Floods and expert evidence: Oldcorn v Southern Water Services Ltd

Oldcorn v Southern Water Services Ltd [2017] EWHC 62 TCC 

This case sets clear limits on the Marcic defence and confirms that where a sewerage undertaker’s owes a private law duty of care, it may not be able to rely upon the more limited Leakey “measured” duty of care.

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Filed under Causation, Duty of Care, Expert Evidence, Floods, Nuisance

Expert reliance: Wheeldon Brothers Waste Ltd v Millennium Insurance Co Ltd

Wheeldon Brothers Waste Ltd v Millennium Insurance Co Ltd [2017] EWHC 218 TCC

This case involved a fire at the Claimant’s waste processing plant. The Claimant sought to recover approximately £1.5 million in damages from the Defendant insurers. During the first CMC, the Claimant sought to prohibit the Defendant insurer from relying on their chosen fire expert, Mr Steven Braund, a forensic expert employed by Hawkins.

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Filed under Causation, Expert Evidence, Fires

Amendments to Pleadings: Al Nahda Insulation Contracting LLC & Another v Tremco Illbruck Export Ltd

In Al Nahda, the TCC has maintained its strict approach to late amendments, and those which it does not consider have any real prospect of success. Continue reading

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Filed under Particulars of Claim, Pleadings, Procedure, Statements of Case

Liability of Independent sub-contractors: Willmott Dixon Construction Ltd v Robert West Consulting Ltd.

In Willmott Dixon Construction Ltd v Robert West Consulting Ltd [2016] EWHC 3291 (TCC), Coulson J gave guidance as to the exceptions to the general rule that a main contractor cannot be liable in tort for the acts or omissions of an independent sub-contractor. He also analysed the application of those exceptions to a plea of contributory negligence. Continue reading

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Filed under Contribution, Duty of Care, Particulars of Claim, Pleadings

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.

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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.

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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