Allen Tod Architecture Ltd v. Capita Property & Infrastructure Ltd [2016] EWHC 2171 (TCC): a faint degree of expert shopping?

In Allen Tod Architecture Ltd v. Capita Property & Infrastructure Ltd [2016] EWHC 2171 (TCC) a first instance court wrestled yet again with the knotty problem of when a party may be permitted to change experts and what conditions, if any, may be imposed. The answer is likely to depend on whether the directions order permitted reliance on a named expert or simply a field of expertise and, if the latter, at what stage of the litigation, and for what purpose, permission for the new expert is sought. Continue reading

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Fraudulent means and devices revisited by the Supreme Court

As reported last week the Supreme Court has allowed the appeal of the claimant shipowners in Versloot Dredging BV and another (Appellants) v HDI Gerling Industrie Versicherung AG and others (The “DC Merwestone”)  [2016] UKSC45. By a 4:1 majority the Supreme Court held that the fraudulent claims rule did not apply to collateral lies made in support of an insurance claim where those lies were irrelevant to the existence or amount of a justified claim.

The shipowners were entitled to payment of over 3 million euros in respect of damage caused to their ship’s engine by the ingress of sea water. Their manager’s lies regarding the timing of the bilge alarms, which he told in support of the claim, were irrelevant to the owners’ entitlement to payment under the policy. The false statements were intended to reassure insurers that the ship was not unseaworthy and, in particular, that its alarm systems were working satisfactorily and to draw insurers’ focus away from such matters. Continue reading

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Filed under Breach of contract, Contractual interpretation, Floods

UKSC hands down decision on fraudulent devices rule – Versloot Dredging

The UK Supreme Court handed down judgment in Versloot Dredging BV and Another v HDI Gerling Industrie Versicherung AG and others . You can access the full text of the decision here.

In brief, the Court determined (by a majority of 4 to 1) that the ‘fraudulent device’ rule does not apply to collateral lies, which are immaterial to the insured’s right to recover. Lord Sumption gave the lead judgment. Lord Clarke, Lord Hughes and Lord Toulson give concurring judgments. Lord Mance gives a dissenting judgment.

Our previous blog post on Versloot can be found here.

An in-depth analysis of Lord Sumption and Lord Mance’s judgments will be posted shortly. Watch this space.

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Filed under Breach of contract, Contractual interpretation, Floods

Cooper v Thameside [2016] EWHC: When proving your case is a burden

Cooper v Thameside [2016] EWHC 1248 follows a line of recent cases (Nulty v Milton Keynes [2013] EWCA, Graves v Brouwer [2015] EWCA, and O’Connor v Pennine Acute Hospitals Trust [2015] EWCA) where the courts have examined the correct approach to proof where there are gaps in the evidence and several competing theories as to how the damage occurred. Continue reading

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Filed under Floods

Bell v Northumbrian Water [2016] EWHC 133 (TCC)

This case (judgment here) is of particular interest since it is the latest in a developing line of authority that explores the scope of the principle in Marcic v Thames Water Utilities Ltd (2003) UKHL 66 (in Marcic it was held that common law liability of a statutory sewerage undertaker does not exist if its imposition is inconsistent with the statutory scheme for liability and enforcement under the Water Industry Act 1991). Continue reading

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Supreme Court Judgment in London riots property damage claim

The end of the road has been reached in long-running civil litigation arising out of the August 2011 riots. On 20 April this year the Supreme Court handed down a judgment by Lord Hodge, with whom Lords Neuberger, Clarke, Hughes and Toulson agreed: The Mayor’s Office for Policing and Crime (Appellant) v Mitsui Sumitomo Insurance (Europe) Ltd and Others (Respondent).

The issue on the appeal was whether consequential losses are recoverable under section 2 of the Riot (Damages) Act 1886 (‘the Act’). The Supreme Court has answered that question in the negative. The only damages recoverable under the Act are direct losses arising from the damage to property caused in a riot. Continue reading

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Filed under Insurance, Statutory Interpretation

Voices Off: When can an absentee property owner be liable for somebody else’s nuisance?

The question before the Court of Appeal in Cocking v Eacott & Waring [2016] EWCA Civ 140 was whether an absentee property owner (Mrs Waring) could be liable in nuisance to the property’s next door neighbours (the Cockings) in respect of the nuisance emanating from the property caused by her daughter’s (Ms Eacott’s) noisy dog whilst Ms Eacott lived at the property.

On the facts of this case the answer was yes.  Continue reading

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Filed under Nuisance

The Third Parties (Rights against Insurers) Act 2010 coming into effect at last

On 25 February 2016 Lord Faulks announced that he had laid before Parliament the Third Parties (Rights against Insurers) Regulations 2016 (“the 2016 Regs”) to enable the 2010 Act to be brought into effect. The 2010 Act was a Bill drafted by the Law Commissions back in 2001. The Act’s most important provisions are those enabling third parties to bring actions directly against insurers in one set of proceedings (where an insured is insolvent) and to obtain much more information about the insolvent insured’s insurance arrangements. Continue reading

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Filed under Insurance

Part 36 Offers: Winning by a Nose

In the recent case of Jockey Club Racecourse Limited v Willmott Dixon Construction Limited [2016] EWHC 167 (TCC), Edwards-Stuart J had to consider the effects of an unusual Part 36 offer. Continue reading

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Filed under Settlement

Pumping of flood waters onto farmer’s land by local Council constitutes nuisance

Robert Lindley Limited v East Riding of Yorkshire [2016] UKUT 0006 (LC)

The Claimant company brought a claim against East Riding of Yorkshire Council (“the Council”) in the Upper Tribunal (Lands Chamber) under ss 14A(11), 14(5) & (6) Land Drainage Act 1991 (“LDA 1991”) in respect of flood damage to the Claimant’s carrot crops resulting from floodwater pumping operations.

The pumping had been carried out under the Council’s control using pumps provided by the Environmental Agency (“EA”) and the Fire Service. The objective was to divert floodwaters from a local built-up area. Continue reading

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Filed under Floods, Statutory Interpretation