Fahad Atta v HDI Global Specialty SE
[2023] EWHC 2028 (KB)
DAVID FREDERICK CUCKOW v AXA INSURANCE UK PLC
28 March 2023
[2023] EWHC 701 (KB)
High Court
A guy got bad cavity wall insulation. The company that did it went bust, so he sued their insurance company. The insurance company said the insulation company didn't give them the right paperwork when they asked for it. The judge sided with the insurance company because the insulation company should have kept the paperwork and knew it was important. The insulation company's carelessness and failure to find the paperwork after being asked for it meant they breached their contract with the insurance company, so the insurance company didn't have to pay.
Key Facts
- •Claimant (Cuckow) contracted with Mark Group Limited (MGL) for cavity wall insulation (CWI) installation in 2012.
- •Damp emerged in 2014, blamed on the CWI. MGL went into liquidation in 2015.
- •Deloitte LLP (Deloittes), MGL's administrators, lost the Claimant's contract and survey documents.
- •Cuckow obtained judgment against MGL in 2019, then sued AXA (MGL's insurer) under the Third Party (Rights Against Insurers) Act 1930.
- •AXA denied indemnity due to MGL's breach of policy conditions (Claims Notification and Claims Procedure Conditions) for failure to provide requested documents.
- •The key issue was whether MGL's failure to provide documents no longer in its possession constituted a breach, given the existence of 'Knowledge of Importance' at the time of disposal.
Legal Principles
Insurance policies are construed according to general contract principles, focusing on the objective meaning of language in its contractual setting.
Investors Compensation Scheme v West Bromwich [1998] 1 WLR 896
Conditions precedent must be clearly expressed; ambiguity is construed against the insurer.
MacGillivray on Insurance Law 15th Ed.
Whether a clause is a condition precedent depends on its wording, context, and commercial importance; a label is influential but not conclusive.
George Hunt Cranes v Scottish Boiler [2002] EWCA Civ 1964
Courts avoid construing contracts as requiring the impossible, but clear wording prevails.
Eurico SPA v Philipp Bros. [1987] Lloyd’s L.R. 215
Implied terms are only added where the contract doesn't cover the matter and it's the obvious and necessary unexpressed intention of the parties.
Marks & Spencer v BNP Paribas [2015] UKSC 72
The obligation to provide information arises only upon a reasonable request; the insured is only responsible for information within their possession or control at that time, unless they knew or should have known it would be needed earlier.
MacGillivray on Insurance Law 15th Ed. para. 19-057, Widefree Limited v Brit Insurance Limited [2009] EWHC 3671 (QB)
Outcomes
Appeal dismissed.
MGL breached the policy conditions by failing to provide the requested documents. Their failure stemmed from both intentional inaction in 2018 and careless loss/disposal of the documents in 2015-2016, both of which were coupled with 'Knowledge of Importance'.
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