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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Cembrit Blunn Ltd & Anor v Apex Roofing Services LLP & Anor  EWHC 111 (Ch) (05 February 2007)
Cite as:  EWHC 111 (Ch)
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Strand, London, WC2A 2LL
B e f o r e :
| CEMBRIT BLUNN LTD
DANSK ETERNIT HOLDING A/S
|- and -
|APEX ROOFING SERVICES LLP
ROY ALEXANDER LEADER
Mr Jonathan D.C. Turner and Mr Alexander Madgwick (instructed by Fisher Jones Greenwood LLP) for the Defendants
Hearing dates: 24, 27 30 November, 1, 4, 6 8, 11, 14, 15 December 2006
Crown Copyright ©
MrJustice Kitchin :
i) Were the claimants' Zeeland slates of satisfactory quality within the meaning of section 14 (2) of the Sale of Goods Act 1979 (as amended)?
ii) Is the Letter the subject of copyright and protected by the law of confidential information?
iii) Should the defendants have been restrained from circulating the Letter and should they have disclosed the identity of its source?
Manufacture of fibre-cement slates
"The exposed face of the fibre-cement slates can be with or without texture. The fibre-cement slates can be coloured or left in their natural colour. The fibre-cement slates can also receive adherent coloured or uncoloured coatings on their surface.
The fibre-cement slates can be supplied holed for fixing.
On exposure the surface and/or its coating will be affected by weathering which may vary with site location, aspect, pitch of roof and duration of exposure. Any deterioration in this respect shall not detract from the minimum mechanical and physical characteristics as specified in this standard or from the function of the fibre-cement slate as a durable element."
Curling in fibre-cement slates
The reason for painting slates
Installation of slates
Narrative of events
The two estates
Lifting and curling
The second Stanger report
"The surface water absorption tests have shown that the absorption of the top side of sample EE 5993 is not dissimilar to that of samples EE 5994 and EE 5999. However, the tests demonstrated that the absorption of the underside of sample EE 5993 is more than 5 6 times the absorption of samples EE 5994 and EE 5999 (refer Table 2).
The water absorption by immersion also directed that the sample EE 5993 has a greater absorption than samples EE 5994 and EE 5999.
It is therefore reasonable to conclude that the bow distortion observed on the site sample is not due to obvious defects in the construction of the slate.
The most likely causes of this distortion are:
(i) Inconsistent application of the black pigmented coating on the edges and the underside of the slate which was, in parts, very thin.
(ii) The intermittent nature of the clear sealer or the lack of it on the underside and the edges of the slate.
It is clear from the literature obtained on similar fibre cement products and also the BBA certificate on Zeeland slates that the coatings on the outer surfaces play an important role in reducing the risk of differential carbonation and thus bowing.
Furthermore, these coatings, particularly the clear sealer are intended to act as a weather barrier to minimise penetration.
An explanation of the bow mechanism in the slate is that due to the thin coatings of the underside, the slate would probably absorb significant moisture in prolonged periods of rain and wind, at the same time, little or no moisture is absorbed by the top surface.
This causes differential expansion and hence an upward bow. In hot weather, the slate would dry out fairly rapidly and would bow downward.
Depending on the weather conditions, these cycles could be repeated many times, during which the slates would be rubbing against each other. However, due to its thickness, rapid wear of the coatings on the underside could take place which would expose the underlying cementitious matrix. This in turn promotes more moisture uptake and hence excessive bow.
Once a significant bow has taken place, a gap would be formed between the tail end and the slate below. In this situation the slate would be prone to wind uplift and therefore possible distortion of the disc rivet fixing."
"12.1 No obvious defects were observed within the fibre cement matrix of the site samples, except where local disruption of the surface coatings had taken place.
12.2 The new "Zeeland" slate sample (EE 5994) was found to have similar structure to the site samples (EE 5993) both essentially comprised of fibre cement matrix coated with a black pigmented paint which is coated with a layer of a clear sealer.
The "Jutland" slate sample (EE 5999) however was found to be different from the other two samples in that it had a plain top surface, the black pigmented paint and the clear sealer uniformly applied to all surfaces, the cementitious matrix was finer than the "Zeeland" slate and higher density of the fibres towards the top surface.
12.3 The water saturation and water absorption tests demonstrated that all slates are liable to bow. However, the greatest bow was observed on the site sample, 12.4mm (initial bow). Samples EE 5994 and EE 5999 were observed to achieve a maximum bow of 2.1mm and 1.4mm respectively.
12.4 On the basis of the results of the examination, analysis and tests, it is considered that the condition of the coatings on the underside was the prime cause of bowing distortions of the site sample.
In our opinion the unused "Zeeland" slates (EE 5994) if detected in similar environments are likely, in the long term, to exhibit similar performance as that of the site sample. In this situation any significant distortion could undermine the performance of the slate as a roofing product. Excessive distortion of the slates could lead to fracture under certain conditions such as high winds which could cause danger to the public from falling sections of the slate."
"if we fail to receive your firm offer to resolve this problem by the agreed date 1st March 2004, we will have no alternative but to seek advice to progress this matter further."
"As mentioned above we can put a question mark at some of the findings and methods used, but the Stanger report is difficult to comment. It is a fact that we have higher water absorption due to less amount of paint at the lower side of the slate, and this is stated as the main reason for the curling.
What Stanger's report does not tell us is why some of the slates are performing without any problems.
In my opinion the claim at Aberfeldy Road does not justify a totally exchange of all roofs and I will still recommend to work for re-fixing of the curled slates by rivets from CZ. If we can have the curled slates re-fixed we will get highly valuated information how to solve claims with randomly curled slates. If it turns out to be a wrong solution by re-fixing the curled slates we have to solve the "new" claim when the time comes."
"I have for the first time yesterday morning heard about the above claim after having been called for a meeting with Kurt V. Madsen, Henrik Steen Petersen and Sven Erik Theil.
I understand that the contractor, Apex Roofing is very demanding and that he until now has rejected the proposed settlement solutions by remedying the defects (curling slates) by adding/using new copper disc rivets.
I have also understood that the tests of the curling slates both in our own laboratories and at the Stanger laboratories reach the same conclusion, namely that the curling is caused by imbalance between the front and the back side of the slates due to differences in the paint layer thickness on the front and the back side.
Even though we may have some critical remarks to the Stanger report it does not fundamentally change the conclusion.
However, we are of the opinion that the curling problem (on a limited number of slates of the roofing area) can be solved by adding new rivets of a bigger strength as applied in the Czech Republic (with 50% higher strength than the rivets used in England and Denmark).
We would therefore kindly propose the following solution to Apex Roofing:
1. We assume that the installation is done properly and in accordance with the UK code of practice and with Cembrit Blunn's installation manual for slates.
2. The curling slates (only on the south side of the roof) on two houses are pressed flat by adding new rivets with higher strength (supplied by Cembrit CZ). Cembrit CZ is paying for the repair work on the said two roofs.
3. Cembrit CZ or Dansk Eternit Holding is issuing a warranty statement in writing stating if it appears one year later that the solution with new rivets has not solved the curling problem on the said two roofs, then Cembrit Blunn Ltd will replace all the south sides of the 40 houses included in the contract at the expense of Cembrit CZ, the producer of the slates.
4. Further the Apex Roofing has to bear in mind that the tests made of the curling slates prove that the slates are in compliance with the European standard for fibre-cement slate, EN492.
I know that you have already tried to persuade the contractor to accept a solution similar to the above proposal however, without the proposed written warranty statement.
As I understand that we have already lost the customer it seems to me that we have little left to loose by presenting the above offer to the contractor.
If you disagree, please contact me again. For the sake of good order, I also wish to emphasise that to the extent possible we should avoid being involved in court cases in particular if we have a bad case. "
"However, even though the slates are in compliance with the European standard for fibre-cement slates, EN 492, and even though we may have some critical comments to the Harry Stanger report, we agree that the observed curling of a few slates of the total roof area is not acceptable. On the other hand, the slates, which are not curling, are in our opinion, of a satisfactory quality."
He then proposed the solution which he had detailed in the Letter and which is set out in paragraph  above.
"In our opinion further maintenance work on the roof is not practical and large scale or complete replacement is required.
We have accepted that we have a problem with the Zeeland slates but believe the problem has been made worse by the lack of ventilation and possibly by some wide gaps between slates making the copper disc rivet less effective. This site is in a very flat area of the UK so the exposure to wind is high and slates that have become loose are very susceptible to wind damage."
The dispute with Apex continues
"I write further to our meeting at my company's offices of 22 March 2004. The meeting was the latest to take place concerning the significant problems caused by defective roof slates supplied by your company.
You accepted during our meeting, that your company takes responsibility for the problem of the curling slates and will take action to relieve Countryside Group or Apex Roofing of any responsibility. We discussed possible remedial schemes and I confirm that it will not be acceptable to our Housing Association clients or house purchasers for piecemeal remedial schemes to be adopted. For the variety of reasons we discussed during our meeting, this is unlikely to be a long term solution.
Accordingly, we await confirmation that your company is prepared to indemnify Apex Roofing Ltd or any of the other contractors with which we have contracted to strip and re-lay the affected roofs. "
The dispute escalates
"We refer to the visit of Kurt Madsen, DEH Group Technical Director to the Aberfeldy Estate site on 22 June and to your letter of 30 June 2004.
Below we summarise the findings of our investigations and the actions we have taken and have planned.
As identified by tests carried out in our laboratory in Denmark in December 2003, some of the Zeeland slates removed from roofs at Aberfeldy Estate had an inconsistent application of back coating. This has made these slates more susceptible to curling. The proportion of slates affected is low but action to improve this aspect of performance is justified.
In 2001 new templates were introduced for the production of Zeeland slates. These templates improved the dimensional tolerances of the product and improved the consistency of the back coating.
Following the tests on Zeeland slates removed from roofs at Aberfeldy, further improvements to the back coating process have been introduced and are planned. Initially the maintenance program for the rollers that apply the back coating has been upgraded to obtain the best performance from the existing equipment. Changes to the formulation of the back coating and the installation of an amended design of rollers later this year will further improve this aspect of the slates.
When the above improvements are complete we expect occurrences of curling to be virtually eliminated from correctly installed and ventilated roofs.
With regard to action on the Aberfeldy Estate site we refer to the letter sent to you on 2 April 2004.
We believe the offer in that letter to strip and replace two roof slopes was fair and reasonable but are now prepared to amend that offer to demonstrate the effectiveness of the copper disc rivet replacement. In addition to the two roof slopes proposed for replacement we are prepared to bear reasonable costs to re-fix curled or lifted slates on the two adjoining slopes with new rivets. "
"Our client's position as regards the zeeland slates is, in summary, as follows:
From the date that you or anyone else first informed our client that there may be a problem with the zeeland slates, it has done everything in its power to investigate that problem, advise on any problems and causes and remedy these. Our client is unaware of any way in which it could have done more. Certainly you have not suggested any.
You have been extremely obstructive to our client's efforts, not least in denying it access to site to properly investigate the alleged problems. You have never explained why you have been obstructive nor can we conceive of any sensible reason.
The impasse the parties now face is a product of your obstruction.
You have also seemingly concentrated your efforts in doing everything in your power to build up ill-will between our client and yourself and involve anyone else who seems willing in contributing to that. Our client is again unaware of the reasons why.
Our client is confident from the tests, investigations and enquiries that it has carried out over the last year (being approximately since this problem first arose), that any problems are limited to a very small amount of the total zeeland slates it has supplied over the last 8 years (the period of supply), being approximately 0.1% of the total 4 million slates.
Our client has identified that any problems that do exist are the cause of 1 of more factors, the most significant of which have nothing to do with our client, namely inadequate installation of the slates and/or design of parts of the roof structure (for example its ventilation). Where the slate has been at fault in whole or part, our client has explained how the problems need to be rectified and offered to assist or undertake that process itself.
Our client remains vigilant for any further problems.
The report by Stanger of 2 February 2004 to which you have referred and extracts of which you have engineered the publication, is flawed and/or misleading, and the publication and commentary you have published on that report have perpetuated that problem.
Our client is therefore extremely concerned by your actions.
Specifically as regards the articles you have distributed/ published in various journals and at various events, our client's position is this: the material is libellous in that it states, without any foundation, that there is a fundamental defect in our client's zeeland slates. There is not. However, you have sought to repeat the allegation to as many parties as you can persuade to listen and, in turn, encouraged them to repeat it further in trade publications. It is clear from the voicemail message you left on one of our client's employee's mobile telephone (of which we have a recording), that your primary motive in doing so is to intimidate our client into meeting your unreasonable demands. All our client's rights are reserved regarding these matters, including that of bringing libel proceedings.
As regards your approach generally, in no conceivable way does it permit a sensible resolution to this dispute. "
Further discussions with the BBA and changes to slate production introduced by Dansk
2005 and the start of proceedings
Satisfactory quality the law
"(2) Where the seller sells goods in the course of a business, there is an implied term that that the goods supplied under the contract are of satisfactory quality.
(2A) For the purposes of this Act, goods are of satisfactory quality if they meet the standard that a reasonable person would regard as satisfactory, taking account of any description of the goods, the price (if relevant) and all the other relevant circumstances.
(2B) For the purposes of this Act, the quality of goods includes their state and condition and the following (among others) are in appropriate cases aspects of the quality of the goods:
(a) fitness for all the purposes for which goods of the kind in question are commonly supplied,
(b) appearance and finish,
(c) freedom from minor defects,
(d) safety, and
"The reasonable person must be one who is in the position of the buyer, with his knowledge; for it would not be appropriate for the test to be that of a reasonable third party observer not acquainted with the background of the transaction."
"Zeeland slate has an appearance close to that of natural slate. Its attractive riven surface makes it an ideal solution for situations where presentation is important."
Satisfactory quality - general
Witnesses of fact and the experts
Lifting the way the problem developed
Apex as a contractor and the experience of the roofers
The inspections as the work progressed and lack of any criticism by the claimants once the problems emerged
Inconsistency of the back coating
Other sites and compliance with standards
Workmanship at Aberfeldy and Greenhithe as revealed by the inspections conducted in 2006
i) 22 August 2006 at 133-134 Oban Street, when Mr Thomas had 30 minutes to inspect a stripped roof;
ii) 14 September 2006 at 13-14 Balmore Close, to watch the slope being stripped;
iii) 20 September 2006 at 11-12 Balmore Close, to remove a large number of slates; he was accompanied by Mr Potter;
iv) 27 October 2006 at 28 Balmore Close, to observe the roof being stripped. Unfortunately work began before Mr Thomas's arrival. Again Mr Potter was present on this site inspection.
i) Rivets had not been turned over to lie flat with the surfaces of the slates.
ii) Some rivets were missing; short rivets were used; rivets were not aligned with the perp-gaps and the perp-gaps were excessively wide.
iii) Some slates had been over-nailed and others under-nailed.
iv) Battens were uneven; there were raised nails on battens and even the roof structures were sometimes uneven.
"On Findhorn Street [site F], where it has been observed that all of the 78 roof slopes have a significant number of rivets not bent/fixed properly (or rivets missing completely), the number of warping/lifting slates is relatively high compared with the other streets, where the number of rivets not properly bent/fixed is insignificant and the same is the number of warping and lifting slates"
The experimental evidence
Mr Ali rivet tests
Mr Ali curling force
Dr Blanchard rivet tests
Dr Blanchard curling force
Wind tunnel tests
Conclusions from experiments
Conclusion what caused the slates at Aberfeldy and Greenhithe to lift?
Degrees of lifting
Slates which have curled but not lifted
Satisfactory quality - conclusions
Intellectual property claim
Subsistence of copyright
Disclosure of the identity of the source
i) The claimants' Zeeland slates installed at Aberfeldy and Greenhithe which have lifted were not of satisfactory quality.
ii) It has not been established that the Zeeland slates installed at Aberfeldy and Greenhithe which have curled but not lifted were not of satisfactory quality.
iii) The Letter is the subject of copyright and was protected by the law of confidential information. What, if any, relief the claimants may be entitled to is a matter upon which I have not yet heard submissions. The claimants were justified in bringing the claim for infringement of copyright and breach of confidence and for disclosure of the source of the Letter. The claim for unlawful interference with goods fails.