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Sky UK Limited & Anor v Riverstone Managing Agency Limited & Ors

22 May 2023
[2023] EWHC 1207 (Comm)
High Court
Sky's building had a leaky roof. They sued the insurance company. The judge said the insurance only covered problems that happened before a certain date, and that the main problem was that the builders didn't protect the roof while it was being built. Sky gets money to fix the roof, but only for the problems that happened during the policy period, not all the problems that happened later. They also get money for moving staff around while the repairs are done.

Key Facts

  • Sky UK Limited and Mace Limited sued insurers of a construction all risks (CAR) policy.
  • The dispute concerned the widespread failure of the roof of Sky's headquarters building.
  • The main issues were the scope of the policy, causes of roof failure, and the cost of remedial works.
  • The policy included a design exclusion (DE5) with a £150,000 deductible for any one event.
  • Mace's involvement was based on a JCT Design and Build Contract with Sky.
  • Disputes arose over the definition of 'damage', the period of insurance, and the application of the deductible.

Legal Principles

Construction of insurance contracts follows general contract principles.

FCA v. Arch Insurance (UK) Limited and others [2021] UKSC 1

Contract interpretation considers language, context, purpose, and commercial common sense.

Arnold v Britton [2015] UKSC 36

Third-party insureds' cover depends on the intention of the principal insured and insurer, as reflected in the policy and relevant contracts.

BP Exploration Operating Co Ltd v Kvaerner Oilfield Products Ltd [2005] 1 Lloyd’s Rep 307

In time-based policies, the period of cover is fundamental.

Wasa International Insurance Co Ltd v. Lexington Insurance Co [2009] UKHL 40

'Damage' requires a tangible physical change impairing the property's commercial value or utility.

Pilkington United Kingdom Limited v. CGU Insurance Plc [2004] BLR 97

A decision can constitute an event or occurrence for the purpose of an aggregation clause.

Stonegate v MS Amlin [2022] EWHC 2548 (Comm)

Outcomes

Mace is insured only for damage occurring before Practical Completion.

Mace's possessory interest ended at Practical Completion; the construction contract allocated risk accordingly.

The policy covers physical damage occurring during the Period of Insurance (1 February 2014 – 15 July 2017), not subsequent deterioration.

Wasa International Insurance Co Ltd v. Lexington Insurance Co establishes the fundamental importance of the policy period; 'damage' requires a physical change during the period, not merely subsequent consequences.

Water ingress causing potential deterioration is considered damage, even without immediately visible effects.

The entry of water is a physical change requiring remediation to prevent further deterioration, diminishing the property's value.

The failure to use temporary waterproofing during construction is a single 'event' triggering the £150,000 deductible.

This omission was a proximate cause of the damage, satisfying the unities of time, place, and cause; a decision can constitute an event.

Sky is entitled to the full cost of repairing damage as it existed at the end of the Period of Insurance, including reasonable decanting and out-of-hours work costs.

These costs are not consequential loss, but part of the full cost of remediation; it was reasonably foreseeable that remediation might occur after occupancy.

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