certificates to record training carried out by their operatives. Yet one can have no confidence in these: the dates they bear are, at best, inaccurate; some have been countersigned by Mr Scott, who had left the company many months before the date on which he is supposed to have signed the certificate. No credible explanation has been given for the obvious difficulties with these training certificates and one wonders when they were actually prepared.
84. B&W's records of waste collected and taken to landfill sites are inaccurate. Given the dangerous nature of the material with which they were dealing, B&W's approach to records of such importance is a matter for concern.
85. As Mr Buckle accepted in the HSE prosecution, he failed to notify HSE in advance, as should have happened. However, he did subsequently prepare a notification. That document stated that work was to begin on 28 July 2003 and was expected to take two days; the size of job was described as 50 bags. (It is significant that that number of bags indicates that Mr Buckle expected to remove closer to 240 tiles than the 24 tiles for which he now contends.) Mr Buckle dated the notification 14 July 2003 ie 14 days before the start date, the latest date on which notification should have been given for a start date of 28 July. He prepared it with a view to Mr James signing it. Mr Buckle now says that he prepared this "after the event and in a blind panic." It was never sent out.
86. Mr Buckle says that he asked Mr James to prepare a method statement for the job, and for that statement to provide for work to be undertaken under semi-controlled conditions as the May 2003 quotation had provided for. It appears that Mr James did prepare one, using a generic method statement from the template on the B&W system. The document is entitled "methodology statement/plann of work/risk assessment". It records that it has been compiled by Mr Terry James, and bears the date 14 July 2003, but Mr James accepted that it had probably been prepared on 27 not 14 July 2003. The document describes how the ceiling tiles are to be removed under semi-controlled conditions. The document shows the proposed start and finish dates as 28 and 29 July, and the number of employees to be used as 3 minimum and 4 maximum. The approximate volume of asbestos waste to be dealt with, and disposed of at a licensed asbestos landfill site or transfer station, was put at 3 cubic metres. (Again, that volume indicates that a substantial number of tiles was to be removed, and not just 24.) It seems to me possible that this document was also produced after the event. Even if it were in fact prepared on 27 July, I do not believe the evidence of B&W operatives who claim to have had this methodology statement with them when they attended at site. Curiously, after the event, B&W refused to provide a copy of this document to B&F, though they now criticise B&F for not having requested it at the time.
87. Mr Nealon wrote a note "To whom it may concern" stating that he had removed 25 tiles. The figure of 25 is crossed out and the figure of 15 is substituted. Mr Nealon was unable to offer any explanation for this. The amendment suggests some massaging of evidence.
88. Mr Middlebrook prepared, in September 2003, a note of his recollection of some of the events of July and August 2003. That note records that, on 28 July, three men attended the site for 10 minutes only; they were unable to take out the screws holding the ceiling tiles. The reference must be to B&W operatives. The note records "asbestos tile removal" undertaken by two men for half a day on 30 July, by two men for half an hour on 1 August, by two men for half a day on 5 August and by two men in under one hour on 8 August. For 12 August, the note records "asbestos tile removal, 2 men to collect tiles left behind." Again, the references in respect of each of those dates must be to attendances by B&W operatives. This document largely accords with the recollection of those members of the school staff who worked at the school during August, and in some respects with the various statements made to HSE in September 2003 ie close to the events. It seems to me that Mr Middlebrook's document is likely to record accurately attendance at site by B&W operatives.
89. I accept that B&W men were seen removing tiles without wearing full protection. They had not sealed off the areas in which they were working. A number of witnesses saw B&W operatives walking through the school carrying unbagged asbestos tiles outside and throwing these into a van. It seems to me likely that the operatives in question were from B&W and not from B&F, and that the van in question was B&W's and not B&F's. On 5 August 2003 Mrs Goswell (one of the school's deputy heads) saw a workman up a ladder on the first floor corridor. She said that he appeared to be undertaking electrical work; she did not see him remove any tiles. About three quarters of the tiles in the corridor had been removed. On the floor there were ceiling tiles which had been broken into chunks. She had to pick her way through the debris on the floor. I do not accept B&W's submission that this is evidence of B&F operatives undertaking wholesale removal of ceiling tiles.
90. Mr Calley, the school's site manager, was on holiday until 4 August. When he returned, he saw tiles left propped up against walls and unsealed red bags containing asbestos waste. The floor was a mess, with asbestos dust, broken tiles and electrical debris.
91. There is inconsistency between B&W's case and the evidence of their own operatives. Mr Hooper and Mr Owen of B&W admit to having removed tiles on 4 August. Mr Owen and Mr Davies admit to having attended site on a date after 4 August to collect tiles. That date was probably 12 August: this accords with the recollections of Mrs Lorentzen and Mr Calley (the school's site manager).
92. B&W ask me to accept the evidence of their operatives who insisted that they had removed tiles from only the first floor corridor, had undertaken the work carefully and indeed had worked at the school on only a very few days. I am unable to do so. It seemed to me that most of the B&W operatives who gave evidence could actually remember very little about the project. Some appeared to be willing to say anything to promote B&W's case, even when it became clear that their evidence was plainly inconsistent with statements made, close to the date of these events, to HSE or was plainly absurd. Some appeared to be tailoring their evidence to try to make it consistent with working under the one-hour rule. Most displayed a very poor work ethic: they would get away with as little work as possible. One admitted to exaggerating significantly his record of hours worked. There was no evidence of proper supervision. Indeed, those designated as supervisors either had received no training as such or were unaware that they had a supervisory role. I was not persuaded that the B&W operatives would have approached their task diligently or carefully, especially if - as must have been the case – they were trying to undertake a large task in a very short time scale. There must be a strong inference that, given the large scope of work and the absurdly low price, B&W had to cut corners in order to complete the work. It may be that Mr Buckle's attitudes and approach to business, given his position as managing director of the company, set the tone for the organisation and coloured the way that his workforce behaved.
93. B&W accept that their operatives returned to site on 31 July and 4 August to collect tiles which had been taken down from ceilings but not removed from the school. There can be no reason for B&W to have come back to collect and take away tiles if they had not themselves taken down the tiles and considered that they had an obligation to remove them from the school. That was particularly the case with a job which was not going to be profitable anyway. Mr Middlebrook explained that, while he could have required B&W to come back to site and do all the clearing up, there had been difficulty getting them to site and it had seemed to him better to ask his men to clear up. This is consistent, given that, at that time, he did not appreciate the risks.
94. Mr Chapman and Miss Jones for B&W make a detailed analysis of what they submit is evidence of deterioration of the site (an increase in the volume of dust and debris) between 5 and 11 August and again between 11 and 19 August. I do not think that the evidence bears out that analysis, based as it is on subjective impressions of some members of the school staff who came in to work on various days over the summer holiday.
95. In all the circumstances I conclude that B&W took down tiles on more occasions than 29 July and 4 August 2003. The fact that B&W have no record of men returning to site in early August is no reliable guide to whether or not they did in fact go back. I conclude that, with the exception of a small number of tiles which B&F admit to having removed themselves, B&W took down all the tiles which were removed from both corridors and classrooms. I also conclude that they undertook this task recklessly and with no regard whatsoever for the consequences to health, safety or damage to the buildings in which they were working. They failed to take even the limited safety precautions with which they had agreed to comply. Some B&W operatives failed to wear protective clothing. In some, though not all, cases, they failed to cordon off the areas in which they were working or to prevent others walking into the areas in which they were working. In some cases they did not lay plastic sheeting on the floor. They did not bag all the tiles which had been taken down.

Events on site during w/c 11 and 18 August 2003

96. Towards the end of the project, B&F began to pull cables through the ceiling voids. The cables were heavy and it took a number of men to undertake the task. It was hard work. The hole created by the removal of a ceiling tile was big enough for a man to stand with head and shoulders through into the void and pull the cable. I accept that the weight of each cable was taken by the wooden joists or battens which were capable of carrying the weight. While B&F operatives tried to ensure that tiles were not abraded during the process, it is likely that there was some abrading of adjacent tiles but there is no evidence of serious damage to tiles during this process. In pulling the cables through, B&F men disturbed dust within the void.
97. Mrs Pritchard was on holiday from 1 until 11 August. When she returned to the school she saw that the buildings were in a mess. She was unable to find Mr Middlebrook. She telephoned PHP, learned that Mr Woods was on holiday, and spoke to Mr Bennett of PHP. She told him that she was really concerned and did not know what to do; she asked Mr Bennett to assist her. Mr Bennett had no knowledge of the project. He located Mr Middlebrook.
98. Mr Russell Davies and Mr Derrick Owen of B&W attended at the school on 12 August 2003. (That attendance is recorded by Mr Middlebrook in his note of September 2003.) They removed tiles which had been left lying around. That was probably the last visit to the school by B&W.
99. Mr Middlebrook telephoned Mrs Pritchard on 12 or 13 August and told her that the mess had been cleared up. While there was concern at the school about the mess which had been created, at that stage the serious nature of the problem was not apparent to the school. Although some of the tiles which had been left lying around had, by then, been collected and removed, there were still debris and a great deal of dust. Mrs Pritchard did not appreciate the seriousness of the situation. She arranged for school cleaners to clean up the mess, so they dry swept the dust and debris. As Mrs Pritchard explained, and as is understandable in the circumstances, she had no reason to suspect that the dust lying around was asbestos dust. Had she so realised, I have no doubt that she would have taken steps immediately to ensure the safety of all concerned.
100. About 150 girls were due to come to the school to collect A level results on 13 and 14 August. Mrs Pritchard taped off most of the building so that those attending had access only to limited areas of the building.
101. By letter to PHP dated 13 August 2003, Mrs Pritchard wrote to Mr Woods to express her concerns, as follows:

"The purpose of this letter is to express my concerns formally about the subcontractors engaged by Briggs & Forrester to remove the asbestos. From the outset, I was not convinced by the method to be employed; previous works of the same kind had always followed the same pattern -- regardless of the contractor involved.

During the first week of the 'removal' there was little evidence of any controlled conditions being used and, indeed, very little protective clothing. The second week (during which I was away) the caretakers tell me that the situation was the same -- in some cases they told me the electricians were removing them, as they needed access.

When I returned to work this Monday, I found asbestos tiles lying around the school on the floor, leaning against the doors and a bag of tiles left unsealed in our changing rooms. Some of the discarded tiles were broken. I contacted [Mr Middlebrook] and he came out to investigate. The next day the contractors came back and took the tiles away (carrying them in their hands and one chap balanced one on the top of his head). They left behind the asbestos dust on the carpets.

[Mr Middlebrook] tells me that he had some different problems with them, but I must register the fact that they did not appear to comply with any Health and Safety guidelines I know of and very clearly broke the law.

I wanted to record these things formally as Briggs & Forrester and ultimately the school are paying for 'specialists'."

102. Mr Woods was still on holiday when that letter arrived at PHP. No one at PHP took any action in Mr Woods' absence. Mr Woods returned on 18 August 2003. He telephoned Mrs Pritchard that day and arranged to visit the school the following day.
103. Mrs Goswell informed Mrs Pinder on 14 August that the school "looked like Beirut". Mrs Pinder went to the school. She found the school to be in a mess. By 18 August, Mrs Pritchard thought that the problem was being resolved, and that it was acceptable to wait until Mr Woods' return when he could advise her.
104. On 19 August the power was switched on again. Mr Woods visited the school. He could see dust but did not know whether it was builders' dust or asbestos dust. He asked B&F to arrange for analyses of dust to be carried out. Mr Woods wrote to Mr Braybrook that day, recording his concern and that he had asked Mr Middlebrook to identify actions to be taken to ensure that there were no health risks arising from the way in which the work had been carried out.
105. B&F agreed immediately to appoint a specialist agency to test for contamination. Mr Middlebrook contacted Ensafe Consultants Limited, asbestos, project management and occupational health and safety consultants. Mr Mark Rhodes of Ensafe attended at the school on 20 August 2003. He found extensive asbestos contamination, and noted that there was an open skip in the car park containing asbestos flashcards from old distribution boards. I accept that Mr Middlebrook did not know that these contained asbestos.
106. The school needed to make the building available to students who would be attending the following day to collect GCSE results. Mr Kirkman, managing director of Ensafe, arranged for a specialist contractor, Aspect Contracts, who were working in the vicinity to attend and make the skip safe and to create a clean area for students to be able to attend the school. Access to the rest of the school was restricted.
107. Mr Middlebrook asked Ensafe to contact HSE.
108. An emergency meeting was held at the school on 21 August, attended by representatives of Ensafe, B&F and the school; Mr Woods also attended. B&W were not invited. Mr Kirkman advised that this was a RIDDOR reportable incident. A full investigation would be needed and samples taken. The school agreed to appoint Ensafe directly, not through B&F. (Subsequently, Ensafe were instructed jointly by the school and NCC and were closely involved in the decontamination and remediation work.) HSE were informed that day. Mr Kirkman advised that air samples be taken throughout the school to test for contamination levels.
109. B&W were not invited to the meeting on 21 August. They suggest that, because they were not represented at the meeting or at subsequent meetings, they were treated as scapegoat for the problems which had arisen. Mr Buckle expressed his concern at not having been invited to assist in the clean up operation, and questioned Ensafe's impartiality on the ground that Mr Scott, who had been a director of B&W, now worked for Ensafe, and that there was some animosity between the two men. There seems to be no justification for those criticisms. B&W were invited, in September 2003, to observe what was being done at the school. Loss adjusters for their insurers were involved from an early stage.
110. HSE attended on 26 August and made video recordings of the extent of contamination at the school. These present a horrific picture of asbestos debris and dust, broken tiles lying on floors, loose tiles stacked in various rooms, red asbestos waste bags lying around. One can see ceilings from which some asbestos tiles have been removed. Some tiles appear to have been ripped out leaving corners with screws in still affixed to the ceiling. One can see the bulkhead, which turned out to contain asbestos, which had been cut with a jigsaw.
111. On 27 and 28 August, Ensafe made a full investigation at the school. Samples were taken. Subsequent analysis showed these to contain Amosite (brown) and Chrysotile (white) asbestos.
112. By 21 August, B&F's work was about 90% complete. The school terminated B&F's contract through PHP in November 2003.

The consequence to the school

113. The contamination had a significant impact and staff at the school experienced enormous difficulties. As at August 2003, the school found itself in an intolerable position. The buildings had been closed because they were unsafe. Staff at the school felt badly let down by PHP and the contractors. NCC took over control from the governors of the school, because NCC had an obligation to provide facilities for the pupils to be educated. NCC had the resource to do this. The school did not.
114. The school buildings were not reopened to pupils until Easter 2004. In the interim period, it was necessary for the school, at very short notice, to manage the enormous practical problem of housing and educating nearly 1,000 pupils without use of the school's buildings or equipment, in addition to coping with the problems presented by the clean-up operation and need to replace equipment and other resources.
115. The school and NCC arranged use of buildings around the county for lessons and sport facilities and used temporary, mobile classrooms. Administrative staff worked in caravans on the playing fields. They spent much time dealing with enquiries from anxious parents. Some teachers had to travel to outlying, temporary locations to give lessons. The school had to engage supply staff to monitor pupils while they waited for teachers to arrive to give lessons. The difficulties are obvious.
116. The school lost a significant number of important papers. For example, pupils' course work, including for public examinations, was lost. The benefit of work undertaken before the problem arose was lost eg lesson plans had to be abandoned because they had been written for lessons which could not then be taught because the teachers lacked the resource to back them up. The school's records could not be accessed. As I explain below, an effort was made to copy important documents but only a small proportion could be copied. The school could not use any equipment, including science equipment and computers. Management time was spent on the many practical decisions to be taken in relation to the housing of pupils and staff, the clean-up operations and the obtaining of replacement equipment
117. The school staff, understandably, found all this very stressful. Several took sick leave. Many now have a long-term worry of possibly developing an asbestos-related disease as a result of having been exposed to the asbestos dust during that period.
118. Mrs Pinder, the school's head at the time, said that it had been an extraordinarily difficult period for the school. She said at trial: "It was a tremendous test on the school and I think that we are very proud of the way that we got the school back on its feet and the way our students responded…..It was a very emotional period. I'm quite upset about it, and it was a long time in the past."

B&W's breach of contract

119. B&F contend, and B&W accept, that there were two implied terms in their contract with B&W, namely (1) that B&W would exercise reasonable skill and care in identifying a safe methodology for the removal of the asbestos ceiling tiles; and (2) that they would carry out their work in a good and workmanlike manner. B&W accept that the choice of semi-controlled conditions amounted to a breach of duty on their part. In my judgement, that amounted to a breach of the implied term to which I have referred. For the reasons set out earlier, I reject B&W's case that they executed the work in a good and workmanlike manner. In my judgement, B&W were in breach of the second implied term: they undertook the work on site in a reckless and wholly uncontrolled manner.

Causation

120. As Mr Buckle accepted, B&W designed the methodology for the asbestos removal work. None of B&F, the school, nor PHP could have undertaken this task: it had to be done by an HSE licensed contractor. The methodology here was utterly wrong. B&W's choice of semi-controlled conditions led inevitably to some contamination. Had they made it clear that the work could have been undertaken only if fully controlled conditions were adopted then none of the problems would have arisen. It is likely that the school would, itself or through NCC, have found funds to enable all asbestos tiles to be removed and the whole void cleaned. Although the electrical work was urgent, I have no doubt that neither the school nor NCC would have permitted necessary work to proceed unless it could have been undertaken safely.
121. B&W contend that the contamination was the inevitable consequence of the design of the works ie of the electrical works, for which PHP and B&F, but not B&W, were responsible. I reject that submission. The contamination was the inevitable consequence of the methodology which B&W proposed and adopted for the asbestos-related work. In my judgement it is artificial for B&W to conflate the electrical work and asbestos removal into one "works" and say that the design of these was the responsibility of B&F/PHP. It was not the carrying out of the electrical work as B&F planned to do this which caused the contamination. It was B&W's breaches of contract which caused this. Mr Irvine calculated the likely spread of fibres resulting from various activities, including the careful removal of tiles, the disturbance of voids by pulling cables through, carrying unbagged tiles and so on. Asbestos fibre release was the consequence of the removal of 200-240 tiles from classrooms and corridors; doors had been left open so fibres spread into areas where there had been no ceiling removal; people moving through contaminated areas would cause the spread of contamination, and that would be particularly so where areas in which tiles were removed had not been sealed off; operatives walking through the school without having removed contaminated clothing would cause the spread of fibres; leaving asbestos debris and dust would cause their spread; walking through the school carrying unbagged tiles would cause the spread of fibres. The contamination began when the first tile was removed and continued thereafter. B&W's actions, as I find them, caused the spread of fibres throughout the trafficked areas. The result was high contamination to all areas.
122. B&W are in my judgement responsible for almost all of that contamination. While B&F's actions, in removing a small number of tiles, carrying unbagged tiles down to the basement, drilling the bulkhead, and working in the ceiling voids by pulling cables through, also contributed to the contamination, these actions are unlikely to have caused any significant or measurable increase in the level of contamination resulting from B&W's breaches of contract. In my judgement, B&F's contribution was immaterial when compared to the contamination caused by B&W's reckless work. The school contributed by instructing staff to dry sweep to clear up the mess. The contamination caused by the school is also likely to have been too small to have been material.
123. B&W criticise PHP for not having obtained the school's asbestos register. That in my judgement is irrelevant. It would have made little or no difference if PHP had seen the register. The register noted the presence of asbestos ceiling tiles, but that was already known by all concerned. B&W criticise the other defendants for not having carried out a risk assessment. Again, I am not persuaded that preparation of a detailed risk assessment would necessarily have caused PHP or B&F to raise concerns about the way in which B&W planned to undertake the work.
124. There is criticism of B&F for failure to produce a written method statement. Again, I am not persuaded that production of such a document would have affected the way in which B&W planned to carry out the work.
125. In my judgement, there is no doubt that the serious contamination was caused by B&W's breaches of contract. B&W had knowledge of and expertise in working with such a dangerous material. B&W, of all those involved, should have realised that there would be a fundamental problem in undertaking the work at all as they proposed. They should not have begun to do it. It is simply not acceptable for them to blame others for not having spotted the fundamental error in their proposed methodology or for not having stopped the work once this was under way. It is not open to B&W to say that others should have rung warning bells and prevented B&W from causing the problem. B&W were the specialists. They, better than all the others, knew what should have been done.

Measure of damages for breach of contract

126. It is common ground that, where a main contractor sues a sub-contractor for damages for breach of contract, the measure of the main contractor's loss, in relation to its liability to the employer, will generally be the value of any reasonable settlement which is referable to the sub-contractor's breaches. In Biggin & Co Ltd v Permanite [1951] 2 KB 314 Somervell LJ noted that the law encouraged reasonable settlements, particularly in cases where strict proof would be a very expensive matter. The plaintiff must, he said, lead evidence as to what would probably be proved if the original claim had proceeded so that the court can come to a conclusion whether or not the sum paid was reasonable. The question therefore is whether the £3.1m which B&F paid in settlement was a reasonable sum.
127. I find helpful the judgment of Lord Loreburn LC in Lodge Holes Colliery Company v Mayor of Wednesbury [1908] AC 323:

"Now I think a Court of justice ought to be very slow in countenancing any attempt by a wrongdoer to make captious objections to the methods by which those whom he has injured have sought to repair the injury. When a road is let down or land let down, those entitled to have it repaired find themselves saddled with a business which they did not seek, and for which they are not to blame. Errors of judgment may be committed in this as in other affairs of life. It would be intolerable if persons so situated could be called to account by the wrongdoer in a minute scrutiny of the expense, as though they were his agents, for any mistake or miscalculation, provided they act honestly and reasonably. In judging whether they have acted reasonably, I think the court should be very indulgent and always bear in mind who was to blame. Accordingly, if the case of the plaintiffs had been that they had acted on the advice of competent advisers in the work of reparation and had chosen the course they were advised was necessary, it would go a very long way with me; it would go the whole way, unless it became clear that some quite unreasonable course had been adopted."

128. In my judgement, B&W have sought to subject the claimant's claims to minute – and largely unnecessary - scrutiny of the sort identified by Lord Loreburn. My task is not to decide precisely how much the claimants would have recovered had the case gone all the way to trial but to decide whether the sum of £3.1m was reasonable in the circumstances. Nevertheless, I have considered carefully all of the evidence which has been adduced, and record below my conclusions with regard to the main heads of the claimants' claims against the three defendants.

The school's claims

129. The school claimed £4.54 million in respect of direct costs plus £989,590 losses said to have been incurred by reason of a reduced intake of students, plus interest. The sums were claimed by the claimants jointly and against each defendant equally, with no differentiation between them. In summary, the heads of claim were as follows:

Category 1: Initial asbestos survey report	28,002
Category 2: Emergency school premises rental	87,134
School & pupil transport	31,551
Teachers & academic personnel and other staff costs	59,201
Catering personnel	22,077
Emergency teaching supplies	18,044
Catering equipment lease payments	2,952
Loss of catering income	19,367
Category 3: Emergency replacement of school resources	935,044
Category 4: Enabling works	19,005
Category 5: Temporary classrooms & infrastructure accommodation cost	600,756
NCC staff involved with temporary accommodation	25,546
Category 6: Asbestos decontamination work:
Ensafe	132,789
Aspect	951,625
Silverdell	655,448
Bletsoe-Brown	10,124
Category 7: Refitting work:
Buildings	721,729
NCC employees	54,413
Category 8: Photocopying of documents	159,329
Category 9: Reduced intake of students	989,590
Total:	5,527,026

130. NCC had a statutory obligation to educate the pupils. A priority was to cope with pupils arriving for the autumn term and to get the school reopened as quickly as possible. Of course, the school buildings could not be used for the autumn term. NCC attempted to balance the likely cost of decontamination and of refitting and the perception of pupils, parents and staff that NCC might not be doing sufficient to ensure that there was no risk of further contamination or that decontamination work was being done on the cheap.
131. Mrs Pinder's main concerns – again, understandably- were that pupils and staff should be safe in the school and that parents could be reassured that the school and equipment had been properly cleaned. It would have been difficult to explain to parents that there was no danger if any ceiling tiles remained. It was decided to remove all AIB tiles whether or not these had been damaged. Mrs Pinder wrote to parents of prospective pupils at the school by letter dated 8 October 2003, including the following: "I can assure you that our buildings will be totally safe once decontamination and refurbishment have been carried out. They were completely safe before the contamination because sealed asbestos presents no problems. They will be completely safe in the future because the asbestos tiles and all items that could harbour asbestos fibres will be removed and replaced. As a consequence, much of our equipment and resources, as well as furnishings and fittings, will be new. All of our buildings will be back in use after Easter but in the meantime we will have temporary classrooms on our site from November".
132. As a result of the remediation work, other projects eg the ongoing project to replace windows and a plan to build a new sports hall, had to be postponed.
133. When Ensafe were brought in, they found that Aspect, an NCC-approved asbestos contractor, were already working in the locality. To avoid delay, Ensafe instructed Aspect to begin work at the school. They cleaned desks and chairs, which enabled the school to use these in other locations. Subsequently, Ensafe arranged for two contractors to deal with the decontamination, namely Aspect and Silverdell. B&W and PHP criticise Ensafe's approach to the decontamination and refitting work. The principal criticisms concern alleged lack of proper planning and assessment by Ensafe, Ensafe's fees, the payments to Aspect and Silverdell, the approach to the refitting work, particularly the decisions to strip out cables which B&F had installed and all asbestos ceiling tiles, even though many of these were not damaged at all. I deal with these in detail below.
134. Ensafe arranged for the school to be cleared as quickly as possible. They undertook extensive air testing and analysis of samples. All of the school buildings were enclosed to enable decontamination work to be undertaken. Once work had been completed, a clearance certificate was required for the whole school. Some items were immediately destroyed eg soft furnishings which could not be cleaned. Some hard items eg desks and chairs were cleaned. Many items were bagged and quarantined for later inspection.
135. Ensafe liaised closely with NCC and the school with regard to decontamination of buildings and equipment and refitting work. Mr Hunt of NCC adopted a cautious approach to the scope of work and monitored costs closely. He described the scope of work as a moving target. As Mrs Pinder explained, the scope of work was tempered as it progressed; some of the initial proposals were not effected eg removal of internal partitions.
136. Ensafe's fees: Ensafe did not have to tender competitively for their own work. They negotiated a fee based on £28 per hour to manage the decontamination work. This appears to have been about their standard rate. Their fees were agreed by NCC and the school. Mr Hunt explained that, after Ensafe had been working for a week or two, he considered fee rates charged by other consultants. The fees proposed by Ensafe were in the same region as those of other consultants. He therefore advised that Ensafe's services be continued. B&W suggest that a more appropriate hourly rate would have been £22.
137. Aspect and Silverdell: There are two areas of concern. The first is that work was let on a time-expended basis and not put out to tender; the second concerns the hourly rates charged by Aspect and Silverdell. On examination, neither is a matter for concern.
138. The school and NCC took the view that the decontamination work should be let without a formal process for inviting tenders. Mr Hunt considered that it would have added several weeks to the programme if tenders had been obtained. Work had to be carried out urgently so as to be able to reopen the school as soon as possible. Most asbestos companies would have been very busy during the school holiday - that is the time when most schools arrange for maintenance, refurbishment, refitting etc to be carried out. Once September was reached, however, it was likely that there would have been a dip in the market and companies would then have had capacity. I accept that the decontamination work at Southfield school was of such a scale that only a few companies in the country would have had the capacity to do the work.
139. Given the scale of decontamination work required, the three asbestos experts consider that it would have been prudent to undertake a tendering exercise for the work to obtain reasonable costs and labour rates. Mr Webb is a consultant at Mitchell Price (who were instructed by B&F's insurers); he is also B&F's quantum expert. He began corresponding with Ensafe during September 2003. He stated that he considered that a wholesale strip out was not necessary; contamination should be considered not on an overall but on a room-by-room basis; the majority of building components could be salvaged; sample decontamination should be undertaken to books, records and computers; paying all contractors on site the same rates was flawed; work should be competitively tendered; the school was contaminated "to a degree" before B&F commenced work; Ensafe's approach would result in substantial betterment. Mr Webb criticised the decision to remove all AIB tiles. He repeatedly criticised Ensafe for having engaged Aspect and Silverdell on a time-expended basis, as that removed the incentive for the contractors to push ahead with work.
140. I have also heard most helpful evidence from Mr Kirkman of Ensafe. In considering Mr Kirkman's evidence, I bear in mind that Ensafe are likely to want to justify the approach that they took and that Mr Kirkman was not called as an expert witness, so his evidence was not independent in the same way that the evidence of the experts should have been. I also bear in mind that the experts expressed opinions and recorded matters on which they agreed and disagreed before factual evidence was adduced at trial. I found Mr Kirkman to have been a straightforward witness and have confidence in his evidence. I accept his evidence that Ensafe had chosen not to obtain tenders for a package of work because that would have taken too long and because it was not possible to produce a fully defined scope of work; it was difficult to identify what needed to be done. Mr Irvine said that it would have been possible to conduct a tendering process for the decontamination work within a very short period. However, in expressing that opinion he did not take into account the time needed to identify the scope of work. I am not persuaded that it would have been possible to invite and receive tenders as quickly as Mr Irvine suggested, and would not criticise Ensafe's decision to let the work on a time-expended basis.
141. B&W contend that the rates charged by Aspect and Silverdell were too high; substantially lower rates could and should have been negotiated. That is supported by Mr Kitt, B&W's quantum expert. Ensafe negotiated the same hourly rates to be paid to Aspect and Silverdell. Each set out in a letter the hourly rates it would charge. The two letters are in precisely the same terms and quoted precisely the same hourly rates for the various levels of worker. On the face of it, that is odd. There is, however, a satisfactory explanation. Mr Kirkman explained that Ensafe had approached a number of contractors and obtained daily rates based on a guesstimate of the nature, scope and period of work. Aspect's and Silverdell's had been the most competitive. Ensafe considered not only the rates but also the standard of contractor, its resources (eg availability of workmen, the ability to do the work quickly) and other factors to determine value for money and who would be able to complete work as quickly as possible. It would have been difficult to find one contractor able to undertake a substantial job at short notice. At that time, Aspect and Silverdell were effectively the largest removal contractors in the UK. The job was probably too big for one contractor alone. Of the two, Aspect had given the better rates. Ensafe told Silverdell that if they wanted to be involved, they would have to match Aspect's rates. Silverdell reduced their rates to those which Aspect had quoted. The contractors had to work together "in harmony" as Mr Kirkman put it. Ensafe therefore did not pit one against the other. Neither Ensafe nor Mr Hunt wanted two companies working side by side on the same site but being paid different rates. Accordingly, the offer letters from Aspect and Silverdell represented the final, agreed position.
142. Mr Hunt said that he had dealt with other asbestos contractors (though not on a job of the size with which we are concerned) and knew that the hourly rates on this project were about in the right range.
143. The court should be slow to favour a theoretical figure, which B&W advance now, over evidence of rates which appear to have been negotiated properly and in very difficult circumstances. The school was faced with a catastrophe. They were calling in contractors to begin at very short notice, and demanding almost all of their available work force. They were not in a position to negotiate a reduction in the hourly rates of the sort suggested by the experts. One must take care to consider this not with the benefit of hindsight but from the point of view of the school and NCC at the time. I am not persuaded that it is right to consider the hourly rates as too high.
144. B&W sought to show that Aspect and Silverdell had been careless in recording time spent on site, on occasions overstating this. There is some evidence on the face of time sheets that there was some carelessness in the recording of time. However, Mr Hunt monitored costs on the project carefully. On at least three occasions he waited outside the school covertly to observe times of entry and exit by workmen in order to check the contractors' claims for time spent on site. It was clear to me that Mr Hunt had been diligent and careful. He checked invoices carefully and passed them for payment only if satisfied that they represented valid claims for payment. There is insufficient evidence to support a conclusion that Aspect and Silverdell had overcharged to a material degree.
145. Two other organisations were brought in and considered the remediation work. European Asbestos Services Ltd were brought in by loss adjusters for B&W's insurers in September 2003. And, following a meeting on 24 September 2003, and as agreed, Ensafe commissioned a report from the Institute of Occupational Medicine ("IOM").
146. Mr Spillane, managing director of European Asbestos, visited the site in late September and again in October 2003. He reported the damage which had been caused during the 2003 work and noted evidence of some pre-existing damage to tiles. Mr Spillane costed Aspect's method statement. He costed this, on two bases: (1) decontamination work and disposal of porous items (to include soft furnishings, computers and papers) and (2) removal of remaining ceiling tiles throughout. His estimate of the cost of (1) was £384,000 and of (2) £289,000. That was necessarily an estimate only of the cost which might be incurred. I do not derive much assistance from that report.
147. Representatives of IOM inspected the school on 1 October 2003 and reported later that month. By the time of IOM's inspection, some of the decontamination work had already been completed. They recommended that the entire school undergo a decontamination procedure. The extent of the decontamination would vary across the school dependent upon the levels of contamination, which it should be ascertained by testing. A methodical approach was required. Some areas would require an environmental clean. Much of the furniture, equipment and pupils' work in those areas would be readily salvageable. IOM recommended that the school be divided into discrete areas; and the level of contamination in each room, corridor and stairwell should be ascertained from the existing data. Each area should be categorised according to the level of contamination. Where there were low or medium levels of contamination, IOM recommended that some items could be cleaned and salvaged, though some items which could not be sufficiently cleaned might have to be disposed of. Where there were high levels of contamination, it might be more cost-effective for items such as floor coverings to be removed; books, folders and files, however, should be capable of being salvaged; electrical and electronic equipment would have to be quarantined until contamination levels could be ascertained. The majority of the areas in the school required a full environmental clean, under fully-controlled conditions. IOM considered that there was no requirement to remove the asbestos ceilings throughout the school, as they remained in good condition, apart from those which had been disturbed by the electrical installation.
148. Mr Jess Scott of Ensafe told Mr Hunt about the report, and said Ensafe did not agree with the report's findings. It is curious that NCC appear not to have considered the IOM report itself, only Ensafe's account of it. However, that does not detract from my view that Mr Hunt was monitoring the project adequately.
149. B&W say that it is not at all clear that the school or NCC were open to less extensive proposals than those put forward by Ensafe; for example, little attention was paid to the more conservative report produced by IOM. I think that criticism is not justified. Ensafe challenged IOM's report and conclusions at the time. Mr Kirkman says that they did identify which areas had greater and which lesser levels of contamination, as IOM subsequently suggested. He defended the decision to strip out all tiles and clear the voids. They set out their position in a report, which is dated August 2003, but was in fact issued in January 2004:

"Careful consideration must be given as to not only the level of risk actually posed by the asbestos fibre contamination identified, but also the risk perceived by others. It is essential that the school's employees, pupils, parents and governors have full confidence that the school is safe to re-enter and that no residual risk remains. Due to the scale of asbestos removal and decontamination works required to suitably remediate this situation, it is recommended that the remedial works must initially err on the side of caution but be regularly reviewed and monitored to ensure that they remain suitable and sufficient. Further, and ongoing, tests and inspections shall be required to try and accurately quantify the level of asbestos contamination in various areas, so the level of remedial works could be amended if necessary.

It must be noted that alternative (lesser) remediation options could be proposed, and possibly conducted, that would in principle potentially comply with the minimum legal standard. However, it is our opinion that should any lesser standard be utilised it would probably not only be unacceptable to the school but it would also leave a significant residual risk to the school's users in terms of health, future litigation, ongoing maintenance requirements (increased costs) and viability due to loss of confidence by parents and others. All of these factors were taken into consideration when detailing the recommendations within this report."

150. I have taken carefully into account the views of Mr Pepperell, Mr Irvine and Mr Hodgkiss, the asbestos experts, and particularly with regard to matters where they were in agreement. They agreed that it was likely that the school had been contaminated before 2003 to a detectable level as a result of the presence of AIB ceiling tiles and the potential for damage or disturbance to these; and that areas such as voids above suspended AIB tiles and internals of partition open to those voids are likely to have been contaminated before work began in 2003.
151. I deal with the heads of claim on which the parties have concentrated as follows:

Category 3, emergency replacement of school resources:

152. In late December 2003 NCC gave the school an emergency grant of £500,000 to cover the cost of replacement equipment. As Mrs Pinder explained, this fell far short of what was needed to buy equipment and materials to replace what had been lost. She invited faculty heads to bid for what they needed, then decided the allocation. The reality was that the many requests could not be satisfied. In the end, the school could afford to replace only the basics.
153. B&W sought to demonstrate that the school was at least as well, if not better, equipped following the catastrophe than before. They draw attention to an Ofsted report dated January 2005 which noted: "The school is well-resourced overall. This is mainly because departments have new resources to replace those lost last year. Considerable funding has gone into ICT resources which include hardware, software, data projectors and interactive whiteboards…..The crisis brought about by the asbestos contamination set back the implementation of ICT across the subjects of the curriculum. Subsequently, computer resources have been replaced and updated and the ratio of computers to students is now well above the national average for secondary schools."
154. The asbestos experts agreed that contamination assessment of school equipment such as books, musical instruments, computers, laboratory equipment, was inadequate and not such as to justify the wholesale disposal. They considered that it would have been possible to clean many of these items and return them to the school.
155. Prior to the contamination, the school had about 200 elderly computers and had leased about 80 new computers. Brand new computers had been located beneath areas where tiles had been removed. The only way to clean the computers was to open them up. If that were done, the manufacturers would have refused to stand by guarantees. It was, therefore, necessary to replace all computers. It would not have been sensible to attempt to replace like for like. The school, reasonably in my judgement, decided to upgrade equipment when possible. There was, for example, no point in buying video players when technology had moved on and DVD players were more appropriate. It was reasonable for the school to have upgraded computers and other electrical equipment. After the contamination, the ratio of computers to students was well above the national average for secondary schools, but I accept that the school was still left in a position where they had fewer computers than before the contamination.
156. As Mrs Pinder explained, while the replacement resources which the school obtained were in good condition, these did not match in volume anything like the resources which the school had before. I accept Mrs Pinder's evidence that, notwithstanding the new equipment which was purchased, the school ended up substantially worse off in terms of the volume of resources, and that the school is likely still to be under resourced as a result of the clean-up operation.
157. Some of the school's equipment and resources were double bagged and stored for inspection at a later date. About 10,000 bags containing various items such as textbooks, lesson plans, library books and so on were kept. The cost of testing each bag was approximately £100. Several bags containing items which had been removed from lightly contaminated areas within the school were chosen at random and tested. When the results of those tests were received, it was found that there were asbestos fibres present in many instances. Ensafe, reasonably, in my judgement, advised that it would be pointless to test thousands of sacks from other areas where the level of contamination had been greater. Most of the items in those sacks were, therefore, destroyed. This illustrates the scale of the decontamination problem which the school faced.

Category 6 decontamination work

158. For the reasons set out earlier, I reject B&W's criticism of Ensafe's approach and supervision of the project.

Category 7 refitting work

159. The principal issue here is whether it was necessary to remove all the asbestos ceiling tiles. Prior to the events of 2003, generally, ACMs were in an acceptable condition and NCC had no plan to remove these from the school buildings. HSE do not advocate removal. Mr Hunt accepted that removal of all AIB tiles had the benefit that maintenance costs would be lower. The refitting and redecoration work also constituted a tangible benefit to the school, as the buildings were in a substantially better condition than before the contamination. NCC's Director for Schools accepted, in a report dated December 2003, that there was an exposure to a potential betterment argument. The report noted that, while "betterment" was difficult to estimate at that stage, and would have to be negotiated with insurers, at that stage NCC's estimate was £0.5m best case, £1.5m likely, and £2.2m worst case scenario.
160. The asbestos experts agreed that removal of all AIB tiles from the whole school was not required to allow reoccupation of the school for normal use ie to return the school to its former state. It was not necessary for cabling to be removed; it could have been cleaned in situ and the voids then sealed.
161. I am persuaded by the evidence of Mr Kirkman. He explained helpfully the real practical difficulties in creating an effective seal where cables pass through the ceiling void. It would have been very difficult to create an effective seal where cables passed between clean and contaminated areas. Mr Kirkman accepts that pre-existing contamination in voids was a factor in the decision to remove all tiles rather than seal the voids. However, there was a need for full enclosures anyway. A ceiling which was half asbestos and half non-asbestos would be more difficult to manage. Mr Kirkman said that they compared the length of time it was likely to take to remove all tiles and the time to remove only some, and concluded that it would have taken twice as long to remove only some tiles than to remove all and undertake a complete decontamination. To remove only some tiles and clean the cables in situ would probably have been more expensive. Even then, because of the real difficulties of creating an effective seal, Ensafe could not have guaranteed achieving clearance if some of the asbestos tiles had been left in place. I accept that it would probably have been more difficult to clean the voids and achieve clearance than if all tiles were stripped out, and it may well have been cheaper to remove all asbestos ceiling tiles and replace these with Supalux tiles, than to remove only damaged tiles and leave undamaged AIB tiles in place.
162. A consequence of removing cables and all AIB tiles was that work could not be completed by the end of December 2003.
163. Whilst decontamination work was being undertaken, the school took the opportunity to do other work e.g. reconfiguration of the administration block and science rooms. As Mr Hunt explained, it made sense for such work to be carried out in conjunction with the refitting work. The school did not include the cost of the reconfiguration work in its claim.

Category 8:

164. A substantial volume of paperwork of all sorts was contaminated. This included, for example, books, documents,. artwork displays, coursework, lesson plans. The claimants made a substantial claim for the cost of photocopying. Ensafe advised which paperwork could be cleaned and which could not. As the evidence unfolded, and particularly that of Mr Kirkman, it became clear that dealing with contaminated papers was a major problem. If it had been vital to retain the original of any particular document, this could have been laminated to prevent the release of any asbestos fibres which may have attached to it. Plainly, however, it would have been a very time-consuming, and expensive, process to laminate all paper items. Those documents which had to be retained were photocopied, by a rather make shift method, then the original destroyed. The cost of copying all paperwork was very high, but it was a practical solution. In the end most paper items were destroyed.

Category 9:

165. In 2003 Southfield was a successful school. It was oversubscribed. The claimants claimed £989,590 in respect of losses resulting from a reduced intake of students, from September 2003 until 2010/11. Their case was that a consequence of the contamination was to dissuade prospective pupils from attending the school.
166. Mrs Lorentzen is, and at material times was, the school's finance and business manager. She gave evidence about the impact on funding and pupil numbers resulting from the contamination. Immediately after the school was closed, there was anxiety amongst parents. It was clear that the school buildings would not open at the beginning of the school year in the autumn of 2003. I accept that it is likely that some parents decided to send their daughters to other schools. Until September 2004, the school operated from a number of different sites in the Kettering area, in mobile classrooms. While the buildings were closed, the school could not host a parents' evening for parents of prospective pupils to look at the school and its facilities with a view to their daughters attending the school during the academic year 2004/2005. Parents could not inspect the full range of what the school, in normal circumstances could offer. Parts of the school were still sealed off. The library was empty. The science laboratories had virtually no equipment. There were only a few computers for use by the pupils. Prospective parents' evenings were held in other locations. Many parents voiced their concern about the contamination and were anxious to know how the school would ensure that it would not happen again. At an open day in July 2005, parents were still raising concerns regarding the contamination.
167. At material times, the funding for the school was calculated by use of a formula which was based on the number of students on the roll and their ages. Mrs Lorentzen accepted that her calculation of lost prospective pupils was based on too high a retention rate.
168. B&W contend that this was a hopeless head of claim. B&F in their pleadings as against the claimants contended that the claim was irrecoverable. Indeed, there was no written, direct evidence to substantiate this head of claim. Concerns by parents of prospective pupils were expressed orally, and there was no record of such discussions. Mr Kitt and Mr Shorney (an expert in school funding called by B&F) agreed that the reduction in pupil numbers admitted to year 7 in 2004/5 and 2005/6 when compared with the intake in 2003/4 could be attributable to a number of factors unconnected with the contamination. It was not possible to say with any certainty how many pupils did not attend the school due to contamination. They also agreed that the claimants' allegation that the loss of income was not matched by any equivalent reduction in overheads was not tenable.
169. In my judgement, it is unlikely that much if any of that head of claim would have survived the inevitable attack at trial.

Betterment and breaking the chain of causation

170. Mr Chapman and Miss Jones submit that the claimants should have given credit for the cost of work which went beyond that which was reasonably necessary to remedy the contamination caused by the 2003 work. The principle point in issue here concerns the removal of most of the ACMs, in the form of AIB tiles, from the buildings.
171. Harbutt's "Plasticine" Limited v Wayne Tank and Pump Co Ltd [1970] 1 QB 447 gives guidance on the question of betterment, and in particular the judgments of Lord Denning MR at page 468 and of Cross LJ at page 476 are helpful. In his judgment in The Board of Governors of the Hospitals for Sick Children v McLaughlin & Harvey plc and others 19 Con LR 25, His Honour Judge Newey QC noted that a plaintiff's actions in carrying out more remedial work than necessary might break the chain of causation. The learned judge also pointed out that the mere fact that work produced a better building than before does not necessarily mean that a plaintiff acted unreasonably. Work of the quality executed may have been the only practicable method of overcoming the consequences of the defendant's breach of duty. He said "When a plaintiff faced with a need to carry out works of amelioration because of a defendant's breach of duty has deliberately chosen to rebuild to a higher standard, the courts have in justice to both parties dealt with the position by awarding the plaintiff the cost of the works, less a credit to the defendant in respect of betterment." Judge Newey said that, where works have been carried out, it is not for the court to consider de novo what should have been done and what costs should have been incurred either as a check on the reasonableness of a plaintiff's actions or otherwise. I have considered carefully the learned judge's review of the law at paragraphs 93-99 and his application of the law to the facts of that case.
172. Mr Chapman and Miss Jones submit that the improvements at the school arose not as a happy incidence of the works confined to those reasonably necessary as a result of the contamination, but from the decision to carry out more work than was in fact needed. This was not a new building which any of the defendants had constructed in a faulty manner. The school already contained much ACM and that was not due to any act or omission by any of the defendants. It was not reasonably foreseeable that, if contamination occurred at the school during the course of the work, the school and NCC would as a result seek to remove large amounts of unrelated ACM with which the school had lived for many years.
173. Plainly, a consequence of the contamination was that removal of asbestos from some parts of the school was brought forward. Money spent on removal of ACMs in 2003/2004, following the contamination, would thus result in a saving to the school and/or NCC at a later date; if not in relation to the removal of ACMs, then certainly in relation to the ongoing management of it. I accept the submission of Mr Wilmot Smith and Mr Ghaly that the mere fact that the school might have obtained a benefit from having carried out work does not mean that there should necessarily be any deduction from their damages. In my judgement, that was a happy incidence of the work reasonably carried out to remedy the contamination. Had the claimants' case gone to trial, it is unlikely that, there would have been a finding of material betterment or that the chain of causation had been broken.
174. Mr Chapman and Miss Jones have referred me to Frost v Moody Homes (1989) C.I.L.L. 504, in which Judge Newey considered the effect of negligent advice by an expert advising on remedial work. Given the conclusions I have reached with regard to Ensafe's approach to the remediation work, there is no question, here, of any break in the chain of causation.

Was this a reasonable settlement?

175. If the settlement was a reasonable one, the amount of that settlement is the measure of B&F's loss. The claimants claimed £5.5 m plus interest. B&F paid £3.1m into court.
176. Mr Kitt (B&W's quantum expert) and Mr Webb (B&F's quantum expert) approached their task differently. Mr Webb had been instructed to say what he considered to be the value of the supportable claim in March 2007. He had also been asked to deal with the question of interest. Mr Webb produced two sets of figures. His lower range figures were based on the premise that the claimants should have permitted the defendants to undertake a less extensive decontamination and refitting exercise, which would have been completed by December 2003 so that the school could have been reoccupied at the beginning of January 2004. On that basis, occupation of emergency premises would have ended at Christmas 2003 and there would have been no need for temporary classrooms. Mr Webb's higher range figures assumed that it was appropriate for the decontamination and remediation work to have lasted until Easter 2004; while decontamination work was undertaken, that the school would operate from emergency premises until the beginning of November 2003 and then temporary classrooms until Easter 2004, with the school being reoccupied after Easter 2004. His higher range figures exclude the removal of AIB ceiling tiles and the timber suspension system, which was in fact undertaken. Mr Webb was of the opinion that the value of the claimants' claim as at March 2007 was £1,842,292 on the lower range and £3,087,833 on the higher range. When interest was added, for the period September 2003 to March 2007, the totals increased to £2,146,270 and £3,597,325, respectively.
177. Mr Kitt had been asked to give his opinion whether the settlement figure of £3.1m was reasonable; to advise on the likely cost of remediation to remedy the contamination caused only by breaches of contract and/or duty on the part of B&W; and to consider the impact of B&F continuing work after concerns were raised on 13 August 2003. He had not been asked to deal with interest and did not do so. Mr Kitt was of the opinion that the settlement sum of £3.1m plus costs was not reasonable. He considered that a reasonable figure for remediation and refitting work would have been about £1.39 million; had it been necessary for remediation and refitting work to extend into the spring term, then a reasonable figure for work would had been about £2.1m; both figures are exclusive of interest and costs. The likely additional cost of remediation resulting directly from B&F's continuing to work after 13 August 2003 would have been in the range £390,000 to £590,000.
178. Mr Webb and Mr Kitt prepared a joint report setting out areas of agreement and disagreement. In some cases they were able to agree figures for heads of claim. In some cases the differences between them were small. On the lower range figures, Mr Webb's total was £1.91m and Mr Kitt's was £1.23m, with a difference between them of £676,384. The principal differences were to be found in categories 6, 7, 8 and 9. On the higher range figures, Mr Webb's total was £ 3.13m and Mr Kitt's was £2.06m, with a difference between them of £1.07m. The principal differences in the higher range figures were to be found in categories 6, 7, and 9, with smaller differences in categories 2 and 8.
179. During the trial, Mr Webb prepared a supplemental report to take into account evidence which had been given during July 2007. He reconsidered each of the nine categories of claim and abandoned the higher and lower range approach which he had taken in his earlier report. For the reasons I gave at the time, I permitted most of the content of that supplemental report to be adduced, but disallowed his work on category 3 claims. Mr Webb's supplemental report adopts two positions, the first on the premise that it was reasonable for the school to have proceeded to replace all asbestos ceiling tiles, and the second on the premise that undamaged asbestos ceiling tiles remained in place. Excluding the higher figures which Mr Webb had sought to calculate for the category 3 claims, Mr Webb expressed the opinion that the position 1 total was £3.97m and the position 2 total was £3.03m, in each case excluding interest. (Mr Webb's interest-inclusive figures were calculated on the assumption that his work on category 3 claims would be admitted, so the sums he calculates, of £4.86m, position 1, and £3.76m position 2, are a little high.)
180. As the material differences between Mr Webb and Mr Kitt are in relation to categories 6, 7, 8 and 9, I have concentrated on these categories. There are some differences between Mr Webb and Mr Kitt in respect of other categories of claim, but these in my judgement are not material (the areas of difference involve comparatively small sums) and in any event my task is not to calculate precisely the sum actually to be recovered by the claimants.
181. I conclude that, had their case proceeded to trial, the claimants would have been able to prove on balance the following matters: that the decontamination and remediation work would have taken longer than one term so that the school buildings could not be used again until Easter 2004; that it was reasonable and not betterment for all AIB ceiling tiles to be removed; that it was necessary for cables to be rerun. It is likely that they would have been largely successful in relation to the claims for replacement equipment and photocopying, and that it was reasonable to have paid the large part both of the fees which they paid to Ensafe and of the payments made to Aspect and Silverdell. It is unlikely that the claimants would have proved much if anything in relation to their category 9 claim.
182. On the basis of Mr Kitt's figures, the sum of £3.1m was a reasonable sum. Mr Kitt was of the opinion that a reasonable settlement would have been payment of £2.064m. Plainly interest must be added to arrive at an appropriate sum to pay into court. Interest should have reflected the period between 2003/4 when expenditure was incurred to February 2007 when money was paid into court. I accept that a sum of about £341,000 in respect of interest should be added to Mr Kitt's initial figure, which gives a total of £2.405m. When one adds in, also, the full amounts paid to Aspect and Silverdell plus interest on those sums, one arrives at a figure which is greater than the £3.1m paid into court.
183. In this case, by the time of the payment into court, there had been progress towards trial. Although trial was still some way off, the defendants had a fairly good idea of the issues and were in a position to take a view. B&W have criticised the claimants' lack of documents to support some heads of claim. I bear in mind that it is likely that more evidence would have emerged during the run up to trial. It is rare in complex proceedings for all documents to be produced during the first attempt at disclosure. As trial approaches, parties try to plug gaps in evidence. The likelihood therefore is that the claimants might have made good some, though probably not all, of the gaps in documentary evidence by the time the trial began. It is possible that evidence emerges during cross examination which takes parties by surprise and changes the complexion of an issue.
184. One must then consider the other factors. As B&F were primarily liable to the claimants, there was clearly a high risk to B&F of proceeding to trial without the benefit of a realistic payment into court. Plainly, settlement is preferable to a fully contested hearing which has so many negative factors eg the cost of management time, the loss of opportunity to engage in activities which might bring a profit, irrecoverable legal fees. As is frequently recognised by the court, there are always risks in litigation. And the longer the parties continue towards trial the more the costs grow. The court should take these matters into account when considering whether a settlement sum was reasonable. And the court should be careful to try to consider the position as at the time of settlement.

Contributory negligence on the part of the school/NCC

185. In the main action, B&F had pleaded that the school had been contributorily negligent. For example, they had agreed that work be carried out under semi-controlled conditions. They had failed to provide B&F with their asbestos register for the school, and had failed to undertake a risk assessment for the work to be undertaken. They had been in breach of the Control of Asbestos at Work Regulations 2002; because they had failed to make provision for clearance tests and monitoring tests.
186. B&W also pleaded contributory negligence on the part of the claimants, making similar allegations to those made by B&F and also alleging failure to appoint a planning supervisor, accepting B&F's tender without having considered how appropriate and safe access for the electrical work was to be provided; failure to take steps to manage the asbestos present at the school, failure immediately after 11 or 12 August 2003 to restrict access to the school but, instead, allowing free access to staff, parents and pupils; and failure, immediately after 11 or 12 August 2003 to have pressed PHP for advice on how to manage the situation.
187. None of the defendants now suggests that the contributory negligence claims were likely to succeed or would have had any real impact on the settlement sum. That seems to me to be a realistic view.

B&F's counterclaim

188. As Mr Wilmot-Smith and Mr Ghaly submitted, B&F's counterclaim was effectively worthless and thus had no bearing on the settlement. To the extent that it had any value, such value would increase the settlement sum.

B&F's pleaded position vis-a vis the claimants

189. Mr Chapman and Miss Jones rely on the stance which B&F took in their pleadings so far as the claimants were concerned. Briefly, B&F said that contamination caused by B&W's defaults merely caused additional contamination to that which was an inevitable consequence of the contamination caused by air movement and that any default on the part of B&W did not add significantly to the cost required to clean up the contamination caused by their own work. Mr Chapman and Miss Jones submit that it is impossible for B&F now to resile from their case that the consequence of B&W's default is nominal or non-existent.
190. I am not persuaded by that. B&F's stance in its pleadings is typical of the defensive stance often taken in litigation. Notwithstanding the welcome reform to civil procedure, parties are still slow to concede any position, no doubt in the hope that this will enable them to negotiate a better settlement. The courts may deplore the attitude, but in assessing matters of the sort in issue here, a court should adopt a realistic approach. It would be artificial, and unjust, to penalise B&F, by reducing damages payable to them for B&W's breaches of contract, by reason of B&F's having run an argument in pleadings which is demonstrated at trial between defendants to have been probably untenable.

Conclusion with respect to breach of contract claim

191. B&F were in breach of their contractual obligations to the school: see paragraph 195 below. However, as between B&F and B&W, B&F's failings are irrelevant. B&W's breaches were the direct cause of the contamination and thus of B&F's liability to the school.
192. For the reasons I have given, in my judgement, B&F have proved on balance that, in all the circumstances, the £3.1m was a reasonable settlement to have achieved. I deal with the question of costs below.

Contribution or indemnity?

193. As I have concluded that B&W are liable to B&F for damages for breach of contract, and that the measure of such damages is the £3.1m which B&F paid into court (plus costs - see below) I can deal more briefly with B&F's claim against B&W pursuant to the 1978 Act. I deal also with B&F's claim against PHP pursuant to the Act.
194. Relevant sections of the 1978 Act are:

(1) subject to the following provisions of this section, any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise).

(4) A person who has made or agreed to make a payment in bona fide settlement or compromise of any claim made against him in respect of any damage (including a payment into court which has been accepted) shall be entitled to recover contribution in accordance with this section without regard to whether or not he himself is or ever was liable in respect of the damage, provided, however, that he would have been liable assuming that the factual basis of the claim against him could be established.

(1) Subject to subsection (3) below, in any proceedings for contribution under section 1 above, the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage in question.

(1) A person is liable in respect of any damage for the purposes of this Act if the person who suffered it … is entitled to recover compensation from him in respect of that damage (whatever the legal basis of his liability, whether tort, breach of contract, breach of trust of otherwise.)

B&F's own liability to the claimants

195. In my judgement, B&F's performance fell short of what was required. For example, they were in breach of their own health and safety policy which expressly covered asbestos work; they failed to prepare a risk assessment with regard to the electrical work generally or with regard to the work with asbestos in particular. B&F failed to require B&W to provide a written method statement. B&F workmen removed some tiles themselves. B&F as main contractor should have had the degree of knowledge necessary adequately to monitor B&W's work. They failed to do so. Mr Middlebrook failed to supervise the work properly; he instructed his workmen to carry unbagged tiles through the school; B&F workmen swept up dry asbestos dust. However, in my judgement, B&F's failures were not causative of any loss suffered by the claimants.

B&F's claim against PHP pursuant to the 1978 Act

196. B&F's case is that PHP provided a wholly unacceptable service to the school, which had relied upon them to carry out their role properly. PHP had been involved in previous projects at the school and were aware that the fabric of the buildings contained asbestos. They took no steps to ensure that the work carried out in 2003 was monitored or inspected at any time. They failed to obtain a copy of a method statement from either B&F or B&W. They failed to provide to B&F or B&W a copy of the school's asbestos register or of the detailed RPS survey report. They did not themselves engage a specialist asbestos consultant or recommend to the school that they engage one. They failed to visit the site while the work was being carried out. B&W broadly make the same criticisms.
197. I have had the benefit of helpful evidence from three architectural experts, namely Mr Miers for B&F, Mr Fleming for B&W and Mr Jowett for PHP. They agreed on a number of points. In other areas, they took a different view.
198. On small building or maintenance jobs, Mrs Pritchard would normally liaise directly with contractors. However, she engaged PHP as project manager for this project. Mrs Pritchard may not have provided Mr Woods with a copy of the asbestos register. But PHP knew anyway about the presence of ACMs at the school. In my judgement, it would probably have made no difference if the register had been expressly drawn to Mr Woods' attention. He knew that there were ACMs at the school and that AIB tiles had to be removed in order for electrical work to be undertaken without seeing a register.
199. Mr Woods relied on the detailed work undertaken by Blandford when preparing a specification for the work. Mr Miers and Mr Fleming considered that the specification for the work was deficient. Mr Jowett disagreed; in his opinion, the specification could have been more extensive but it was sufficient to make clear that work was to be carried out safely and legally; PHP had made it clear in their invitation to tender that responsibility for complying with HSE requirements for asbestos removal work was a matter for the contractor (here, B&F). I accept the evidence of Mr Miers and Mr Fleming on this point, and conclude that there were deficiencies in PHP's specification.
200. B&F have not pleaded a case against PHP based on failure to engage a specialist consultant, but the experts did discuss this. Mr Pepperell and Mr Irvine agree, but Mr Hodgkiss disagrees, that an asbestos consultant organisation should have been engaged. Mr Woods accepted, when it was put to him in cross examination, that he should have asked a specialist asbestos consultant for assistance. Absent a pleaded case I should have been slow to conclude that PHP had breached their duty of care by failing to do this. However, it is not necessary to go that far. B&W were licensed by HSE. I prefer the evidence of Mr Hodgkiss on this point: the tile removal was a small part of the work to be undertaken. This was a simple asbestos removal job. B&F proposed to use a specialist, HSE-licensed contractor. It was in my judgement reasonable for PHP not to have brought in an asbestos consultant.
201. The experts agree that it was reasonable for the design to have specified installation of cables in the ceiling void provided proper precautions were taken to prevent damage to existing materials and the spread of asbestos. The experts agree that there was no duty on an architect to have imposed a working method or detailed programme of works on B&W, but PHP and B&F should have considered the risks and taken steps to combat these at source or to see that risks were properly investigated or managed through method statements and site inspections. Mr Miers and Mr Fleming considered that the unknown conditions in the ceiling voids presented a foreseeable risk to health and safety during the electrical works, which PHP failed to address. Pulling cables through the void could disturb dust in the void and present a risk of disturbing tiles left in place. I accept that a reasonably competent architect would probably have appreciated that the proposed activity would risk damaging asbestos tiles and risk disturbing asbestos dust lying in the voids. The only risk which PHP identified was that of the ceiling tiles themselves, and hence the removal of the tiles. The significant risks arising from working in the voids were not identified.
202. I have described earlier the query which Mrs Pritchard raised at the meeting on 14 July 2003. I accept her evidence that she was not entirely comfortable with the explanation given to her, but she went along with what Mr Braybrook and Mr Woods had said at the meeting, because she trusted the people who were advising her. The proposed methodology was not something of which she had previous experience, but she felt she had to listen to those who professed to know what they were doing. B&W were a licensed and NCC-approved contractor. It was understandable that Mrs Pritchard should have relied on the assurances given. The criticism which has been made of Mrs Pritchard is unjustified. As Mrs Pritchard explained, she was dealing with professionals and took their advice.
203. Mr Miers and Mr Fleming were of the opinion that Mr Woods should have followed up Mrs Pritchard's query at 14 July meeting by asking for written confirmation of the matters which Mr Braybrook had explained orally; he should have requested a written method statement. Mr Jowett took the view that the oral assurance was sufficient. I accept that, generally, an architect cannot simply accept a contractor's method statement when hazardous works such as asbestos removal is to be done. PHP should have asked for and obtained a written method statement from B&F. But I am not persuaded that it would have made any difference here. It seems to me that, even if Mr Woods had done as Mr Miers and Mr Fleming suggest, that is unlikely to have made a difference. It was not until after the events that B&W acknowledged that their methodology was inappropriate. I am not persuaded that, if asked to confirm matters in writing in July 2003, B&W would have done anything other than produce a method statement containing the same information as that contained in the method statement which they did eventually prepare. Mr Fleming was of the opinion that, if a reasonably competent architect had seen a written method statement, he would have been alerted, at least sufficiently to have begun to ask questions. There is force in that, but it seems to me that, even if either B&F or PHP had seen B&W's method statement, it is unlikely that this would have made any real difference. They did not recognise a danger when told orally what the method would be and I doubt they would have seen the danger when the method was written out. It is relevant, in this case, that PHP and B&F both reasonably assumed that B&W, as licensed contractors, knew their business and would approach the task correctly.
204. It is suggested that, while a reasonably competent architect would not have had competence to question all aspects of a method statement prepared by a licensed asbestos removal contractor, he or she would have queried various matters within the B&W method statement and how they were to be applied in this case. Clayton v Woodman & Sons (Builders) Ltd [1962] 1 WLR 585 is authority for the proposition that an architect has no duty to advise a methodology to a specialist sub contractor.
205. Mr Jowett considered that PHP's risk assessment did identify the fact that the ceiling tiles contained asbestos and that the risk was to be managed by the appointment of a specialist contractor. The detailed development of the management of that risk would be the normal responsibility of the contractor. The degree to which B&F needed to involve their subcontractor B&W in order safely to deal with the consequences of asbestos present in the ceiling tiles would depend on how the contractor chose to carry out the work. To deal with that point, I need to consider the scope of the duty which PHP owed to the school in circumstances where specialist contractors were needed to undertake the work. As Mr Sampson submitted, both the electrical work and the asbestos work were of a specialist nature.
206. I have been referred not only to Clayton but also to the judgments in Moresk Cleaners Ltd v Thomas Henwood Hicks 4 BLR and Investors in Industry Commercial Properties Ltd v South Bedfordshire DC [1986] 1 All ER. Moresk concerned the defective design of structural elements of a building. The architect had delegated that part of the design to the building contractor engaged to construct the building. No direct contractual relationship was established between the contractor and the plaintiff building owner. The learned judge concluded that the architect had no power to delegate his duty in relation to the design of the building. "If a building owner entrusts the task of designing a building to an architect, he is entitled to look to that architect to see that the building is properly designed. The architect has no power whatever to delegate his duty to anybody else, certainly not to a contractor who would in fact have an interest which was entirely opposed to that of the building owner."
207. Mr Wilmot-Smith and Mr Ghaly submit that an architect cannot delegate his duty to specialist contractors. They say that, if PHP are correct in their approach, then there would be an unacceptable black hole of contractual responsibility. As Sir Walker Carter OR said in Moresk, "if the defendant was not able, because this form of reinforced concrete was a comparatively new form of construction, to design it himself, he had three courses open to him. One was to say 'This is not my field.' The second was to go to the client, the building owner, and say: 'This reinforced concrete is out of my line. And I would like you to employ a structural engineer to deal with this aspect of the matter.' Or, he can, whilst retaining responsibility for the design himself, seek the advice and assistance of a structural engineer, paying for his service out of his own pocket, but having at any rate the satisfaction of knowing that if he acts on that advice and it turns out to be wrong, the person whom he employed will owe the same duty to him as he, the architect, owes to the building owner."
208. In Investors in Industry, the Court of Appeal distinguished Moresk v Hicks, noting that it was a case very different from the one with which they were concerned. They considered that Sir Walker's second option would ordinarily discharge the architect's duty to the client. Here, of course, no outside consultant was engaged.
209. I accept Mr Woods' evidence that Mr Braybrook told him that he had visited the school with a specialist subcontractor, approved by NCC. Mr Braybrook told Mr Woods that he had specifically discussed HSE requirements with that specialist who had confirmed that the methodology was acceptable to HSE. Mr Woods is criticised for not having investigated this further. The asbestos experts agree that a reasonably competent architect would have asked whether the project had been notified to HSE. But the circumstances here were such that, had he asked, Mr Woods would probably have been told that the work was not notifiable. I accept that a reasonably competent architect would probably have relied on that response.
210. In my judgement, the circumstances here are such that it is correct to follow the guidance given by Investors in Industry and Clayton. Here, PHP in effect obtained specialist advice and assistance from B&W through B&F. PHP had no reason to doubt that B&W, who were HSE licensed, were a competent specialist contractor. In Moresk there was wholesale delegation to a subcontractor of ordinary architectural duties. Here, B&F could not undertake the work, and neither B&F nor PHP could devise the methodology – those were matters which had to be delegated to a licensed contractor. Two of the three architectural experts agreed that B&W's methodology was plausible.
211. In my judgement, an architect may rely on a specialist subcontractor, provided he does so reasonably and provided that the reliance is placed on a plausible methodology which the architect could accept. Here, PHP reasonably relied on the fact that B&W, a specialist sub contractor and licensed by HSE, had suggested a methodology for asbestos removal which would be lawful and safe.
212. A reasonably competent architect would have the necessary degree of knowledge adequately to monitor work of this nature. It was for Mr Woods to have determined at what intervals and stages he should attend site in order to fulfil his inspection duties to the school. The experts agree that an architect carrying out normal periodic inspection on a project which included work above a suspended ceiling would include for inspecting prior to the closing in of the ceilings. A reasonably competent architect would have been aware that part of his duty to the client was to check and monitor the proposed working method and actions of the contractor and subcontractors on site, at appropriate stages, to satisfy himself that the work was being undertaken competently. Mr Jowett considers that on a small project comprising mainly specialist work it would be reasonable to plan for only two or three visits in total and to rely on the competence of the contractors to carry out their work properly. Specifically he would not expect an architect to visit during the asbestos removal work when only trained specialists should be on site. Mr Fleming and Mr Miers however consider that where no specific survey had been undertaken to investigate the risks associated with a hidden area of work prior to starting on site, an architect would require the opening up and inspection of the void as early as practicable. The architect should inspect again whilst rewiring works were in progress before they were concealed and again before handover to check that closing in and redecoration were satisfactorily.
213. It seems to me that it was reasonable for an architect in Mr Woods' position to have relied on a licensed contractor to work strictly in accordance with its licence. The asbestos work, as planned, was not complex: it involved unscrewing four screws and carefully lifting the tile out then bagging it properly. Access to the site should have been restricted to specialist personnel with appropriate protective equipment. If after the event the architect had found, for example, that tiles had not been bagged, then, as Mr Jowett explained, one would expect the architect to have taken some action. It seems to me unrealistic to suggest that PHP should have monitored the work closely. I accept that Mr Woods should have attended at the school to inspect when the ceilings were first opened up by B&W. Had he done so, he might have seen that B&W were not undertaking work in accordance with their own methodology, and that would have presented an opportunity to prevent removal of tiles without use of protective clothing and without sealing off the areas in which work was carried out. But that would probably not have caused Mr Woods to doubt the methodology itself, so would probably have not affected the outcome. The planned inspection by Mr Woods on 19 August 2003 would have been at a time when some ceilings remained to be reinstated. In my judgement, PHP's decision not to inspect until after Mr Woods returned from holiday was probably a reasonable one in the circumstances.
214. Mr Woods had made no arrangements for cover while he was on holiday. When Mrs Pritchard telephoned Mr Bennett on 11 August, he had little knowledge of the project and was able to offer her very little help. Mr Bennett should have appreciated that there was a potential problem. Mr Woods was still away when Mrs Pritchard's letter of 13 August was received. That letter gave sufficient warning to anyone at PHP that there was a potentially serious problem. It would probably have been read by a partner of PHP, who should have appreciated that action was needed urgently. PHP should have issued an immediate warning to keep away from the asbestos dust, pending a more detailed enquiry. But PHP failed to react. It was not until Mr Woods returned that action was taken. Mr Jowett considers that PHP's actions when they received that letter were appropriate. I am persuaded by the evidence of Mr Miers and Mr Fleming, who considered that immediate steps should have been taken by PHP on receipt of that letter. PHP should have ensured that there was adequate cover while Mr Woods was away and should have responded promptly to Mrs Pritchard's letter. Their response fell short of what was expected of a reasonably competent architect. Had PHP responded immediately, and sent someone to the school (Mr Woods being then on holiday) this may have reduced or prevented altogether exposure of workers or staff to contaminated areas. However, by the date of the letter, most of the contamination had occurred, so action by PHP at that stage would have had little or no effect on the damage caused and losses incurred.
215. In summary, therefore, I conclude that PHP were entitled to rely on the expertise of specialist electrical and specialist asbestos removal contractors to devise a method of work which was lawful and safe. In some respects, as I have identified above, they were in breach of the duty of care they owed to the school. However, their breaches were not causative of either the initial contamination or any exacerbation of it. B&W's methodology was fundamentally flawed, and the actual asbestos work undertaken on site was not in accordance with any recognised procedure nor did it accord with the procedure which B&W had described to Mr Woods. While PHP failed to respond promptly to the school's concerns, that had little or no effect on the scope or cost of remediation work. The contamination occurred by reason of B&W's default and not by reason of PHP's failings. As PHP's failures were not causative of the damage or loss, it would not be just or equitable to require PHP to contribute to the settlement.

B&F's claim against B&W pursuant to the 1978 Act

216. As I have set out earlier, B&F were liable to the claimants in breach of contract for damages in relation to the asbestos contamination at the school and the consequences thereof. Given the findings I have made in relation to the methodology which B&W adopted, the way in which they undertook their work and that they failed to stop work and warn of the danger of continuing, there can be no doubt that B&W were liable to the claimants in respect of the same damage.
217. In J Sainsbury v Broadway Maylan [1998] 61 Con LR 31 a firm of architects settled a claim for fire damage to a shopping centre caused by their negligent design of a wall inside the building, and claimed contribution, pursuant to the 1978 Act, from the owners engineers, who had failed to point out a defect in the architects design for one of the girders. His Honour Judge Humphrey Lloyd QC rejected the architects' claim on the ground that the engineers were not liable to the owners on the facts. However, he also considered the question whether the engineers could challenge the reasonableness of the architects' settlement, and concluded that he could.
218. In issue is whether B&W would have been liable to NCC. The school did not have the resource to pay the cost of remediation work or of replacing equipment. NCC provided the funding. The sum of £3.1m paid into court was not apportioned between the two claimants. In response to requests from B&W, B&F explained that there was no breakdown of the £3.1m. B&F have suggested that the £3.1m might be split as between principal and interest but have volunteered no other breakdown.
219. In their reply to a Part 18 request, B&F stated that B&W were not liable to NCC, the second claimant. B&F confirmed that position at the PTR. Mr Chapman and Miss Jones submit that it is impossible, therefore, for B&F to recover from B&W (whether in contract or as a contribution under the 1978 Act) a contribution towards a payment made by B&F to NCC.
220. Mr Wilmot-Smith and Mr Ghaly rely on the judgment in Jones v Stroud DC [1986] 1 WLR 1141. That case concerned a house which required substantial repair. The court considered whether damages were payable even though there was no evidence that the plaintiffs had paid for the repairs. At page 1150 Neill LJ said:

"The plaintiffs failed to provide any documents relating to the work carried out by Marlothian and there is no evidence that the plaintiffs have paid or are liable to pay any sum to Marlothian in respect of that work. It was submitted on behalf of the plaintiffs, however, that if the repairs were necessary and were carried out it was not to the point that the plaintiffs had not proved that they had paid for the repairs themselves. Our attention was drawn to The Endeavour (1890) 6 Asp.M.C. 511, where repairs to a vessel were carried out, but before paying for them the plaintiff had gone bankrupt. It was there argued that the plaintiff could not claim the cost of the repairs because the sums recovered would only go to swell the creditors' funds. This argument was rejected and it was said, at page 512: 'If somebody out of kindness were to repair the injury and make no charge for it, the wrongdoer would not be entitled to refuse to pay as part of the damages the cost of the repairs to the owner.' In my judgement, on the facts of this case, the submission is correct. It is true that as a general principle a plaintiff who seeks to recover damages must prove that he has suffered a loss, but if property belonging to him has been damaged to an extent which is proved and the court is satisfied that the property has been or will be repaired I do not consider that the court is further concerned with the question whether the owner has had to pay for the repairs out of his own pocket or whether the funds have come from some other source."

221. Here, NCC met the cost of remediation and of replacing equipment. Following the guidance in Jones v Stroud, in my judgement, there would have been liability to NCC.
222. It is not clear to me why B&F answered B&W's request for information on this point as they did. However, it would in my judgement be artificial and unjust to deprive B&F of a remedy to which they are entitled by reason only of an answer to a request for information, and where B&W have not suggested any prejudice caused by the answer given.
223. Under the 1978 Act, the court must decide what is a just and equitable contribution. I have concluded that PHP are not liable to make a contribution. My conclusions with regard to B&F's liability are set out above. The damage to the school and the claimants' losses were caused by B&W's defaults. In my judgement, it would be just and equitable for B&W to make a contribution to the settlement which amounts to a full indemnity from B&W to B&F in respect of the £3.1m, interest on that sum and the costs which B&F must pay to the claimants, there being no material difference, in money terms, in this case between the measure of damage for B&W's breaches of contract and the just and equitable approach required by the 1978 Act.

As between B&W and PHP

224. B&W say that their Part 20 claim against PHP is "largely academic". Mr Sampson makes no detailed submissions in relation to PHP's Part 20 claim against B&W. Given the conclusions I have reached, it seems to me that those positions are realistic.

The claimants' costs

225. A consequence of the acceptance by the claimants of the £3.1m paid into court is a liability on the part of B&F to pay the claimants' costs of the action against B&F. B&F seek contribution/indemnity in respect of those costs.
226. The settlements between the claimants and B&W and between the claimants and PHP are recorded in Tomlin orders. B&W and the claimants reached agreement including the following:

B&W agreed to pay the claimants' costs of proceeding against B&W.

The claimants agreed that their settlement with B&W was in full and final settlement of any claims they may have had against B&W in respect of their costs of pursuing B&F and PHP together with any claims in respect of costs which the claimants are ordered to pay to B&F or PHP, and any such claims were irrevocably waived by the claimants.

The claimants undertook to argue, as their principal case in any costs proceedings, that B&F are liable in respect of the claimants' "common costs" of the proceedings. ("Common costs" were described as being those costs which are not directly referable or attributable to the pursuit of claims by the claimants against any of B&F, B&W or PHP.)

The claimants agreed, in the alternative, to argue as a secondary case that B&W is liable for the claimants' "common costs".

227. B&F were not a party to the agreement recorded by that Tomlin order.
228. By the Tomlin order recording settlement between the claimants and PHP, each party agreed to pay its own costs.
229. Mr Chapman submits that B&F are not entitled to relief in respect of the costs which they are liable to pay to the claimants. First, because B&F admitted their liability and were always liable to pay the claimants' cost of proceeding against them. Secondly because the claimants have accepted that their costs would not be recovered from one of the defendants, even though it was a single defendant who reached settlement with them.
230. Parkman Consulting Engineers v Cumbrian Industrials Ltd 79 ConLR 112 was a case where the claim by BICC, the claimant, was settled and defendants were in dispute on the question of contribution between themselves. The Court of Appeal considered the question of costs payable to BICC, including whether the judge was correct to hold that the court had power to order contribution under the 1978 Act towards a payment reasonably made under a settlement agreement in respect of liability for 'the same damage' when the payment is in respect of 'all claims' including a potential liability for costs. The court concluded that he did.
231. Here, there are certainly three categories of cost: (1) as between the claimants and B&F (2) as between the claimants and B&W, and (3) as between the claimants and PHP. There may be a fourth category, namely of "common costs" (though that description is not, I believe, one recognised by the CPR.) B&W must pay damages to B&F, alternatively indemnify B&F, in respect of the loss B&F has suffered and costs it has incurred as a result of B&W's breaches. In my judgement, the costs in category (1) fall within the scope of the damages which B&W are liable to pay to B&F; they flow from B&W's breaches of contract and are the consequence of B&W's breaches. B&W should not be required to contribute to or indemnify B&F in respect of any item of costs which falls within categories (2) or (3).
232. The costs judge is well able to differentiate between categories of costs (1) -(3) and will be able to ensure that the claimants recover from B&F only the costs properly attributable to their claim against B&F and not any element of costs incurred as against B&W or PHP. If there are any so-called "common costs" then, if B&W run their primary argument and succeed, B&F will be primarily liable to pay these, but B&W are liable to indemnify B&F in respect of these. If B&W run their secondary argument and succeed, then B&W will have to bear those elements of cost anyway. I am confident that a costs judge will be able to deal with these matters and order accordingly.

Conclusions

233. B&F were in breach of contract with the school and liable to them for the losses reasonably incurred as a result of the contamination.
234. While B&F's own performance fell short of what the school should have expected, their breaches were not causative of the losses which the school and NCC suffered.
235. No causative fault on the part of the school has been proved.
236. PHP were in breach, in some respects, of the duty of care they owed to the school but were not negligent, the loss and damage having been caused not by those breaches but by B&W's defaults.
237. B&W are liable to B&F for damages for breach of contract. The sum of £3.1m was a reasonable settlement figure. The measure of damages for B&W's breaches of contract is the £3.1m, plus interest on that sum, plus the costs properly payable by B&F to the claimants.
238. Pursuant to the 1978 Act it is just and equitable that B&W indemnify B&F fully in relation to the £3.1m, plus interest, plus the costs properly payable by B&F to the claimants.
239. Finally, I thank Counsel and solicitors for their great assistance with this case.

Frances Kirkham

22 November 2007