Hodges v Aegis Defence Services (BVI) Ltd [2014] EWCA Civ 1449

Case No B2/2014/0498[2014] EWCA Civ 1449
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Central London Civil Justice Centre.
His Honour Judge Mitchell
2YN63788
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 12 th November 2014
Before
LORD JUSTICE LONGMORELORD JUSTICE McCOMBELORD JUSTICE VOS
Between
LACEY VICTORIA HODGESClaimant/AEGIS DEFENCE SERVICES (BVI) LIMITEDDefendant/Respondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Richard Colbey (instructed by Royds LLP) for Claimant/AppellantFarrah Mauladad (instructed by Kennedys LLP) for Defendant/RespondentHearing Hearing date: 28 October 2014
JudgmentLord Justice McCombe:
[1]This is an appeal from the order made on 24 January 2014 by HH Judge Mitchell, sitting in the Central London County Court, whereby he gave judgment for the Defendant/Respondent, Aegis Defence Services (BVI) Limited (“the Defendant”) dismissing the action brought against it by the Claimant/Appellant, Ms Lacey Hodges (“the Claimant”), with costs to be assessed, if not agreed. The learned judge refused permission to appeal to this court, but permission was granted by order of Gloster LJ of 20 April 2014.

(B) Factual Background

[2]By a written contract dated 19 May 2006 (but signed on 28 May 2006), the Claimant’s late husband, Ian Chalmers (“Mr Chalmers”), a former member of the British armed services, was engaged by the Defendant as a “security escort team” member for a term of one year, subject to option to renew on both sides, from 31 May 2006 to 1 June 2007. The annual fee for Mr Chalmers’ services was stated to be US$150,789. It was provided by clause 13 of the contract that it was a contract for services and not of employment. Mr Chalmers’ function under the contract was to provide support and security escort to US personnel based in Iraq. The contract expressly stated that deployment under the contract involved working in a high risk, hostile environment. Tragically, on 26 August 2007, Mr Chalmers was fatally injured in an explosion in the course of carrying out his duties under the contract. He was 26 years old.

(C) The issue in the proceedings

[3]The issue before the judge and before us is as to the proper sums due to the Claimant under the contract pursuant to the provisions contained in it, requiring the Defendant to insure Mr Chalmers against death or injury while performing services under it.[4]Following Mr Chalmers’ death, a sum of $150,000, divided as to 80% to the Claimant and as to 20% to Mr Chalmers’ father, in accordance with Mr Chalmers’ nomination to that effect, was paid. Further periodical payments have been made to the Claimant at the rate of $1,160.36 per week or thereabouts. By the date of trial, some $362,496.46 had been paid to the Claimant by way of these periodical payments.[5]It was the Claimant’s contention at trial, as it is before us, that pursuant to the contract of engagement, the Defendant was required to pay to the insured’s nominee a minimum lump sum of $200,000. As she had only received a proportionate share of $150,000, she claimed to entitled to a further proportionate share of the additional $50,000, i.e. calculated as $42,135 or at the prevailing rate of exchange (at the date of the Particulars of Claim) £26,566.83, plus interest: see paragraphs 10 and 15 of that pleading.[6]The primary issue, therefore, was whether the Claimant was entitled to such a sum on the true construction of the contract. Secondly, if the answer to that question was in the negative, the question was whether the clause in the contract preventing that result was or was not void for unreasonableness pursuant to the Unfair Contract Terms Act 1977 (“UCTA 1977”).[7]The learned judge held that, on the true construction of the contract, the Claimant was not entitled to a minimum lump sum of $200,000 under the insurance provisions contained in it and that the contractual provisions, in so far as they so provided, were not unreasonable within the meaning of UCTA 1977. She had received and was receiving, therefore, all to which she was entitled under the contract.[8]I turn to the relevant terms of the contract and of the insurance policies.

(D) The Terms of the Contract/the Insurance Policies

[9]Clause 1 of the contract provides materially as follows:
“1. The Consultant shall provide services to Aegis BVI SET Team member reporting to the Team Leader in Iraq or such other person as Aegis BVI may direct upon the terms and subject to the conditions set out in this Contract of Engagement, the Self-Employed Consultant Undertakings (set out in Annex A) and the General Terms and Conditions of Engagement in force from time to time (the current version (reference: Proj/Matrix T&C/V10/15.05.06) is set out in Annex B) (together, “this Contract”). For the avoidance of doubt Aegis BVI reserves the right to amend the General Terms and Conditions of Engagement at any time by notice to the Consultant.”
[10]Clause 7 is in these terms, so far as relevant:
“7. Aegis BVI will insure the Consultant whilst he is providing his services under this Contract. The following is a brief summary of the minimum cover currently available. Please note the Consultant will not be covered for any incident arising from a pre-existing condition regardless of whether or not the Consultant was aware of this condition prior to deployment. This summary is for guidance only. 1) Death - US$200,000 2) Total and irrecoverable loss of sight of both eyes – US$200,000 3) Total and irrecoverable loss of sight of one eye – US$200,000 4) Loss of two limbs – US$200,000 5) Loss of one limb – US$200,000 6) Total and irrecoverable loss of sight of one eye and loss of one limb - US$200,000 7) Permanent total disablement (other than benefits 2 to 6 above) – US$200,000 8) Temporary total disablement – per week US$1,000 9) Travel (loss of baggage etc) (outside UK only) (up to) – US$1,500 10) Medical Insurance – US$250,000”
[11]By clause 17, it is provided that, “17. This Contract (which for the avoidance of doubt includes by reference the annexed General Terms and Conditions of Engagement, Self Employed Consultant Undertakings, MEJA acknowledgement and Statement of Work) which contains all the terms of engagement of the Consultant constitutes the whole understanding and agreement between the parties and is in substitution for and supersedes any existing and previous contract of engagement between the Consultant and Aegis BVI or the Consultant and any entity of the Aegis Group, which shall be deemed to have terminated with effect from the execution of this Contract. The Consultant acknowledges that he has not entered into this Contract in reliance on any statement or representation, whether or not made by Aegis BVI or the Aegis Group, except in so far as the representation has been incorporated in this Contract.”[12]In clause 4 of the General Terms and Conditions of Engagement, the following is found:
“4. INSURANCE AND LIABILITY 4.1 The Contract of Engagement will give a summary of what insurance (if any) will be available to the Consultant whilst he is providing his services to Aegis BVI. Such summary is for guidance only and does not give the Consultant any additional rights against Aegis BVI of the Aegis Group. Full details of the cover available are contained in the relevant policy/scheme documents which prevail at all times. For the avoidance of doubt, Aegis BVI reserves the right to amend the terms of the insurance policies/schemes from time to time including but not limited to the cover provided. The Consultant will be notified of any amendment. The Consultant will normally be covered for Personal Accident (PA) and, as applicable, Defense Base Act (DBA) insurance during the period of his engagement. All Consultants are required to make a will before deploying on operations and to nominate beneficiaries against each of the insurance policies above where applicable (Contract of Engagement, Clause 7).”
[13]As that clause envisaged, the evidence showed the Defendant had effected personal accident (“PA”) and Defense Base Act (“DBA”) insurance in respect of Mr Chalmers. The documents appear in our bundles.[14]The PA policy is a policy taken out by the Defendant with Lloyds. The DBA insurance was acquired by the Defendant from ACE American Insurance Company. As to the latter, the Defendant’s witness Ms Jo. Anthoine said this:
“15. The Defense Base Act provides for disability, medical and death benefits to US and foreign workers injured or killed in the course of their contract, working outside the US on US military bases or under a contract with the US government for public works or for national defence. Federal law requires all US Government contractors, such as Aegis, to take out DBA Insurance. The US Department of Labor, Office of Workers’ Compensation Programs (OWCP), Division of Longshore and Harbor Workers Compensation, administers the DBA. 16. Aegis took the necessary DBA policy out with ACE American Insurance Company. As a result of Mr Chalmers’ death, Mrs Chalmers (now Ms Hodges) has received $362,496.46 under the DBA insurance. This is based on the assumption that Mrs Chalmers (now Hodges) has received $1160.36 per week since Mr Chalmers’ death and has not remarried. 17. Since 1 October 2007, Mrs Chalmers (now Hodges) has received the equivalent of $1,160.36 a week under the DBA policy and continues to receive these payments. This figure is subject to the annual cost of living increases provided for under the policy. The monthly payments will continue for Ms Hodges’ lifetime unless she remarries. If she does re-marry, Ms Hodges will receive a lump sum equivalent to 2 years of benefits.”
[15]The Claimant in her evidence was of the view that money paid under the DBA was merely US government money and was paid, therefore, entirely independently of the Defendant and had no materiality to the calculation of the sums that were due to her as Mr Chalmers’ nominee under the contract. That stance is not maintained on the appeal.[16]The judge found that under the DBA policy the insurer pays the first year’s premium but that the US government is responsible thereafter. He acknowledged that he might not understand the full extent of the policies “but that is how the mechanics work”: see paragraph 6 of the agreed note of judgment signed by the judge. No challenge is made to that finding.[17]Under the PA policy, the stipulated death benefit was $150,000. By endorsement number 4 to that policy, it was further provided that:
“Number Four The accidental Death Benefit in respect of Expatriates is increased to USD 200,000 absolutely in the event that the next of kin of the deceased subcontractors are not entitled to remuneration under the Defense Base Act insurance policy currently in place covering Aegis Defence Services Limited (AEGIS) Matrix contracted personnel.”
[18]As a gloss on all this, the Claimant relied upon the terms of an e-mail sent by Mr Stephen Wilson, regional director of Aegis Defence Services Limited in Basrah, Iraq in 2006 and 2007. He was also a former British soldier. The e-mail was dated 4 May 2006, before Mr Chalmers made his contract with the Defendant on 28 May 2006. It was sent to a number of persons, one of whom, it seems, became Mr Chalmers’ “room-mate” in Iraq: judgment note, paragraph 13. There was no evidence that the e-mail had come to the specific attention of Mr Chalmers. The judge made no finding to that effect and it seems he was not invited to do so.[19]In the e-mail, Mr Wilson wrote (inter alia), “On death of a sub contractor NOK [viz. next-of-kin] will receive $200,000”.[20]Mr Wilson’s evidence about this e-mail, in paragraph 5 of his witness statement, was: “5. My email was only meant to give a summary of the position and was not intended to be specific advice to an individual contactor on any particular situation.

(E) Construction

[21]It is unfortunate that we do not have a full transcript of the judge’s judgment below. The reason is apparently that the recording systems failed at the time the judge gave his ex tempore judgment. Accordingly, all we have is the agreed note, consisting of an amalgam of the notes taken by the legal representatives, as subsequently endorsed by the judge. Clearly, as has been explained to us, the note could not contain a verbatim record of what the judge said and we are told that he spoke rather quickly, which made attempts to do so rather difficult. In the circumstances, it does not seem that we have the benefit of the full reasons why the judge decided the issue of construction as he did. However, it is clear that he found that the contract was not to be construed as the Claimant contended and, therefore, as the contractual documents are all in writing, we are at no disadvantage in deciding whether he was correct or not in that respect.[22]In my judgment, the conclusion arrived at by the judge was correct. My reasons are as follows.[23]The contract stated expressly that the engagement was on the terms of the contract of engagement and the other documents mentioned in clause 1, including the conditions of engagement in force from time to time, a copy of the current terms being in Annex B. The point was repeated in clause 16.[24]Clause 7 required the Defendant to insure the Claimant. It stated that it gave a “brief summary” of minimum cover then available “for guidance only”. The sum for death was given as $US 200,000. It is not referred to as a lump sum. The conditions of engagement repeated that the contract would give a summary of the insurance “if any” that was available and stated again that the summary was for guidance only. (We are not called upon to consider the position if the Defendant had declined to insure at all.) The conditions then inform the reader that the full terms of cover available were set out in relevant policy documents “which prevail at all times” and that normally cover would be for personal accident and Defense Base Act liability.[25]It seems to me, therefore, that the cover to be provided under the contract was that provided under the policies themselves whose terms were expressly to prevail at all times. Moreover, none of the contractual documents or the policies indicate that a minimum lump sum of $200,000 would be payable. In my view, the insured and any person claiming through him could only rely upon the benefits conferred by the policies, which were the lump sums provided by them (in varying circumstances) and the benefits payable under the DBA policy. Those benefits appear to be clear in the events that have happened. She has duly received benefits in excess of $200,000 and is not, therefore, entitled to more.[26]It is said that clause 7 of the contract seems to envisage that in all cases, with the exception of “Temporary Total Disablement” where $1000 per week is payable, the other amounts seem to be lump sums. However, I am not satisfied that that is the case. There seems to be no reason why, for example on loss of limbs, the policies (and, therefore, the contract) should not envisage partly lump sum and partly income payments, just as in the case of death benefit. The parties were unable to help us with the question whether in fact payments under the other heads also drew periodical payments under the DBA policy.[27]In the end, I am guided by the express words of the contract which makes no reference in clause 7 to any payment being a lump sum. The summary of benefits is said to be for guidance only. Clause 4 of the conditions states clearly that the full details of cover are available in the policy documents which are to prevail. Under those policies, the Claimant has received benefit in excess of the guidance minimum sum and can, therefore, have no complaint.[28]Nor do I consider that Mr Wilson’s e-mail takes this matter any further. It was never shown that the message played any part in the contractual arrangements with Mr Chalmers and it cannot, therefore, affect the point of construction facing the judge and facing this court.

(F) UCTA

[29]Finally, I turn to the provisions of UCTA. The judge appears to have proceeded on the basis that the Act applied to the relevant provisions of this contract and held that they were reasonable. However, the basis upon which he held that the Act was engaged is far from clear from the agreed note of judgment: see paragraphs 14-16.[30]The Claimant was contending that the Act applied by virtue of section 3(1) in that Mr Chalmers was dealing with the Defendant on its “standard terms of business” and that any contract term that gave the insured less than a minimum lump sum of $200,000 amounted to a claim by the Defendant to be entitled to render a contractual performance substantially different from that which was reasonably expected of it: see section 3(2)(b)(i).[31]The judge clearly found that the Act applied to this contract and there is no Respondent’s Notice contesting that finding. Accordingly, I proceed on the basis that the only point is one of “reasonableness” of any terms which (on their true construction) serve to give the Claimant less than $200,000 as a lump sum, irrespective of any other benefits to which she might be entitled.[32]It is submitted for the Defendant, in written argument, that the terms of clause 7 were reasonable in that: i) Mr Chalmers was working in a hostile environment and was aware of the risks; ii) It was highly unlikely that any commercial company would have underwritten the risks; iii) The term provided for payment of minimum cover albeit not by way of lump sum. (See paragraph 29 of the Defendant’s skeleton argument in this court.)[33]These were essentially the judge’s reasons for finding that the terms were reasonable: see paragraph 15 of the note. Ms Mauladad for the Defendant argued that a judge’s decision of this type is similar to that of the judge considered in George Mitchell (Chesterhall) Ltd. v Finney Lock Seeds Ltd. [1983] 2 AC 803, in which the question arose whether a contractual term was “fair and reasonable” within the meaning of section 55 of the Sale of Goods Act 1979 (as amended). Therefore, the judge’s decision should be afforded “the utmost respect and [the appellate court should] refrain from interference with it unless it is satisfied that it proceeded upon some erroneous principle or was plainly wrong and obviously wrong” (per Lord Bridge of Harwich at pp. 815G – 816G).[34]Exercising such restraint, I do not consider that the judge acted on any wrong principle or was plainly or obviously wrong. I would not, therefore, interfere with his decision. That is not to say that I find the judge’s reasons in any way wrong.

(G) Conclusion

[35]For these reasons, I would dismiss this appeal.

Lord Justice Vos:

[36]I gratefully adopt McCombe LJ’s careful exposition of the facts, though I regret to say that I am unable to agree with him on what I see as the central question in this appeal, namely the proper construction of clause 7 of the Contract of Engagement (“clause 7”) read together with the clause 4.1 of the General Terms and Conditions of Engagement (“clause 4.1”). The General Terms and Conditions of Engagement were referred to in clause 1 of the Contract of Engagement, and appended to them as Annex B.[37]It is useful to repeat the main provisions of these two clauses as follows:- i) Clause 7 provided that: “[the defendant] will insure [the deceased] whilst he is providing his services under this Contract. The following is a brief summary of the minimum cover currently available … This summary is for guidance only: 1) Death US$200,000 2) Total and irrecoverable loss of sight of both eyes US$200,000 3) Total and irrecoverable loss of sight of one eye US$200,000 4) Loss of two limbs US$200,000 5) Loss of one limb US$200,000 6) Total and irrecoverable loss of sight of one eye and loss of one limb US$200,000 7) Permanent total disablement (other than benefits 2 to 6 above) US$200,000 8) Temporary total disablement per week US$1,000 9) Travel (loss of baggage etc)(outside UK only)(up to) US$1,500 10) Medical Insurance US$250,000” 1) Death US$200,000 2) Total and irrecoverable loss of sight of both eyes US$200,000 3) Total and irrecoverable loss of sight of one eye US$200,000 4) Loss of two limbs US$200,000 5) Loss of one limb US$200,000 6) Total and irrecoverable loss of sight of one eye and loss of one limb US$200,000 7) Permanent total disablement (other than benefits 2 to 6 above) US$200,000 8) Temporary total disablement per week US$1,000 9) Travel (loss of baggage etc)(outside UK only)(up to) US$1,500 10) Medical Insurance US$250,000” ii) Clause 4.1 provided as follows:- “The Contract of Engagement will give a summary of what insurance (if any) will be available to [the deceased] whilst he is providing his services to [the defendant]. Such summary is for guidance only and does not give [the deceased] any additional rights against [the defendant] or the Aegis Group. Full details of the cover available are contained in the relevant policy/scheme documents which prevail at all times. For the avoidance of doubt, [the defendant] reserves the right to amend the terms of the insurance policies/schemes from time to time including but not limited to the cover provided. [The deceased] will be notified of any amendment. [The deceased] will normally be covered by Personal Accident (PA) and, as applicable, Defense Base Act (DBA) insurance during the period of his engagement. All consultants are required to make a will before deploying on operations and to nominate beneficiaries against each of the insurance policies above where applicable (Contract of Engagement, Clause 7)”.[38]The deceased did indeed nominate beneficiaries for the proceeds of each of the PA and DBA policies in a document dated 11th April 2007, executed nearly two months after his marriage to the claimant, and almost a year after the contract was signed. But Ms Mauladad, counsel for the defendant, told us that he would have signed a previous version of the nomination form at the time of the original contract. The nomination form itself provides under the heading “PA Insurance Policy” that “[i]n the event of your death, this policy will pay a single lump sum to whomever you choose. Any persons may be nominated for this. Please indicate to whom you wish benefits to be paid (for insurance purposes only)”. As McCombe LJ has already said, the deceased nominated the claimant as to 80% and his father as to 20%. It seems to me that the terms of the nomination form are admissible as part of the factual matrix surrounding the contract, since the defendant required the deceased to execute one under the terms of clause 4.1.[39]In my judgment, clause 7, read alone, clearly indicates that the sum of US$200,000 payable on death will be a lump sum, rather than the accumulation of sums paid over time by way of instalments. I say this for 3 reasons:- i) The list of benefits makes it clear when it is referring to a periodic payment, as in numbered line 8 where it says that US$1,000 is paid per week for temporary total disablement. ii) The context also shows in numbered lines 9 and 10 where the figures shown are maxima rather than a single figure. There the sum of US$1,500 is shown for “travel”, and the words “up to” are expressly added before the figure. The sum of US$250,000 for medical insurance is obviously the maximum sum insured for medical expenses. By contrast, the other numbered lines show simply a single figure for death or a particular disability. iii) The preamble to clause 7 makes it clear that what is shown is a “brief summary of the minimum cover currently available” – obviously for the specific items shown. No reasonable reader would imagine that the sum of US$200,000 shown in respect of death would only be paid partly as a lump sum and partly over time, depending on whether the unspecified requirements of the DBA were met. It is worth noting that the judge himself concluded at paragraph 11 that “I would imagine, like most people, [the deceased] probably did not take legal advice and from the plain language thought that the payment was a lump sum”. I agree, and I consider that any reasonable reader of clause 7 would think the same.[40]I do not think that the fact that clause 7 says that the summary of amounts is “for guidance only” affects the fact that the death benefit mentioned is properly construed as being a lump sum, when the opening words of clause 7 say that the summary is “of the minimum cover currently available”. Ms Mauladad pointed to the undoubted fact that the words “lump sum” are not mentioned in clause 7. But in my judgment, that cannot be conclusive when the clause says that the minimum cover currently available is US$200,000, and, if that sum were not payable as a lump sum, the statement would simply not be true in the case, for example, of a consultant without dependents and with only one surviving parent.[41]The next question is whether anything in clause 4.1 operates to change what I consider to be the most natural meaning of the words used in clause 7. In my judgment, clause 4.1 does not have that effect. The purpose of clause 4.1 is again given in its opening words, which explain that “[t]he Contract of Engagement will give a summary of what insurance (if any) will be available to [the deceased] …” It is to be noted that the definitive verb “will” is used. Clause 7 is therefore expressly said to be the dominant provision. The qualification that the summary is “for guidance only” repeats clause 7, and the statement that the summary does not give the deceased any additional rights against the defendant seems to me to add nothing material.[42]The judge and McCombe LJ have placed much emphasis on the next sentence in clause 4.1 which says that “[f]ull details of the cover available are contained in the relevant policy/scheme documents which prevail at all times”. But I do not think these words can give precedence to the terms of policies that were neither provided to the deceased nor available for him to request. First, the sentence is actually referring the reader to where full details of the cover can be found. That does not seem to be detracting from the first sentence of clause 4.1 that has already told the reader that “[t]he Contract of Engagement will give a summary of what insurance (if any) will be available”. Secondly, the fact that the full details of the cover contained in the policy documents are to “prevail at all times” also seems insufficient to override the first sentence; it is as easily interpreted as referring to the policy conditions rather than the level of cover. But even if it were a clear reference to the level of cover, it would, in my judgment, be inadequate to change the clear meaning of clause 7, which has already unequivocally indicated that the minimum cover currently available on death is US$200,000. Clause 7 is, as I have said, expressly the dominant clause. Clause 4.1 emphasises this, by referring back to clause 7 in its last line. Furthermore, clause 4.1 says that the deceased will be notified of any amendment to the terms of the policies. The amendments referred to must be amendments from what is stated in clause 7 as being the “minimum cover currently available”. No such amendments were notified.[43]For these reasons, therefore, I do not think that the provisions of clause 4.1 are sufficient to displace the clear meaning of clause 7 to the effect that a lump sum of US$200,000 payable on death will be the minimum cover available.[44]I am fortified in these conclusions, though I am not certain fortification is needed, by the provisions of the nomination form to which I have already referred. That form demonstrates that what is provided under the PA policy in respect of death is a lump sum, as the plain words of clause 7 also, in my judgment, indicate.[45]In these circumstances, I do not think it is necessary to go on to consider the effect of section 3(2)(b)(i) of the Unfair Contract Terms Act 1977, which I regard as a rather difficult question. Suffice it to say, however, that it is somewhat hard to see how the judge can have concluded as he did in paragraph 11 of his judgment and yet not held that it was reasonably to be expected of the defendant that it would provide insurance for a lump sum of US$200,000 on death. It will be recalled that in paragraph 11, the judge had determined that “from the plain language” of clause 7, the deceased like most people would have “thought that the payment was a lump sum”. I would prefer, however, to leave a detailed consideration of section 3(2)(b)(i) to a case in which it is material to the outcome.[46]For these reasons, I would allow the appeal.

Lord Justice Longmore:

[47]The narrow point which divides my Lords is whether, on the true construction of Mr Chalmers’ contract of engagement which incorporated Aegis’ General Terms and Conditions of Engagement, the claimant was entitled to be paid $200,000 as a lump sum from one insurer on her then husband’s death, once Aegis had arranged insurance as they promised to do.[48]Clause 4 of the General Terms provided that the Consultant (Mr Chalmers) would normally be covered (as he was) for Personal Accident and Defense Base Act (DBA) insurance but said nothing about how much the insurance would be for or how it would be divided up. It said merely that the contract of engagement would give a summary of what insurance would be available to the Consultant.[49]When one turns to clause 7 of the contract of engagement one sees that the summary states that $200,000 is to be payable on death. But this clause does not say how the insurance will be divided up if there are two insurances or two insurers. Nor does it say that the $200,000 is to be paid in one indivisible lump sum. That is left to Aegis who have, in fact, taken out two insurances. The Personal Accident policy with Lloyd’s pays $150,000 albeit that it is increased to $200,000 if the Consultant’s next of kin are not, for any reason, entitled to recover under “the DBA insurance policy currently in place”. The claimant was entitled to recover under the DBA policy, so Lloyd’s only paid $150,000. Provided that the claimant gets $200,000 in all, I cannot see that there is any breach of contract by Aegis.[50]The logic of the claimant’s argument is that Aegis were in breach of contract towards Mr Chalmers (and, I suppose, all their other consultants) when Aegis took out the Lloyd’s policy or whenever the consultant became a party to the Lloyd’s policy (whichever happened later). I cannot think that Aegis were in breach in that way; they were entitled to arrange insurance in any way they wanted provided that $200,000 was payable in the event of death. In fact the claimant has received considerably more than $200,000.[51]For these reasons I agree with McCombe LJ and respectfully disagree with Vos LJ who thinks that no reasonable reader would imagine that the sum of $200,000 would be paid partly as a lump sum and partly over time. But it is not as if the DBA policy took a long time to bring the payment of $150,000 up to $200,000. It is not even clear that the $150,000 was paid first and had to be topped up at all. There is nothing unreasonable in payment coming from two sources rather than one. That is all that has happened in the present case.[52]For this latter reason I do not think that Aegis have claimed to be entitled to render a contractual performance, substantially different from that which was reasonably expected of it within section 3(2)(b)(i) of the Unfair Contract Terms Act 1977.[53]I would therefore dismiss this appeal.