“Building was never completed to a proper manner/standard: - no glazing at top floors - bare wall with no rendering - NO COMPARTMENTATION (fire risk) - significant health & safety issues in the block & stairs - Fire risk & general risk assessment – RED - Unfinished ceilings with leaks entering the unit itself - Leaking sewerage pipes into car park.”
“Maximum Liability: Sections 2 and 3 Our maximum liability in respect of all claims under Sections 2 and 3 of this policy is as follows: (a) for a New Home which is entirely detached, the purchase price declared to Us, subject to a maximum of£25 million ; (b) for a New Home which is part of a Continuous Structure, the maximum amount payable in respect of the New Home shall be the purchase price declared to Us subject to a maximum of£25 million . Where the combined value of all New Homes within a Continuous Structure exceeds£25 million , the total amount payable by Us in respect of all claims in relation to the New Homes and the Continuous Structure shall not exceed£25 million .”
“7.11.4 The claimants’ case is that this imposes a maximum liability of the lower of the total purchase price of all flats within the development or£25 million in relation to any claim concerning any one continuous structure i.e. any one single building and thus including, in this case, the connected blocks of flats forming part of this development. I was provided with a schedule showing that the total purchase price paid for all of the flats was only£10,846,076.65 so that, if the claimants are right, this would be the maximum liability on any one of their claims. On that basis, the effective cap is£25 million . 7.11.5 ZIP’s case, in contrast, is that the definition at (b) means that there is a maximum liability in relation to any claim made by an individual leaseholder of the declared purchase price of the flat in question, with the result that the total maximum liability in this case is the total of the declared value of the 30 flats in respect of which claims are made by the individual leaseholders. On that basis, the effective cap is£3.634 million . 7.11.6 The claimants contend that ZIP’s argument ignores the proviso to (b), which they say is intended to make clear that in the case of a continuous structure where there are common parts, the purchase price limit applies only to the new home itself and does not apply to claims in relation to the common parts. 7.11.7 The difficulty with the claimants’ reliance on the proviso, in my view, is that the opening words to the proviso make it clear that it only applies where the combined value of all new homes within the continuous structure exceeds£25 million . The purpose of the proviso, therefore, must be to limit the total value of all claims made in relation to any one continuous structure to£25 million , even if the combined value of all of the new homes within that continuous structure exceeded£25 million and therefore, on a straightforward application of (b), the total claim could exceed£25 million . 7.11.8 Although the claimants contend that if the proviso was to be interpreted in this way it would be meaningless, in that it is difficult to imagine a continuous structure with a combined value of£25 million , that is by no means obvious. For example a similar size development with an average price per flat of£250,000 would qualify, and it would make perfect sense that this was, as its wording indicates, the intended purpose of the proviso. 7.11.9 However, the claimants also argue that on a proper interpretation of (b) the maximum amount payable only applies to the new home itself, and not to any claim in relation to the common parts. Their argument is that where a new home is part of a continuous structure there is a clear separation in the policy as between the new home itself and the common parts. Their argument is that the proviso, by referring separately to claims in relation to the new homes and claims in relation to the continuous structure, expressly acknowledges that claims in relation to the continuous structure, which they say can only be claims in relation to the common parts, are separate and distinct from claims in relation to the new homes themselves. Their argument is that since (b) only refers to the maximum amount payable in respect of the new home, it cannot have been intended - in direct contrast with the proviso - to cover common parts claims in relation to the continuous structure as well. 7.11.10 This is an ingenious argument, but in response, ZIP reminds me that the definition of the new home specifically includes the common parts. In other words, the common parts are not treated separately in the policy from the new home. They say that in the face of this clear definition it cannot credibly be argued that a separate approach should be adopted in relation to the construction of sub-clause (b) simply through a side-wind in the proviso. This is a powerful argument which, in my judgment, must prevail unless it can be said to be plain and obvious that clause (b) when construed with the proviso can only have the effect for which the claimant contends. 7.11.11 It cannot be said, in my view, that clause (b) when construed with the proviso does have that clear and unambiguous meaning. Indeed if one considers the definition of a continuous structure it is obviously not the same as the common parts. It is either a single building containing more than one new home (where the definition of each new home includes the common parts) or a single building containing a new home and other parts of the building used for other purposes. On either analysis the reference to continuous structures in the provision cannot be read as if it meant common parts. It seems to me that the more likely reason why the proviso makes express reference to continuous structure is to make it clear that it covers any other parts of a building not falling within the definition of new home.”
“6. This approach to construction is well established. The court looks to the meaning of the relevant words in their documentary, factual and commercial context: Rainy Sky SA v Kookmin Bank[2011] 1 WLR 2900 , para 21 per Lord Clarke of Stone-cum-Ebony; Arnold v Britton[2015] AC 1619 , para 15 per Lord Neuberger of Abbotsbury. As I see no ambiguity in the way that the Policy defined its cover and as the exclusion clause reflected what The Law Society of England and Wales as the regulator of the solicitors’ profession had authorised as a limitation of professional indemnity cover, I see no role in this case for the doctrine of interpretation contra proferentem. As Lindley LJ stated in Cornish v Accident Insurance Co Ltd(1889) 23 QBD 453 , 456: “… in a case of real doubt, the policy ought to be construed most strongly against the insurers; they frame the policy and insert the exceptions. But this principle ought only to be applied for the purpose of removing a doubt, not for the purpose of creating a doubt, or magnifying an ambiguity, when the circumstances of the case raise no real difficulty.” 7. The extent of AIG’s liability is a matter of contract and is ascertained by reading together the statement of cover and the exclusions in the Policy. An exclusion clause must be read in the context of the contract of insurance as a whole. It must be construed in a manner which is consistent with and not repugnant to the purpose of the insurance contract. There may be circumstances in which in order to achieve that end, the court may construe the exclusions in an insurance contract narrowly.”
“3.1 The reasonable cost of rectifying or repairing Major Physical Damage which is caused by a failure by the Developer to comply with the Requirements in the construction of the New Home 3.2 The reasonable cost of rectifying a present or imminent danger to the physical health and safety to the occupants caused by the failure of the Developer to comply with the Building Regulations in respect of the following: …”
“10 Any sum above Your proportional share of the reasonable cost of repairing Major Physical Damage to Common parts”
“[19] The third point I should mention is that commercial common sense is not be invoked retrospectively. The mere fact that a contractual arrangement, if interpreted according to its natural language, has worked out badly, or even disastrously, for one of the parties is not a reason for departing from the natural language.”
“7.7.10 There is no express provision in the policy stating that this obligation only applies either if and when rectification or repair has already taken place or if the insured can prove that he has a genuine, settled and achievable intention to reinstate, either before payment or once payment is received. The obligation is to pay the “reasonable cost” which, in my view, is neutral as to whether it is a cost already incurred or a cost to be incurred or indeed a cost which may never in fact be incurred. Unlike the professional fees cover the word “incurred” is not used. Unlike the alternative accommodation and professional fees cover there is no express proviso that the insured has first obtained ZIP’s written consent to the costs being incurred. 7.7.11 Furthermore, there is no obvious reason why the provision should be construed so that any such limitation should be implied. Indeed it is far from obvious, even on ZIP’s case, what should be implied. Is it that: (a) the cost has already been incurred or; (b) that the cost will on the balance of probabilities be incurred and, if the latter, whether it will be incurred regardless of whether or not the insurance monies are paid out or; (c) both. 7.7.12 Moreover, in my view condition 2 is wholly inconsistent with ZIP’s construction. It entitles the insurer, on accepting a claim, to undertake proper repairs itself and to refuse to accept a claim if reasonable access cannot be gained within a reasonable time period. This condition, which is effectively a reinstatement option given to the insurer, would make no sense if the insurer was only liable where the works had already been undertaken... 7.7.14 In the circumstances, I reject ZIPs submission that the reference to “costs” means that the policy only responds to a claim where those costs have already been incurred or will be incurred, where the question as to whether or not those costs will be incurred must be determined by the court on the balance of probabilities. In short, I consider that the approach discussed by Christopher Clarke LJ in Great Lakes has no application to the facts of this case. 7.7.15 On the same basis I also reject ZIP’s submission that because, it is said, the sums claimed are unreasonable and wholly disproportionate to the diminution in value of their interests in the development the claimants should be limited to the diminution in value. However, as it transpires in my view ZIP can achieve the same result by the application of what I agree, for the reasons stated below, is the correct construction of the maximum liability provision.”
“How the person who receives payment of a sum of money under a contract of insurance or reinsurance or, I will add, with indemnity, deals with that sum is, in general and apart from special considerations, no concern of the party who, in fulfilment of his contract has made the payment to him”
“11-031 Indemnity based on cost of reinstatement. As seen from the previous paragraph, the assured may be entitled to recover an indemnity based on the cost of reinstatement even though reinstatement is never actually effected. That will be the case where the policy provides that the assured or the insurer, as the case may be, opts for indemnity on a reinstatement measure or where reinstatement is not possible. If the policy merely provides for reinstatement without any alternative, it is difficult to see why impossibility should affect the insurers’ obligation to indemnify the assured on a reinstatement basis: the loss is assessed by reference to the position immediately before the occurrence of the insured peril, the obligation to pay is divorced from what actually happens to the insurance monies and the obligation on the insurers to pay the insurance proceeds cannot be regarded as frustrated in any way. The point arose in Anderson v Commercial Union Assurance Co, the problem in that case being planning restrictions on reinstatement. The Court of Appeal held that, given the impossibility of reinstatement, the proper approach was to construe the contract between the parties to determine whether the insurer was discharged from all liability or whether its liability reverted to payment. The court had little hesitation in holding that the latter was the proper construction. Thus, subject to the terms of the policy, the insurer will be liable on a cost of reinstatement basis even where actual reinstatement is no longer possible, as for instance where the damaged premises have been sold, or where town planning restrictions prevent rebuilding, in which case the cost is assessed on a notional reinstatement basis. The assured’s recovery is limited by any terms in the policy which apply where reinstatement is not effective. Thus in Kypris v MLC Fire & General Insurance Co Pty Ltd reinstatement by the assured was impossible because of planning restrictions preventing rebuilding, and it was held that the assured was restricted to recovering the present value of the insured property, the sum payable in the absence of reinstatement. 11-032 It will be appreciated that, in circumstances where a policy which provides for payment by reference to the cost of reinstatement despite the fact that reinstatement is not intended or actually carried out, the figure is a notional one based on estimated rather than actual costs. Where the assured is entitled to indemnity based on the costs of reinstatement, assessment of the cost must relate to the date of the occurrence of the insured peril and not at some later date, e.g. the date on which the assured receives tenders for rebuilding, and although the policy may make express provision for assessment at a later date a policy term which provides that the insurers will pay for the cost “incurred” in repair does not oust the presumption that the policy is one of true indemnity based on costs at the time of the insured peril. It has nevertheless been suggested that where the insurer elects to pay the cost of reinstatement, the cost of the repairs should be assessed as at the date when, having regard to all the relevant circumstances, they can first reasonably be undertaken, rather than at the date of the trial of the action.”
“72. I doubt whether a claimant who has no intention of using the insurance money to reinstate, and whose property has increased in value on account of the fire, is entitled to claim the cost of reinstatement as the measure of indemnity unless the policy so provides. In any event Mr Elkington did not seek to contend that in this case the cost of reinstatement would be recoverable if Mr Singh had no intention of doing so. The true measure of indemnity is "a matter of fact and degree to be decided on the circumstances of each case" per Forbes J in I; and is materially affected by the insured's intentions in relation to the property. 73. The significance of intention begs the question as to (a) what exactly is the requisite degree of intention; and (b) what safeguard, if any, is available to an insurer who pays out the cost of reinstatement to an insured who then finds that he cannot reinstate or, even if he can, in fact sells the property. Neither of these issues were the subject of submission; so that what I say on them must be regarded as tentative. 74. In Castellain v Preston(1883) 11 QBD 380 it was said that a tenant who is liable to replace is entitled to recover the cost of so doing from the insurers. That, no doubt assumes, that the tenant is required to fulfil his obligations and can and will do so. In Reynolds v Phoenix Assurance the insured recovered the cost of reinstatement before that started but there appears to have been no suggestion that the insured might not seek to reinstate or that there would be any impediment to his doing so. The problem arises in a case such as the present where there is a real possibility, which the judge's choice of the declaration route recognised, that reinstatement may not take place either because it cannot do so, e.g. as a result of planning problems, or because a markedly more attractive alternative presents itself. 75. As to (a) it seems to me that the insured's intention needs to be not only genuine, but also fixed and settled, and that what he intends must be at least something which there is a reasonable prospect of him bringing about (at any rate if the insurance money is paid). 76. As to (b) an insurer who pays out has, in general, no redress if none of the money is used in reinstatement. Once he has got it, it is for the insured to decide what to do with it: Halsbury's Laws - Insurance Vol 25 para 633. But I incline to the view that, in a case where, at the time of the hearing, there is a real possibility that reinstatement may not in fact occur it is open to the court to decline to make an immediate award of damages and either to make some form of declaratory relief or, alternatively to postpone assessment of the extent of indemnity (and the payment of it) until such time as it is apparent that reinstatement (i) can and (ii) will go ahead or, at least that there is a reasonable prospect that it will. 77. Whilst the insured's cause of action arises upon the happening of the insured event and is, prima facie, an obligation to pay money for the loss – Sprung v Royal Insurance (UK) Ltd [1997] CLC 70 - the assessment of the extent of his entitlement is invariably postponed until a later, often considerably later, date and I see nothing inconsistent with principle (which is that the insured is to receive an indemnity but no more than an indemnity) if, in an appropriate case, the court proceeds in a manner which enables the insured to recover an indemnity when those conditions are satisfied and protects the insurers against having to pay out for a reinstatement which is never going to take place. This may be particularly appropriate if there is doubt as to whether the insured can, whatever his stated intentions, lawfully
“74. I do not read the judgment of Christopher Clarke LJ in Great Lakes as indicating that an indemnity on the reinstatement basis cannot be given if the remedial works are not in fact carried out. Rather, what the judgment envisages is that in determining what the appropriate measure of indemnity is in any particular case, it is necessary to look at all the circumstances, which can include the position up to the date of trial when the extent of the insured's indemnity is determined. In some circumstances, such as those in Great Lakes, the absence of a continuing intention to reinstate would indicate that the reinstatement basis would not be appropriate, as it would over-compensate the insured for his loss. But in other cases, that would not be so. As Forbes J said in Reynolds v Phoenix, the true measure of indemnity is a matter of fact and degree to be decided on the circumstances of each case. 75. Accordingly, I do not accept Endurance's submission that in order to recover on the reinstatement basis it is necessary in each case for an insured to show that it had, and continues to have at the date of trial (or the expiry of the limitation period, if earlier), a genuine, fixed and settled intention to reinstate. The relevant question to ask is what is the loss which has been suffered by the insured as a result of the fire, and what measure of indemnity fairly and fully indemnifies it for that loss.”
“36. If that is wrong, then the issue between the parties is what the NHBC is now liable to pay under the Policy. There seem to me to be numerous issues that potentially arise, the end result of which is that the "no loss" defence is not one suitable for determination on a summary basis: (i) Firstly, an insurance policy may indemnify the insured against loss. Under such a policy it is a question of law and fact what loss has been suffered. The policy may by express inclusion or exclusion identify how loss is to be assessed. (ii) There is no decided authority that where the claim is in respects of defects in or damage to property, such loss cannot include the cost of remedial works if the remedial works will not be carried out. The views expressed in the Great Lakes case are obiter and at odds with the views expressed in a leading textbook. (iii) That conflict of view is perhaps understandable if one sees the cost of remedial works as one measure of loss. In such cases, if the remedial works are never to be carried out or are wholly disproportionate, the court may regard the cost of remedial works as an inappropriate measure. That is likely to be a question of fact and degree not suitable for determination on a summary basis. (iv) In any case, the distinguishing feature here is that the Policy does not provide for the NHBC to indemnify against loss – rather it requires the NHBC to pay the Cost as defined. In that sense, it may be distinguished from the policy in the Great Lakes case in which the operative insuring provision insured against loss and the reinstatement clause provided the basis on which the amount payable was to be calculated. For the reasons I have already given, it is certainly arguable that the issue in this case is not the appropriate measure of loss but what the NHBC has undertaken to pay in accordance with the definition of Cost. (v) If an Owner were paid for remedial works that were not then carried out, a future purchaser who had the benefit of the policy would not be able to make a further claim because the NHBC's liability had already been discharged. I accept that difficulties might arise where the payment for the remedial works fell between two stools – as for example where the first Owner has made a claim under the Policy which has not yet been settled, sells the property and the future purchaser also makes a claim. But it seems to me that that is a scenario which would need to be addressed on its own facts when it arises and the risk of that arising does not determine the construction of the Policy, at least not on a summary basis.”
“Any claim or contribution to a claim where cover is available under another insurance policy, or where some other form of compensation or damages is available to You.”
“7.12.2 The claimants contend that even though the words “some other form of compensation or damages” are wide words, they cannot possibly extend to a right under a lease to require a tenant or a management company or a landlord to perform its obligations under that lease in relation to repair and the like or in relation to the payment of service charge. I agree. In my view the words must be construed by reference to the whole of the clause, which provides that ZIP does not have to pay “any claim or contribution to a claim where cover is available under another insurance policy or where some other form of compensation or damages is available to you”
“We are entitled to take proceedings at Our own expense but in Your name, to secure compensation from any third party in respect of any claim accepted by Us under the policy.”
“7.14.3 However the question arises that if the balcony is not included in the demise of the lease then how does the tenant have the right to use the balcony. The answer it seems to me appears from part two of the first schedule to the lease, in which the tenant is granted the right, subject to and conditional upon paying the service charge, of “(5) all other rights easements quasi rights and quasi easements as are now enjoyed by the flat in respect of any other part of the development”
“Those parts of a multi-ownership building (of which the New Home is part), for a common or general use, for which the Buyer has Joint responsibility together with other Buyers or lessors.”
“Claims for the prevention of, or any loss caused by surface or any other form of condensation”
“10.3.2 The roofing experts agreed in their joint statement that there is no VCL in the flat roof and that the omission of the VCL combined with the poor ventilation in the roof void has resulted in deterioration of the ply deck (it being common ground that there are soft spots in the ply deck in a number of locations throughout the roof) and that this (or, more specifically, the effect of the condensation which results upon the ply deck) is the primary reason why the roof finishes and construction across the entire building needs to be replaced. The claimants’ structural and roofing experts also identify some consequential corrosion of the steelwork in the roof.”
“A material difference in the physical conditions of a load bearing element of the New Home from its intended physical condition which adversely affects its structural stability or resistance to damp and water penetration”
“7.15.3 In this case, therefore, the claimants say that by parity of reasoning the proximate cause of the loss is not the mere presence of condensation, rather the effect that the condensation has upon the physical condition of the roof, itself caused by a breach of the requirements or regulations. 7.15.4 In contrast, ZIP contends that even if the claim would otherwise fall within the scope of the cover, any such claim is clearly excluded where it falls within the scope of the condensation exception. In support of its argument ZIP referred at [70] of its written closing submissions to its internal claims handling document, but it seems to me that this is plainly irrelevant to the proper construction of the insurance policy. In contrast, the ZBG technical requirements, being referred to specifically in the policy, clearly fall within the factual matrix and thus at least of potential relevance to the proper construction of the policy. They make a number of references to the need to design and construct the building in order to address the risks of condensation. It would, therefore, be surprising if a failure to comply with the ZBG requirements in such a way as to lead to condensation and to the major physical damage or present or imminent danger cover being triggered should then be excepted, but of course if the policy on its proper construction leads inexorably to that result then that result must follow, however surprising. 7.15.5 I prefer and accept the claimants’ case in this respect and am satisfied that in such cases the condensation exclusion does not apply. In my view this is because whether one considers this case as being one of proximate cause or concurrent causes the position is that the failure by the developer to construct the building in accordance with the ZBG requirements or the Bldg Regs is either the proximate cause or at the very least a concurrent cause of the loss. It is the proximate cause because without the failure by the developer it would not have happened. It is the concurrent cause because even if one takes the view that the condensation itself is also a proximate cause, again without the failure by the developer the loss would not have happened. Furthermore, upon a proper construction of the policy the condensation exception is not an exclusion, but simply an uninsured cause, whereas the major physical damage and present or imminent danger items are insured causes. Therefore, the loss is covered.”
“... the cause which is truly proximate is that which is proximate in efficiency.”
“... On those facts I have to ask myself whether or not the plaintiffs have proved their case, I turn to the first of the problems which arise, namely: Were the events which happened within the contingencies specified in the policy? I find that they were. The dominant or proximate cause of this accident (regarded in the sense in which Lord Shaw of Dunfermline suggested it should be regarded, in the wellknown case of Leyland Shipping Company, Ltd. v. Norwich Union Fire Insurance Society, Ltd., [1918] A.C. 350)) was, in my view, this: the splitting of one or more tubes in the heat exchanger. This splitting was the cause of all the consequent trouble. The formation of the maleic acid was a consequence of the splitting, as was the subsequent corrosion and erosion brought about by the maleic acid. It follows, therefore, that there was sudden and accidental damage by a fortuitous cause within the meaning of the policy. The fact that corrosion and erosion followed as a consequence of that cause seems to me to be irrelevant. In any event, on my view of the construction of the exclusion clause corrosion and erosion within the meaning of that clause were never intended (so I find as a matter of the construction of this policy in the circumstances in which it was issued) to cover other than corrosion and erosion caused in use. The exclusion clause reads as follows: It seems to me clear that what the defendants had in mind was the effect of gaseous maleic anhydride upon the tubes through which it would pass in the ordinary process of production, and they had not in mind any corrosion or erosion which was consequential upon any breakdown of the plant due to the failure of a component ”
“7.16.10 It is clear, therefore, that the question is fact sensitive. In my view it must be answered, as was the question in the Trollope & Colls case, by adopting a sensible rather than an absurd interpretation, having regard to all of the relevant circumstances and, in particular, the cover afforded by the policy, bearing in mind the distinction between cover for an individual flat and cover for common parts. 7.16.11 In my view, the sensible approach is one which focusses on the cover given. Thus, in relation to major physical damage to common parts, there is a separate item of claim for the cost of rectification or repair for each “element” of the building caused by a failure to comply with the ZBG requirements. Where for example the element is the continuous roof or the continuous external walls then that is one item of claim even where it could be said that separate areas of the roof or the walls are affected by the same failure. The same is true where there are a number of physically separate elements which are all affected by the same failure; it is one item of claim. In relation to present or imminent danger, there is a separate item of claim for each danger caused by a failure to comply with the Bldg Regs. Thus a danger caused by the spread of fire, whether due to untreated structural steelwork or a lack of compartmentation, is one item of claim.”
“27. I agree with Mr Selby that there is a real difference between the claim as presented and the claim as it has succeeded. The claim as presented was put on the basis, albeit disputed by ZIP, that the claimants could and would use the monies awarded to fund remedial works post judgment, hence the basis for the inflation claim. The claim as successful was on the basis that the policy allowed ZIP to discharge its liability by making a lump sum payment of the declared purchase price where the cost of undertaking the remedial works exceeded that sum. It therefore became irrelevant whether or not the claimants intended to or would be able to undertake remedial works. They were entitled to receive this lump sum capped payment and to do with it as they thought best. Thus, in this case the claimants were entitled to be paid the ML capped amounts regardless of whether or not they were to be used to fund repairs.”
“Ground 1 The Judge erred in law because on the true construction of the policies any claim for payment of the maximum liability sum was a claim for, and valued by reference to, future remedial costs and it did not change its nature because the amount of the recoverable claim for future remedial costs was limited by the maximum liability provision. The fact that the cap is fixed by reference to the purchase price of the individual flats does not alter the nature of the claim. Ground 2 The Judge erred in law because in the alternative if there was an obligation to pay the amount of the maximum liability on the true construction of the policies any obligation to pay the maximum liability and any cause of action arising out of a failure to pay the amount of the maximum liability in respect of sums not incurred or any entitlement to interest could not arise earlier than the later of (i) the date on which a claim was made for a sum in excess of the maximum liability and/or (ii) the date on which it was alleged that any sum recovered would not in fact be spent on proposed future remedial works and/or (iii) the date on which it was established that the maximum liability amount would be reached. The Judge erred in holding that on the proper construction of the policies the claimants’ cause of action for payment of the amount of the maximum liability sum arose when the right to indemnity arose which was, he said, when there had been major physical damage or a present or imminent danger to physical health and safety due to the developer’s failure to comply with ZIP’s technical requirements or the Building Regulations.”
“68. The Judge’s distinction between the claim as presented and the claim as successful is unsupported by the terms of the policy, see IJ paragraph 27 at A/11/11. The Judge added an alternative obligation not stipulated or defined in the policy – an obligation to pay a sum computed by reference to the Maximum Liability which was not the same as the claim for the cost of future repairs. The Judge was mistaken. On this basis he wrongly distinguished the decisions of Akenhead J in Hunt v Optima (Cambridge) Ltd[2013] EWHC 1121 (TCC) (at paragraphs 3 and 4), and Picken J in Kazakhstan Kagazy plc v Baglan Abdullayevich Zhunus and Harbour Fund 111 LLP[2018] EWHC 369 (Comm) (at paragraph 89) (MJ paragraphs 24-27).” paragraph 89) (MJ paragraphs 24-27).”