Category Archives: Floods

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

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

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

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

Fraudulent devices case to be heard by the UK Supreme Court

Versloot Dredging BV and Another v HDI Gerling Industrie Versicherung AG and others

The UK Supreme Court will hear the appeal in Versloot on 16 March 2016. In the previous judgment, the Court of Appeal, Civil Division, considered whether the rule whereby a fraudulent claim deprived the insured of any right to recover anything applied also in the case of ‘fraudulent devices’, namely statements made recklessly or with knowledge of their untruth to support a claim that was honestly believed to be true. In dismissing the claimant owners’ appeal, the court held that the rule was to be applied in such circumstances and that it was proportionate for it to do so.  Continue reading

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Filed under Breach of contract, Contractual interpretation, Floods

Dam it! The meaning of “safety” in the Reservoirs Act 1975

Lang J. handed down judgment on 28th November 2014 in the case of R (ex p The Heath & Hampstead Society) v Mayor and Commonalty and Citizens of the City of London & anr. [2014] EWHC 3868 (Admin). The decision contains a valuable discussion of the meaning of “safety” in primary legislation.

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Filed under Floods, Judicial Review, Safety, Statutory Interpretation