Trebor Bassett Holdings & Ors v ADT Fire

On a renewed application for permission to appeal, an appellant cannot recast a challenge to factual findings about contractual scope as a question of law where there is no real prospect of a different conclusion. A claimant alleging negligent design need show that the system should have been designed to prevent the relevant fire. If impossibility is asserted, the defendant must prove it. Permission may be granted for arguable legal questions and causation arguments based on the trial judge’s findings, but any factual investigation must remain tightly controlled. Permission was granted on specified quality, implied-term and causation grounds, while ADT was refused permission on contractual scope and breach and was limited to one causation issue.

The claimants moved their popcorn production facility to Pontefract and engaged ADT Fire to install a fire protection system. A fire destroyed the factory. Coulson J found that ADT’s design was negligent and caused the fire, but held that the employees’ actions did not break the chain of causation. He assessed the claimants’ contributory negligence at 75 per cent and held that a contractual limitation term had not been incorporated.

Both sides sought permission to appeal. Longmore LJ granted permission on specified questions, refused ADT permission on contractual scope and breach, and directed that the renewed application be time-limited. The Court of Appeal considered which proposed grounds disclosed a real prospect of success and whether they could be argued without reopening the trial judge’s findings.

The President of the Queen’s Bench Division gave the leading reasons, with Aikens LJ agreeing and adding clarification.

1. Claimants’ grounds. Permission was granted on the grounds concerning quality, implied terms of satisfactory quality and fitness for purpose, and a point arising from Forsikringsaktieselskapet Vesta v Butcher [1989] AC 852. These were treated as questions of law. The appeal was to proceed on the trial judge’s findings, with only the limited factual exploration identified in the skeleton argument.
2. Contractual scope and breach. ADT’s proposed challenge to the scope of the contract sought to reopen factual findings about what the parties had agreed and the design obligation. There was no real prospect of success on that basis. Permission was therefore refused. Permission was also refused on breach. The court considered that the claimants had shown that a system should have been designed to prevent the fire. If ADT contended that such a system was impossible, ADT had to prove that contention.
3. Causation. Permission was granted because the causation arguments had a real prospect of success and could be advanced on the findings made below. The claimants could challenge the judge’s reliance on Schering Agrochemicals Ltd v Resibel NV SA & Anr, noted in (1993) 109 LQR 175, address the knowledge attributed to them after an earlier fire, and argue whether that knowledge broke the chain of causation. ADT was confined to the issue whether the employees’ actions caused the factory loss or broke the chain of causation, assuming ADT’s breaches otherwise caused the fire.
4. Respondents’ notice. The respondents’ notice could be addressed at the full hearing because it built upon the trial findings. It could not challenge those findings and remained subject to strict control of the evidence and arguments.

The formal order recorded Appeal allowed, with permission granted only to the extent specified.

• Court of Appeal (Civil Division): On 1 February 2012, the court allowed the renewed applications only to the extent stated. The claimants received permission on specified quality, implied-term and causation grounds. ADT received permission only on a limited causation issue.
• Queen’s Bench Division: Coulson J tried the claim in March and April 2011 and gave judgment in July 2011, finding negligent design, causation, 75 per cent contributory negligence and no incorporated limitation term.
• Permission stage: Longmore LJ granted permission on specified claimant grounds, refused ADT permission on contractual scope and breach, and directed that the renewed application be limited in time.