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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 >> Ashtenne (AIF) Ltd v O'Neill [2006] EWHC 2884 (Ch) (16 November 2006) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2006/2884.html Cite as: [2006] EWHC 2884 (Ch)

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IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		16th November 2006

Mr Justice Lindsay :

1. The Claimant, Ashtenne (AIF) Limited, which appears by Mr Higgins, was at material times landlord of factory premises ("the premises") known as Unit A, Tingewick Road Industrial Estate, Buckingham. It also owned the adjacent Unit B. The premises had been let to the National Paint Co Limited but that company proved to be comprehensively insolvent and the lease to it was forfeited by peaceful re-entry on 23^rd January 2003. Within the premises was an immense range of plant and equipment of the kind nowadays used in the manufacture of paints. There are helpful photographs of that plant and equipment; the size of the undertaking may be gleaned from earlier evidence that, at its peak, the undertaking at the premises had amounted to the fourth biggest paint manufacturer in the country and that the cost of the plant and equipment installed therein, when purchased new several years before, had been of the order of £5,000,000.
2. Unhappily the collapse of the National Paint Co Limited was not the first and only collapse of a paint-manufacturing lessee of the premises; there had been an earlier one which had had a consequence that a lender to or investor in the earlier lessee, the Defendant, Mr Patrick O'Neill, had become owner of the plant and machinery which was still at the premises at the collapse of the National Paint Co Limited, that latter collapse having been so complete that even secured creditors were not paid in full in its administration or liquidation.
3. Upon the forfeiture of January 2003, the Claimant, as it was entitled to do, called upon the Defendant, who appears by Mr Foster, to remove the plant and equipment left in and hence causing a trespass at the premises. On 25^th April 2003 the Claimant issued a claim for its removal. A typed schedule of some fourteen and a half pages described what was asserted to be the Defendant's plant and machinery – "the Equipment" – left at the premises. An injunction requiring the Defendant to remove the Equipment was amongst the relief which the Claimant sought. The Defendant's defence of the 30^th May 2003, whilst objecting that Mr O'Neill had not been given sufficient time in which to remove the Equipment, put little in issue beyond calling upon the Claimant to prove its case.
4. On 14^th August 2003, the parties having agreed terms, an application for an injunction came before Pumfrey J. who made an Order in the agreed terms. Leaving aside the agreed terms as to damages for trespass, the injunction required the Defendant by 4.00 pm on 31^st October 2003 to remove from the premises the Equipment as it had been defined in the Particulars of Claim. If there are to be any disagreements as to the construction and effect of that Order it might be fair to reflect that a proposed draft of the Order had initially included a sub-clause by which the Defendant agreed to indemnify the Claimant against any damages to the premises caused by the Defendant, his servants or agents removing the Equipment pursuant to the Order. That sub-clause was deleted, presumably, by agreement or because it never had been agreed, and hence it formed no part of the eventual Order.
5. It is unnecessary to go into the intervening events but on the 17^th June 2005 there came before Mr Nicholas Davidson QC, sitting as a Deputy Judge of the Chancery Division, an application by the Claimant under RSC O45 r8. The Claimant wished to be authorised itself to remove the Equipment, the Defendant having failed to do so despite the injunction, but do to so at the Defendant's expense. The application had been made on the 14^th April 2005. Mr Higgins and Mr Foster appeared then as they do now. The matter was contested and Mr Davidson gave a judgment. That led to an Order ("the 05 Order"), the material parts of which are as follows:-

"IT IS ORDERED:

The Claimant shall have permission to remove the equipment referred to in the Order of Pumfrey J. …. in accordance with the following directions.

Mr Roy Tubman on behalf of the Defendant shall by 4.00 pm on Friday 1^st July 2005 prepare and send to the Claimant a schedule identifying clearly, by marked photographic record if convenient, those items of plant and equipment which can be or have been sold to third parties and in each case giving the name and address of the third party to whom delivery up of that equipment by the Claimant shall discharge the Claimant from further obligations in respect of that equipment".

Pausing there, Mr Tubman was one working day late with his schedule and accordingly those particular provisions never came into operation but that lateness could not have been known prior to 1^st July 2005.

"3. The Claimant shall have permission to dismantle and remove any items of plant and equipment remaining on the premises and not identified in accordance with paragraph 2 of this Order as if scrap and shall be discharged from further obligations in respect of that plant and equipment by permitting the same to be delivered up to the contractors engaged to dismantle and remove the same upon the basis that the value of such plant and equipment to those contractors shall be offset against the cost of dismantling and removal.

4. The Defendant shall pay the Claimant's reasonable costs and expenses of removing the equipment in accordance with the provisions of this Order to be ascertained in following manner".

6. The 05 Order continued with a system by which disputes as to the Claimant's dismantling and removing costs and expenses were to be determined by way of the service of a schedule and, if they were disputed, counter-schedule. The 05 Order provided that if they were disputed then determination of the sum payable under paragraph 4 should be assessed by a Master or at the direction of a Master, for which purpose the parties had permission to apply. Remarkably, as it seems to me, neither the Learned Master directed nor either counsel sought a direction that the matter should be sent off (if neither arbitration nor mediation appealed) to its natural home, the Technology and Construction Court. Whilst the Master had first ordered that a Master should hear the matter (when the estimate was one day), when it became subject of an estimate of three days the Master adjourned it to a judge. In the event, it took four days. The Defendant was required by the 05 Order to pay £75,000 by way of interim payment and that sum was paid. The Defendant was also required to pay the costs of the application for that Order.
7. A good deal of evidence has been filed and there has been cross-examination of all the deponents who gave witness statements as to the events relevant in this part of the case. Thus, on the Claimant's side, I have heard from Mr McNamara and Mr Jackson, both of Atisreal Limited. The former is the director in charge of their building consultancy and was the most senior of the Atisreal personnel from whom I heard. The latter is a plant and machinery disposal manager for Atisreal, the company of chartered surveyors and real estate consultants which was instructed by the Claimant to act for it in relation to arrangements for the dismantling, removal and disposal of the Equipment from the premises. I also heard evidence on a discrete part of the Claimant's case from Mr Mark Carter of SVM Associates, who conduct a mechanical and electrical building engineering services consultancy and who were brought in by Atisreal on behalf of the Claimant. The principal contractor engaged by Atisreal for the Claimant in order to procure the removal and disposal of the Equipment was E.D. & M.A. Redpath & Sons ("Redpaths") and their Mr E.D. Redpath gave evidence.
8. On the Defendant's side I heard from Mr O'Neill (his cross-examination consisted of only one question) and from Mr Roy Tubman of Sanderson Weatherall, a plant and machinery auctioneer and valuer. He had acted in relation to the removal and disposal of the Equipment on Mr O'Neill's behalf. There was no independent expert evidence on either side. Mr Higgins sought to belittle Mr Tubman's evidence by asserting that he had no relevant expertise; he was not a machinery dismantler nor an engineer nor a chartered surveyor but an auctioneer. All that is true and, of course, Mr Tubman's evidence could not achieve the weight of that of an independent expert. Even so, I found him to be willing and able to speak helpfully and in a fair minded way from many years' involvement as a plant and machinery valuer who had become, as such, familiar with plant dismantlers, what they could do and what was expected of them in their trade. There were relatively few dealings in the period with which I am concerned directly between the Claimant and Mr O'Neill; on both sides I shall be more concerned with what passed between advisers and contractors.
9. What were called "enabling works" at the premises began on or about the 19^th July 2005 and demolition and removal works under arrangements made with Redpaths began on the 22^nd August 2005. On 11^th November 2005 the Claimant served a schedule claiming £322,291. On 9^th December 2005 the Defendant served a counter-schedule admitting only £58,150 and seeking a set off in respect of the estimated market value of the Equipment on re-sale as such (£50,000) or as scrap (£25,000), together with a deduction for the £75,000 which the 05 Order had required and which, as I have said, had been paid.
10. On 16^th December 2005 the Claimant issued the application now before me. On 13^th March 2006 the Claimant amended its schedule, substantially reducing its claim to £239,001. That schedule descended into considerable detail, as did the Defendant's answer to it and, whilst many items in the schedule were either not contested or agreed, the parties do join issue on matters of what is often tiny detail. Even so, it is possible, and both counsel have attempted, to deal with parts of the contest between the parties under a number of broad headings, the first of which deals with how far, if at all, the Claimant has yet to give credit for some value of scrap, which, as to by far the greater part of such of the Equipment, as had to be removed by the Claimant, is what it became in the course of its removal.

The Credit Issue

11. That important issue, referred to by both parties as "the Credit issue", arises as follows. As will have been seen, the basis upon which, under the 05 Order, contractors were to be engaged to dismantle and remove equipment was so "that the value of such plant and equipment to those contractors shall be off-set against the costs of dismantling and removal". The Defendant was required to pay "the Claimant's reasonable costs and expenses of removing the equipment in accordance with the provisions of this Order …".
12. In the context of the existing disputes and proceedings between Claimant and Defendant, the Claimant could expect a further contest as to whether his costs had been "reasonable" unless the Claimant took pains to establish their manifest reasonableness. An obvious course was to obtain quotations from various dismantlers. Given the "offset" basis required, one would therefore expect quotes which plainly showed a gross cost from which (unless the contractor indicated that he had valued the material to be removed at zero) a value of the equipment to the contractor would be deducted so as to arrive at a net sum payable by the Claimant to the contractor and, in turn, to the Claimant by the Defendant. Moreover quotations would need to be in such form that one could be compared with another or others.
13. If the "value" to be set off had to be an actual value (and hence arguably a value achieved on a sale in the open market) then it would not be capable of ascertainment until the contractor had in fact sold the removed plant and equipment. That would or might make comparisons between quotes difficult; should the Claimant accept a quote of, say, £100,000 from the contractor with a reputation of achieving high on-sale prices for his scrap or one from another, with a poor reputation as to his sales, for £90,000? However, I am far from sure that the word "value" is necessarily limited to a value achieved on a sale (more the realm of the word "price") and, in my judgment, the expression in the 05 Order "the value to [the] contractor" is broad enough to include prospective and hence estimated values put on the Equipment or scrap by the contractor.
14. I would not expect the Learned Deputy Judge to have knowingly embarked on a system calculated to lead to yet further disputes – for example, as to what was the value of the Equipment to the contractor – so I read the Order as contemplating that, as a matter of best practice, quotations would either be required to specify that Equipment or scrap value or how it was to be arrived at. A contractor could, for example, quote a gross cost of £100,000 but indicate that he would prospectively attribute the value to him of the equipment as £25,000, leaving a net payable sum of £75,000. Mr Higgins suggested that that would be commercially unattractive and hence would not have been intended as it would leave the contractor at risk of finding that, in a volatile scrap market, his stated value might prove unobtainable. But I had no evidence that the scrap market was "volatile"; only that, like the Stock Market, it went up and down. I had no reliable evidence of the likelihood of sharp declines over any gap likely between removal of the equipment and its sale and in any event a contractor would be able, were he to use the form of quotation I am considering, to arm himself against the risk of a decline by specifying a low Equipment or scrap value as that to be deducted from the gross. As an alternative the contractor's quotation could say that he would allow a deduction from the gross of whatever he sold the Equipment or scrap for (an actual value, he producing invoices) or, for example, that he would credit whatever he sold the scrap for less some specified deduction – say 25% - for the storage, transport, insurance and other costs attendant upon his sales – a net value to the contractor. Doubtless there could be many variations on such themes but, whatever basis was settled upon, the basis of contract between Claimant and contractor had, in my judgment, to be one such that (i) a deduction either had already been made (whether or not, as a matter of the best practice being respected, the deduction was visible) or (ii) that one would be made or (iii) that the contractor concerned attributed a zero value to the value to him of the Equipment he was to dismantle.
15. If that is right then the question arises whether the contract which the contractor did make – one with Redpaths– for the dismantling and removal of the equipment was a contract on the required basis and, more especially, whether the price it stipulated was one that was after a deduction or was one for a gross price from which a deduction remained yet to be made. This issue is a question to which both written and oral evidence was addressed and I shall look first at the written evidence.
16. On the 11^th February 2005, well before the 05 Order, Redpaths, responding to a "recent enquiry" which is not further explained, provided a half page letter by way of a quotation for "the Safe Removal & Disposal of Items …." (my emphasis). The quote, to Atisreal, was for £80,000 plus VAT and provided, inter alia, and again with my emphasis that "All waste materials arising from the removal (excluding any chemicals) within the production area to be disposed of by E.D. Redpath". It is not clear whether that reference to "waste materials" was intended to include the Equipment in the condition it would be in when reduced, if it was, into scrap form. I would not think that it was; one would not ordinarily refer to material of such value as waste. Further, I do not recall either Mr Redpath or Mr Jackson referring in their oral evidence to this second reference to disposition but rather that they spoke of "disposal" - the word in the heading. However, I shall assume, in the Claimant's favour, that both references are relevant. Whatever was thereby intended, although there were to be disposals by Redpaths, there was no express indication whether or not any estimated proceeds of future disposals had been taken into account in arriving at the figure of £80,000. Nor was there any indication of whether any estimated or actual proceeds were to be accounted for to Atisreal or their clients by way of a deduction from the £80,000.
17. After the 05 Order, Redpaths were told by Mr Jackson of Atisreal that it had been selected for the task. The Claimant's letter confirming Redpaths' instruction as principal contractor, a letter of 19^th July 2005, not only made no reference to £80,000 or to Redpaths' quote of 11^th February 2005 but made a reference to there being a later provision of "more specific detail as to your …. cost", a reference which might suggest that £80,000 plus VAT was not necessarily what the Claimant was going to have to pay.
18. In August 2005 Redpaths prepared the required Construction Phase Health and Safety Plan (Demolition). Redpaths began works on the 22^nd August 2005. Remarkably, as it seems to me, despite the engagement on the Claimant's side of solicitors and Atisreal's Corporate Asset Advisory Services Division, despite the 05 Order which had intervened between the original quote and the commencement of works and despite also Mr Jackson's expectation in his witness statement of the 8^th April 2005 that there would be further negotiations with contractors, the terms of Redpaths' engagement seem not to have been further refined in writing than could be derived from the letter of the 11^th February and the delphic letter of 19^th July.
19. In response to an enquiry by the Defendant's solicitors in November 2005, the Claimant's solicitors asserted that scrap values realised by Redpaths were irrelevant as the Redpaths' contract "was for a net price". No chapter or verse was given in support of the assertion.
20. After Redpaths had completed its works, Mr MacNamara, a director of Atisreal in charge of their building consultancy for their Birmingham office, made a witness statement of 13^th March 2006 (the subscription to which was that he believed the facts stated therein to be true) which, in explaining why Redpaths had been selected as the contractors, said, in his para 32:-

"Another important factor in our decision to appoint Redpath was that they proposed selling on part of the equipment as scrap where possible and deducting this from their invoice price. This meant that an available £8,000 was deducted from their invoice 2577 due to scrap value of the stainless steel tanks".

In context, the words "This meant" implied that the deduction of £8,000 for the stainless steel tanks was not some special arrangement but was no other than the ordinary working out of a contract under which there would be a deduction from the invoice price, from gross to net, if sales of scrap were effected.

21. Mr MacNamara had indicated in his witness statement that the matters and facts to which he referred were either within his own knowledge and were true or were based on information and documents which had been supplied to him, in which case the facts were true to the best of his knowledge and belief. In the latter case he indicated he would identify the source of the material he relied upon but he identifies no source of information relating to the passage which I have cited and accordingly the passage could be taken to be asserted as something within his own knowledge.
22. Later in his witness statement Mr MacNamara, speaking of Redpaths having submitted its invoice 2577 in a sum of £85,000 plus VAT, (I shall return to why £5,000 was added to the £80,000) explained:

"To be deducted from this sum was £8,000 on account of the scrap value Redpaths had obtained from the stainless steel tanks making the total of the invoice £77,000. In error this was not applied to the original invoice but was later credited to the Claimant."

Again no particular source was identified for the evidence and so, again, the passage can be taken to have been asserted as being within Mr MacNamara's own knowledge.

23. At much the same time as Mr MacNamara had made a witness statement, so too did Mr E.D. Redpath. In his witness statement of 10^th March 2006 he describes that he had made a quotation in the sum of £80,000 plus VAT. He said:-

"Following correspondence with Paul Heald at Atis in August 2005, Mr Heald confirmed in an email to me on 23^rd August 2005 that Ashtenne had instructed through Andrew Jackson of Atis that Redpath & Sons should remove and dispose of the plant as scrap, with any value to be off-set against the cost of dismantling and disposal".

A little later he says, of Redpaths' invoice 2577:

"The invoice also included a credit of £8,000 for the stainless steel tanks removed from the Premises. This represented the tanks' scrap value and was off-set against the total of the invoice. In error the £8,000 credit was not taken into account in the total of the invoice. On 17^th October 2005 a credit note was submitted to Ashtenne for £8,000 (plus VAT). A copy of invoice 2577 appears at …. and a copy of the credit note appears …. [in] the bundle".

24. There is nothing in those passages to indicate that the £8,000 credit for the stainless steel tanks was in any way something that arose from some special or extraordinary dealing. Nor, as it seems to me, is Mr Redpath clearly stating an understanding that value achieved by way of disposal of scrap had already been taken into account in the fixing of the price at £80,000 plus VAT or that its value would otherwise enure to the benefit of Redpaths. As for the communication with Paul Heald in August 2005 to which Mr  Redpath had referred, on 23^rd August 2005 Mr Redpath had by email asked Mr Heald:

"If we remove the tanks [is] a credit to be raised against the removal cost? All we ask for is written confirmation that we are legally entitled to remove and scrap the tanks without any obligations to ourselves".

Mr Heald's answer was:

"Once the tanks have been removed any value they have should be off-set against the cost of dismantling and removal. This is the same for all items of plant and equipment which you remove".

That suggests that the stainless steel tanks were not in any special position but were in the same position as all items of plant and equipment which were removed. There is nothing in the evidence that suggests that Mr Redpath bridled at the indication which Mr Heald had given him. Mr Heald, it is to be noted, gave no evidence.

25. The day before the email exchange between Mr Redpath and Mr Heald there had been one in which a Mr Morgan of the Claimant passed on to Mr Redpath advice which had been received from its solicitors. There had been a discussion on 22^nd August 2005 between Mr Heald and the solicitors. The solicitors confirmed to Mr Heald (using virtually the same language as the 05 Order) that the basis authorised by the 05 Order was that the contractors were engaged to dismantle and remove plant and equipment "upon the basis that the value of the plant and equipment to those contractors is offset against the cost of dismantling and removal". The solicitors continued (to Mr Heald):

"As I explained, this means that Redpath & Sons are entitled to operate on the basis that the demolition programme is for scrap rather than to preserve the plant and equipment for later collection by Patrick O'Neill or any one else. That said, as you appreciate, Ashtenne has through your colleague, Andrew Jackson, attempted to negotiate on a without prejudice [basis] to its strict legal rights for certain items to be removed/collected prior to the demolition process starting. As we discussed, there may still be further mutual benefit in that process continuing although it should not be allowed to delay the demolition contractor in achieving its objectives. I hope this clarification is adequate for current purposes, but if you have any queries please let me know".

There is no evidence of further questions being raised other than in the email of 23^rd August to which I have referred.

26. It is to be noted, firstly, that it was not the Credit issue that was then being discussed in that last passage but the quite different one of whether the removal under the Order could be by way of the reduction of the plant and machinery to scrap as opposed to its coming out still describable as equipment. Despite Mr Redpath's oral evidence, which I shall come on to (he said he had had instructions from Mr Morgan), that passage cannot, in my view, be read as indicating that the value, if any, of scrap was beneficially to belong to Redpaths.
27. Secondly, as the latter part of that cited passage shows, even as late as the 22^nd August, the very day on which Redpaths began its works, it could have been that some equipment might, by arrangement with the Defendant or his representatives, be removed and hence never scrapped. If, as that passage suggests, Atisreal was to be free to let Mr  O'Neill take equipment away then that tends, if anything, against there being a contract understood by Atisreal to give all the scrap value of all the remaining Equipment, if it had any value, to Redpaths; there was no evidence by anyone that it was contemplated that, even then and thereafter, there might, by special arrangement, be some deals done by which Redpaths would be invited to give up the value of some equipment, equipment which, if £80,000 was an irreducible sum already arrived at on the basis that the Equipment on its removal was to be Redpaths, was already earmarked to be Redpaths'.
28. In his first witness statement in March 2006 Mr Redpath also said that he had indicated to Mr O'Neill, the Defendant, that he, Mr O'Neill, could collect any of the items which Redpaths were removing at any time if he wished. Again it is difficult to square a situation in which Mr Redpath believed that, as he removed equipment, it became his to dispose of for the benefit of Redpaths with a situation in which he was willing to permit Mr O'Neill to walk away with anything that Redpaths were removing.
29. Nor is it the case that the figure of £80,000 itself makes it obvious that Redpaths must have had in mind that they would keep the proceeds of sale of equipment or scrap. In a passage of his witness statement of 9^th March 2006 on which Mr Roy Tubman was not cross-examined, Mr Tubman set out four quotations, all of which, he said, envisaged that the Equipment would remain the property of the Defendant and would be removed mainly as saleable items of plant and not as scrap material. As to one of the four – a quote by Redpaths – that basis is disputed but it is not disputed as to the other three. It is more expensive generally to remove equipment of the kind here in issue so as to leave it able to be sold as equipment rather than to remove it leaving it to be sold only as scrap. The quotations vary from £60,200 to £219,000 and include a price of £100,000 from Redpaths. It is plain, when looking at those figures, that there is nothing about a quotation for £80,000 plus VAT for removal as scrap that of itself makes it obvious that the basis of the contract was that the proceeds of disposal of scrap would not serve to reduce the invoice price.
30. However, some while later, on 8^th September 2006 Mr Redpath, in a second witness statement, said that the quotation for the work that he did had been on the basis "that the plant and equipment would be scrapped as opposed to being preserved for the Defendant to collect" – and that part is not disputed –

"and that I would be free to take the benefit of any value in the equipment removed as scrap. Had this not been the case my original quotation of £80,000 (plus VAT) would have been significantly higher probably something in the order of twice as much, as I have also already explained in my first witness statement".

31. He did not identify any particular communication between Redpaths and the Claimant that had led him to form that view of the basis on which Redpaths had been instructed. He continued:

"The only exception to this was in relation to the stainless steel tanks which I gave an £8,000 credit for as I explained in my first witness statement".

He then indicated that, by way of a special arrangement, he had always understood that he would not be getting the stainless steel tanks and hence would have to give credit for them. This second witness statement is the first clear indication that Mr Redpath himself understood that proceeds of disposals would enure to Redpaths' benefit and that, indeed, the £80,000 quote had taken that factor into consideration. His reference to his quotation of being probably of the order of £160,000 had that not been the case suggests that he had been looking to obtain a net gain of up to some £80,000 from the sale of scrap, an assertion which, in the light of other attributions of value to and actual realisations of scrap, does nothing to enhance Mr Redpath's credibility. His reference to an explanation in his first witness statement serves to indicate Mr Redpath's confusing unreliability; his reference then had been to the cost of removal being perhaps twice as much if equipment had to be removed while retaining its description as Equipment rather than as scrap, a quite separate issue to the Credit issue.

32. Nor had Mr Redpath's conduct done anything to assist the credibility of his assertion that, in effect, nothing was to be deducted from the £80,000 of his quotation. Thus, for example, Mr Tubman's witness statement of the 9^th March 2006, speaking of August 2005, said that Mr Redpath had then offered to buy the remaining unsold equipment from Mr O'Neill and that Mr Tubman had indicated that he, Mr Tubman, valued that equipment as scrap worth about £25,000. Mr Tubman (whom I regard as a reliable witness) continues that Mr Redpath:

"was not interested in it at that price and suggested that he remove it intact and deliver it to the Defendant (for a price) or by selling it intact on behalf of the Defendant on commission. He later contacted me to say that he had been told by the Claimant not to have any dealings with the Defendant and was instructed to remove the equipment only as scrap".

How could it be that Mr Redpath offered to buy from Mr O'Neill equipment the value of which he had already taken into account on the footing it would be his beneficially upon its removal from the premises?

33. Then, however, Mr Jackson of Atisreal, in his witness statement of the 12^th October 2006, stated that:

"The terms of the contract with Redpath & Sons was that the plant and equipment removed by them was theirs to dispose of and that they could retain any credit for scrap value in addition to the contract price. The quotation from Redpath & Sons dated 11^th October 2005 makes specific reference to the "disposal" of the plant and equipment. It was not envisaged that Redpath & Sons would give any credit to the Claimant for any scrap value that was realised. In this regard David MacNamara's comments at paragraph 32 of his statement are inaccurate."

34. Mr MacNamara had not, in the interval between making his witness statement in March 2006 and this statement of 12^th October, volunteered that his witness statement was wrong. Mr  Jackson identifies no oral or written dealings to lead him to his conclusion, which seems entirely to depend on the word "disposal" in its context.
35. So much for the written evidence on the Credit issue. If I am wrong in construing the 05 Order as allowing the values which have to be "off-set" to include prospective or estimated values and if, therefore, it is only "actual" sale values that have to be off-set, then, as the scrap had not been sold by 19^th July 2005 (appointment by the Claimant of Redpaths) or 22^nd August 2005 (commencement of Redpaths' works), values of the kind which would have to be off-set could not have already been off-set by those dates and would therefore have to be offset now. But even if I am right as to the construction of the Order (the basis on which I shall proceed), the written evidence gives so unclear and conflicting a picture that it not merely reflects badly on the professionals on the Claimant's side who caused or allowed such to be the picture but leads one to be unsurprised at the Defendant's dissatisfaction and his wish to test down to a hearing this issue arising out of the bill with which he had been presented.
36. First to give oral evidence on the Credit issue was Mr MacNamara. His paragraph 32, he said, had been mistaken; he had misinterpreted, he said, the way in which scrap value was to be treated. But beyond his saying that he was mistaken he added little; he distanced himself from the dealings between Atisreal and Redpaths. It had been Mr Jackson and another colleague, Mr Stack, he said, who had decided to engage Redpaths and why it should be that Redpaths should be used. He gave no explanation of how his mistake had occurred or what had brought him to the knowledge that he had been mistaken; there was, for example, no suggested late recollection by him of some earlier discussion or letter or other event. I do not say that Mr MacNamara's disavowal of his own witness statement was dishonest or untrue but, in the circumstances, I do not regard his assertion that he was mistaken as being other than a statement that someone else – Mr Jackson, Mr Stack or Mr Redpath would be obvious candidates – had told him that he was mistaken and that he had felt he had no reason not to accede to that.
37. Then Mr Jackson gave oral evidence. His last instruction to Redpaths was on or about the 28^th June 2005. Thereafter, he said, Redpaths' principal points of contact with Atisreal had been Mr MacNamara and Mr Heald. The conclusion he had come to in his witness statement – see para 33 above – was based not on discussions with Redpaths as to their quote or as to the terms of their instruction or on any agreement thus reached but solely on the language of the Redpaths' quotation and hence, as it seems to me, solely on the words "disposal" in the heading and (if it was applicable at all, as I am assuming) "disposed of". The Redpaths' quote, of course, was before the 05 Order and before it could be known whether a timely notice under paragraph 2 of the 05 Order would take some plant and equipment out of the process of paragraph 3 thereof; it was, in other words, a quote made at a time when Redpaths could not know what it was that Redpaths would be free to sell for its own benefit. That is not conclusive against the £80,000 being a price reflecting that some deduction in respect of the value of all the plant and equipment had already been made, as Redpaths, in effect, asserts, but, at lowest, tends against it. Mr Jackson had no recollection of any discussion with Mr Redpath as to what was to happen to the scrap. He himself did not have it in mind to give any value to the scrap, which may explain the absence of any discussion on the subject with him.
38. The other of the two principal points of contact between Redpaths and Atisreal – Mr Heald – also the author of the email I have cited of the 23^rd August 2005 – see para 24 above – conspicuously did not give evidence. His absence was not satisfactorily explained. As the author of the email of 23^rd August and a person who spoke more than once to Mr Redpath on that day, his evidence could have been of such importance that I regard its absence as significant.
39. So much for the Atisreal side of any contract; as for Mr Redpath's evidence, it proved difficult for Mr Foster in cross-examination to elicit any answers from him other than such as "It wasn't my problem" or "That wasn't any of my business" but Mr Redpath, an unsatisfactory and unreliable witness, did say that he was not told to offset the price obtained for scrap. His response to having Mr Heald's email of 23^rd August put to him as an answer to that assertion was to the effect that credits for the job were to be all his. That is difficult to accept in the face of Mr Heald's email that the value (and by using the word "received" he seems to be speaking of actual value) of all items which were received "should be" (as opposed to "already had been") set-off against the cost of dismantling and removal. Mr Redpath did not explain why he failed to take up cudgels with Mr Heald on the issue; he was determined not to acknowledge anything even arguably inconsistent with his asserted belief as to the £80,000 being irreducible.
40. Mr Redpath's response to being shown Mr Morgan's advice – see para 25 above - was that it had referred only to the stainless steel tanks, not, in my view, something possible on a fair reading of the email.
41. Dealing with the allegation of Mr Tubman's that he, Mr  Redpath, had offered to buy scrap for £25,000, he denied that he had offered that sum and said that, in effect, he had not been interested at that price. But the real issue there was not the price of the offer but that there was an offer and Mr Redpath did not explain why he had been offering to buy that which, on his asserted view, was already to be his. I should add that in that contest, if such it was, between Mr Tubman's evidence and that of Mr Redpath, I would have to prefer that of Mr Tubman.
42. Mr Redpath, echoing Mr Jackson, relied entirely, as it seemed to me, on the words "disposal" and perhaps also "disposed of" in the heading to and body of his letter-quote of 11^th February 2005. For my part, in its context – the quote headed "the Safe, Removal and Disposal of Items …." – the word "removal" did not necessarily mean taking away from the premises; several items were to be "removed" merely from one part of the premises to another. In the context I see the other word - "disposal" - as making it plain that Redpaths had not merely to dismantle the Equipment (be it as equipment or as scrap) but were required to take the residue away from the premises, "disposing" of it in such manner as the regulations permitted or required. The Defendant was required by the 05 Order to pay the Claimant's reasonable costs but only if the removal had been "in accordance with the provisions of this Order". It was important therefore that the off-set system should be used as otherwise the Claimant risked an argument that nothing was payable for want of compliance with the Order. In a context in which the contract was made after the 05 Order and in the light of the offset system which it required and which was well known to Mr Heald and (as it had seemed from Mr MacNamara's first witness statement) to Mr MacNamara, I would not regard the verb "to dispose" to carry within it, without more, the notion that the fruits of the "disposal", if any, should necessarily belong to Redpaths. I do not have to say that Mr Redpath's oral or other evidence was dishonest; he may truly have had in mind, locked all along in his bosom, and have believed all along that £80,000 was an irreducible price net after some estimated deduction. But he never explained how the price of £80,000 was arrived at save, in a confusing and less than credible way, to assert that had the scrap not been intended to be Redpaths' then his price could have been as much as twice as much as the £80,000 it had been. But it is not enough for Mr Redpath himself, as one side of a contract, to have believed as he did (if he did); if I look at the evidence as a whole objectively, including the question and answer in the 23^rd August emails, the absence of reaction to that answer, the absence of identification of any conversation between Atisreal and Redpaths on the subject and the absence of any explanation from Mr Heald, I do not feel able to conclude that there was a contract between the Claimant by way of Atisreal on the one side and Redpaths on the other on an agreed basis that the price payable by the Claimant to Redpaths was to be £80,000 with no deduction therefrom even should Redpaths later estimate a value fairly to be put on the material removed or, alternatively, should it achieve prices for that material.
43. Mr Higgins argues that because both Mr Redpath and Mr Jackson in evidence gave the same meaning to the terms "disposal" and "to be disposed of" as the same are found in the quotation letter of 11^th February 2005 – a meaning that understood the £80,000 to be an irreducible net price after allowance already made for the value of scrap – it was not open to the Court to hold that there had been any contract other than one that embodied that meaning. But there was no evidence of either Mr Redpath or Mr Jackson making manifest what his understood meaning was; in each case it remained in gremio. On that basis I have to ascribe to the terms used whatever meaning the objective context requires, which I have attempted to do and which does not lead, in my judgment, to the proceeds of disposal, without more, being taken by Redpaths. In any event, I do not regard Mr Jackson as the most relevant actor on the Claimant's side. His last contact with Redpaths was in July 2005 and he had no discussion with Redpaths in relation to the scrap. More relevant would have been Mr Heald's view, especially in the light of his email and conversations of 23^rd August, but an assessment of that was denied to me.
44. On the basis that the £80,000 was not an irreducible net price, I am left either with (i) any parties to the suggested dismantling and removal contract - the Claimant (by way of Atisreal) and Redpaths - never having been ad idem and hence with there being no contract at all (leaving me to proceed, perhaps, on a quantum meruit basis) or (ii) on the basis that there was a contract but that the £80,000 was not irreducible but fell to be reduced. Neither counsel pressed for the former and I shall adopt the latter course. What, if anything, then, is properly deductible from the £80,000?
45. That lay unmentioned until Mr  Redpath, late in his cross-examination, said that he had obtained £12,000 gross (net £8,000 after expenses) for "the tanks" which, I apprehend, was a reference to the stainless steel tanks for which £8,000 credit had earlier been given. He said that he received £20,000 for the rest of the saleable scrap. Mr Redpath, not a man likely to be hesitant in his claims, attributed no particular sum for any costs attendant upon the sale at £20,000 so I shall take it that either there was none or that £20,000 was a net figure. These prices were not verified in any way but neither were they challenged. On the basis that the £8,000 credit stands, I see it as appropriate to deduct £20,000 from the Claimant's recovery. That concludes the Credit issue and I turn to the other headings of issues.

Enabling Works A & B – Hazardous Waste, etc

46. The summary sheet served by the Claimant in support of its reduced claim for £239,001 has alphabetical sub-headings A-I, of which A and B are concerned with the removal of hazardous waste. Such hazardous waste was both within and without the Defendant's Equipment. The Equipment was quite properly being cut into and reduced into scrap and unless the hazardous waste within it was firstly safely removed there could be danger and, doubtless, breach of health and safety regulations. Although this waste material within the Equipment did not belong to the Defendant and was no part of the Equipment as defined in the original pleading, its safe prior removal and appropriate disposal seems to me so inescapable a part of the cost of the safe and lawful removal of the Equipment itself that the cost of its removal (contrary to Mr Foster's primary submission) is, in my judgment, to be borne by the Defendant.
47. However, by way of secondary submission, Mr Foster argues that the bill for removal of hazardous waste goes way beyond merely dealing with the waste inside the Equipment and way beyond also dealings with the waste inside its supply, connecting and exhaust pipes. Mr O'Neill, he reminds the Court, had no interest in or responsibility for the premises or any part of them as such, only an ownership of the Equipment. He was never a lessee of the premises or any part thereof; he was never liable for any dilapidations or related damage to the premises or any part of them. He had no control over how the lessee had operated his machinery. Yet if one analyses the invoice from a firm called WSP, which carried out a survey of what had to be done, by far the greater part of the cost of removing hazardous waste was, says Mr Foster, related to waste outside the Equipment, not the Defendant's responsibility at all. WSP's own view, he suggested, was that only £9,570 should be attributed to dealing with the hazardous waste which was within the Equipment.
48. Mr Higgins argues, though, that the whole factory had become a dangerous environment and that the whole had to be made safe before any safe and lawful removal of the Equipment could commence. WSP had made a professional judgment as to what was necessary to make the premises safe so far as concerned the removal of hazardous waste - £26,488 worth of works – and the whole of that was a direct consequence of the authority given to the Claimant by the 05 Order to remove the Equipment. The whole of that bill was, he argued, properly passed to the Defendant.
49. Here I prefer Mr Foster's secondary submission. It was the outgoing lessee, against whom the claimant had re-entered, or, at any rate, not the Defendant, that had been responsible for hazardous waste being found outside the Equipment and I see nothing in the 05 Order that obliges the Defendant to pay for other people's shortcomings. If the work was necessary to bring about a situation in which the dismantling and removal of the Equipment could take place it was doing no more than providing necessary access for that purpose. If the work was not necessary in that way there was still less reason to charge it to the Defendant. I revert to this issue in my para 55(iv) below. I hold there is to be a reduction of the bill from £36,058 to £9,570, a reduction to 26.54% of the £36,058 that had been claimed. On that basis it seems right, in the absence of other figures, to reduce the associated survey and monitoring costs by a like proportion, namely down from £3,650 to £968.71.

Enabling Works C- Delton

50. Delton Central Services Limited, employed as specialists in their field, charged £6,345.12 for isolation and decommissioning of mechanical and electrical services. It was in this part of the case that Mr Carter's evidence was deployed. The Defendant's argument in Mr Foster's Skeleton Argument was that the electrical services could be rendered safe enough simply by switching them off and padlocking access to the switches and fuses so as to deny access to them. Temporary portable generators for such electricity as would be needed in the course of the removal works – e.g. for lighting, cutting plant perhaps and heating – could then be hired. However, the evidence was that the electrical supply to the premises had not been kept separate from the supply to the very many items of the Equipment which required such a supply. If one were simply to switch off all electrical supplies within and to the premises, prior to then, in the course of removal works, cutting the spaghetti of cables (to use Mr Higgins' graphic phrase) serving both the Equipment and the premises, one would then be left with unidentified cable ends which, on restoring the electrical supply once the Equipment had been removed, would be extremely dangerous. And had that been done, circuitry, distribution boards, lighting and other equipment including "commando" sockets would have had to be hired. A small part of the relevant bill related to the isolation of air conditioning units and, as to that, Mr Foster argues (rightly) that they were no part of the Equipment but they were attached to the mezzanine which was part of the Equipment and the units had to be isolated electrically if the mezzanine was to be removed, as it had to be. The Defendant's own experienced witness, Mr Tubman, acknowledged that if cables were simply cut there would be real danger when the supply was restored and accordingly Mr Foster sensibly abandoned the main part of his Skeleton under this heading but he still asserted that there should be a reduction in respect of the cost of isolating the air conditioning. However, I had no evidence as to how the mezzanine could possibly have been safely dismantled and removed without the air conditioning units, which were physically attached to it, being isolated. I did not have explained to me the history of the manner in which the air conditioning had become an accretion to the Equipment but I would expect that, had he been concerned to do so, the Defendant could have resisted the accretion or have required it to be undone. To that extent he had permitted a situation in which the Equipment could not be dismantled and removed without the isolation of the air conditioning and, to my mind, he having allowed or having failed to undo that physical accretion, the cost of the isolation of the air conditioning becomes a cost for which he was responsible. It may be that less expensive ways of dealing with the electrical problems could have been devised but that is not the test; it cannot be said that what was done was unreasonable. Accordingly I leave the bill for £6,345.12 unreduced.

Enabling Works D – SVM

51. SVM put in a bill for inspections and survey work for £3,028. This, too, fell within Mr Carter's evidence. I do not see Mr Foster's objection that some of this work was done before the 05 Order as of itself denying recovery of its cost to the Claimant. If, as I take to be the case, the work had to be done sooner or later as part and parcel of the preparation of a safe and lawful removal of the Equipment, then it had to be paid for and there is no evidence that it having been done sooner made it more expensive. Again Mr Foster seeks a deduction for some proportion to reflect the isolation of the air conditioning work but, as above, I do not see that to be appropriate.

Enabling works E – Atisreal (Birmingham)

52. This was a bill for £4,370 for survey work and project co-ordination. Mr Foster complains that this work was done before the 05 Order but I repeat the answer that that of itself is no reason to disallow the expense. I leave the £4,370 unreduced.

Enabling Works F – Atisreal (London)

53. Here the bill was for some £26,134. Mr Higgins accepts that £4,875 represents outgoings which, if recoverable at all by the claimant, will be recoverable only as part of its litigation costs and which therefore fall to be deducted from the £26,134 at this stage. Mr Foster, not content with that, says that so confusing are the invoices eventually disclosed by the Defendant (one for £17,700 and one for £6,519), which are in any event tabulated in a quite different way to the tabulation in the summary sheet, that the whole of the £26,134 should be disallowed. That seems to me to be too extreme. Although I am chiefly concerned with working through the consequences of the 05 Order, I am able, when doubt remains, to reflect that had only the Defendant done that which he had been ordered to do then none of these questions would have arisen. I therefore propose to deduct only the £4,875 accepted as deductible by Mr Higgins and a further £1,875 which in the summary is described as for "asset desktop reconciliation". I have failed to see, and it was not explained in evidence, what that could have to do with the removal of the Equipment or any shortcoming of the Defendant. I have thus deducted £6,750 but the remaining £19,384 of the £26,134 stands.

Enabling Works G – Redpaths – and additional works by others

54. Here the main bill is for £99,000 which includes, of course, the £80,000 which has been the subject of discussion under the heading of "the Credit issue" above. Added to the £80,000 was £5,000 "extra for penthouse roof". The evidence was that the roof was, as to its penthouse part, supported by the mezzanine and that, if nothing further was done, upon the mezzanine being removed as part of the Equipment, as it had to be, the penthouse roof would simply collapse. Mr Tubman gave evidence for the defendant that if, in the course of removal of machinery, the fabric of a building was disturbed or damaged then the cost of restoring it was usually taken to be part of the cost of removal. I accept that; it seems little enough to imply as part of any remover's contract, as the deletion I referred to in para 4 above tends to support. But, as it seems to me, what is fairly to be required as part of the cost of removal need be no more than a shoring up leading to a restoration of the kind of roof that had been in place before the machinery had been introduced. For the landlord to be supplied at the machinery-owner's expense with a self-supporting roof of a kind that had not been in place before the machinery was installed would, as it seems to me, be excessive and unreasonable. However, I had no evidence that the work done to the penthouse roof left it better than it need have been and accordingly I see the extra £5,000 as payable by the defendant.
55. At this point Mr Foster's arguments go into detail such that the only convenient way to deal with them is by reference to page numbers and item numbers in the schedules served. Thus:-

(i) A Redpaths' quote (page 1839) mentioned £8,500 for digging out the tank and bunded area and back-filling with crushed material. Because the tanks might leak whilst they were being operated in the course of manufacturing paint they had been enclosed with a wall separating the area where they stood from the rest of the factory floor. One can picture it as if the tanks were set within their own small but dry swimming pool. The enclosed area is "the bunded area" and the wall around it (where it is not a wall of the premises themselves) is the bund wall. Despite that quote of £8,500 by Redpaths it was not they that did the back-filling but B. Price Limited ("Prices"), a general contractor who did work overlapping a little with but which was generally done after Redpaths had finished. Mr Foster argues that Redpaths' invoice shows (page 1451) that work done by Redpaths in the bunded area was done at a cost of £8,000 so that in the original estimate of £8,500 only £500 had been attributable to the back-filling which Redpaths, in the event, did not do. Prices charged £3,984 for the back-filling alone (1.4.5). There therefore should be a reduction of that to £500 says Mr Foster. But the back-filling done by Prices was of laid concrete whereas that quoted for by Redpaths was of crushed material. The evidence was that £3,984 could have been an appropriate price for back-filling and finishing with laid concrete and Mr Higgins met the argument that the use of laid concrete rather than crushed material might in some way have been excessive or unreasonable by conceding a reduction of £500. I see no need for a greater deduction and deduct only £500.

(ii) 1.3.17 - Mr Higgins concedes a reduction of £15.

(iii) A small portacabin was removed. Mr Higgins accepts that it is open to me to make a reduction. I reduce the item from £2,000 (plainly excessive on the evidence) to £1,000.

(iv) 2.1 – The Claimant's approach both in argument and in computation of its claims was, in effect, that if some character of work had to be done if the Equipment was to be removed then that work could be charged to the Defendant. The factory floor had been left by the forfeiting lessee in bad order; there had been chemical and other spillages and dirt and there were countless items such as paint tins, plant which was no part of the Equipment, drums of chemicals and detritus generally which had either been stacked or had accumulated in such a way that there was no ability of dismantlers and plant removers to get at the Equipment to remove it unless the unwanted material or some of it was first removed. But I do not read the 05 Order as obliging the Defendant to pay other than for the reasonable costs and expenses of removing the Equipment in accordance with the provisions of the Order. Paragraph 3 of the Order, by its reference to "permitting the same to be delivered up to the contractors engaged", suggests that the Claimant was to bring about a situation in which the contractors had ready access to the Equipment in order to remove it. And, in principle, as I have touched on before. I see no reason why the shortcomings of others, for example the previous lessee, should be visited upon the Defendant. Item 2.1 - £3,000 – would seem to include clearance of materials from areas that were not areas for which the Defendant was in any way responsible. As I have understood matters, the hard standings to which it refers included areas beyond the "footprint" of the Equipment. Mr Higgins invited me to do the best I could on the scant information I have as to what would be appropriate. Mr Foster says that as a maximum the charge should not be greater than £1,500 but should be less. I shall reduce the £3,000 to £1,500, a reduction of £1,500.

(v) 3.1 – The diesel pump and tank to which this item relates was no part of the Equipment and is not chargeable to the Defendant and so this item represents a reduction of £500.

(vi) An issue arose concerned the removal of a raised floor area and the replacement of the flooring there by Prices. Was this work done because the prospective new tenant (or perhaps any prospective new tenant) wished to have a flat factory floor or was it, albeit foreseen to be needed only late on in the removal works, truly reasonably necessary as part of the dismantling and removal of the Equipment as a way of getting at the back row of tanks? And if it should have been foreseen earlier to be necessary, would it not have been within Redpaths' original quote? Mr O'Neill's unchallenged evidence was that in August 2005 he had been told by Mr Redpath that "The Claimant's new tenant required the floor of the Premises to be perfectly level". When that was put to Mr Redpath he did not deny it but answered that it was not his problem. Mr Tubman's evidence, which I accept, was that plant dismantlers and removers are a skilful and ingenious breed who were commonly able to remove machinery without disturbing or damaging surrounding masonry and they took pains to avoid such damage as it affected their relations with their insurers to whom claims for damage might be passed. I am unconvinced (if removal of the higher level flooring was needed at all in the course of the extraction of the Equipment) that that only came to light when the first row of tanks was removed. If a removal was needed, I would have expected that to be clear from the start. Mr Redpath, of course, had seen that part of the floor was at a higher level than the rest. But I recall no evidence from him that the need for the removal of the higher part could not have been foreseen to be necessary as part of removal of the Equipment earlier than it was alleged to have been first apparent. I hold that the back row of tanks could have been removed without destruction of the raised floor on which it stood and that had that not been the case it would have been foreseen, earlier than it was, that the removal of the higher level would be necessary. I hold that the removal of the higher level and replacement of flooring was driven not because it was a necessary part of proceeding expeditiously and reasonably with the removal of the Equipment but predominantly by a wish to provide any prospective incoming tenant of the premises with a level and well-finished floor. I am far from sure what reduction should follow from these holdings and counsel may need to address me further on the relevant sum but it could be as high as £23,772. I recognise that the premises would not be left reasonably tidy and safe (as Mr Tubman said was to be expected under a dismantlers' contract) if jagged broken-off reinforcing rods were left sticking up where the upper level had been ripped. But that would not absolve Redpaths from doing this work within the range of work to be implied as within their £80,000 quotation and laying a new floor seems to me to have gone beyond dismantling and removal. I shall provisionally deduct £12,000.

(vii) 1.2.2 and 1.2.3; fire escape brickwork: The fire escape was not itself part of the Equipment and if related brickwork had been damaged in the course of the dismantling and removal of the Equipment then, within Mr Tubman's evidence, which I accept, as to what would ordinarily be taken to be within a dismantlers' contract (so long, I would add, as not expressly excluded) then it would be part of the dismantlers' job to make good the damage caused. In any event, part of the brickwork concerned was exterior brickwork, damage to which would hardly be expected to occur in a well-conducted removal. I deduct £340.

(viii) 1.2.7; damage to rainwater pipes: I deduct £130 for, mutatis mutandis, the reason in (vii) above.

(ix) 1.2.8; as in (viii) above I deduct £145.

(x) 1.2.14; mezzanine work: originally the Defendant had argued that the mezzanine had not been part of the Equipment but it was later accepted that it was and, on that footing, I make no deduction. It might have been arguable that part of the cost – for replacing damaged block work – was something that should have fallen within Redpaths' contract but I have no information that permits me to sub-divide the £175 and, as I have said, I make no deduction.

(xi) 1.2.16, 1.2.17, 1.2.18; accepting, as I do, Mr Tubman's evidence, I would regard these relatively small sums as representing work that should have been done within the Redpaths' quotation. I thus deduct £640.

(xii) 1.2.20; here the £140 claimed by the Claimant was in part related to dismantling part of the mezzanine and in part making good all holes. I have no evidence enabling me to sub-divide the £140 and hence make no deduction.

(xiii) 1.2.26; I would take this £390 to represent work which should have been done within the removal and demolition contract, on the basis of Mr Tubman's evidence as to what was expected to fall within such a contract. I thus deduct £390.

(xiv) 1.2.35; I make no deduction in respect of this item.

(xv) 1.2.38; I deduct £370 as, on my view of Mr Tubman's evidence, this work should have fallen within the Redpaths' contract rather than being done at separate cost by Prices.

(xvi) 1.3.17; £15 was here conceded by the Claimant and is accordingly deducted.

(xvii) 1.4.5; I have already dealt with this item.

(xviii) 1.4.6; I have already dealt with this item.

(xix) Mr Foster abandoned a number of minor claims and the next item I need deal with is 1.4.8 – penthouse roof – which I have already dealt with at paragraph 54 above.

(xx) 1.4.10 – laboratory furniture – I deduct £870 as either the laboratory furniture was not within the defined "Equipment" (in which case there was no Order that it should be removed at the Defendant's expense) or it was within the definition, in which case it should have fallen within Redpaths' quotation rather than being charged for separately by Prices.

(xxi) 1.4.18; drains: had it been proven that there was risk of chemicals remaining in the drains and interceptors and which had inevitably found their way there during the dismantling works then I would have seen this to be a sum properly chargeable to the Defendant but there was no such evidence and, it seems to me, if there was a risk of dangerous or unsuitable material being in the drains and interceptors it was more likely to have been caused to be there by the operations of the outgoing lessee in the course of his manufacture of paints. I had no evidence of the escape of dangerous or other chemicals into the drains during the course of Redpaths' works. On that basis £4,785 falls to be deducted.

(xxii) 1.4.19; I have already dealt with this subject.

(xxiii) 3.1; clear out of furniture: I deduct £6,010 as this was conceded by the Claimant.

(xxiv) 4.1; fire alarm: this work goes beyond what the Defendant was responsible for but includes some work related to isolation of the fire alarm in order to facilitate work of demolition and dismantling continuing at the premises. It seems four visits were made and I see it as appropriate to charge only a quarter of the £1,010 to the Defendant and hence reduce the bill by £757.50.

(xxv) 4.3; fire alarm – mezzanine: I make no deduction here as the fire alarm in question here involved loops through the mezzanine.

(xxvi) 5.2; distribution boards: I deduct £120 as I cannot see this to be related to Redpaths' demolition etc. works and yet not within the Redpaths' quotation.

(xxvii) 5.4, 5.5, 5.6: On the basis that the "spaghetti" of severed wires, severed as part of the demolition and dismantling works, would have to be connected afresh I make no deduction for these items.

(xxviii) 5.10 – gas container bottles: I deduct £623 as these containers were no part of the Equipment.

(xxix) 5.11 – gas pipe work in the mezzanine: I make no deduction here as, once it is recognised, as it has been, that the mezzanine was part of the Equipment then it seems to me to follow that gas pipe work within the mezzanine which was severed on its removal would need to be replaced so that fresh connection could be made to whatever end usages had previously existed. It was not suggested that this should have fallen within Redpaths' contract and I make no deduction under this heading.

(xxx) Site foreman - £11,790: Mr Foster rightly argues that a site foreman would have been required at the premises even if no removal and dismantling works were done but as part of the other works needed to prepare the site for a new tenant. Further, the site foreman, it seems to be understood, was site foreman for the adjacent Unit B owned by the Claimant as well as for the relevant Unit A. Some rough and ready apportionment of the £11,790 has to be made. If I were to require further evidence and further argument on the subject of what was a due apportionment the further litigation would doubtless cost more than the sum at stake. In an inescapably rough and ready way I see only half the sum as being attributable to the dismantling and removal and accordingly reduce by £5,895.

Subject to errors and omissions which I hope counsel will point out to me, the addition of all the deductions which I have referred to comes to £92,509.50. That falls to be taken away from the £239,001.45 of the Claimant's claim. Further, the £75,000 required to be paid under the 05 Order also falls to be deducted from what is now required to be paid by the Defendant. Accordingly, and again subject to errors and omissions which counsel should point out and to any further argument under para 55(vi) above, the sum I hold to be payable by the Defendant to the Claimant in respect of the obligation cast upon the Defendant by the 05 Order is £71,491.95. Counsel will need to consider whether adjustment for VAT is needed and, if so, whether it is at one flat rate and whether on the whole or only parts.

56. That leaves costs, on which I shall, of course, hear counsel. It would assist me if counsel could reflect on how far, if at all, a parallel is properly to be drawn with what is the usual rule in solicitor-and-own-client taxations of bills, namely that if the client achieves, on taxation of the bill which his solicitor has presented to him, a reduction of 20% or more then it is the solicitor who pays the costs of the taxation process but otherwise it will be the client who pays such costs – see section 70(9) of the Solicitors Act 1974.
57. At a late stage in the Claimant's oral evidence it emerged there had been a serious dispute between Atisreal and the Claimant. But no witness could say what it was. As an explanation of it might have affected the computation before me, I directed that, without my needing to see it, a witness statement should be served on the Defendant by the Claimant explaining what the dispute had been and whether it was of relevance to the case before me. Only if the Defendant was dissatisfied with the evidence would I need to see it, in which event the matter could be restored for further hearing. In the event I have not needed to see the statement.