Fosse Me Ltd & Ors v Conde Nast and National Magazine Distributors Ltd & Anor

A claim arising from a fire does not automatically qualify for transfer to the Technology and Construction Court. The statutory criteria require either technically complex issues or that trial by a Technology and Construction Court judge is desirable. The court may assess the real risk of technical complexity by reference to the pleadings, proposed expert evidence, the value and nature of the claim, and the court’s specialist experience. Where transfer is desirable to avoid later disruption to an established trial timetable, the case may be transferred even though the full extent of the complexity has not yet crystallised.

The claimants sought damages following the destruction by fire of a warehouse in Coventry. The pleaded case alleged that agency workers supplied to the first defendant caused the fire by discarding a lit cigarette near combustible materials. The defendants disputed causation and advanced alternative explanations concerning the likely source and location of the fire.

The claim had been issued in the ordinary Queen’s Bench Division List. Master Fontaine had given directions to trial, including permission for expert evidence in several disciplines. The first defendant applied under CPR Part 30.5 for transfer to the Technology and Construction Court List. The issue was whether the criteria in CPR Part 60.1(3) were met and whether transfer was appropriate as a matter of discretion.

1. Application granted. The claim was transferred to the Technology and Construction Court List.
2. Under CPR Part 60.1(3), a claim may be brought as a Technology and Construction Court claim where it involves technically complex issues or questions, or where trial by a Technology and Construction Court judge is desirable. The criteria are alternatives.
3. The fact that a claim arises from a fire is not, by itself, sufficient. Although claims arising from fires are identified as examples in paragraph 2.1 of the Practice Direction to Part 60, paragraph 2.2 makes clear that such a claim must still demonstrate the characteristics required by CPR Part 60.1(3).
4. There was a real risk of technical complexity concerning liability, causation and quantum. The parties intended to rely on expert evidence addressing forensic and fire science, the timing and nature of the damage, the possible source of ignition, combustibility, smouldering time, valuation and accounting. The claim exceeded £4 million.
5. Trial by a Technology and Construction Court judge was desirable because that court had developed specialist experience in fire and fire-damage cases. It was appropriate to determine the forum before the extent of the technical issues became fully clear, since a later transfer application could disrupt the trial timetable.
6. The delay in making the application caused no material prejudice. The existing timetable could be accommodated by the Technology and Construction Court, and there was no indication that transfer would increase costs.