2TG Damage Day 2016

Thanks to all those who attended 2TG’s Damage Day 2016. The day was a great success, with a record number of attendees.

A special thanks to the Hon. Mr Justice Coulson who delivered the keynote speech.

 Many thanks to our speakers:

  • Howard Palmer QC who spoke on the problems of causation in contract and negligence based property damages cases
  • Jessica van der Meer who spoke on knowledge of malfunction and attribution of knowledge in property damage cases
  • Sonia Nolten who spoke on the meaning of “reasonable opportunity to abate” in subsidence claims.
  • George Hilton who spoke on procedure & awards under the Party Wall Act 1996
  • Ben Hobby FCA, Dip CII, of RGL Forensics who provided the expert perspective on proving a loss of profits calculation
  • Daniel Crowley & Isabel Barter who spoke on expert evidence & the Ocensa Pipeline Group Litigation Action
  • Andrew Miller QC who spoke on the changing face of mediation in property damage claims.

You can catch some of the highlights of Damage Day 2016 on 2TG’s twitter account: @2TempleGardens

We look forward to seeing you at Damage Day 2017

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Filed under ADR, Breach of contract, Causation, Contribution, Duty of Care, Expert Evidence, Fires, Floods, Insurance, Limitation, Natural Disaster, Nuisance, Party Walls, Procedure

Great Lakes Reinsurance (UK) SE v Western Trading Limited [2016] EWCA 1003

2TG’s Bob Moxon Browne QC and Lucas Fear-Segal appeared for Great Lakes in the Court of Appeal.

Background

A Midlands property company, Western Trading Ltd, held an informal tenancy of a Grade II listed former leather factory in Walsall, known as the Boak. These premises were owned by the company’s director and shareholder, Mr Singh. Although derelict, with an agreed value of only £75,000 as a rough storage facility, the building was insured for £2.1m, which was roughly what it would have cost to reinstate it in the event of damage or destruction. At this point, the building had very doubtful development potential, because of the planning constraints imposed by its heritage status, and limitations imposed by the shape of the building and features of its very distinctive elevations.

In 2012, the Boak was destroyed by fire, whereupon the listed status of the premises was rescinded. In consequence the Boak site acquired significant development potential, and an accompanying substantial increase in value.

By the insuring clause in the policy, the insurer agreed to indemnify Western Trading against ‘loss of or damage to the property’. By an additional Memorandum, the insurers agreed to provide an indemnity on a reinstatement basis, subject to the provision that nothing would be paid ‘until the cost of reinstatement shall have actually been incurred’.

Following the fire, no reinstatement was carried out. The insurers declined to make any payment to Western Trading, on the grounds that the policy was for various reasons invalid, and that in any event Western Trading had suffered no loss, and could not claim a reinstatement indemnity because no works of reinstatement had been done.

Western Trading issued proceedings in London’s Mercantile Court claiming £2.1m from the insurers, alternatively a declaration ‘that it was entitled to be indemnified by the policy in respect of the losses it has suffered’. Continue reading

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Filed under Fires, Insurance

NEW PRE-ACTION PROTOCOL FOR CONSTRUCTION AND ENGINEERING DISPUTES

A new pre-action protocol (available here) applicable to TCC claims comes into force on 9th November 2016 (the “Protocol”). The Protocol was released at a joint TeCSA and TECBAR event held in Court  26 of the Rolls Building on 2nd November which was chaired by The Honourable Mr Justice Coulson, Judge in Charge of the TCC.

Continue reading

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Filed under Uncategorized

UKSC decision on insurance policy exclusion clauses

IMPACT FUNDING SOLUTIONS LTD v AIG EUROPE LTD (FORMERLY CHARTIS INSURANCE (UK) LTD) (2016)

Last week the UKSC handed down judgment in a case that involved the construction of exclusion or exemption clauses in insurance policies.

Continue reading

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Filed under Breach of contract, Contractual interpretation, Insurance

Simplifying Contribution Claims: WH Newson Holding Limited v IMI Plc & Delta Limited [2016] EWCA Civ 773

The decision of the Court of Appeal in WH Newson Holding Limited v IMI Plc & Delta Limited [2016] EWCA Civ 773 (“IMI”) heralds a new approach for assessing the circumstances when contribution claims can be brought by a party who has settled with the underlying claimant and, as such, does not have a formal judgment against it. Continue reading

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Filed under Contribution, Statutory Interpretation

Negligent advice by surveyors: Scott v EAR Sheppard Consulting Civil & Structural Engineers Ltd [2016] EWHC 1949 (TCC)

In Scott v EAR Sheppard Consulting Civil & Structural Engineers Ltd [2016] EWHC 1949 (TCC), the TCC visited the basics of the standard of care owed by surveyors.

Cs instructed surveyors, D1, to inspect the condition of a Property prior to its purchase. After reading D1s’ report, Cs purchased the Property and construction works at the Property were commenced on Cs’ behalf. The construction works were stopped by the local authority due to the Property’s existing poor structural condition; in particular, dangerous tilting of the walls.  Continue reading

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Filed under Duty of Care, Expert Evidence

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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Filed under Expert Evidence

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