Legal Watch: Property Risks & Coverage December 2015 Issue 010
Introduction John Osborne had it wrong. So as we move into 2016, it has to
In this issue:
stalwart ‘Property Risks and Coverage Team’ here at Plexus
• Property Risks and Coverage seminar programme 2016
Despite a year marked by some obvious and undeniable
• Case Management/Relief from Sanctions Update
and have not waivered once in keeping their promises to our
• A contribution claim conundrum: where to sue?
doesn’t kill you makes you stronger”.
• The importance of issuing proceedings in the correct court
be all about looking forwards very positively for myself and my Law, as we now are.
turbulence, the PRC team members have continued to excel clients and to one another. And as someone once said, “what
In fact, that turbulence aside, 2015 has been another hugely
rewarding year in both terms of the work entrusted to us and the development of the team. We have seen new partners join,
• London iTree Urban Forest Survey • Riot Compensation Bill 2015-2106- Update
both organically, as in the case of Alison Heard, and through lateral gain, as in the case of Robert Kay.
The scope and scale of work undertaken has broadened and
deepened, with new panel status gains and the development of our international credentials. The team as a whole is now
recognised as a fully-fledged and leading unit in its sector by the major client guides. A great achievement for a team only formed through merger two years ago.
We in PRC look forward to 2016 and to continuing to do battle on behalf of you, our clients, with only renewed energy and
Contact us
If you would like any further information on the cases or articles featured in this issue, please contact: Paul Cha T: 0207 469 6235 E: Paul.Cha@plexuslaw.co.uk
determination and having been further forged by fire.
Robert Kay
Thank you for your undiminished support that we promise
T: 020 7469 6256
again to repay to you instruction by instruction.
E: Robert.Kay@plexuslaw.co.uk
Richard Houseago
Marise Gellert
Practice Head Property Risks and Coverage
T: 020 7469 6249 E: Marise.Gellert@plexuslaw.co.uk
This month we consider two recent cases on case
management/relief from sanctions. We also take a brief
look at the London iTree Urban Forest Survey and provide an update on the progress through Parliament of the Riot Compensation Bill 2015-2016.
Thanks go to Paul Cha for his article on XL Insurance Company SE (formerly XL Insurance Company Ltd) v AXA
Corporate Solutions Assurance and to Robert Kay for his article on when cases should be issued in or transferred to the TCC following the case of Chliaifchtein v Jessop.
Finally, set out below are details of our forthcoming
seminars, including our National Conference on 12 May 2016. The seminars are free to attend and will be followed by drinks. Please circulate the programme to any of your colleagues who may be interested in attending.
Here are the hyperlinks you can use to book your place: To book your place for our Leeds seminars email: kirandeep.kaur@plexuslaw.co.uk
To book your place for our London seminars email: Alison.Heard@plexuslaw.co.uk
To book your place for our Manchester seminars email: Chris.Heitzman@plexuslaw.co.uk
If there are any topics not currently on the Seminar Programme which you would find useful please let Alison Heard know so that we can add them to our next Seminar Programme.
01
Property Risks and Coverage seminar programme 2016 Date
Location
Seminar
To book your place
Wednesday
Leeds
Claims handling:
Email:
Radisson Blu Hotel
Obtaining and preserving evidence
kirandeep.kaur@plexuslaw.co.uk
1 The Light
Differences in Property Claims North
13 Jan 2016 5.30pm
The Headrow Leeds LS1 8TL
and South of the Border:
Key differences between Scottish and
English property damage claims across the major perils of floods, fires and defective products; limitation and costs.
Followed by drinks Thursday
London
Claims handling:
Email:
4 Feb 2016
Plexus Law
Obtaining and preserving evidence
Alison.Heard@plexuslaw.co.uk
5.30pm
Peninsular House 30-36 Monument Street London EC3R 8NB
Differences in property claims north and south of the border:
Key differences between Scottish and English property claims across the
major perils of floods, fires and defective products; limitation and costs.
Followed by drinks
02
Wednesday
Manchester
Insurance Act 2015:
Email:
24 Feb 2016
Plexus Law
The practical effect on claims handling
Chris.Heitzman@plexuslaw.co.uk
5.30pm
21st Floor City Tower Piccadilly Plaza Manchester M1 4BT
Insurance
conditions:
contract
terms
and
How to identify different terms in
insurance contracts, their legal effect, warranties – pre and post Insurance Act 2015
Third Parties (Rights Against Insurers) Act
Thursday 16 March 2016 5.30pm
Followed by drinks
Leeds
Fire claims:
Email:
Radisson Blu Hotel
Ignis suus
kirandeep.kaur@plexuslaw.co.uk
1 The Light
S86 Fires Prevention Metropolis Act
The Headrow Leeds LS1 8TL
1774 – accidental fires? Rylands v Fletcher Causation Tactical considerations
Followed by drinks Thursday
London Stock Exchange
National Conference
Email:
12 May 2016
10 Paternoster Square
Speakers
Alison.Heard@plexuslaw.co.uk
1.30 pm –
London EC4M 7LS
Andrew Moncrieff (Hawkins)
7.00 pm
Graham Eklund QC (4 New Square) Catherine Rawlin (RGL) Imogen Swain (RGL) Robert Kay (Plexus Law)
Drinks and canapés reception
03
Case Management/Relief from Sanctions – Update R (on the application (1) Frank Kigen (2) Janet Cheruiyot) V
An inability to instruct solicitors because of a shortage of
Civ 1286
rules, and a litigant who was awaiting a Legal Aid Agency
Secretary of State for the Home Department [2015] EWCA This is a Court of Appeal decision in respect of a judicial
review that deals with the impact of delays caused while
awaiting decisions from the Legal Aid Agency on a relief from sanctions application. The Court of Appeal made it clear that, notwithstanding this was a judicial review case, the position was the same in public law and private civil law
funds was not a good reason for a failure to comply with the
decision was in essentially the same position as a litigant in person, following the case of ZP (South Africa) v Secretary of State for the Home Department [2015] EWCA Civ 1273. Where solicitors were appointed, those solicitors had to
either take the necessary steps to lodge forms promptly, or advise their clients to lodge them themselves.
proceedings, so it is of wide application.
In this particular case the appeal was ultimately allowed,
Background
erred in other respects and the Court of Appeal exercised
The claimants’ application for permission to seek judicial review in respect of a refusal of permission to remain in
granting relief, but only because the first instance judge had discretion afresh.
the UK had been refused because it was submitted a day
Comment
reconsidered at an oral hearing. That application, which
applied for, or received, legal aid are in no different position
late because the claimants were awaiting a decision from
necessary to comply with deadlines or apply timeously for
late. They were also late in applying to have the refusal
The decision is helpful in showing that litigants who have
should have been made within 9 days, was made 13 days
from other parties and must take whatever steps are
the Legal Aid Agency about an amendment to their legal aid
extensions of time.
certificate. They therefore applied for an extension of time. The judge refused, but granted permission to appeal.
The claimants submitted that litigants awaiting a Legal Aid
Agency decision were in a different position from litigants
in person and could not be expected to deal with matters themselves.
Appeal decision The Court of Appeal held the fact that a litigant was awaiting
a funding decision by the Legal Aid Agency was not a complete answer to his failure to comply with a procedural requirement but was simply a factor to be taken into account.
04
Case Management/Relief from Sanctions – Update continued Commissioner of Police of the Metropolis V Abdulle & Ors
claim was effectively ready for trial and was a substantial
[2015] EWCA Civ 1260
claim, it should be allowed to continue, albeit on terms.
Again, this was a Court of Appeal decision, this time in
On appeal it was argued that the loss of the trial date
for various failures to comply with directions, such that the
respondents’ default without good reason and outweighed
of discretion given to a first instance judge when deciding
into allowing the claim to proceed.
and the grounds upon which an appeal court could or
Appeal decision
relation to a first instance decision not to strike out a claim
was particularly serious. That had been caused by the
trial date was lost. The appeal raised the issue of the width
the reasons the judge had considered tipped the balance
whether or not to strike out a claim for procedural failures should interfere with that exercise of discretion.
Background
The Court of Appeal made it clear that had it been considering this application at first instance, it would have struck out the
claim. However, in a case management decision where the
The respondents had brought a claim against the appellant,
balance was a fine one, an appeal court should respect the
police officers had unlawfully detained and used excessive
shown that the decision of the judge at first instance was
the Commissioner of Police of the Metropolis, alleging that
balance struck by the first instance judge unless it could be
force against them. However, there was considerable delay
perverse.
in progressing the claim, much (but not all) of it attributable
to the respondents or their solicitors. A trial window was fixed but the respondents failed to file a pre-trial checklist
or pay the listing fee. They also failed to communicate with
the appellant regarding preparations for trial, including the
preparation of a bundle. The only reason the claim was not automatically struck out under CPR r.3.7(4), which provides automatic sanctions for the non-payment of certain fees,
including the listing fee, was because no notice of default had been served on the respondents, as was required pursuant to CPR r.3.7(2).
The trial date was vacated and the respondents failed to
comply with a costs order made against them. The appellant applied for the claim to be struck out under CPR r.3.4(2)(c),
on the basis that there had been a failure to comply with a rule, practice direction or court order; the failures to file the checklist, pay the fee or prepare a bundle.
At first instance the judge found that whilst the respondents’ solicitors’ behaviour was worthy of real criticism, as the 05
Here, it was not suggested that the judge had overlooked any relevant factor, or taken into account irrelevant factors,
nor was it suggested that the judge misdirected himself in law. The appellant’s submissions had concerned the weight the judge had attributed to the various factors that he did take into account in exercising his discretion.
The Court of Appeal made it clear that it would not lightly
interfere with a case management decision: that approach
applied to decisions to grant or refuse relief from sanctions under CPR r.3.9 and to decisions on whether to strike
out under CPRr.3.4(2)(c), following the cases of Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 1 W.L.R. 795 and Chartwell Estate Agents Ltd v
Fergies Properties SA [2014] EWCA Civ 506, [2014] C.P. Rep. 36.
“...where the balance
was a fine one, an appeal court should respect the balance struck by the first instance judge unless it could be shown that the decision of the judge at first instance was perverse.� On that basis, the appeal was dismissed.
Comment This case makes it clear that the fact that in a finely balanced case others can disagree, is not sufficient to justify a decision being overturned; that is precisely the point of
the balance being ‘fine’ and it does not automatically render the first instance decision perverse.
06
A contribution claim conundrum: where to sue? XL Insurance Company SE (formerly XL Insurance Company Ltd) v AXA Corporate Solutions Assurance [2015] EWHC 3431 (Comm).
An insured may sometimes find itself with the benefit of
more than one insurance policy covering the same loss, particularly in the case of multinational corporations which take out cover for their subsidiaries and affiliates under global programmes of insurance.
Typically, where such instances of double insurance arise
under liability policies, an insurer against whom the claim is made is liable to pay the full amount of the claim (as if
have been sued in France under Article 4 of Brussels I Recast. Article 4(1) of Brussels I Recast provides that:
“Subject to this Regulation, persons domiciled in a Member
State shall, whatever their nationality, be sued in the courts of that Member State.”
There are a number of exceptions to this general rule including as set out in Article 7(1) and (2) of Brussels I Recast. Article 7 provides that:
“A person domiciled in a Member State may be sued in another Member State:
his policy stood alone) but once paid he is entitled to an
(1) (a) in matters relating to a contract, in the courts for the
In XL v Axa such an issue of contribution arose.
(b) for the purpose of this provision and unless otherwise
equitable contribution from other insurers of the same loss.
Background On 12 September 2008, a train collision occurred in California involving a passenger train operated by Connex
– a Delaware company. Connex was an affiliate of Veolia – part of the French Veolia Group – and traded locally as Metrolink.
XL insured Metrolink (including Connex) under a local policy. Axa (the French domiciled insurer) insured Veolia (including
Connex) under a separate policy. Injured passengers claimed against Connex in California.
XL (from London) paid its market share of the liabilities to Connex and Metrolink into an Interpleader fund (it was
accepted that payment into the fund was equivalent to the payment out to the insured). Axa refused to pay likewise on the basis that it was not liable under its policy.
XL subsequently commenced proceedings in England and claimed a contribution from Axa in respect of those elements which were double insured.
Axa challenged the jurisdiction of the English courts to determine such proceedings – and contended that it should 07
place of performance of the obligation in question
agreed, the place of performance of the obligation in question shall be:
• in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered
• in the case of the provision of services, the place in a
Member State where, under the contract, the services were provided or should have been provided
(c) if point (b) does not apply then point (a) applies (2) in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur”
Axa disputed the jurisdiction on the basis that the claim was a ‘matter relating to a contract’ (within Article 7(1)), i.e. the
underlying insurance contracts between XL and Axa and its respective insureds, and that the place of performance of the ‘obligation in question’ was not England.
Alternatively, it contended that the claim for contribution was
not a matter relating to ‘tort, delict or quasi-delict’ within
Article 7(2) but if it was then the place where the relevant ‘harmful event’ occurred was not England.
XL contended that its claim was one which related to ‘tort,
In his view, the contribution claim arose by operation of
event occurred was England. However, in the event that the
a refusal – it simply depended upon over payment where
delict or quasi-delict’ and that the place where the harmful
claim related to a contract, then the place of performance of the obligation was England.
In order to decide whether the court had jurisdiction under
Article 7(1) and Article 7(2), the judge considered the very nature of a contribution claim.
Was the claim a matter relating to a contract? The judge noted that Axa did not have any contractual
law – which did not depend on a request for payment and there was another insurer. He refused to characterise the
‘overpayment’ as a ‘harmful event’. Accordingly, it was
not necessary for him to decide where the harmful event occurred.
Comment Axa (the French domiciled insurer) successfully challenged the jurisdiction of the English court to hear and determine the contribution proceedings brought by XL.
obligation to make any contribution to XL – the judge was
The judge considered the true nature of contribution
insured (‘somewhere in the background’) was relevant as it
insurance) and he gave some helpful insight in to the accrual
Accordingly, it could not be said that the claim was a matter
He concluded, in the light of conflicting judicial authority,
not persuaded that Axa’s underlying insurance with its
claims (which arise between insurers in the case of double
did not form the basis for the contribution claim in question.
of such causes of action.
‘relating to a contract’ and therefore it did not fall within Article 7(1).
Was the claim a matter relating to tort, delict or quasi-delict?
that contribution claims do not fall within either Article 7(1)
or Article 7(2) and therefore that any such claims against an insurer domiciled in a Member State must be made in the
courts of that Member State. It remains to be seen whether this important issue will be subject to an appeal.
The judge approached this question on the basis of seeking to identify the ‘harmful event’, i.e. some event caused by the
defendant which causes damage to the claimant, resulting
in a liability for the ‘harmful event’ – since if it was not possible to do so then that strongly suggested the matter was not covered by Article 7(2).
The judge took the view that it was not sufficient that there was some ‘harmful event’ in the background – i.e. the injuries caused to the train passengers by Connex / Metrolink.
“...it was not sufficient that there was some ‘harmful event’ in the background...” 08
The importance of issuing proceedings in the correct court In Chliaifchtein v Jessop [2015] EWHC 3167 (TCC), Coulson
Whilst CPR.r.30.3(2) sets out the relevant matters to be
(TCC), provided guidance on when to issue in or transfer to
transfer, the specialist nature of the TCC means that the
J sitting in the in the Technology and Construction Court the TCC.
Background The underlying facts of the case were complex, relating to a building project in Belgravia and Party Wall Act issues
between the neighbours. Thankfully, as Coulson J said,
“it [was] happily unnecessary to deal with very much of the detail”. The issue was whether to transfer the claim
for approximately £17,000 brought in the Central London
County Court into the TCC in the High Court. The basis of the application was there was a point of importance and complexity which justified its transfer.
Decision Coulson J’s comments regarding complex or difficult cases, are of particular interest. His Lordship held that:-
“As a general rule, basic costs considerations will usually
take precedence over points of alleged legal interest or
complexity. It is now very rare for claims worth less than
£250,000 to be allowed to remain here, and there are some who think that, with the increasing pressure on the resources
taken into account by the court when considering any existing practice is that only claims above £250,000 are
likely pass the threshold, subject to certain, non-exhaustive, exceptions. Namely:
• Cases involving adjudications, including enforcements and arbitrations, because of a need for judicial precedent
• International cases involving non-resident parties or foreign projects or developments
• Cases involving new or difficult points of law in TCC
business or which have issues of technical complexity suitable for a High Court judge
• Any test case or case which will be joined with others which will be treated as test cases (for example a fire
caused by an appliance or vehicle where the value of
the claim may not be that great but it may be joined with others in which similar points are taken) • Public procurement cases • Part 8 and other claims for declarations • Claims which cannot readily be dealt with in a county
court or civil justice centre by a designated TCC judge
in both the QBD and the Rolls Building, that cap will have to
• Complex nuisance claims brought by a number of
“As a general rule, basic costs considerations will usually take precedence over points of alleged legal interest or complexity.”
• Claims for injunctions
be increased”.
09
parties, even when the sums claimed are small
• If the case has been commenced in the TCC list in
London, the court will retain the case if there is a good reason so to do
Comment This case therefore provides a warning to claimants about
commencing or applying to transfer proceedings to the TCC in low value cases. It is unlikely that cases under £250,000
will be allowed to remain in the TCC in the Rolls Building or be transferred there (and that threshold may even increase): they can be commenced in the county court or a district
registry with a designated TCC judge. Accordingly, unless one or more of the above exceptions apply or there are other
very good reasons, basic costs considerations are likely to outweigh points of alleged legal interest or complexity.
This case serves as a salutary reminder that legal advice should be taken before commencing a claim; not just to
ensure the claim is well-founded but also that the correct venue is chosen. To do otherwise may be incurring costs
which are not just unnecessary but also unlikely to be recoverable.
010
London iTree Urban Forest Survey The results of the London iTree urban forest survey were
published on 2 December 2015 in the House of Lords. The
report is the culmination of years of work of a partnership project including Forestry Commission, Greater London
Authority, London Tree Officers Association, Trees for Cities,
Tree Council, Natural England and Treeconomics and is based on a field survey undertaken by volunteer teams during Summer 2014.
A random selection of 725 plots was chosen across inner, outer and greater London; these included any areas of an
urban forest (trees and shrubs in London’s parks, gardens,
woodlands and open spaces). Detailed records of trees
and vegetation within the plots were taken; those details including the stem diameter, tree height, size of tree canopy,
condition of the tree, land use, amount of shrub and ground cover.
A pdf copy of the report (which runs to some 84 pages) can be found at http://www.forestry.gov.uk/pdf/2890-Forest_ Report_Pages.pdf/$FILE/2890-Forest_Report_Pages.pdf The i-Tree project seeks to: • Promote London’s urban forest and the benefits it provides
• Provide a pan London picture of tree and woodland cover
• Engage volunteers in trees and further opportunities to plant and manage them
• Provide verifiable economic values to the benefits that the urban forest provides
• Establish values that are a pre cursor to proper asset and risk management
• Establish parity between the services that the
urban forest provides with other recognised urban
infrastructure such as street lighting and highways It remains to be seen how the results of this report will impact upon tree root subsidence and/or Tree Preservation Order 011
cases but it is likely only to be a question of time before it is referred to in expert evidence in relation to amenity value.
Riot Compensation Bill 2015-2106 – Update
Publications
The Bill continues to make its way through Parliament and
Weekly:
passed its second reading through the House of Commons
on 4 December 2015. The second reading is the first opportunity for MPs to debate the main principles of the Bill.
The Bill will now be committed to a public bill committee
where each clause and any amendments to the Bill may be debated. A date for the committee stage is yet to be
If you would like to receive any of the below, please email indicating which you would like to receive.
• Legal Watch: Personal Injury Monthly: • Legal Watch: Property Risks & Coverage Quarterly: • Legal Watch: Health & Safety
announced.
• Legal Watch: Professional Indemnity
As the Bill started in the House of Commons, it must pass
• Legal Watch: Disease
through all of the stages in the House of Commons before it progresses to the House of Lords and, ultimately, receives
Royal Assent. Clearly that will not now happen until 2016,
at the earliest, subject to debate in the two Houses and any subsequent amendment.
The Bill can be found at: http://www.publications.parliament. uk/pa/bills/cbill/2015-2016/0013/15013.pdf
We will report further significant developments as and when they happen.
Contact us For information on articles and cases featured in
other editions of Property Risks and Coverage Newsletters, please contact: Marise Gellert Partner T: 020 7469 6249 E: Marise.Gellert@plexuslaw.co.uk
www.plexuslaw.co.uk Plexus Law is a trading name of Plexus Law Limited, a limited company incorporated in England & Wales. Reg No: 09641584. Registered office: Renaissance, 12 Dingwall Road, Croydon, CR0 2NA. Plexus Law Limited is authorised and regulated by the SRA (SRA No. 626521)