Category: Insurance

The Financial Conduct Authority and Others v Arch Insurance (UK) Ltd and Others: SC 15 Jan 2021

Many businesses, having been ordered to suspend business during the Covid-19 epidemic, sought to claim under business interruption insurance. The claims were rejected by the insurers and the insurers now appealed from a finding that they had been liable under a variety of clauses.
Held: The appeal failed.
‘ A disease that spreads is not something that occurs at a particular time and place and in a particular way: it occurs at a multiplicity of different times and places and may occur in different ways involving differing symptoms of greater or less severity. Nor for that matter could an ‘outbreak’ of disease be regarded as one occurrence, unless the individual cases of disease described as an ‘outbreak’ have a sufficient degree of unity in relation to time, locality and cause. If several members of a household were all infected with COVID-19 when a carrier of the disease visited their home on a particular day, that might arguably be described as one occurrence. But the same could not be said of the contraction of the disease by different individuals on different days in different towns and from different sources. Still less could it be said that all the cases of COVID-19 in England (or in the United Kingdom or throughout the world) which had arisen by any given date in March 2020 constituted one occurrence. On any reasonable or realistic view, those cases comprised thousands of separate occurrences of COVID-19. Some of those occurrences of the disease may have been within a radius of 25 miles of the insured premises whereas others undoubtedly will not have been. The interpretation which makes best sense of the clause, in our view, is to regard each case of illness sustained by an individual as a separate occurrence. On this basis there is no difficulty in principle and unlikely in most instances to be difficulty in practice in determining whether a particular occurrence was within or outside the specified geographical area.’

Judges:

Lord Reed, President, Lord Hodge, Deputy President, Lord Briggs, Lord Hamblen, Lord Leggatt

Citations:

[2021] UKSC 1, UKSC 2020/0177, [2021] 2 WLR 123

Links:

Bailii, Bailii Summary, Bailii Issues and Facts, SC, SC Summary, SC Video 16 Nov 2020 am, SC Video 16 Nov 2020 pm, SC Video 17 Nov 2020 am, SC Video 17 Nov 2020 pm, SC Video 18 Nov 2020 am, SC Video 18 Nov 2020 pm, SC Video 19 Nov 2020 am, SC Video 19 Nov 2020 pm

Statutes:

Health Protection (Coronavirus, Business Closure) (England) Regulations 2020, Health Protection (Coronavirus, Restrictions) (No 2) (England) Regulations 2020

Jurisdiction:

England and Wales

Citing:

Appeal from – The Financial Conduct Authority (FCA) v Arch Insurance (UK) Ltd and Others ComC 15-Sep-2020
Test case to determine issues of principle in relation to policy coverage under various specimen wordings underwritten by the defendants in respect of claims by policyholders to be indemnified for business interruption losses arising in the context . .
Cited – Orient-Express Hotels Ltd v Assicurazioni General Sa (UK Branch) (T/A Generali Global Risk) ComC 27-May-2010
Appeal from an arbitration award. . .
Cited – Wood v Capita Insurance Services Ltd SC 29-Mar-2017
Construction of term of contract for the sale and purchase of the entire issued share capital of a company.
Held: The appeal was dismissed: ‘the SPA may have become a poor bargain, as it appears that it did not notify the sellers of a warranty . .
Cited – Regina v Investors Compensation Scheme Ltd, ex Parte Bowden and Another HL 18-Jul-1995
A regulated firm, Fisher Prew-Smith, ran a scheme whereby elderly homeowners were persuaded to invest money in equity-linked funds by mortgaging their homes on terms that the interest would roll up unless and until the total mortgage debt reached a . .
Cited – Charter Reinsurance Co Ltd v Fagan and Others HL 24-May-1996
The re-insurers appealed against a finding that they were liable to make payment under a contract which required them to pay ‘sums actually paid.’ They said that the company having become insolvent, no payment would in fact be made.
Held: The . .
Cited – Chartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
Cited – Orient-Express Hotels Ltd v Assicurazioni General Sa (UK Branch) (T/A Generali Global Risk) ComC 27-May-2010
Appeal from an arbitration award. . .
Cited – Rainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 07 September 2022; Ref: scu.657248

Yeganeh v Zurich Plc and Another: CA 11 Apr 2011

The claimant appealed against the dismissal of his claim for payment under his household insurance policy. Though the court had found that the defendant had not shown that the fire was started deliberately, they did find that a small part of the claim was fraudulent.
Held: The appeal succeeded and the case remitted for a retrial.

Judges:

Ward, Jacob, Patten LJJ

Citations:

[2011] EWCA Civ 398

Links:

Bailii

Jurisdiction:

England and Wales

Insurance

Updated: 06 September 2022; Ref: scu.432654

Law Society of England and Wales and others v Shah and others: ChD 30 Nov 2007

Solicitor firms had been made bankrupt leaving a shortfall after thefts from client accounts of over 12 million pounds. The thief had diappeared, and the other partners were now discharged form bankruptcy. The Law Society accepted that it could not proceed to claim against the discharged bankrupts, but now sought recovery from their insurers.
Held: The Society could proceed. ‘while the claim remains disputable, it is not established that the insured has suffered a loss. Once the claim is settled or adjudicated on, it is clear that he has suffered a loss because he has come under an indisputable obligation to pay. Although it might be said that the insured was always under an obligation to pay from the moment the cause of action arose, once the claim is agreed or adjudicated on that obligation acquires a different quality. It is only where there is an established obligation to pay that an indemnifiable loss comes into being and that the indemnity under the contract arises. ‘
The effect of bankruptcy was to remove the action against the bankrupt for the debt, not to remove the debt itself. Once admission of the debt in the bankruptcy is adequate establishment of the Law Society’s claim to give rise to indemnifiable loss and a claim under the policy, then the release of the bankrupt from the obligation to pay (or more accurately the remedy of payment) is irrelevant.

Citations:

[2007] EWHC 2841 (Ch), Times 20-Dec-2007, [2007] All ER 488, [2009] Ch 223, [2008] Lloyd’s Rep IR 442, [2007] BPIR 1595, [2008] Bus LR 1742, [2008] 3 WLR 1401

Links:

Bailii

Statutes:

Third Parties (Rights against Insurers) Act 1930, Solicitors Act 1974, Insolvency Act 1986 281(1)

Jurisdiction:

England and Wales

Citing:

Cited – Socony Mobil Oil Co Inc and others v West of England Ship Owners Mutual Insurance Association Ltd (Padri Island) (No 2); Firma CF-Trade SA v Similar (The ‘Fant’) HL 14-Jun-1990
The House was asked as to the effect of section 1(3) of the 1930 Act on policies including ‘pay or be paid’ clauses.
Held: The central question was whether the condition of prior payment was rendered of no effect by section 1(3) of the Act of . .
Cited – West Wake Price and Co v Ching 1957
A clerk employed by a firm of accountants defrauded two of the firm’s clients of andpound;20,000 over a period of about three years.
Held: One can not ‘pay’ a cause of action.
Devlin J said: ‘I think that the primary meaning of the word . .
Cited – Post Office v Norwich Union Fire Insurance Society Ltd CA 1967
A contract of insurance provided an indemnity for ‘all sums which the insured shall become legally liable to pay as compensation in respect of loss of property’. The claim was by the Post Office against a contractor, Potters, for damaging one of . .
Cited – Bradley v Eagle Star Insurance Co Ltd HL 1989
Mrs Bradley was employed by Dart Mill several times from 1933 and 1970 and acquired byssinosis from inhaling cotton dust. The company was wound up in 1975 and dissolved in 1976. In 1984 she applied to the court for pre-action disclosure under . .
Mentioned – Re Harrington Motor Co Ltd, Ex parte Chaplin 1928
A person injured in a road accident had obtained judgment for damages against the company, but had been unable to enforce the judgment before the company went into liquidation. The company’s motor insurers paid the amount of the judgment to the . .
Cited – Cox v Bankside Members Agency Ltd and Others QBD 27-Jan-1995
Some agents had policies against which there were likely to be various calls, either because several claims were being pursued against the same agents by different Lloyd’s Names, or because the policies were group policies covering several agents . .
Cited – Financial Services Compensation Scheme Ltd v Larnell (Insurances) Ltd CA 29-Nov-2005
The claimant investors said that their financial adviser, the defendant insolvent company, had given them negligent advice. The action was brought as a preliminary to claiming against the defendant’s insurers under the 1930 Act, in the way made . .
Cited – First National Tricity Finance Ltd v OT Computers Ltd; In re OT Computers Ltd (in administration) CA 25-May-2004
The company had gone into liquidation. They had sold consumer policies as extended warranties on behalf of the claimant. The company had insured its own joint liability under the contracts, and the claimant sought information from the company’s . .
Cited – Heather and Son v Webb 1876
It was said that, after the discharge of the debtor from his bankruptcy, he had uttered a fresh promise to pay the debt. The court considered the proper construction of section 49 of the 1869 Act. Earlier statutes had made express provision making . .
Cited – Wight, Pilling, Mackey v Eckhardt Marine GmbH PC 14-May-2003
(Cayman Islands) An international bank went into liquidation in the Cayman Islands, with liabilities in Bangladesh. A new bank was created in Bangladesh, and the applicants sought to make the new bank liable, and through them the liquidators.
Cited – Osborne v Cole 1999
A person who challenges a bankrupt’s trustee’s conduct under section 303 must show that the trustee is acting ‘in bad faith or so perversely that no trustee properly advised or properly instructing himself could so have acted, alternatively if he . .
Cited – Shepherd v Official Receiver CA 7-Jun-2007
renewed application for permission to appeal . .
Cited – Supperstone v Hurst (No 3) 2006
. .

Cited by:

Cited – Parker and Another v SJ Berwin and Co and Another QBD 17-Dec-2008
The claimants sought damages from their former solicitors. They set out to purchase a football club, expending substantial sums for the purpose, relying on the defendants’ promised provision of service in finding and arranging the funding. They said . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Insolvency, Insurance

Updated: 06 September 2022; Ref: scu.261779

Lumbermens Mutual Casualty Company v Bovis Lend Lease Limited: QBD 5 Oct 2004

Judges:

The Honourable Mr Justice Colman

Citations:

[2004] EWHC 2197 (Comm), [2005] Lloyd’s Rep IR 74, [2005] 2 CLC 617, [2005] 2 All ER (Comm) 669, 98 Con LR 21, [2005] 1 Lloyd’s Rep 494, [2005] BLR 47, [2004] 42 EG 160

Links:

Bailii

Jurisdiction:

England and Wales

Insurance, Construction

Updated: 03 September 2022; Ref: scu.215921

Gan Insurance Co Ltd v Tai Ping Insurance Co Ltd: CA 3 Jul 2001

A reinsurance contract which contained a clause which provided that no settlement or compromise of a claim could be made or liability admitted by the insured without the prior approval of the reinsurers. The court considered how the discretion to approve a settlement must be exercised.
Held: What was proscribed in all of them was ‘unreasonableness in the sense of conduct or a decision to which no reasonable person having the relevant discretion could have subscribed’. The authorities do not establish any automatic implication of a term as to reasonableness whenever a contractual provision exists putting one party at the mercy of another’s exercise of a discretion.
Mance LJ said: ‘I would therefore accept as a general qualification that any withholding of approval by reinsurers should take place in good faith after consideration of and on the basis of the facts giving rise to the particular claim and not with reference to considerations wholly extraneous to the subject-matter of the particular reinsurance.’ ‘If there is any further implication, it is along the lines that the reinsurer will not withhold approval arbitrarily, or (to use what I see as no more than an expanded expression of the same concept) will not do so in circumstances so extreme that no reasonable company in its position could possibly withhold approval. This will not ordinarily add materially to the requirement that the reinsurer should form a genuine view as to the appropriateness of settlement or compromise without taking into account considerations extraneous to the subject-matter of the reinsurance.’

Judges:

Mance, Latham LJJ, Sir Christopher Staughton

Citations:

[2001] EWCA Civ 1047, [2001] 1 Lloyds Rep IR 667, [2001] All ER (D) 33, [2001] 2 All ER (Comm) 299, [2001] CLC 1103

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Gan Insurance Company Limited and Another v Tai Ping Insurance Company Limited CA 28-May-1999
appeal from refusal to set aside service out of jurisdiction . .
See Also – Gan Insurance Company Ltd v The Tai Ping Insurance Company Ltd (No 3) CA 1-Mar-2002
Tai Ping had placed facultative insurance with Gan. The substantial risks were re-insured through various agencies. When a claim arose it was repudiated alleging misrepresentation. Gan asserted that Tai Ping had failed to co-operate in the . .
Cited – Mitsui Construction Co Ltd v Attorney General of Hong Kong PC 1986
Lord Bridge said that poor drafting in a contract itself provides: ‘no reason to depart from the fundamental rule of construction of contractual documents that the intention of the parties must be ascertained from the language that they have used . .

Cited by:

See Also – Gan Insurance Company Limited and Another v Tai Ping Insurance Company Limited CA 28-May-1999
appeal from refusal to set aside service out of jurisdiction . .
See Also – Gan Insurance Company Ltd v The Tai Ping Insurance Company Ltd (No 3) CA 1-Mar-2002
Tai Ping had placed facultative insurance with Gan. The substantial risks were re-insured through various agencies. When a claim arose it was repudiated alleging misrepresentation. Gan asserted that Tai Ping had failed to co-operate in the . .
Cited – Blackburn Rovers Football and Athletic Club Plc v Avon Insurance Plc, Eagle Star Insurance Company Ltd, AGF Insurance Ltd IC Insurance Ltd ComC 15-Nov-2004
The claimant football club insured its players through the defendants. A footballer injured himself in training and his career was finished. The insurers rejected the claim, and relied upon exception clauses, saying that the true cause was a . .
Cited – Paragon Finance plc v Nash etc CA 15-Oct-2001
The court was asked to consider whether there was any implied term limiting the power of a mortgagee to set interest rates under a variable rate mortgage.
Held: A loan arrangement which allowed a lender to vary the implied rate of interest, . .
Cited – Lymington Marina Ltd v MacNamara and others ChD 4-Apr-2006
The claimant marina had been constructed with financial assistance from debenture holders who in return were given low cost licences. The claimant sought to refuse to the defendant debenture holders the right to sub-licence their rights to berth . .
Cited – Lymington Marina Ltd v MacNamara and others CA 2-Mar-2007
A share in a marina had been inherited by one brother whose application to grant successive sub-lcences of it to the other two was rejected by the marina, who said that this was not permitted. The marina appealed a finding that it had to make its . .
Cited – Oxonica Energy Ltd v Neuftec Ltd PatC 5-Sep-2008
The parties disputed the meaning of an patent and know how licence. The parties disputed whether the agreement referred to IP rights before formal patents had been granted despite the terms of the agreement.
Held: ‘The secret of drafting legal . .
Cited – Rainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
Cited – Unique Pub Properties Ltd v Broard Green Tavern Ltd and Another ChD 26-Jul-2012
The claimant freeholder sought to install in the tenant’s pub, equipment to monitor sales. It claimed a right for this in the lease. The tenant refused access, saying that the proposed system was inaccurate. The claimant now sought summary relief. . .
Cited – Socimer International Bank Ltd v Standard Bank London Ltd CA 22-Feb-2008
Rix LJ considered the restraints operating a party to a contract in exercising any discretion gien under it, preferring the use of the term ‘irrationality’ to ‘unreasonableness’: ‘It is plain from these authorities that a decision-maker’s discretion . .
Cited – Braganza v BP Shipping Ltd SC 18-Mar-2015
The claimant’s husband had been lost from the defendant’s ship at sea. The defendant had contracted to pay compensation unless the loss was by suicide. They so determined. The court was now asked whether that was a permissible conclusion in the . .
Cited – British Telecommunications Plc v Telefonica O2 UK Ltd SC 9-Jul-2014
The parties disputed the termination charges which BT was entitled to charge to mobile network operators for putting calls from the latter’s networks through to BT fixed lines with associated 08 numbers. BT had introduced new tariff charges.
Cited – Wood v Capita Insurance Services Ltd SC 29-Mar-2017
Construction of term of contract for the sale and purchase of the entire issued share capital of a company.
Held: The appeal was dismissed: ‘the SPA may have become a poor bargain, as it appears that it did not notify the sellers of a warranty . .
Lists of cited by and citing cases may be incomplete.

Insurance, Contract

Updated: 03 September 2022; Ref: scu.201236

Royal and Sun Alliance Insurance Plc v Retail Brand Alliance Inc: QBD 24 Sep 2004

The claimant sought payment under their insurance policy for damage from interruption to their business after the terrorist attack in New York on September 11, 2001. Proceedings had also been commenced in jurisdictions in the US.
Held: This was not a case where jurisdiction was resolved as of right, and it was for the defendant to establish that the UK was the proper forum. The need to construe different parts of the policy and overlapping policies in one jurisdiction, and the locus of the business and loss all were factors suggesting that the natural forum would be in the US. Order accordingly.

Judges:

The Honourable Mr Justice Langley

Citations:

[2004] EWHC 2139 (Comm), [2005] Lloyd’s Rep IR 110

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – New Hampshire Insurance Company and others v Phillips Electronics North America Corporation CA 16-May-1997
In the context of applications for negative declarations: ‘1. There is power to grant a negative declaration in an appropriate case, the fundamental test being whether it would be useful. 2. However, careful scrutiny will be exercised not only to . .
Lists of cited by and citing cases may be incomplete.

Insurance, Jurisdiction

Updated: 03 September 2022; Ref: scu.214617

Graham v Entec Europe Ltd (T/A Exploration Associates): CA 6 Aug 2003

The claimant’s bungalow suffered subsidence. Repair works were undertaken as advised by the defendants, but unsuccessfully. The claimant’s insurers instructed experts negotiators to investigate with a view to a claim. The defendants now claimed the action was out of time, since the knowledge of the defects acquired by the loss adjusters was to be imputed to the claimants.
Held: ‘The knowledge of a loss adjuster investigating and advising on a claim on behalf of insurers for the purpose of pursuing a subrogated claim by those insurers, is to be treated as the knowledge of the insurers for the purposes of s.14A(5).’

Judges:

Lord Justice Potter Lord Justice Chadwick And Mr Justice Cresswell

Citations:

[2003] EWCA Civ 1177, Times 10-Sep-2003

Links:

Bailii

Statutes:

Limitation Act 1980 14A

Jurisdiction:

England and Wales

Citing:

Cited – Nash v Eli Lilley and Co CA 1993
The court was asked as to the extent and nature of knowledge required to start time running against a plaintiff in a negligence case.
Purchas LJ said: ‘It is to be noted that a firm belief held by the plaintiff that his injury was attributable . .
Cited – Spargo v North Essex District Health Authority CA 13-Mar-1997
The test of ‘When a plaintiff became aware of the cause of an injury’ is a subjective test of what passed through plaintiff’s mind. ‘(1) the knowledge required to satisfy s14(1)(b) is a broad knowledge of the essence of the causally relevant act or . .
Lists of cited by and citing cases may be incomplete.

Insurance, Limitation

Updated: 02 September 2022; Ref: scu.185553

Gan Insurance Company Ltd v The Tai Ping Insurance Company Ltd (No 3): CA 1 Mar 2002

Tai Ping had placed facultative insurance with Gan. The substantial risks were re-insured through various agencies. When a claim arose it was repudiated alleging misrepresentation. Gan asserted that Tai Ping had failed to co-operate in the investigation, and had not acted in a proper and businesslike manner. The judge refused an application to allow to be considered matters which had been raised in statements but not pleaded.
Held: At this stage, the issues were clearly in need of being settled, and judgment under Order 24 was inappropriate.

Judges:

Lord Justice Brooke, Lord Justice Mance, And, Mr Justice Park

Citations:

[2002] EWCA Civ 248, [2002] CLC 870, [2002] Lloyds Rep IR 612

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Gan Insurance Company Limited and Another v Tai Ping Insurance Company Limited CA 28-May-1999
appeal from refusal to set aside service out of jurisdiction . .
See Also – Gan Insurance Co Ltd v Tai Ping Insurance Co Ltd CA 3-Jul-2001
A reinsurance contract which contained a clause which provided that no settlement or compromise of a claim could be made or liability admitted by the insured without the prior approval of the reinsurers. The court considered how the discretion to . .

Cited by:

See Also – Gan Insurance Co Ltd v Tai Ping Insurance Co Ltd CA 3-Jul-2001
A reinsurance contract which contained a clause which provided that no settlement or compromise of a claim could be made or liability admitted by the insured without the prior approval of the reinsurers. The court considered how the discretion to . .
See Also – Gan Insurance Company Limited and Another v Tai Ping Insurance Company Limited CA 28-May-1999
appeal from refusal to set aside service out of jurisdiction . .
Cited – Lymington Marina Ltd v MacNamara and others ChD 4-Apr-2006
The claimant marina had been constructed with financial assistance from debenture holders who in return were given low cost licences. The claimant sought to refuse to the defendant debenture holders the right to sub-licence their rights to berth . .
Cited – Quinn Direct Insurance Ltd v The Law Society of England and Wales ChD 23-Oct-2009
The defendant had intervened in a solicitors’ firm insured by the claimants. The claimants sought access to files and accounting records so that it could defend insurance claims. The defendant denied access to files other than those on which claims . .
Lists of cited by and citing cases may be incomplete.

Insurance, Litigation Practice

Updated: 02 September 2022; Ref: scu.167717

Chubb Insurance Company of Europe SA, Davies v Black, American Iron and Metal Company Incorporated, Lito Trade Incorporated: QBD 23 Sep 2004

Enforcement of contract of indemnity under guarantee of company given by director. Insurance claim.

Judges:

The Honourable Mr Justice Langley

Citations:

[2004] EWHC 2138 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Company, Contract, Insurance

Updated: 01 September 2022; Ref: scu.214300

Pilkington United Kingdom Limited v CGU Insurance Plc: QBD 28 Jan 2004

The claimants had installed glass tiles in a roof. They fractured, and facing a claim for damages, they sought payment from their insurers. The claimants argued that the risk of fracture meant that the damage occurred upon installation, the insurers contended that liability arose only as tiles broke.
Held: To construe the insuring clause as if an occurrence could include mere damage caused by the commodity to itself, would fail to give effect to the natural meaning of the language which contemplates that physical damage will be caused by the commodity to something else. The damage claimed was not within the cover provided by the insuring clause.

Judges:

Mr Justice Charles Lord Justice Jonathan Parker Lord Justice Potter

Citations:

[2004] EWCA Civ 23

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Rodan International Limited v Commercial Union CA 1999
The claimants sold bulk soap powder. The packager packed it in defective cardboard which caused it to cake. The buyer sought damages.for breach of contract against Rodan (i) for the difference between the sound value of the powder and its reduced . .
Cited – A S Screenprint Ltd v British Reserve Insurance Co Ltd CA 1999
The Plaintiffs were insured under a policy that indemnified them, ‘against all sums which the Insured shall become legally liable to pay in respect of . . loss or damage . . during the period of insurance and caused by goods (including containers) . . .
Cited – James Budgett Sugars Ltd v Norwich Union Insurance Ltd ComC 15-May-2002
The insured sold contaminated sugar to a manufacturer of mincemeat so as to render it unmerchantable, the contamination was only discovered after the mincemeat had been sold on to end users.
Held: Physical damage may be caused by the mere fact . .
Cited – Yorkshire Water Services Ltd v Sun Alliance and London Insurance Plc and Others (1) CA 20-Aug-1996
The court was asked whether the costs of flood alleviation works were recoverable under public liability insurance policies.
Held: A claim for the costs of remedial action taken to mitigate future losses were not covered by the terms of the . .
Cited – Charter Reinsurance Co Ltd v Fagan and Others HL 24-May-1996
The re-insurers appealed against a finding that they were liable to make payment under a contract which required them to pay ‘sums actually paid.’ They said that the company having become insolvent, no payment would in fact be made.
Held: The . .
Cited – Promet Engineering (Singapore) Pte Ltd (Formerly Self-Elevating Platform Management Pte Limited) v Nicholas Colwyn Sturge and others (The Nukila) CA 26-Mar-1997
Insurers were liable for other damage to ship hull if there had been more than a latent defect in it. In Inchmaree clauses in English law, ‘damage’ usually refers to a changed physical state. . .
Cited – Goulandris Bros v Goldmann and Sons 1958
An insurance clause ensuring ‘loss or damage in connexion with the goods’ under the Hague Rules for carriage of goods by sea includes economic loss even in the absence of such physical damage. . .
Cited – Re Bradley and Essex and Suffolk Accident Indemnity Society CA 1912
A policy provided an indemnity against employer’s liability under the 1906 Act, but required employers to keep a wages book and to notify the insurers of details of all remuneration paid during the period of insurance within one month from the end . .
Cited – Pioneer Concrete (UK) Ltd v National Employers Mutual General Insurance Association Ltd 1985
The case concerned the construction of a policy containing terms requiring the insured to notify the insurers ‘immediately’ if he had knowledge of any accident, claim or proceedings.
Held: In any case where an insurer is entitled to rely on . .
Cited – Alfred Mcalpine Plc v BAI (Run-Off) Limited CA 11-Feb-2000
Obligations in a Notice of Claims clause should not be treated as conditions precedent to liability but as innominate terms apt only to create a defence to a claim under the policy if the consequences of breach are so serious as to give the insurers . .
Cited – George Hunt Cranes Ltd v Scottish Boiler and General Insurance Co Ltd CA 2002
Provisions in a policy which are stated to be conditions precedent should not be treated as a mere formality which is to be evaded at the cost of a forced and unnatural construction of the words used in the policy. They should be construed fairly to . .
Lists of cited by and citing cases may be incomplete.

Construction, Insurance

Updated: 01 September 2022; Ref: scu.192288

Gravesend Corporation v Kent County Council: KBD 1935

A school vested in the Corporation had been built with the assistance of financial contributions from the County Council. As a result of various legislative changes the County Council replaced the Corporation as the education authority and as the user of the school. The main questions were whether the County Council had to pay the Corporation rent for their use of the school and whether the County Council, by its contributions to the costs of building and maintaining the school, had acquired an equitable interest in the premises.
Held: ‘… though the legal estate in the school is vested in the Gravesend council, the county council have an equitable estate or interest in it in the proportion that the total sums contributed by the county council bear to the total cost on the principles very simply and clearly stated by Farwell L.J. in The Venture ‘ and ‘On this basis the full rent must be reduced in favour of the county council to the extent of this equitable interest or resulting trust pro tanto’.

Judges:

Lord Wright

Citations:

[1935] 1KB 339

Jurisdiction:

England and Wales

Citing:

Cited – The Venture CA 1908
Contributions were made to the purchase price of a yacht.
Held: The court concluded that the contributor was entitled under a resulting trust to a pro rata equitable interest in the yacht. The payments were made at the time the yacht was . .

Cited by:

Cited – Foskett v McKeown and Others CA 27-Jun-1997
Various people had paid money with the promise of acquiring an interest in land in Portugal. The scheme was fraudulent. The funds had been used to purchase a life/investment policy. The policy was held in trust for the fraudster’s mother but he had . .
Lists of cited by and citing cases may be incomplete.

Trusts, Insurance

Updated: 01 September 2022; Ref: scu.187418

AB and others v British Coal Corporation and Coal Mining Contractor Defendants: QBD 22 Jun 2004

Judges:

The Honourable Sir Michael Turner

Citations:

[2004] EWHC 1372 (QB)

Links:

Bailii

Statutes:

Civil Liability Act 1978

Jurisdiction:

England and Wales

Citing:

Cited – Morris v West Hartlepool Steam Navigation HL 1956
The ship had followed a practice of leaving the between deck hatch covers off in the absence of a guard rail around the hatchway. The plaintiff seaman fell into the hold. There was evidence that on this ship it was quite usual for men to be sent . .

Cited by:

See Also – AB and others v Department of Trade and Industry S/A British Coal Corporation CA 21-Dec-2005
. .
See Also – AB and others v British Coal Corporation and others CA 19-Oct-2006
A collective compensation agreement, which required affected persons to submit their claims, along with medical evidence, through authorised solicitors to be compensated on the basis of agreed damages formula, was introduced. . .
See Also – AB and others v British Coal Corporation and Another ComC 18-May-2007
. .
See Also – AB and others v British Coal Corporation (Department of Trade and Industry) QBD 27-Jun-2007
The parties disputed the effect of the Claims Handling Agreement (CHA) which regulated claims for compensation for respiratory diseases incurred by people working for the defendant as regards the circumstances for claimants with chronic bronchitis. . .
See Also – AB and others v British Coal Corporation (Department of Trade and Industry) (Costs) QBD 27-Jun-2007
. .
See Also – AB and others v British Coal Corporation (Rulings Appended) QBD 13-Aug-2007
. .
See Also – AB and others v British Coal Corporation ComC 15-Jan-2008
. .
Lists of cited by and citing cases may be incomplete.

Insurance, Negligence

Updated: 01 September 2022; Ref: scu.198302

Mayban General Assurance Bhd, AMI Insurans Bhd, Malaysian International Insurance Bhd, Syarikat Takaful Malaysia Bhd v Alstom Power Plants Ltd, Alstom T and D Ltd: QBD 11 May 2004

An electrical transformer was shipped from Ellesmere Port to Rotterdam and there transferred to a container vessel for carriage to Lumut. Severe weather was encountered, but not such as a commercial person would regard as falling outside the range of what could reasonably be expected in the seas in question at that time of year. When it arrived at site, it was found to be seriously damaged and a claim was made under the policy of insurance. The insurers (under an ‘all risks’ policy) said that the damage had resulted from the transformer’s inability to withstand the ordinary incidents of carriage by sea from the United Kingdom to Malaysia during the winter months, and rejected the claim on the grounds that the loss was caused by inherent vice.
Held: The immediate cause of the damage to the transformer was the violent movement of the vessel due to the actions of the wind and sea: ‘These in themselves were certainly events of a fortuitous nature and they were external to the cargo, but were they the real cause of the loss?’
The loss was caused by the inability of the transformer to withstand the ordinary conditions of the voyage rather than by the occurrence of conditions which it could not reasonably have been expected to encounter.
Moore-Bick J said: ‘The expression ‘all risks’ is used in policies of insurance as a convenient way of encompassing all insurable risks to which the property in question may be exposed without attempting to identify them individually. The contract nonetheless remains one under which the insurer accepts the risk of loss occurring through the occurrence of some peril acting on the property insured. A number of consequences follow from this. The first is that in order to recover under the policy the insured must prove that the loss was caused by an accident or casualty of some kind. Insurers accept the risk, but not the certainty, of loss. The second is that although the insured must prove a loss by an accident of some kind, it is not necessary for him to go further and establish the exact nature of the accident by which it occurred. The third is that the policy does not cover the insured against loss due to wear and tear or the inherent vice of the thing insured, whether that loss was bound to occur or was fortuitous in the sense that its occurrence depended on the particular circumstances to which the goods happened to be exposed in the course of the voyage.’ and ‘The action of the winds and waves is, of course, an inevitable incident of any voyage and is therefore a hazard to which all goods carried by sea are necessarily exposed. Goods tendered for shipment must therefore be capable of withstanding the forces that they can ordinarily be expected to encounter in the course of the voyage and these may vary greatly depending on the route and the time of year. In a case such as the present, therefore, the competing causes, namely, perils of the sea and inherent vice, are to a large extent opposite sides of the same coin. If the conditions encountered by the vessel were more severe than could reasonably have been expected, it is likely that the loss will have been caused by perils of the sea (though even then there might be evidence that the goods would have suffered the same degree of damage under normal conditions). If, however, the conditions encountered by the vessel were no more severe than could reasonably have been expected, the conclusion must be that the real cause of the loss was the inherent inability of the goods to withstand the ordinary incidents of the voyage.’

Judges:

Mr Justice Moore-Bick

Citations:

[2004] EWHC 1038 (Comm), [2004] 2 Lloyd’s Rep 609, [2004] 2 CLC 682, [2005] Lloyd’s Rep IR 18

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Soya GmbH Mainz Kommanditgesellschaft v White HL 1983
The cargo, soya beans, was insured against heating, sweating and spontaneous combustion risks. It arrived in a heated and deteriorated condition. The insurers denied liability saying that the proximate cause of the damage was inherent vice or nature . .

Cited by:

Analysed – Global Process Systems Inc and Another v Berhad CA 17-Dec-2009
An oil rig suffered major damage in transit in rough seas. The insurers repudiated liability saying that the damages was the result of a natural vice rather than perils at sea.
Held: The fact that the sea conditions were within the range of . .
Overruled – Global Process Systems Inc and Another v Berhad SC 1-Feb-2011
An oil rig (The Cendor MOPU) was being transported from Texas to Malaysia. During the voyage, three of the four legs suffered damage. The insurers refused liability saying that the damage was the result of inherent weaknesses in the rig.
Held: . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 01 September 2022; Ref: scu.196706

Zurich Professional Ltd v Brown and Another: ChD 16 Dec 2010

The court was asked whether a particular professional indemnity policy covered any and if so which actionable defaults committed by a solicitor in the course of administering deceased estates.

Citations:

[2010] EWHC 3300 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Legal Professions, Insurance

Updated: 31 August 2022; Ref: scu.427293

Crowson v HSBC Insurance Brokers Ltd: ChD 23 Nov 2010

The court was asked whether a person who is not in a contractual relationship with an insurance broker nonetheless has rights of action in tort and/or contract where the insurance to be arranged is also for his benefit.

Judges:

Bragge M

Citations:

[2010] EWHC B26 (Ch), [2010] Lloyd’s Rep IR 441

Links:

Bailii

Jurisdiction:

England and Wales

Insurance, Agency, Contract

Updated: 27 August 2022; Ref: scu.426469

Northern Shipping Company v Deutsche Seereederei Gmbh and others (“The Kapitan Sakharov”): CA 3 Mar 2000

A carrier: (a) should not be exposed to an infinite liability in time; and (b) is not, without more, liable for latent defects in a vessel before it acquired it. The relevant failure to exercise due diligence must relate to the performance of a function undertaken (by the sub-contractor) as a carrier or on behalf of the carrier rather than in an alternative capacity, namely as a shipper.

Judges:

Auld LJ, Brooke LJ, Hale LJ

Citations:

[2000] EWCA Civ 400, [2000] 2 Lloyd’s Law Rep 255

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Kastor Navigation Co Ltd and Another v AGF M A T and others (‘Kastor Too’) ComC 4-Dec-2002
The claimant ship owner and its mortgagee sued the defendant insurer after the loss of the insured vessel, through fire. The insurers replied that the damage by fire was so extensive that the vessel was beyond repair when she sank, and was therefore . .
Cited – Parsons Corporation and others v CV Scheepvaartonderneming ‘Happy Ranger’ ComC 9-Feb-2006
A large cylinder part was damaged as it was being loaded on board the Happy Ranger in Italy. A hook on the crane was brittle and did not meet the approriate specification. It had not been tested as required. . .
Lists of cited by and citing cases may be incomplete.

Transport, Insurance

Updated: 27 August 2022; Ref: scu.200709

Condogianis v The Guardian Assurance Company Limited: PC 2 May 1921

Australia – The insured had filled out a proposal form for fire insurance incorrectly having failed to mention in his answer to a question about a second of two fires for which he had previously claimed. The proposal form contained a declaration stating that the proposal was the ‘basis of the contract [and] is to be taken as part of the policy and . . the particulars to be deemed express and continuing warranties furnished by’ the insured; there was also an express clause about material misdescription and misrepresentation.
Held: Lord Shaw said: ‘The case accordingly is one of express warranty. If in point of fact the answer is untrue, the warranty still holds, notwithstanding that the untruths might have arisen inadvertently and without any kind of fraud. Secondly, the materiality of the untruth is not an issue; the parties having settled themselves-by making the fact the basis of the contract, and giving a warranty-that as between them their agreement on that subject precluded all enquiry into the issue of materiality. In the language of Lord Eldon in Newcastle Fire Insurance Co v Macmorran (1815) 3 Dow 255,262: ‘It is a first principle in the law of insurance, on all occasions, that where a representation is material it must be complied with-if immaterial, that immateriality may be inquired into and shown; but that if there is a warranty it is part of the contract that the matter is such as it is represented to be. Therefore the materiality or immateriality signifies nothing.’
This rule has been repeated over and over again and is too well-settled to be questioned . . ‘

Judges:

Lord Shaw

Citations:

[1921] UKPC 55, [1921] 2 AC 125

Links:

Bailii

Cited by:

Cited – Genesis Housing Association Ltd v Liberty Syndicate Management Ltd CA 4-Oct-2013
The housing association was to develop an estate of social housing, supported by an insurance guarantee. The insurance proposal contained a clause stating that the information in the proposal was to form the basis of the policy, and that the policy . .
Cited – Genesis Housing Association Ltd v Liberty Syndicate Management Ltd TCC 8-Nov-2012
Insurers had rejected a claim under the policy, saying that the proposal form had included a basis of insurance declaration warranted by the proposer, and that since it had named a main contractor different to the one named, there was no liability . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Insurance

Updated: 23 August 2022; Ref: scu.422978

Ellerbeck Collieries tLd v Cornhill Insurance Co: CA 1932

The court considered the commercial purpose of employers’ liability insurance.
Held: Although the Court was held by precedent to conclude that the date in the certificate was the date of the accident and thus of the disablement, nevertheless it achieved compensation for the employees, by concluding that they were employed, and the employer insured, at that date of disablement. At the date of disablement, i.e. the date in the certificate, although neither employee was receiving wages he was, or at any rate was deemed to be, employed and covered by insurance.
Souton LJ stated: ‘I approach the construction of the policy from the point of view that it is intended to protect the employers against their liability to their workmen under the Workmens Compensation Act.’ and ‘The section then means that the last employer within twelve months before the date of the disablement certified is primarily liable to the workmen, but can discharge or distribute his liability in whole or part by proving that other employers within the twelve months have caused or contributed to the disability. The Certifying Surgeon’s date of disablement is final, and is to be taken as the date of ‘the accident’, and fixes the twelve months within which the employers can be made to contribute, besides fixing the date before which you are to look for the last employer whom the workman can safely sue, whether employment by him did or did not cause or contribute to the disablement. The employer then claims on the insurance company, on the ground that he is liable to make compensation for an injury by the disease.’ and ‘The second point raised by the insurance company is that as the workman was not being paid wages by the employer at the date of the accident, he was not then in the employer’s service . . Another and a better answer is that Parliament, to enable the workman to recover compensation, has treated him as employed at the time of the certified disablement by the last relevant employer previous to that date; and that it is this conventional and fictitious state of things that is the basis of the employers’ and insurers’ liability.’
GreeJ r concluded that the last employer during the twelve months from liability ‘would be entitled to indemnity on a policy in force during the time they were the workmen’s last employers’. He went on: ‘It was further contended for the appellants that the liability to compensate the two men ought to be held to be outside the contract of insurance because they were not in receipt of wages, and therefore the amount of their wages would not form an element in the calculation of the premium payable by the respondents. This is admittedly the fact, but it is to be remembered that the contract of insurance is a contract to indemnify the assured against all claims during the term of the insurance by the respondent’s workpeople. There is not a separate consideration for the insurance in respect of each workman. The wage calculation is a rough and ready way of ascertaining the amount of the premium. It is not unreasonable to neglect in the calculation the wages of workmen in the service but not actually working during part of the insured term . . the risk of the certification of industrial disease might well be accepted by an insurance company without any modification of the usual method of calculating the premium payable for insurance against all claims under the Act’.

Judges:

Greer, Scrun LJJ

Citations:

[1932] 1 KB 401

Jurisdiction:

England and Wales

Insurance

Updated: 21 August 2022; Ref: scu.453696

Meadows Indemnity Co Ltd v The Insurance Corporation of Ireland plc and Another: CA 1989

A claim was made for declaratory relief.
Held: The Claimant, a re-insurer, did not have locus to claim a declaration that the main insurer could avoid the main contract of insurance, to which the Claimant was not a party. The court considered ‘the general policy of the law to resolve disputes between all parties in one set of proceedings’.
May LJ said: ‘Meadows’ interests are not ‘vitally affected’ within the meaning one must give to that phrase on the authorities. I accept the general submission that was made to us that a person who is not a party to a contract has no locus, save perhaps in exceptional circumstances, to obtain a declaration in respect of the rights of other parties to that particular contract.’

Judges:

Neill, May and Nourse LJJ

Citations:

[1989] 2 Lloyds Rep 298

Jurisdiction:

England and Wales

Citing:

Considered – Gouriet v Union of Post Office Workers HL 26-Jul-1977
The claimant sought an injunction to prevent the respondent Trades Union calling on its members to boycott mail to South Africa. The respondents challenged the ability of the court to make such an order.
Held: The wide wording of the statute . .

Cited by:

Cited – Cabvision Ltd v Feetum and others CA 20-Dec-2005
The company challenged the appointment of administrative receivers, saying there had been no insolvency.
Held: No question arises of a derivative action arose here. The claimant had standing to apply for declaratory relief since they were . .
Cited – Cabvision Ltd v Feetum and others CA 20-Dec-2005
The company challenged the appointment of administrative receivers, saying there had been no insolvency.
Held: No question arises of a derivative action arose here. The claimant had standing to apply for declaratory relief since they were . .
Cited – Cabvision Ltd v Feetum and others CA 20-Dec-2005
The company challenged the appointment of administrative receivers, saying there had been no insolvency.
Held: No question arises of a derivative action arose here. The claimant had standing to apply for declaratory relief since they were . .
Cited – Feetum v Levy CA 2006
Jonathan Parker LJ discussed the granting of declarations: ‘things have indeed moved on since the Meadows case was decided; and the courts should not nowadays apply such a restrictive meaning to the passage in Lord Diplock’s speech in Gouriet’s . .
Cited – Office of Fair Trading v Foxtons Ltd ChD 17-Jul-2008
Complaint was made that the Foxtons standard terms of acting in residential lettings were unfair. Foxtons objected to the jurisdiction of the Claimant to intervene.
Held: On a challenge to an individual contract, the court would be able to see . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Insurance

Updated: 20 August 2022; Ref: scu.236580

Moore and Gallop v Evans: HL 1 Nov 1917

The appellants, an English firm, insured their stock of jewellery with the respondent under a policy covering ‘loss of, damage, or misfortune to the property.’ Previous to 22nd July 1914 the appellants consigned part of their stock to customers in Brussels and Frankfort on sale or return. By reason of the outbreak of war with Germany and the occupation of Brussels by the Germans the return of the goods became temporarily impossible. There was evidence that the goods remained in the possession of the consignees or their bankers. Held that the goods were not lost, and that the doctrine of constructive loss applicable to marine policies does not apply to other policies of insurance.

Judges:

Lords Atkinson, Parker, Parmoor, and Wrenbury

Citations:

[1917] UKHL 533, 55 SLR 533

Links:

Bailii

Jurisdiction:

England and Wales

Insurance

Updated: 19 August 2022; Ref: scu.631014

King v The Victoria Insurance Company Limited: PC 20 Mar 1896

Queensland – A cargo of wool was insured ‘at and from Townsville to London’. The lighter carrying the cargo to the ship capsized in the harbour. The insurers paid out and, taking an assignment of the action sued the defendant Government. The latter now replied that the insurer had arguably had no obligation to settle the claim, and the assignment of the action had been invalid. The appellant argued, in part, that the loss sued upon was not within the terms of the insurance policy; that the respondent insurers stood in the position of mere strangers making a voluntary payment to the insured and that they had no title which a court, either of law or equity, would have recognised.
Held: ‘Legal’ choses in action includes both legal and equitable interests in choses in action. The distinction between assignment of an action and subrogation must be kept clear. By subrogation, the insurer stands in the shoes of the insured and enforces its rights in the name of the insured. Subrogation is available if payment has been made honestly and in good faith under a valid policy if intended to be in satisfaction of the obligation to indemnify, notwithstanding that it may subsequently be shown that no such obligation had in fact arisen.
The Board rejected the argument presented. Lord Hobhouse said: ‘it is claimed as a matter of positive law that, in order to sue for damage done to insured goods, insurers must shew that if they had disputed their liability the claim of the insured must have been made good against them. If that be good law, the consequence would be that insurers could never admit a claim on which dispute might be raised except at the risk of finding themselves involved in the very dispute they have tried to avoid, by persons who have no interest in that dispute, but who are sued as being the authors of the loss. The proposition is, as their Lordships believe, as novel as it is startling; . . As regards the question whether the loss was or was not within the terms of the policy, their Lordships will make no observation but this, that whatever might have been the result of a dispute between the parties to it, there is nothing to suggest that the claim was not one which the insured might not honestly and reasonably make, or to which the insurers might not honestly and reasonably accede. They will assume, as the Court below has assumed, that the bank could not by the terms of the policy have compelled the insurers to indemnify them. Still if, on a claim being made, the insurers treat it as within the contract, by what right can a stranger say that it is not so? The payment would not be made if no policy existed; and it seems to their Lordships an extravagant thing to say that a payment made under such circumstances is a voluntary payment made by a stranger, and that it would be at least an excess of refinement to hold that it is not a payment on the policy, carrying with it the legal incidents of such a payment. . honestly made by insurers in consequence of a policy granted by them and in satisfaction of a claim by the insured, is a claim made under the policy, which entitles the insurers to the remedies available to the insured.’

Judges:

Watson, Hobhouse, Davey LL, Sir Richard Couch

Citations:

[1896] UKPC 16, [1896] AC 250, 74 LT 206, 44 WR 592, 65 LJPC 38, 12 TLR 285

Links:

Bailii

Cited by:

Cited – Alliance Bank Jsc v Aquanta Corporation and Others CA 12-Dec-2012
. .
Cited – Law v Liverpool City Council SCCO 10-May-2005
. .
Cited – W v Veolia Environmental Services (UK) Plc QBD 27-Jul-2011
The claimant’s car had been damaged by a lorry operated by the defendant. The claimant hired a replacement car under a credit hire agreement with AE, which he signed at his home when the replacement vehicle was delivered to him. The defendant’s . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Insurance

Updated: 19 August 2022; Ref: scu.417351

Post Office v Norwich Union Fire Insurance Society Ltd: CA 1967

A contract of insurance provided an indemnity for ‘all sums which the insured shall become legally liable to pay as compensation in respect of loss of property’. The claim was by the Post Office against a contractor, Potters, for damaging one of their cables which in consequence the Post Office had to repair. Before the Post Office had sued Potters, Potters went into liquidation. The Post Office sued the insurance company direct purporting to make use of the 1930 Act, but before the Post Office’s claim against Potters had been the subject of adjudication or agreement.
Held: A third party claimant could not sue the insurer directly, pursuant to the 1930 Act, until the existence and amount of the liability of the insured had been established by judgment or award or agreement. The reason for this was that the rights transferred by the Act were subject to the terms of the policy. Since the insured could not have claimed an indemnity until their liability had been established, the Post Office could be in no better position. The insurers’ argument that the Post Office had no cause of action against the insurers until the establishment of the existence and amount of the liability of the insured was therefore accepted. Though leave was necessary to begin or continue proceedings against a company in liquidation, the court considered that leave ought to be given automatically if the 1930 Act were applicable.
Lord Denning MR said: ‘It seems to me that the insured only acquires a right to sue for the money when the liability to the injured person has been established so as to give rise to a right of indemnity. His liability to the injured person must be ascertained and determined to exist, either by judgment of the court or by award in arbitration or by agreement. Until that is done the right to an indemnity does not arise.’
The liability must be ‘ascertained and determined to exist’, and that this may be achieved by judgment, arbitration award or agreement: ‘In these circumstances I think the right to sue for these moneys does not arise until the liability of the wrongdoer is established and the amount ascertained. How is this to be done? If there is an unascertained claim for damages in tort, it cannot be proved in the bankruptcy; nor in the liquidation of the company. But nevertheless the injured person can bring an action against the wrongdoer. ‘
Salmon LJ said that when the liability is established, it dates from the date when the cause of action arose: ‘The case really resolves itself into this simple question: Could Potters on June 17, 1965, have successfully sued their insurers for the sum of andpound;839 10s 3d which they were denying they were under any obligation to pay the Post Office? Stated in that way, I should have thought the question admits of only one answer. Obviously Potters could not have claimed that money from their insurers. It is quite true that if Potters in the end are shown to have been legally liable for the damage resulting from the accident to the cable, their liability in law dates from the moment when the accident occurred and the damage was suffered. But whether or not there is any legal liability and, if so, the amount due from the Potters to the Post Office can, in my view, only be finally ascertained either by agreement between Potters and the Post Office or by an action or arbitration between Potters and the Post Office. ‘

Judges:

Lord Denning MR, Salmon LJ

Citations:

[1967] 2 QB 363, [1967] 1 Lloyds Rep 216

Statutes:

Third Parties (Rights Against Insurers) Act 1930

Jurisdiction:

England and Wales

Citing:

Approved – West Wake Price and Co v Ching 1957
A clerk employed by a firm of accountants defrauded two of the firm’s clients of andpound;20,000 over a period of about three years.
Held: One can not ‘pay’ a cause of action.
Devlin J said: ‘I think that the primary meaning of the word . .

Cited by:

Cited – First National Tricity Finance Ltd v OT Computers Ltd; In re OT Computers Ltd (in administration) CA 25-May-2004
The company had gone into liquidation. They had sold consumer policies as extended warranties on behalf of the claimant. The company had insured its own joint liability under the contracts, and the claimant sought information from the company’s . .
Mentioned – Aer Lingus v Gildacroft Ltd and Another CA 17-Jan-2006
The claimant had been found liable to pay damages for personal injury, and now sought contribution from the defendants. The defendants said that they were out of time since the contribution action had been commenced more than 2 years after the . .
Cited – Law Society of England and Wales and others v Shah and others ChD 30-Nov-2007
Solicitor firms had been made bankrupt leaving a shortfall after thefts from client accounts of over 12 million pounds. The thief had diappeared, and the other partners were now discharged form bankruptcy. The Law Society accepted that it could not . .
Attacked – Bradley v Eagle Star Insurance Co Ltd HL 1989
Mrs Bradley was employed by Dart Mill several times from 1933 and 1970 and acquired byssinosis from inhaling cotton dust. The company was wound up in 1975 and dissolved in 1976. In 1984 she applied to the court for pre-action disclosure under . .
Cited – Teal Assurance Company Ltd v WR Berkley Insurance (Europe) Ltd SC 31-Jul-2013
An international engineering company had several layers of professional indemnity insurance. The top later did not cover claims originating in the US or Canada. The several insurers now disputed apportionment of liability between them. The . .
Lists of cited by and citing cases may be incomplete.

Insurance, Insolvency

Leading Case

Updated: 19 August 2022; Ref: scu.198401

Churchill Insurance Company Ltd v Wilkinson and Others: CA 19 May 2010

The various insured defendants had been driven in the insured vehicles by a non-insured driver. Suffering injury at the negligence of the driver, they recovered variously damages. Their insurance companies sought recovery of the sums paid from their respective insureds under the policy terms, section 151 and under European law. Appeals and cross appeals were heard from differing answers at first instance. The injured passengers argued that Article 13(1)(a) of the Directive is concerned to prevent insurers excluding from insurance vehicles being driven by persons unauthorised by the insurers.
Held: The Directive provided that members states could allow certain exclusions. The court referred to the ECJ the question of whether section 151(8) complied with the Directive.

Judges:

Neuberger MR L, Waller LJ, Wall LJ

Citations:

[2010] Lloyds Rep IR 591, [2010] EWCA Civ 556

Links:

Bailii

Statutes:

Road Traffic Act 1988 151(4), Council Directive 2009/103/EC

Jurisdiction:

England and Wales

Citing:

Cited – Marleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
Cited – Philip Owen Lloyd-Wolper v Robert Moore; National Insurance Guarantee Corporation Plc, Charles Moore CA 22-Jun-2004
The first defendant drove a car belonging to his father and insured by his father. The father consented to the driving but under a mistaken belief that his son was licensed. The claimant was injured by the defendant in a road traffic accident.
Cited – Angelidaki and Others v Organismos Nomarkhiaki Aftodiikisi Rethimnis ECJ 23-Apr-2009
ECJ (Social Policy) Directive 1999/70/EC Clauses 5 and 8 of the framework agreement on fixed-term work – Fixed-term employment contracts in the public sector – First or single use of a contract – Successive . .
Cited – Francovich, Bonifaci and others v Italy ECJ 19-Nov-1991
LMA The claimants, a group of ex-employees sought arrears of wages on their employers’ insolvency. The European Directive required Member States to provide a guarantee fund to ensure payment of employees’ arrears . .
Cited – Criminal proceedings against Ruiz Bernaldez ECJ 28-Mar-1996
Europa In the preliminary-ruling procedure under Article 177 of the Treaty, it is for the national courts alone, before which the proceedings are pending and which must assume responsibility for the judgment to . .
Cited – Candolin Ea (Approximation Of Laws) ECJ 30-Jun-2005
Compulsory motor vehicle insurance – Directives 84/5/EEC and 90/232/EEC – Rules on civil liability – Passenger’s contribution to the loss or injury – Refusal or limitation of the right to compensation.
The drunken owner of a car allowed an . .
Cited – Mendes Ferreira and Delgado Correia Ferreira v Companhia de Seguros Mundial Confianca SA ECJ 14-Sep-2000
ECJ Compulsory insurance against civil liability in respect of motor vehicles – Directives 84/5/EEC and 90/232/EEC – Minimum amounts of cover – Type of civil liability – Injury caused to a member of the family of . .

Cited by:

Cited – Forensic Telecommunications Services Ltd v West Yorkshire Police and Another ChD 9-Nov-2011
The claimant alleged infringement by the defendant of assorted intellectual property rights in its database. It provided systems for recovering materials deleted from Nokia mobile phones.
Held: ‘the present case is concerned with a collection . .
Lists of cited by and citing cases may be incomplete.

Road Traffic, Insurance, European

Updated: 18 August 2022; Ref: scu.415925

The Yasin: 1979

Receivers claimed against shipowners under a bill of lading for loss of a cargo. The shipowners argued on a preliminary issue that the insurance proceeds paid to receivers fell to be taken into account so as to wipe out the damages claimed. They sought to distinguish Bradburn on the particular facts by reason of the insurance having been one which the shipowners were bound to effect in favour of receivers under the terms of the charterparty with the receivers’ cif sellers, terms which were incorporated into the bill of lading.
Held: The insurance proceeds did not fall to be deducted from damages.
Lloyd J said: ‘The alternative way in which the first point is put by Mr. Phillips is that Bradburn’s case is simply an illustration of a more general rule that, in assessing damages, one disregards what is collateral. Here it is said the benefit of the insurance is not collateral, for it is specifically provided for by the parties in the contract itself; since the source of the loss and the source of the gain are the same-namely, the contract between the parties-the plaintiffs cannot prove that they have suffered any loss resulting from the way in which the contract has been performed.
In my judgment, the answer to that argument is also to be found in Parry v. Cleaver, and in particular in the speech of Lord Reid. There are always two questions, namely, (1) what is the loss which the plaintiff has suffered as a result of the accident (in this case by the total loss of the vessel), and (2) what are the sums which he has received which he would not have received but for the accident. Then comes the question whether sums under (2) can be set off against losses under (1). That depends not on the source of those sums but on their nature.’
‘Applying that reasoning to the present case, the question is whether the insurance proceeds are to be regarded as different in kind from the loss which the plaintiffs have suffered by reason of the defendants’ breach of contract. It seems to me that the answer to that question must be ‘Yes’. The insurance is payable on an event and does not depend in any way on proof of breach. The receipt is different in kind from the loss; and, if that is right, then, applying Lord Reid’s test, the benefit of the insurance is to be left out of account in assessing damages and it makes no difference that the benefit comes from the same source as the loss, in the sense that they both arise out of or are provided for in the same contract.’
Lloyd J said: ‘I should, however, mentioned the remaining stages of the argument in case I should be wrong so far; but I can do so very briefly. It is said to be a fundamental rule in the case of joint insurance that the insurer cannot exercise a right of subrogation against one of the co-assured in the name of the other. I am not satisfied that there is any such fundamental principle. In my judgment, the reason why an insurer cannot normally exercise a right of subrogation against a co-assured rests not on any fundamental principle relating to insurance, but on ordinary rules about circuity. In the present case, a claim in the name of the plaintiffs might well have been defeated by circuity if the insurance had purported to protect the defendants against third party liability. . . So far as there is any authority on this point, it does not support the view that there can never be a right of subrogation against a co-assured.’

Judges:

Lloyd J

Citations:

[1979] 2 Lloyd’s Rep 45

Jurisdiction:

England and Wales

Citing:

Cited – P Samuel and Co v Dumas HL 1924
Viscount Cave said: ”… My Lords, there is force in this argument, but I am not prepared to say that in the present case it should prevail. It may well be that, when two persons are jointly insured and their interests are inseparably connected so . .

Cited by:

Cited – Fulton Shipping Inc of Panama v Globalia Business Travel SAU (Formerly Travelplan SAU) of Spain ComC 21-May-2014
The former owners of the ‘New Flameno’ appealed from an arbitration award. A charter of the vessel had been repudiated with two years left to run. The owners chose to sell. They made a substantial profit over the price they would have received after . .
Cited – Fulton Shipping Inc of Panama v Globalia Business Travel Sau CA 21-Dec-2015
The charter of the ship ‘New Flameno’ was repudiated two years early. The owners sold it, making rather more profit than they would have if sold after the end of the term. The court was now asked how the profit should affect the loss claim on the . .
Cited – Globalia Business Travel Sau of Spain v Fulton Shipping Inc of Panama SC 28-Jun-2017
The court was asked how to assess damages arising out of the repudiation of a charterparty by charterers of a cruise ship, the ‘New Flameno’. The charter ending two years early, the owners chose to sell, and in the result got a much better price . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 16 August 2022; Ref: scu.642152

P Samuel and Co v Dumas: HL 1924

Viscount Cave said: ”… My Lords, there is force in this argument, but I am not prepared to say that in the present case it should prevail. It may well be that, when two persons are jointly insured and their interests are inseparably connected so that a loss or gain necessarily affects them both, the misconduct of one is sufficient to contaminate the whole insurance. . . But in this case there is no difficulty in separating the interest of the mortgagee from that of the owner; and if the mortgagee should recover on the policy, the owner will not be advantaged, as the insurers will be subrogated as against him to the rights of the mortgagee . .’

Judges:

Lord Sumner, Viscount Cave

Citations:

[1924] AC 431 (HL)

Jurisdiction:

England and Wales

Cited by:

Cited – The Yasin 1979
Receivers claimed against shipowners under a bill of lading for loss of a cargo. The shipowners argued on a preliminary issue that the insurance proceeds paid to receivers fell to be taken into account so as to wipe out the damages claimed. They . .
Cited – Globalia Business Travel Sau of Spain v Fulton Shipping Inc of Panama SC 28-Jun-2017
The court was asked how to assess damages arising out of the repudiation of a charterparty by charterers of a cruise ship, the ‘New Flameno’. The charter ending two years early, the owners chose to sell, and in the result got a much better price . .
Lists of cited by and citing cases may be incomplete.

Damages, Insurance

Updated: 16 August 2022; Ref: scu.642153

Horwood and Others v Land of Leather Ltd and Others: ComC 18 Mar 2010

The claimants sought to claim for personal injuries against the defendant company, now in administration, and their insurers using the 1930 Act. The insurers said they were not liable to indemnify the company. The parties disputed the standing of an agreement with the third party manufacturers to settle the claim.
Held: Despite any unwelcome result, the settlement agreement was clear and enforceable. Where a promisee has in fact conferred a benefit (factual or practical) on the promisor by performing the original contract, then the requirement of consideration is satisfied and there is no reason not to enforce the promise, if the other requirements for its enforceability are met.

Judges:

Teare J

Citations:

[2010] EWHC 546 (Comm), [2010] Lloyd’s Rep IR 453, [2010] 1 CLC 423

Links:

Bailii

Statutes:

Third Parties (Rights Against Insurers) Act 1930

Citing:

Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – F L Schuler AG v Wickman Machine Tools Sales Limited HL 4-Apr-1973
The parties entered an agreement to distribute and sell goods in the UK. They disagreed as to the meaning of a term governing the termination of the distributorship.
Held: The court can not take into account the post-contractual conduct or . .
Cited – Williams v Roffey Brothers and Nicholls (Contractors) Ltd CA 23-Nov-1989
The defendant subcontracted some of its work under a building contract to the plaintiff at a price which left him in financial difficulty and there was a risk that the work would not be completed by the plaintiff. The defendant agreed to make . .
Cited – Chartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
Cited – Bank of Credit and Commerce International SA v Ali, Khan and others (No 1); BCCI v Ali HL 1-Mar-2001
Cere Needed Releasing Future Claims
A compromise agreement which appeared to claim to settle all outstanding claims between the employee and employer, did not prevent the employee later claiming for stigma losses where, at the time of the agreement, the circumstances which might lead . .
Cited – Pratt v Aigaion Insurance Company SA (‘the Resolute’) CA 27-Nov-2008
The court considered the interpretation of a term in a contract of insurance to the effect that ‘Warranted Owner and/or Owner’s experienced skipper on board and in charge at all times and one experienced crew member.’, asking whether ‘at all times’ . .
Cited – Commercial Union Assurance v Lister CA 1874
The insured had taken out insurance with the plaintiff, but had undervalued it. It burned down due to the negligence of a third party.
Held: The insured was entitled to sue for the entire sum in his own name and as he thought fit, but would . .

Cited by:

Cited – Parties Named In Schedule A v Dresdner Kleinwort Ltd and Another QBD 28-May-2010
The defendant merchant banks resisted two group claims for annual bonuses for 2008 made by the employee claimants. They now sought summary judgment against the claims. The employer had declared a guaranteed minimum bonus pool available to make the . .
Lists of cited by and citing cases may be incomplete.

Insurance, Personal Injury, Contract

Updated: 15 August 2022; Ref: scu.403360

Goshawk Dedicated Ltd and others v Tyser and Co Ltd and Another: CA 7 Feb 2006

Lloyds underwiters sought inspection of the records of the Lloyd’s brokers.
Held: The documents must be made available at the cost of the underwriters. It was an implied obligation in a market where the brokers retained the records to make the available where reasonably necessary.

Judges:

Lord Justice Rix Sir Anthony Clarke MR Lord Justice Richards

Citations:

[2006] EWCA Civ 54, Times 04-Apr-2006, [2006] 1 All ER (Comm) 501

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Grace v Leslie and Godwin Financial Services Ltd ComC 16-May-1995
Lloyds’ brokers are to keep contract slips as evidence of the policy whilst ever a possibility of a claim exists. A failure to do so can hamper the conduct of the litigation to the detriment of syndicate members, and the broker can be liable to them . .
See Also – Goshawk Syndicate Management Limited, Svb Syndicate Limited, Goshawk Dedicated (No.2) Limited, Svb Underwriting Limited v Xl Speciality Insurance Company ComC 14-May-2004
. .
Appeal from – Goshawk Dedicated Ltd and others v Tyser and Co Ltd and Another ComC 23-Mar-2005
Inspection of documents. . .

Cited by:

Cited – Aitken v Standard Life Assurance Ltd SCS 3-Dec-2008
The pursuer averred that the defendant, his pension provider, had wrongfully reduced its final bonus by ten per cent without notifying him. He sought to imply a term into the contract to provide such an effect, saying that the contract promised an . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 15 August 2022; Ref: scu.239921

Pirelli General Plc and others v Gaca: CA 26 Mar 2004

The claimant was awarded damages from his employers, who claimed that the benefits received by the claimant from an insurance policy to which the defendants had contributed should be set off against the claim.
Held: McCamley was no longer good law as it applied to insurance policies where the employer had paid the premiums. There was no longer good reason to extend the benevolence exception to include payments made by tortfeasors to their victims. The essence of the benevolence exception is that it applies where payments have been made to the claimant by third parties from motives of sympathy. Neither the benevolence exception nor the insurance exception applied in the present case.

Judges:

Brooke, Mummery, Dyson LJJ

Citations:

[2004] EWCA Civ 373, Times 02-Apr-2004, [2004] 1 WLR 2683, [2004] 3 All ER 348

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Not good law – McCamley v Cammell Laird Shipbuilders Limited CA 1990
The plaintiff suffered injury at work and claimed damages. He had received a lump sum under insurance provided by the defendant’s parent company for the benefit of employees injured at work. Did the lump sum payment fall to be deducted from the . .
Approved – Redpath v Belfast and County Down Railway CANI 1947
The plaintiff sought damages for personal injury. The defendant company sought to bring into account sums received by the plaintiff from a distress fund to which members of the public had contributed. Plaintiff’s counsel were said to having . .
Cited – Parry v Cleaver HL 5-Feb-1969
PI Damages not Reduced for Own Pension
The plaintiff policeman was disabled by the negligence of the defendant and received a disablement pension. Part had been contributed by himself and part by his employer.
Held: The plaintiff’s appeal succeeded. Damages for personal injury were . .
Cited – Hussain v New Taplow Paper Mills Ltd HL 1988
The plaintiff was injured in an accident at work. His employer was partly responsible. For 13 weeks he received full sick pay in accordance with his contract. He then received half his pre-accident earnings under the permanent health insurance . .
Cited – Hunt v Severs HL 7-Sep-1994
The tortfeasor, a member of the claimant’s family provided her with voluntary nursing care after the injury. The equivalent cost of that care, was recoverable, but would be held on trust for the carer. The underlying rationale of English Law is to . .
Cited – Westwood v Secretary of State for Employment HL 1985
The house considered the benevolence rule: ‘I do not see any analogy at all between the generosity of private subscribers to a fund for the victims of some disaster, who also have claims for damages against a tortfeasor, and the state providing . .
Cited – Hunt v Severs CA 13-May-1993
The plaintiff was injured by the negligence of the defendant. The defendant provided gratuitous nursing care and other assistance to the plaintiff. They married each other.
Held: Where the Plaintiff was voluntarily cared for by the Tortfeasor, . .
Cited – Hodgson v Trapp HL 10-Nov-1988
The question was whether the attendance and mobility allowances which were payable to the plaintiff pursuant to statute should be deducted from damages she had received for personal injury.
Held: They should be. Damages for negligence are . .
Cited – Royston Frederick Williams v BOC Gases Ltd CA 29-Mar-2000
The plaintiff claimed damages from his employer in respect of injuries suffered during the course of his employment. The defendant paid the claimant a sum to which he had no contractual entitlement, saying that it was to be treated as an advance . .
Cited – Wells v Wells; Thomas v Brighton Health Authority; Page v Sheerness Steel Company Limited CA 23-Oct-1996
The plaintiff was a member of a scheme providing permanent health insurance benefits. The issue was whether the insurance monies received by the plaintiff were to be treated as sick pay (and therefore deductible from the damages) or insurance monies . .
Cited – Bradburn v Great Western Rail Co CEC 1874
The plaintiff had received a sum of money from a private insurer to compensate him for lost income as a result of an accident caused by the negligence of the defendant.
Held: He was entitled to full damages as well as the payment from the . .

Cited by:

Cited – Pope v Energem Mining (IOM) Ltd CA 5-Sep-2011
The deceased had been one of several abducted and killed whilst employed by the defendants in Angola. The company had promised to insure his life, but the insurers said that liability under the policy was capped. The claimant, the deceased’s mother . .
Lists of cited by and citing cases may be incomplete.

Insurance, Personal Injury

Updated: 15 August 2022; Ref: scu.194899

Tarbuck v Avon Insurance Plc: ChD 2002

Legal expenses insurance was purchased by a Miss Nicholson who ran a Natural Health Clinic in Clerkenwell. The insurance was called an ‘Office or Surgery Policy’ and section 7, headed ‘Legal Expenses’, provided that the insurers would pay the insured’s legal costs incurred in relation to claims against her for (inter alia) negligence or for possession of freehold or leasehold property up to andpound;50,000. She instituted proceedings against her landlord for breach of his repairing covenant and he counterclaimed for possession. She instructed Mr Tarbuck as her solicitor; the litigation went against Miss Nicholson in the sense that she was granted relief from forfeiture only on condition that she made certain payments. She failed to make those payments and was made bankrupt on the landlord’s petition, before she paid her solicitor’s bill. The bill came to andpound;69,000 which she was unable to pay and, indeed, unwilling to pay. Mr Tarbuck sought to rely on the 1930 Act because, as he put it, Miss Nicholson had insurance against her liability to pay his fees and she was thus ‘insured against liabilities to third persons which she may incur’. The insurers argued that all that had happened was that Miss Nicholson had voluntarily incurred a liability to pay a contract debt and that was not the sort of liability envisaged by the 1930 Act.
Held: ‘I have to choose between construing the words ‘where a person is insured against liabilities to third parties which he may incur’ as limited to insurance against liabilities which may be imposed on that person by operation of law, whether for breach of contract or in tort, or as including the underwriting of liabilities voluntarily undertaken by that person, i e the payment of contract debts. I do not believe that the words were intended to include the latter.’ He therefore dismissed the claim.

Judges:

Toulson J

Citations:

[2002] QB 571

Statutes:

Third Parties (Rights against Insurers) Act 1930

Jurisdiction:

England and Wales

Cited by:

Not good Law – First National Tricity Finance Ltd v OT Computers Ltd; In re OT Computers Ltd (in administration) CA 25-May-2004
The company had gone into liquidation. They had sold consumer policies as extended warranties on behalf of the claimant. The company had insured its own joint liability under the contracts, and the claimant sought information from the company’s . .
Followed – T and N Limited, Associated Companies of T and N Ltd (In Administration) v Royal and Sun Alliance Plc, and others ChD 9-May-2003
T and N had exposure to asbestosis claims; these claims were insured by Lloyd’s but on terms that if payments were to be made, T and N should make certain reimbursements to Lloyd’s. T and N then insured with a captive company known as Curzon their . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 14 August 2022; Ref: scu.198400

Law v Margarets Insurances Limited: CA 27 Feb 2001

The defendant sought to set aside a judgment entered against it for the cost of repairs to the claimant’s boat engine, saying that they were not the insurers but merely the insurance brokers. Their appeal had been incorrectly prepared and had been dismissed.
Held: Though this was a second level appeal, the judge had erred in having misunderstood the overriding objective so as to achieve a result which manifestly incorrect: Justice demanded that these relatively venial earlier errors should not have been regarded as incurable to the extent of allowing this apparently inappropriate judgment to stand. ‘ Judgment in default was set aside.

Judges:

Simon Brown, Longmore LJJ

Citations:

[2002] EWCA Civ 30

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Tanfern Ltd v Cameron-MacDonald, Cameron-MacDonald CA 12-May-2000
The court gave detailed guidance on the application of the new procedures on civil appeals in private law cases introduced on May 2. Appeals from a County Court District Judge’s final decision in a multi-track case could now go straight to the Court . .
Lists of cited by and citing cases may be incomplete.

Insurance, Litigation Practice

Updated: 09 August 2022; Ref: scu.218006

Aspen Insurance UK Ltd v Adana Construction Ltd: CA 5 Mar 2015

Citations:

[2015] EWCA Civ 176

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appral from – Aspen Insurance UK Ltd v Adana Construction Ltd ComC 20-Jun-2013
Claim by insurers for a declaration of non liability to which the insured responds seeking declarations that it is covered by the policy and entitled to have its associated defence costs paid. . .

Cited by:

See Also – Aspen Insurance UK Ltd v Adana Construction Ltd (Costs) CA 5-Mar-2015
Post judgment orders for costs and otherwise . .
Lists of cited by and citing cases may be incomplete.

Insurance, Construction, Negligence

Updated: 08 August 2022; Ref: scu.543886

Aspen Insurance UK Ltd v Adana Construction Ltd: ComC 20 Jun 2013

Claim by insurers for a declaration of non liability to which the insured responds seeking declarations that it is covered by the policy and entitled to have its associated defence costs paid.

Citations:

[2013] EWHC 1568 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appral from – Aspen Insurance UK Ltd v Adana Construction Ltd CA 5-Mar-2015
. .
See Also – Aspen Insurance UK Ltd v Adana Construction Ltd (Costs) CA 5-Mar-2015
Post judgment orders for costs and otherwise . .
Lists of cited by and citing cases may be incomplete.

Insurance, Litigation Practice

Updated: 07 August 2022; Ref: scu.510952

Blackburn Rovers Football and Athletic Club Plc v Avon Insurance Plc and others: QBD 12 Apr 2006

The claimants sought to claim under an insurance policy with the defendants for the injury suffered in training by a footballer which led to his retirement. The insurers said that the player suffered a pre-existing degenerative condition which was the true cause of the symptoms.
Held: Each expert who had examined the footballer found the pre-existing condition. That evidence was overwhelming, and the disability was caused by the DDD. The claim under the insurance policy failed.

Judges:

Donns J DBE

Citations:

[2006] EWHC 840 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

First hearing – Blackburn Rovers Football and Athletic Club Plc v Avon Insurance Plc, Eagle Star Insurance Company Ltd, AGF Insurance Ltd IC Insurance Ltd ComC 15-Nov-2004
The claimant football club insured its players through the defendants. A footballer injured himself in training and his career was finished. The insurers rejected the claim, and relied upon exception clauses, saying that the true cause was a . .
At Court of Appeal – Blackburn Rovers Football and Athletic Club Plc v Avon Insurance Plc and others CA 20-Apr-2005
Exclusion clause in insurance contract. . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 06 August 2022; Ref: scu.240442

Petrofina (UK) Ltd v Magnaload Ltd: 1983

A finding of double insurance requires the same insured to be covered in respect of the same property against the same risks.
Lloyd J held that: ‘a head contractor ought to be able to insure the entire contract works in his own name and the name of all his sub-contractors, just like a bailee or mortgagee, and that a sub-contractor ought to be able to recover the whole of the loss insured, holding the excess over his own interest in trust for the others.’

Judges:

Lloyd J

Citations:

[1983] 3 WLR 805, [1983] 3 All ER 35, [1984] QB 127, [1983] 2 Lloyds Rep 91

Jurisdiction:

England and Wales

Cited by:

Cited – Mark Rowlands v Berni Inns Ltd CA 1985
The plaintiff owned the freehold and had let the basement to the defendant. The plaintiff insured the building. The defendant covenanted to pay to the plaintiff an insurance rent equal to the proportionate cost of insuring the part of the building . .
Cited – Zurich Insurance Plc UK Branch v International Energy Group Ltd SC 20-May-2015
A claim had been made for mesothelioma following exposure to asbestos, but the claim arose in Guernsey. Acknowledging the acute difficultis particular to the evidence in such cases, the House of Lords, in Fairchild. had introduced the Special Rule . .
Cited – Gard Marine and Energy Ltd and Another v China National Chartering Company Ltd and Another SC 10-May-2017
The dispute followed the grounding of a tanker the Ocean Victory. The ship was working outside of a safe port requirement in the charterparty agreement. The contract required the purchase of insurance against maritime war and protection and . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 06 August 2022; Ref: scu.236417

HSBC Bank Plc v Liberty Mutual Insurance Company (Uk) Ltd: ChD 11 Jun 2001

Where the draftsman of a contract appeared to have misused a word the court could depart from the dictionary meanings even if there was no ambiguity. This must first become apparent from the surrounding circumstances before the court could accept that it was to be driven to construe the contract in this way.

Citations:

Times 11-Jun-2001

Jurisdiction:

England and Wales

Insurance, Banking, Contract

Updated: 06 August 2022; Ref: scu.81509

D/S A/S Idaho v Clossus Maritime DA (The Concordia Fjord): QBD 1984

The vessel was chartered for 4 months, with a safe port requirement and a limited area of operation subject to payment of additional insurance premiums. The vessel set off to Beirut, then a safe port. The port lost that designation before the vessel arrived, but the captain continued, and the vessel was damaged by a rocket. The arbitrator found the charterer to be in breach. He, Mr MacCrindle QC, said that he was ‘not aware of any principle exempting the Charterers from liability for their breaches of contract merely on the ground that they have directly or indirectly provided the funds whereby the Owners insured themselves against such damages.’ The Charterer replied that they had purchased the extra insurance, and Beirut remained within the allowed area.
Held: on a proper construction of the charter, the charterer was in breach.

Judges:

Bingham J

Citations:

[1984] 1 Lloyd’s Reports 385

Jurisdiction:

England and Wales

Cited by:

Cited – Gard Marine and Energy Ltd and Another v China National Chartering Company Ltd and Another SC 10-May-2017
The dispute followed the grounding of a tanker the Ocean Victory. The ship was working outside of a safe port requirement in the charterparty agreement. The contract required the purchase of insurance against maritime war and protection and . .
Lists of cited by and citing cases may be incomplete.

Transport, Insurance

Updated: 05 August 2022; Ref: scu.641393

Pearl Carriers Inc v Japan Line Ltd ‘The Chemical Venture’: QBD 1993

Citations:

[1993] 1 Lloyd’s Rep 508

Jurisdiction:

England and Wales

Cited by:

Cited – Gard Marine and Energy Ltd and Another v China National Chartering Company Ltd and Another SC 10-May-2017
The dispute followed the grounding of a tanker the Ocean Victory. The ship was working outside of a safe port requirement in the charterparty agreement. The contract required the purchase of insurance against maritime war and protection and . .
Lists of cited by and citing cases may be incomplete.

Transport, Insurance

Updated: 05 August 2022; Ref: scu.641394

Hopewell Project Management Ltd v Ewbank Preece Ltd: 1998

Recorder Jackson QC described as nonsensical if parties who were jointly insured under a contractors’ all risks policy could make claims against one another in respect of damage to the contract works.

Judges:

Recorder Jackson QC

Citations:

[1998] 1 Lloyd’s Rep 448

Jurisdiction:

England and Wales

Cited by:

Cited – Gard Marine and Energy Ltd and Another v China National Chartering Company Ltd and Another SC 10-May-2017
The dispute followed the grounding of a tanker the Ocean Victory. The ship was working outside of a safe port requirement in the charterparty agreement. The contract required the purchase of insurance against maritime war and protection and . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 05 August 2022; Ref: scu.641421

Maher and Another v Groupama Grand Est: CA 12 Nov 2009

Two English claimants respectively suffered injury in a French road accident. They brought claims for damages against the French insurer of the other driver. Judgment on liability was entered by consent. There were issues as to the assessment of damages and the award of interest.
Held: ‘The existence of a right to recover interest as a head of damage is a matter of French law, being the law applicable to the tort, but whether such a substantive right exists or not, the court has available to it the remedy created by section 35A of the 1981 Act. Having said that, the factors to be taken into account in the exercise of the court’s discretion may well include any relevant provisions of French law relating to the recovery of interest. To that extent I agree with the judge that both English and French law are relevant to the award of interest.’

Judges:

Mummery, Moore-Bick, Etherton LJJ

Citations:

[2009] EWCA Civ 1191, [2010] 1 WLR 1564, [2010] RTR 10, [2009] 2 CLC 852, [2010] 2 All ER 455, [2009] All ER (D) 143

Links:

Bailii

Statutes:

Directive 2000/26/EC

Jurisdiction:

England and Wales

Citing:

Cited – FBTO Schadeverzekeringen v Jack Odenbreit ECJ 13-Dec-2007
ECJ Regulation (EC) No 44/2001 – Jurisdiction in matters relating to insurance – Liability insurance – Action brought by the injured party directly against the insurer – Rule of jurisdiction of the courts for the . .
Cited – Knight v Axa Assurances QBD 24-Jul-2009
The claimant was injured in a car accident in France. The defendant insurer said that the quantification of damages was to be according to French law and the calculation of interest also. The claimant said that English law applied.
Held: The . .

Cited by:

Cited – Cox v Ergo Versicherung Ag CA 25-Jun-2012
The deceased member of the armed forces had died in a road traffic accident in Germany. The parties didputed whether the principles governing the calculation of damages were those in the 1976 Act and UK law, or under German law.
Held: ‘There . .
Cited – Cox v Ergo Versicherung Ag and Another QBD 28-Oct-2011
The deceased died in a road traffic accident whilst serving in the Armed forces in Germany. The driver was insured under German law. The widow now claimed damages in England. She had entered a new relationship.
Held: The object of section 844 . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Road Traffic, Insurance, European

Updated: 05 August 2022; Ref: scu.380326

Tyco Fire and Integrated Solutions (UK) Ltd v Rolls-Royce Motor Cars Ltd: CA 2 Apr 2008

Judges:

Rix LJ

Citations:

[2008] EWCA Civ 286, [2008] 2 All ER (Comm) 584, [2008] Lloyd’s Rep IR 617, 118 Con LR 25, [2008] BLR 285, [2008] 1 CLC 625, [2008] 14 EG 100

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Tyco Fire and Integrated Solutions (UK) Ltd v Rolls-Royce Motor Cars Ltd TCC 29-Jun-2007
Allegation of faults in sprinkler system. . .

Cited by:

Cited – Gard Marine and Energy Ltd v China National Chartering Co Ltd and Others ComC 30-Jul-2013
The vessel ‘Ocean Victory’ grounded in 2006 entering a port in a storm.
Held: In the first action, that the intermediate charterers were liable to the demise charterers for breach of the safe port warranty in the time charter, and likewise, in . .
Mentioned – Gard Marine and Energy Ltd and Another v China National Chartering Company Ltd and Another SC 10-May-2017
The dispute followed the grounding of a tanker the Ocean Victory. The ship was working outside of a safe port requirement in the charterparty agreement. The contract required the purchase of insurance against maritime war and protection and . .
Lists of cited by and citing cases may be incomplete.

Insurance, Negligence, Construction

Updated: 04 August 2022; Ref: scu.266395

Financial Services Compensation Scheme Ltd v Larnell (Insurances) Ltd: CA 29 Nov 2005

The claimant investors said that their financial adviser, the defendant insolvent company, had given them negligent advice. The action was brought as a preliminary to claiming against the defendant’s insurers under the 1930 Act, in the way made necessary by the Post Office and Bradley cases. Limitation defences were deployed to strike the action out. The claimant had put in a proof of debt in the liquidation, but the liquidator had neither admitted nor rejected it.
Held: Establishment of liability by action, by arbitration or agreement between the insured and the third party, was a prerequisite to a claim, even though agreement will not always be possible, for example where the policy prohibits it.
Lloyd LJ said: ‘If proceedings are necessary, they may take one of a number of forms. The obvious instance is a claim such as the present. Because the company is in voluntary winding-up it is unnecessary to obtain consent before starting such a claim. If the winding-up were compulsory the court’s permission would be needed, and the court might regard it as more appropriate for the third party to prove for its debt. If the liquidator were to reject that proof, the third party could appeal against that rejection under rule 4.83 of the Insolvency Rules 1986. That would lead to a judicial determination which would also be sufficient establishment of the liability of the insured. Nothing turns on the particular procedure adopted. It makes no difference whether the proceedings themselves are brought within the bankruptcy or winding-up { proceedings or outside them, as is the present claim.’

Judges:

Lloyd LJ, Moore-Bick LJ

Citations:

[2004] Ch 317, [2005] EWCA Civ 1408, [2006] 1 QB 808

Links:

Bailii

Statutes:

Third Parties (Rights against Insurers) Act 1930

Jurisdiction:

England and Wales

Cited by:

Cited – Law Society of England and Wales and others v Shah and others ChD 30-Nov-2007
Solicitor firms had been made bankrupt leaving a shortfall after thefts from client accounts of over 12 million pounds. The thief had diappeared, and the other partners were now discharged form bankruptcy. The Law Society accepted that it could not . .
Cited – Laroche v Spirit of Adventure (UK) Ltd CA 21-Jan-2009
Hot Air balloon was an aircraft: damages limited
The claimant was injured flying in the defendant’s hot air balloon. The defendant said that the journey was covered by the 1967 Regulations and the damages limited accordingly. The claimant appealed against a decision that the balloon was an . .
Cited – LB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others SC 17-May-2017
In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Limitation, Insurance, Insolvency

Updated: 04 August 2022; Ref: scu.235436

Mark Rowlands v Berni Inns Ltd: CA 1985

The plaintiff owned the freehold and had let the basement to the defendant. The plaintiff insured the building. The defendant covenanted to pay to the plaintiff an insurance rent equal to the proportionate cost of insuring the part of the building occupied by the defendant, and did pay such rent. The building was destroyed by fire caused by the negligence of the defendant. The insurer paid the plaintiff the sum due under the policy and brought an action in the name of the plaintiff to recover its outlay from the defendant. The defendant was not named as a co-insured in the relevant insurance policy. The issue came to whether the tenant had an interest in the landlord’s fire insurance policy and an insurable interest in the premises which were destroyed by fire.
Held: ‘this ancient statute’, Section 2 of the 1774 Act (which makes it unlawful not to name, as the tenant was not named, ‘the person interested’ in a policy to which the Act applies) had no application to indemnity insurance but only to insurances which provide for the payment of a specified sum upon the happening of an insured event. Lucena was the classical definition of an insurable interest.
Kerr LJ said: ‘The intention of the parties, sensibly construed, must therefore have been that in the event of damage by fire, whether due to accident or negligence, the landlord’s loss was to be recouped from the insurance moneys and that in that event they were to have no further claim against the tenant for damages in negligence. Another way of reaching the same conclusion, on which Mr. Harvey also relied, is that in situations such as the present the tenant is entitled to say that the landlord has been fully indemnified in the manner envisaged by the provisions of the lease and that he cannot therefore recover damages from the tenant in addition, so as to provide himself with what would in effect be a double indemnity. Although the receipt of insurance moneys by an innocent party is of course normally no defence to a wrongdoer (see Bradburn v. Great Western Railway Co. (1874) LR 10 Ex 1), Mr. Harvey relied on a number of passages in Parry v. Cleaver [1970] AC 1, 13 to show that considerations of ‘justice, reasonableness and public policy’ (per Lord Reid) may require exceptions to this general principle. I do not think it necessary to elaborate upon this line of argument in the present case save to say that I accept it and regard it as complementary to the conclusion which is to be derived from the construction and effect of the terms of the lease itself, as indicated above.’ and (after citing Canadian authorities) ‘In each of the cases the minority concluded that the absence of any provision expressly or impliedly exonerating the tenant from negligence was fatal, but the majority view was that there was no need for any such provision, since it was sufficiently clear from the terms of the leases and the landlords’ covenant to insure against fire, including fire caused by the tenants’ negligence, that the landlord could not maintain an action for negligence against the tenants, and that the landlords’ insurers’ right of subrogation could therefore equally not be enforced.’

Judges:

Kerr LJ

Citations:

[1986] 1 QB 211, [1985] 3 All ER 473, [1985] 2 Lloyds Rep 437, [1985] 3 WLR 964, [1986] ANZ Conv R 501

Statutes:

Insurance Act 1774 2

Jurisdiction:

England and Wales

Citing:

Adopted – Lucena v Craufurd HL 1806
Before the declaration of war, against the United Provinces, His Majesty’s ships took possession of several ships belonging to Dutch East India men, and took them to St Helena. The Commissioners then insured the ships for their journey from St . .
Cited – Petrofina (UK) Ltd v Magnaload Ltd 1983
A finding of double insurance requires the same insured to be covered in respect of the same property against the same risks.
Lloyd J held that: ‘a head contractor ought to be able to insure the entire contract works in his own name and the . .
Cited – Commonwealth Construction Co Ltd v Imperial Oil 1977
(Supreme Court of Canada) de Grandpre J said: ‘On any construction site, and especially when the building being erected is a complex chemical plant, there is ever present the possibility of damage by one tradesman to the property of another and to . .

Cited by:

Applied – Siu Yin Kwan and Another v Eastern Insurance Co Ltd PC 16-Dec-1993
Insurers are liable to undisclosed principals on an indemnity policy, provided it was made with the range of their authority. The claim arose out of the death of two seamen on their employers’ vessel but the employers were not named in the relevant . .
Cited – Feasey v Sun Life Assurance Company of Canada and Another: Steamship Mutual Underwriting Association (Bermuda) Ltd v Feasey ComC 17-May-2002
The fact that there was more than one insurance policy in place for the same interest would not preclude a claim under one of them. A mutual underwriting group insured members against personal injury and so forth through ‘lineslip’ policies. The . .
Cited – Yarm Road Ltd and Another v Hewden Tower Cranes Ltd TCC 4-Nov-2002
. .
Cited – London Borough of Barking and Dagenham v Stamford Asphalt Company Limited and Others CA 20-Mar-1997
. .
Cited – Co-Operative Retail Services Limited and others v Taylor Young Partnership and others HL 25-Apr-2002
Whilst a substantial new building was being constructed, it was damaged by fire caused by the negligence of several contractors. The case concerned apportionment of liability.
Held: The appeal failed. The parties could by agreement vary the . .
Cited – Matalan Discount Club Limited v Tokensprire Properties Limited and Richmond Cladding Systems Limited TCC 4-Jun-2001
. .
Cited – Heathfield v Owen CA 16-Jul-1999
. .
Cited – Co-operative Retail Services Ltd v Taylor Young Partnership, Hoare Lea and Partners (a Firm) and Others CA 4-Jul-2000
A building owner entered into a standard form of building contract for the construction of office premises. Under its terms the contractor was required to take out and maintain a policy in the names of the owner, the contractor and specialist . .
Cited – HIH Casualty And General Insurance Limited and Others v The Chase Manhattan Bank and Others CA 31-Jul-2001
Parties syndicating finance for a film obtained the security of an insurance which is designed to pay up to the sum insured, if the revenues generated by the film were insufficient to repay the loan finance plus associated expenses. The polices were . .
Cited – Scottish and Newcastle plc v GD Construction (St Albans) Ltd CA 22-Jan-2003
The employer and main contractor had contracted under the JCT conditions. The employer had been obliged to insure the property for fire in their joint names, but had not done so. After a fire caused by the negligence of a sub-contractor, he sued. . .
Cited – Quirkco Investments Ltd v Aspray Transport Ltd ChD 23-Nov-2011
The defendant tenant said that it had exercised a break clause in the lease held of the claimant. The claimant said the break notice was ineffective because the defendant was in breach of the lease, not having paid an iinsurance service charge, and . .
Cited – Gard Marine and Energy Ltd and Another v China National Chartering Company Ltd and Another SC 10-May-2017
The dispute followed the grounding of a tanker the Ocean Victory. The ship was working outside of a safe port requirement in the charterparty agreement. The contract required the purchase of insurance against maritime war and protection and . .
Lists of cited by and citing cases may be incomplete.

Insurance, Landlord and Tenant

Updated: 03 August 2022; Ref: scu.184479

Co-operative Retail Services Ltd v Taylor Young Partnership, Hoare Lea and Partners (a Firm) and Others: CA 4 Jul 2000

A building owner entered into a standard form of building contract for the construction of office premises. Under its terms the contractor was required to take out and maintain a policy in the names of the owner, the contractor and specialist electrical subcontractors, Hall, for all risks insurance covering loss or damage to the works from specified perils including fire. Hall entered into a collateral contract with the owner warranting that it had exercised and would exercise all reasonable care and skill in the design and execution of the sub-contract works. A fire occurred causing extensive damage. The owners sued their architects and mechanical and engineering consultants, who brought third party proceedings against Hall. This raised the question whether Hall was liable to the owners in respect of the fire damage, alleged by the third party claimants to have been caused by Hall’s negligence and breach of warranty.
Held: The appeal failed.

Citations:

[2000] EWCA Civ 207, [2000] BLR 461, [2001] Lloyd’s Ins Law Rep 122

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Mark Rowlands v Berni Inns Ltd CA 1985
The plaintiff owned the freehold and had let the basement to the defendant. The plaintiff insured the building. The defendant covenanted to pay to the plaintiff an insurance rent equal to the proportionate cost of insuring the part of the building . .

Cited by:

Cited – Scottish and Newcastle Plc v G D Construction (St Albans) Ltd TCC 29-Mar-2001
The defendant contracted to refurbish premises belonging to the claimant. A fire caused by a sub-contractor caused damage, and the cost was sought from the defendant. He claimed that the standard form contract excluded its liability, including . .
Appeal from – Co-Operative Retail Services Limited and others v Taylor Young Partnership and others HL 25-Apr-2002
Whilst a substantial new building was being constructed, it was damaged by fire caused by the negligence of several contractors. The case concerned apportionment of liability.
Held: The appeal failed. The parties could by agreement vary the . .
Cited – Gard Marine and Energy Ltd and Another v China National Chartering Company Ltd and Another SC 10-May-2017
The dispute followed the grounding of a tanker the Ocean Victory. The ship was working outside of a safe port requirement in the charterparty agreement. The contract required the purchase of insurance against maritime war and protection and . .
Lists of cited by and citing cases may be incomplete.

Construction, Insurance

Updated: 03 August 2022; Ref: scu.147240

Cameron v Liverpool Victoria Insurance Co Ltd: SC 20 Feb 2019

The Court was asked in what circumstances is it permissible to sue an unnamed defendant? The respondent was injured when her car collided with another. The care was insured but by a driver giving a false name. The car owner refused to identify him. The insurers now appealed against
Held: The appeal succeeded. It is a fundamental feature of the statutory scheme of compulsory insurance in the UK that it does not confer on victims a direct right of recovery against an insurer for the underlying liability of the driver. The only direct right against the insurer is the right to require it to satisfy a judgment against the driver, under section 151, once the driver’s liability has been established in legal proceedings.

Judges:

Lord Reed, Deputy President, Lord Sumption, Lord Carnwath, Lord Hodge, Lady Black

Citations:

[2019] UKSC 6, [2019] 1 WLR 1471, [2019] PIQR P9, [2019] Lloyd’s Rep IR 230, [2019] RTR 15, [2019] 2 All ER (Comm) 467, [2019] 3 All ER 1, [2019] WLR(D) 112

Links:

Bailii, Bailii Summary, WLRD

Statutes:

Road Traffic Act 1988 145

Jurisdiction:

England and Wales

Citing:

Appeal from – Cameron v Hussain and Another CA 23-May-2017
The court was asked: ‘i) whether it is possible to obtain a judgment in respect of a claim for damages against a defendant identified only by description (‘an unnamed defendant’), in the context of a motor claim against an unidentified hit-and-run . .
Cited – Porter v Freudenberg CA 1915
A British citizen or neutral who is voluntarily resident in the enemy country is to be treated as an alien enemy when the question is asked as to his entitlement to bring proceedings in England.
An order for substituted service, which is as . .
Cited – Jacobson v Frachn CA 1927
Atkin LJ described the principles of natural justice as follows: ‘Those principles seem to me to involve this, first of all that the court being a court of competent jurisdiction, has given notice to the litigant that they are about to proceed to . .
Cited – UK Oil and Gas Investments Plc and Others v Persons Unknown Who Are Protestors ChD 3-Sep-2018
Application by the Claimants for interim injunctions until trial or further order. The injunctions sought relate to protests at sites in Surrey and Sussex where the Claimants carry out conventional oil or gas exploration and/or extraction. . .
Cited – NPV v QEL and Another QBD 28-Mar-2018
non-disclosure and harassment injunction . .
Cited – Barton v Wright Hassall Llp SC 21-Feb-2018
The claimant, a litigant in person, purported to serve his statement of claim by email, but had not first sought the defendant’s agreement as required. The solicitors allowed the limitation period to expire without acknowledging service. The . .
Cited – Ineos Upstream Ltd and Others v Persons Unknown ChD 21-Dec-2017
. .
Cited – CMOC v Persons Unknown ComC 23-Oct-2017
Application for worldwide freezing relief against persons unknown. . .
Cited – Friern Barnet UDC v Adams CA 1927
The plaintiff sought the cost of certain streetworks from the relevant frontagers. They did not know their names and issued a writ against ‘the owners of’ certain land clearly identified by name. It was pointed out that only owners of that land at . .
Cited – Middleton and Another v Person or Persons Unknown QBD 28-Sep-2016
Continued Injunction against hacked materials
Application for continuation of an injunction to prevent the disclosure of private materials said to have been obtained by hacking the first claimant’s icloud account. . .
Cited – Smith v Unknown Defendant, Pseudonym ‘Likeicare’ and Others QBD 15-Jul-2016
. .
Cited – Murfin v Ashbridge CA 1941
A road accident was caused by the alleged negligence of a driver who was identified but could not be found.
Held: While an insurer may be authorised by the policy to defend an action on behalf of his assured, he was not a party in that . .
Cited – Brett Wilson Llp v Person(s) Unknown, Responsible for The Operation and Publication of The Website www.solicitorsfromhelluk.com QBD 16-Sep-2015
The claimant solicitors sought remedies against the unknown publishers of the respondent website which was said to publish material defamatory of them, and to ampunt to harassment.
Held: The alleged defamatory meanings were not challenged by . .
Cited – Abela and Others v Baadarani ChD 24-Jul-2015
In 2002, Mr Abela and his companies entered into a share purchase agreement with Mr Baadarani. In April 2009, Mr Abela and his companies commenced proceedings in relation to a dispute arising out of that transaction. . .
Cited – IMT Shipping and Chartering Gmbh v Chansung Shipping Company Ltd, Owners Of the ‘Zenovia’ ComC 8-Apr-2009
The court considered the status and effect of a notice of approximate redelivery date and intended port given by a time charterer to an owner pursuant to the requirements of a time charter in amended New York Produce Exchange Form. In essence, the . .
Cited – South Cambridgeshire District Council v Gammell and Others CA 31-Oct-2005
Where proceedings were brought against unnamed persons and interim relief was granted to restrain specified acts, a person became both a defendant and a person to whom the injunction was addressed by doing one of those acts. . .
Cited – Gurtner v Circuit CA 1968
The Court described the gap in provision for the recovery of damages for injury where the driver of a vehicle was uninsured: ‘if (a) the defendant was not insured at the time of the accident or (b) his policy of insurance was avoided in the . .
Cited – Bloomsbury Publishing Group Ltd and J K Rowling v News Group Newspapers Ltd and others ChD 23-May-2003
The publishers had gone to great lengths to keep advance copies of a forthcoming book in the Harry Potter series secret. They became aware that some had been stolen from the printers and sought injunctions against the defendants and another unnamed . .
Cited – Hampshire Waste Services Ltd v Persons Intending to Trespass and/or Trespassing upon Incinerator Sites ChD 2003
The court granted an interlocutory injunction to restrain unknown trespassers from entering land.
The Vice-Chancellor gave the following guidance : (1) First, that the description of the defendant should not involve a legal conclusion, such as . .
Cited – Clarke v Vedel CA 1979
A person had stolen a motor cycle, collided with the plaintiffs, given a fictitious name and address and then disappeared. He was sued under the fictitious name he had given, and an application was made for substituted service on the Motor Insurance . .
Cited – EMI Recurds v Kudhail CA 1985
An order was sought against the defendasnt and unnamed defendants involved in copyright piracy.
Held: The court was prepared to make an order against the named defendant on his own behalf and as representing all other persons engaged in the . .
Cited – Campbell v Conoco (UK) Ltd and others CA 2-May-2002
. .
Cited – Abbey National Plc v Frost (Formerly Practising As Harold Weston Frost and Co) and Solicitors’ Indemnity Fund Limited Intervenor CA 4-Feb-1999
. .

Cited by:

Cited – London Borough of Enfield v Persons Unknown and Others QBD 2-Oct-2020
The council had obtained interim and final injunctions in 2017 against anticipated trespassers on its land and the order was due to expire. It now ought its extension and to amend the terms of the order.
Held: The court noted that no person . .
Cited – MBR Acres Ltd and Others v McGivern QBD 2-Aug-2022
Contempt Procedures Not to be abused
Reasons for dismissal of contempt application.
Held: The court does not grant injunctions to parties to litigation to be used as a weapon against those perceived to be opponents. Once Ms McGivern had provided evidence confirmed by a statement . .
Lists of cited by and citing cases may be incomplete.

Damages, Insurance

Updated: 03 August 2022; Ref: scu.633461

Persimmon Homes Ltd and Another v Great Lakes Reinsurance (UK) Plc: ComC 12 Jul 2010

‘This action relates to an After-the-Event (‘ATE’) insurance policy which the defendant underwriters have purported to avoid for material misrepresentation and non-disclosure. It has already gained a degree of notoriety as evidencing one of the potential difficulties with ATE insurance where an insured has been ordered to pay the costs of a successful defendant ‘

Citations:

[2010] EWHC 1705 (Comm), [2011] Lloyd’s Rep IR 101

Links:

Bailii

Jurisdiction:

England and Wales

Insurance

Updated: 03 August 2022; Ref: scu.420979

New Hampshire Insurance Company and others v Phillips Electronics North America Corporation: CA 16 May 1997

In the context of applications for negative declarations: ‘1. There is power to grant a negative declaration in an appropriate case, the fundamental test being whether it would be useful. 2. However, careful scrutiny will be exercised not only to test the utility, or the futility, of seeking to determine the claim by means of a negative declaration in England, but also to ensure that inappropriate forum shopping is not allowed, let alone encouraged. 3. A negative declaration will not be appropriate where it is premature or hypothetical, viz where no claim has been made or threatened against the plaintiff. 4. The existence of imminent or a fortiori current foreign proceedings is always a highly relevant consideration, not only for the purpose of testing the utility of the English claim, but also so as to having in mind the need to avoid the twin dangers of forum shopping and of the vices of concurrent proceedings.’ England was the natural forum to resolve issues of construction of a policy which fell to be determined by English law, but those issues were to be dealt with first and discretely and if resolved in one way would obviate the need for any further trial.

Judges:

Phillips LJ

Citations:

[1997] EWCA Civ 1727, [1998] CLC 1062

Jurisdiction:

England and Wales

Cited by:

Cited – Tryg Baltic International (UK) Ltd v Boston Compania De Seguros Sa and others ComC 28-May-2004
Four defendants from Argentina sought to have set aside an order for them to be served, saying the appropriate jursidiction, if there was a triable issue, would be Argentina.
Held: The agreements were to be construed according to English Law. . .
Cited – Royal and Sun Alliance Insurance Plc v Retail Brand Alliance Inc QBD 24-Sep-2004
The claimant sought payment under their insurance policy for damage from interruption to their business after the terrorist attack in New York on September 11, 2001. Proceedings had also been commenced in jurisdictions in the US.
Held: This . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Insurance

Updated: 03 August 2022; Ref: scu.142123

Deepak Fertilisers v ICI Chemicals: CA 1991

P’s methanol plant had been constructed with the use of know-how and services supplied by D. Following completion the plant exploded. The plaintiff sued D for negligence and breach of contract. The plaintiff had undertaken to indemnify D against loss to the plant and to cause D to be named as co-insured in all insurances effected in respect of the plant. D contended that it had a complete defence to the claim because it was entitled to be insured against it. In that context the question arose whether or not, following completion of the plant, D had an insurable interest in the plant itself.
Held: It did not. Whilst D had an insurable interest in the plant under construction, because it might lose the opportunity to work on it and earn remuneration if it were destroyed, after completion its only interest was in damage or destruction to the plant caused by D’s own breach of contract or duty of care and that could be insured only by liability insurance not insurance on the property or structure itself.

Judges:

Stuart-Smith LJ

Citations:

[1991] 1 Lloyds Rep 387

Jurisdiction:

England and Wales

Citing:

See Also – Deepak Fertilisers and Petrochemicals Corporation v ICI Chemicals and Polymers Ltd and Another ComC 30-Sep-1997
Trial of preliminary issue – Negligent Misrepresentation – Breach of Collateral Warranties – Breach of duty of care – Breach of contract (Davy Mckee only). . .

Cited by:

Cited – Feasey v Sun Life Assurance Company of Canada and Another: Steamship Mutual Underwriting Association (Bermuda) Ltd v Feasey ComC 17-May-2002
The fact that there was more than one insurance policy in place for the same interest would not preclude a claim under one of them. A mutual underwriting group insured members against personal injury and so forth through ‘lineslip’ policies. The . .
See Also – Deepak Fertilisers and Petrochemicals Corporation v ICI Chemicals and Polymers Ltd and Another ComC 30-Sep-1997
Trial of preliminary issue – Negligent Misrepresentation – Breach of Collateral Warranties – Breach of duty of care – Breach of contract (Davy Mckee only). . .
Cited – Six Continents Hotels Inc v Event Hotels Gmbh QBD 21-Sep-2006
The claimant had licensed the defendant to use its trademarks in connection with the naming of their hotels in Germany. The defendants failed to pay their fees as agreed, the claimants terminated the license and now sought payment under the . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 31 July 2022; Ref: scu.184483

Stock v Inglis: CA 1884

Buyers of sugar to whom the risk of loss of the sugar but not the property in it had passed had an insurable interest.
Held: ‘Nobody can deny that this is a case of extreme difficulty and of great nicety. In my opinion it is the duty of a Court always to lean in favour of an insurable interest, if possible, for it seems to me that after underwriters have received the premium, the objection that there was no insurable interest is often, as nearly as possible, a technical objection, and one which has no real merit, certainly not as between the assured and the insurer. Of course we must not assume facts which do not exist, nor stretch the law beyond its proper limits, but we ought, I think, to consider the question with a mind, if the facts and the law will allow it, to find in favour of an insurable interest.’

Judges:

Brett MR

Citations:

[1884] 12 QBD 564

Jurisdiction:

England and Wales

Cited by:

Cited – Feasey v Sun Life Assurance Company of Canada and Another: Steamship Mutual Underwriting Association (Bermuda) Ltd v Feasey ComC 17-May-2002
The fact that there was more than one insurance policy in place for the same interest would not preclude a claim under one of them. A mutual underwriting group insured members against personal injury and so forth through ‘lineslip’ policies. The . .
Cited – Feasey v Sun Life Assurance Company of Canada and Another: Steamship Mutual Underwriting Association (Bermuda) Ltd v Feasey CA 26-Jun-2003
A policy providing a fixed level of benefit, calculated according to the degree of injury could not be avoided under the 1744 Act on the basis that the insured had no insurable interest. The insurance company said the company had no insurable . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 31 July 2022; Ref: scu.184478

Quantum Processing Services Co v AXA Insurance UK Plc: CA 15 Dec 2008

The insured had gone cave diving on holiday, and was injured. He assigned his cause of action to the claimant. The insurers declined to pay saying that diving was excluded as a hazardous activity. The claimant appealed against rejection of the claim.
Held: The appeal succeeded. The appeal grounds included in effect appeals as to the facts. However the policy was unclear, and ‘ once the policy is read with scuba diving recognised as a hazardous activity which is covered, then if some particular form of scuba diving or some particular activity whilst scuba diving is not to be covered, that can only be as a result of one or other of the general exclusions applying. It is simply not permissible to construe the cover as covering only that which the insurers have in their own minds identified as a less hazardous form of scuba diving.’

Judges:

Waller VP CA, Thomas, Aikens LJJ

Citations:

[2008] EWCA Civ 1640

Links:

Bailii

Jurisdiction:

England and Wales

Insurance, Personal Injury

Updated: 30 July 2022; Ref: scu.372348

Lloyds TSB General Insurance Holdings Ltd and others v Lloyds Bank Group Insurance Company Ltd: ComC 6 Oct 2000

Citations:

[2000] EWHC 198 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Lloyds TSB General Insurance Holdings Limited (and Others), Abbey National Plc v Lloyds Bank Group Insurance Company Limited, Lee (and Others) CA 8-Nov-2001
Construction of aggregation clauses in insurance contracts . .
At First Instance – Lloyds TSB General Insurance Holdings and others v Lloyds Bank Group Insurance Company Ltd HL 31-Jul-2003
The applicant had paid out many claims for mis-selling pensions. They sought to claim under their insurance. The claims met the requirements of the principle insurance, but the insurance companies sought to impose a limit by aggregation.
Held: . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 28 July 2022; Ref: scu.201685