“A. That’s correct, and as far as I can see from my discussions with Stor-a-File in November 2016, twelve months on, that was the case. That box listing (?) appeared to still be there, albeit with 383 boxes highlighted which we were told were now available for the administrators to collect. Q. So was your understanding in November 2016 that all 7,517 boxes were still there, but it was being expected that you would take away 383 of them? A. That was my understanding, although having read the email exchanges it wasn’t explicitly stated what remained of the other 7,100 and so boxes. Q. Based on that conversation with Stor-a-File, presumably the 7,517 boxes are still there, still with Stor-a-File, are they? A. I can’t comment on that. What I would say is that on the schedule that I was provided in November 2016, the list of 7,500 boxes remained and there were 383 lines highlighted in yellow which had also been copied into a second tab. And it was those 383 boxes that my attention was directed to. I then asked Charles Hamilton, who worked in the legal team, whether indeed it was only 383 or whether the list that concerned me and Deloitte was the 7,500 and he confirmed that only 383 were available for the administrators to collect.”
“Q. Okay. Now, you wrote to BillSave requesting documents in December 2016. Is that right? A. At one point, through a combination of emails and letters, I was probably requesting, or myself or my team were probably requesting information from BillSave, multiple times a week at that stage. So yes, that does sound correct. Q. I do not mean on individual claims, I mean in terms of getting the records that they had agreed to store, back? A. Okay. I understand. Yes, so specifically in relation to the boxes that were held at Stor-a-File, I wrote to Nathan Merrills in November 2016 and agreed to take back whichever boxes he no longer required, and that correspondence commenced in November and I believe the account was actually switched over in February of 2017. Q. Okay. We have an email chain attached to your statement, it is at page 598 to 599 of the supplemental bundle. It is your exhibit page 36 to 37. A. Thank you. 13th Q. If we look at page 37 of the earliest email in time, yours to Nathan Merrills of December 7th 2016, you say: “I have received your letter dated December regarding Mark Group documents currently in your possession. We would like to arrange for our storage provider, Iron Mountain, to collect these as soon as reasonably practicable. Can you advise exactly how many boxes there are, please?”
“Attaching the inventory record that we hold. Unfortunately, we do not hold anything more detailed. These are being held by a third party, Secure Storage. We would be happy to allow an inspection visit”
“That is correct, it is only the 383 highlighted boxes”
“Q. Okay. We will come to the itinerary in a second. You say in your statement at paragraph 25, the last sentence: “No explanation was provided to me by BillSave as to why only 383 of the boxes were available”
“Q. Is it possible that the 7,517 boxes remain with Stor-a-File? A. It is possible, yes, but I can’t confirm whether that is the case.”
“1. You failed to have regard to theSupply of Goods and Services Act 1982 Part 2 Section 13 in that there is an implied term that the supplier will carry out the service with reasonable care and skill; you failed to carry out the insulation with reasonable care and skill; 2. You failed to have any or any adequate regard to theSupply of Goods and Services Act 1982 in your duty to carry out the work with reasonable care and skill; 3. You failed to have any or any adequate regard to the information in the publication “Energy Efficiency Best Practice in Housing Guide (2002, Energy Saving Trust Good Practice Guide 26) and/or you failed to take any or any reasonable steps by way of research or any other literature on the subject matter or otherwise to discover the dangers of incomplete filing of a cavity wall and acting thereon before it was too late to benefit our client; 4. You failed to have any or any adequate regard to the information in the “Approved Document C – Site Preparation and Resistance to Contaminants and Moisture” published by The Office of the Deputy Prime Minister 2004; 5. You failed to have any or any adequate regard to the information in the ‘Technician’s guide to best practice – Installing Cavity Wall Insulation’ (Version 2.0) published by the Cavity Insulation Guarantee Agency in July 2002; 6. You failed to carry out an appropriate assessment of the property prior to installing the insulation and after installing the insulation. You failed to advise our client of the assessment findings; 7. You failed to provide our client with any after care information; 8. You failed to insulate the property with the correct material; 9. You failed to calculate the amount of insulation required in comparison to the amount of insulation used and the incorrect quantities were used; 10. You failed to recognise the existence of voids within the cavity and the fact that such voids cause cold spots and mould; 11. You failed to remove all debris and rubble prior to the installation. You failed to check wall ties were in an adequate condition; 12. You failed to reduce cold spots by leaving voids within the cavity; 13. You caused or permitted our client to reside in a property which is subject to mould growth; 14. In the premises, you exposed our client to an unnecessary and foreseeable risk of injury; 15. Contrary to Schedule 1Section C4 of The Building Regulations 2000 you failed to ensure that the walls and floor of the property would adequately resist the passage of moisture to the inside of the building; 16. Contrary to Schedule 1Section D1 of The Building Regulations 2000 you failed to take reasonable precautions to prevent the subsequent permeation of toxic mould spores into any part of the building; 17. Contrary toSection 7 of The Building Regulations 2000 you failed to carry out the workmanship so as to adequately perform the functions for which the insulation was designed for; 18. Contrary toSection 13(3) of The Building Regulations 2000 you have failed to provide a building notice to the responsible local authority. 19. You installed cavity wall despite degraded brickwork being present.”
“Our issue is that erm nine times out of 10 we don’t have the information that is being requested, I think that’s the that’s the fundamental issue here …. You know we have extracted as much company information as we can get and we don’t have that information is what we are having to do is to make ad hoc information requests to the business that purchased the Mark Group assets and we having to ask them and invariably they are sometimes coming back with information but most of the time they’re not and we’re not in a position where we can ask them about 500 different claims, it’s erm we just they can’t cope with the volumes and we don’t have the information so that it sounds like that’s the fundamental issue because notifying you of the claim is not enough” … Further on he said: “I understand that, and this is why you want to have a conversation because I don’t think this kind of senior people have been involved in this to actually have a proper conversation with just been knocking stuff backwards and forwards not really understanding the issue but it sounds I mean in terms of the directors of Mark Group … So I understand that the directors of Mark Group have an obligation I completely understand that but practically speaking if they don’t have access to the information they can’t provide it there is one guy who actually is a legal counsel so will be best placed anyway to know this guy called Nathan Merrill’s don’t know if ever dealt with Nathan ... Anyway, so I will have a chat with Nathan and I also have a chat with our risk team. The issue that we have which is which is very similar to what you’ve sort of said to me is that whenever we ask them to do something that the relationship is one where they are typically helpful but again given volumes, you know they would be looking to us for costs contribution basically because it’s going to be a full-time job for someone to sit and confidently respond to these information requests. Erm, I can’t guarantee that they have it I mean they have moved onto new systems … It’s a different business you know they are Billsave. Mark Group no longer employs anyone. … I completely understand the frustrations because you are asking us for stuff we’re not getting it to you ... And that is a combination … If I’m being totally honest it is a combination of not having it fine and it’s probably partially a lack of forethought at the beginning of the administration that we would get hundreds and hundreds of claims of this type otherwise we probably would have done more to cover more detailed information.”
“where I sense this is going to go is that well … If we can’t get the information if it comes down to that, I mean no one is doubting its existence but if it gets to a point where we can’t get the information to sensible cost then ultimately it might not be officially voided but the insurance is as good as voided isn’t it.”
“145. With the benefit of hindsight, it is perhaps surprising that despite the agreement between Deloitte and Billsave Joe Barry made no such enquiries. There was no attempt to establish whether the documents still existed and if so, where they were being held. Whilst the administrators were undoubtedly concentrating on maximising the realisation of MGL’s assets and investigating whether there were any claims which could be pursued for the benefit of creditors, the very nature and size of the business that MGL had operated prior to going into administration meant that it was likely that there were going to be claims made against it during the course of the administration. There is evidence from Ms Andrew that claims were made in relation to cavity wall insulation installations prior to MGL going into administration. Those claims made their way to AXA (she referred to having been able to look at AXA’s files). It was not therefore the case that prior to administration all claims against MGL were dealt with under the CEGA guarantee. Whilst the administrators no doubt had their priorities, any experienced insolvency practitioner ought to have known that an administration of the size of MGL’s might throw up matters to deal with which did not fall within the administrator’s priorities but which nevertheless the administrators would need to deal with. To do this the administrators would require access to information, including the books and records of MGL.”
“151. The clear inference from the evidence however is that by December 2016 (and in breach of its agreement with Deloitte) Billsave had divested itself of the responsibility for these 7,135 boxes.”
“In breach of its duty of care, alternatively its contractual duty, Mark Group: i. Failed to identify that the property required work before the CWI was installed/failed to carry out work needed before installing the CWI/failed to warn the Claimant of the need to do work before installing the CWI [440/10a-c]. The necessary work was that to prevent water entering the external wall cavity, including replacing degraded brickwork. ii. There is debris present in the external wall cavity which enables the damp proof course to be bridged by moisture/water. This should have been removed before installation of the CWI [440/10d]. iii. There were voids left in the insulation on completion of Mark Group’s works [441/10e]. c. Further “the presence of the CWI has caused and/or allowed damp and moisture to penetrate into the internal walls of the Property resulting in damage to plaster, woodwork and decoration. External and internal remedial works are required and the cavity will need to be refilled with suitable CWI”[442/12]. d. The Claimant relied in the Proceedings upon the report of Peter Hodgson, MRICS, which provides further background as to the basis of the Claimant’s claim against Mark Group [444/-]. e. A schedule of loss produced in the Proceedings, including explanation of the various heads of loss, is at [491/-].”
“154. … The burden of proof on this issue lies with AXA; it cannot discharge the burden on the available evidence and establish that in November 2018 the documents that it sought existed.”
“Policy Conditions “These are conditions of the cover and apply throughout your policy…. If you do not comply with a condition you may lose all right to cover under your policy or to receive payment for a claim. … Claims Notification Condition You must 1 as soon as practical a … b give us all information we request … If you do not comply with this condition we have the right to refuse to pay your claim. Claims Procedures Condition … 2 At your expense you must provide us with a full details in writing of any injury, loss or damage and any further information we may reasonably require b any assistance to enable us to settle or defend a claim … If you do not comply with this condition we have the right to refuse to pay your claim.”
“The legal principles 15. The following legal principles apply where a party seeks to raise a new point on appeal which was not raised below. 16. First, an appellate court will be cautious about allowing a new point to be raised on appeal that was not raised before the first instance court. 17. Second, an appellate court will not, generally, permit a new point to be raised on appeal if that point is such that either (a) it would necessitate new evidence or (b), had it been run below, it would have resulted in the trial being conducted differently with regards to the evidence at the trial (Mullarkey v Broad[2009] EWCA Civ 2 at [30] and [49]). 18. Third, even where the point might be considered a 'pure point of law', the appellate court will only allow it to be raised if three criteria are satisfied: (a) the other party has had adequate time to deal with the point; (b) the other party has not acted to his detriment on the faith of the earlier omission to raise it; and (c) the other party can be adequately protected in costs. (R (on the application of Humphreys) v Parking and Traffic Appeals Service[2017] EWCA Civ 24 ; [2017] R.T.R. 22 at [29]).”
“38. It is not in dispute that to withdraw a concession or take a point not argued in the lower court requires the leave of this court. In general the court expects each party to advance his whole case at the trial. In the interests of fairness to the other party this court should be slow to allow new points, which were available to be taken at the trial but were not taken, to be advanced for the first time in this court. That consideration is the weightier if further evidence might have been adduced at the trial, had the point been taken then, or if the decision on the point requires an evaluation of all the evidence and could be affected by the impression which the trial judge receives from seeing and hearing the witnesses. Indeed it is hard to see how, if those circumstances obtained, this court, having regard to the overriding objective of dealing with cases justly, could allow that new point to be taken.”
“… Here, the documents would be unavailable because Deloitte chose to part with them, without keeping copies or ensuring it could retrieve them if necessary. It did so despite the limitation period for claims arising from the installation of cavity wall insulation in 2012 not having run out. That conduct cannot affect the reasonableness of the request. It simply amounts to the insured unwisely putting performance beyond their power. Any other conclusion causes AXA to have to indemnify its insured for a liability from a claim which, because of its insureds’ actions, it could not settle or defend.”
“the methodology is not to probe the real intentions of the parties, but to ascertain the contextual meaning of the relevant contractual language. Intention is determined by reference to expressed rather than actual intention. The question resolves itself in a search for the true meaning of language in its contractual setting.”
“The court’s task is to ascertain the objective meaning of the language which the parties have chosen in which to express their agreement. The court must consider the language used and ascertain what a reasonable person, that is a person who has all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract, would have understood the parties to have meant.”
"These considerations point against a mutual intention that insurers should have a complete defence to any claim where there has been any breach of the notification clause however trivial in effect."
“Creation of conditions precedent. 10-034 In modern policies those terms the due observance of which is intended to be a condition precedent to the insurer’s liability or a pre-condition of recovery are usually described expressly as conditions precedent. Where the policy wording demonstrates a clear intention to give a clause the status of a condition precedent, the clause will be recognised as such. Either the policy describes an individual clause in such a way as to show that it is a condition precedent, such as “[n]o claim … shall be payable unless the terms of this condition shall have been complied with”, or a general condition precedent clause states that compliance by the insured with obligations cast on him by the policy is a condition precedent to the insurer’s liability to pay claims. A variety of different formulations have been used to that end, but any ambiguity in the wording will be construed against the insurers. In one case, a clause stating that observance of all policy conditions was a condition precedent to liability was not conclusive as to a particular condition; the nature of which made it inappropriate to possess that status. This decision is open to question in as much as the majority of the Court of Appeal treated the clause in question as if it said that observance of all conditions precedent in the policy was a condition precedent to liability, and the dissenting judgment of Fletcher Moulton LJ is persuasive.”
“No claim under this policy shall be payable unless the terms of this condition have been complied with.”
“16. The fourth ground of appeal is that the judge below placed undue reliance upon the decision in Welch v Royal Exchange Assurance[1939] 1 KB 294 , in which the Court of Appeal was concerned with a clause in a fire policy which, by one of its conditions, provided that, on making a claim, the insured should, inter alia, "give to the corporation all such proofs and information in respect of the claim as may reasonably be required", and in condition IV included a term identical to the last sentence in clause 2(c) in this case, namely that "no claim under this policy shall be payable unless the terms of this condition shall have been complied with." By an earlier term of the policy, it was provided that the conditions of the policy were "so far as the nature of them respectively will permit" to be deemed to be conditions precedent to the right of the insured to recover. It was held that condition IV was a condition precedent to the liability of the insurers and that the failure of the assured to provide information reasonably required in respect of the claim until the hearing of arbitration proceedings relating to it constituted a bar to his claim.”
“15. … it is argued that there is no commercial reason to consider that the parties intended that a breach of clause 2(c) should have any more significant consequence for the insurers than a breach of 2(a), (d) or (e), all of which lack any indication that they are other than ordinary terms rather than conditions precedent. I do not find that argument persuasive. Compliance with general condition 2(c) is plainly of greater importance than compliance with (a), (d) or (e). As for (a), the requirement for immediate notice of a happening which may give rise to a claim is frequently encountered in insurance policies and most unlikely to be regarded as a condition precedent. Its function is to put the insurer on notice that a claim may be coming rather than a necessary indication to him that it is time to investigate, which he will be able to do once he knows that a claim will be made. So far as (d) is concerned, unlike (c) it has nothing to do with notification, assessment or investigation of a claim, delay in which may well prejudice the insurer. It goes to the interests of the insurer in overseeing and/or taking over proceedings at a much later stage.
“37 The first question is whether these conditions are capable by nature of being conditions precedent. Great Lakes submits that the position is straightforward. It turns upon the effect of condition 7 of the Policy. It says that there is ample authority that such general clauses can create conditions precedent. It says that the clauses relied on here are plainly commercially vital, and apt to be conditions precedent; not least because on the facts of this case, given that Great Lakes’s potential liability to pay any “Adverse Costs” did not arise “until the Legal Proceedings are finally concluded” and “Adverse Costs” were defined as “The fully mitigated costs of the Opponent in the Legal Proceedings to the extent that the Insured is legally liable to discharge them”, the period and events which came after the conclusion of proceedings was central to the risk run. 38 It submits that there cannot really be any serious argument that the “objective commercial purpose underlying” the claims co-operation conditions and the conditions requiring the provision of information in relation to the assessment of those costs were fundamental to the Policy and amply justified (indeed compelled) their being construed as conditions precedent to Great Lakes’s liability to make payment. It submits that it is difficult to see how insurers could have sufficient protection if these clauses were not conditions precedent—otherwise the insured would have little incentive once a case was lost. 39 Denso does not take serious issue with the submission that the conditions are intrinsically capable of being conditions precedent. However, it argues that none of the conditions identified are conditions precedent at all. They are simply statements of expectation regarding cooperation. There is nothing akin to the limited category of cases (e g notification within 30 days) where the courts have been prepared to construe the conditions as conditions precedent. It also (as I have indicated) relies on the Maccaferri Ltd case as denoting a stricter approach emerging and as encouraging a consideration both of subjective knowledge and the materiality of the information. 40 On this issue it seems to me that Great Lakes is correct and that in the light of the wording and context of this ATE policy the terms relied on are capable of being conditions precedent. Conditions 7, 9 and 11 are apt to be conditions precedent in circumstances where insurers are exposed to the risk of adverse costs as the central plank of their liability. In this context, particularly in relation to mitigating the costs risk at the centre of the insurance it is also very important that the insured assist by providing all relevant documents. The Policy cannot work without the input of the insured because the insurer is not a party to the litigation, and is entirely reliant on the insured co-operating with it and giving it information. Once the litigation is over there are still important steps to be taken in minimising the quantum of recovery, which the assured may feel little incentive to do once the case is lost without such firm requirements. This is not a case like In re Bradley and Essex and Suffolk Accident Indemnity Society [1912] 1 KB[2018] 4 WLR 93 where the commercial purpose of making the clauses conditions precedent is non-existent (in that case the wages book was simply used for premium calculation); here the commercial purpose of the conditions is obvious. 41 So far as the Maccaferri Ltd case is concerned I agree with Great Lakes that that was a very different case to the present. What was important there was how one dealt with a clause which required a subjective assessment by the insured as to whether a claim was likely; there the state of the insured’s knowledge was indeed critical and intrinsic to operation of the clause. Unlike in that case, the present conditions all seek to exclude liability for an anterior obligation which had already arisen (that is, the Costs Order). They are not obligations that relate to whether cover is available in the first case. The clause here partakes much more of the nature of the clauses in the Aspen Insurance UK Ltd case [2009] 2 All ER (Comm) 873 and the Pilkington United Kingdom Ltd case [2005] 1 All ER (Comm) 283.”
“Construction of conditions. It is the practice of insurers to incorporate into their policies provisions to the effect that particulars or proof of loss are to be delivered in a certain way or within a certain time. These clauses are often expressed to be conditions precedent to recovery and what has been said in relation to clauses requiring notice of loss applies with equal force to clauses requiring particulars or proof of loss. In Welch v Royal Exchange Assurance [1939] 1 K.B. 294, for example, the policy provided that no claim was to be payable unless the required particulars were given within a reasonable time. It was held by the Court of Appeal that production of the particulars within a reasonable time was a condition precedent to recovery and that, even if the insured ultimately did provide them, he could not succeed in his claim. Where the insured was obliged as a condition precedent to payment to deliver proofs and information reasonably required by the insurer, and no time limit for delivery was stipulated, it was held that delivery must be effected in a reasonable time and that the absence of prejudice suffered by the insurer did not extend the time within which it was to be performed. If the stipulation as to time is a condition precedent, a failure to furnish particulars puts an end to the insurer’s liability and the insured cannot revive his rights by delivering particulars at a later time. The benefit of any such clause can be waived by the insurer and the same principle will apply as in the case of waiver of notice clauses. A mere failure to mention the clause as a defence to a claim at an early stage will not amount to a waiver. The insurer may grant an extension of time but any conditions attached to such extension must be strictly followed. It has been held that a clause requiring, as a condition precedent to recovery, that the insured provide all the written details and documents that the insurer asked for is not “unfair” (and therefore deprived of effect) underPart II of the Consumer Rights Act 2015 , replacing (with effect from October 2015) the Unfair Terms inConsumer Contracts Regulations 1999 : Parker v National Farmers Union Mutual Insurance Society Ltd [2013] Lloyd’s Rep. I.R. 253 at [185]–[192].”
“Obligation to furnish evidence. The policy may provide that the claimant shall furnish all such information and evidence as the insurers may from time to time require. Under this clause the insurers can ask for evidence and information which may not be absolutely necessary to prove the claimant’s case. Any such evidence or information must not, however, be asked for unreasonably. In a case where death was alleged to have resulted from an accident, the insurers requested a post- mortem examination and the judges of the Inner House of the Court of Session could not agree whether this was a reasonable requirement. The demand for evidence must be made directly on the claimant or on those acting for him. If the claimant is obliged merely to “furnish” evidence or information, it is submitted that he can only be asked for evidence or information within his own possession and cannot be required to procure evidence or information from others in the absence of a clear indication to the contrary in the policy.”
“the fact that a particular construction leads to a very unreasonable result must be a relevant consideration. For more unreasonable the result, the more unlikely it is that the parties can have intended it, and if they do intend it the more necessary it is that they shall make their intention abundantly clear.”
“The “rule” that words should be given there “natural and ordinary meaning” reflects the common-sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had.”
“The Courts have not always considered that they are bound to interpret provisions of this kind with unreasonable strictness, and although the word “immediate” is no doubt a strong epithet, I think that it might be fairly construed as meaning with all reasonable speed considering the circumstances of the case.”
“28. In most, possibly all, disputes about whether a term should be implied into a contract, it is only after the process of construing the express words is complete that the issue of an implied term falls to be considered. Until one has decided what the parties have expressly agreed, it is difficult to see how one can set about deciding whether a term should be implied and if so what term. This appeal is just such a case. Further, given that it is a cardinal rule that no term can be implied into a contract if it contradicts an express term, it would seem logically to follow that, until the express terms of a contract have been construed, it is, at least normally, not sensibly possible to decide whether a further term should be implied. Having said that, I accept Lord Carnwath’s point in para 71 to the extent that in some cases it could conceivably be appropriate to reconsider the interpretation of the express terms of a contract once one has decided whether to imply a term, but, even if that is right, it does not alter the fact that the express terms of a contract must be interpreted before one can consider any question of implication. 29. In any event, the process of implication involves a rather different exercise from that of construction. As Sir Thomas Bingham trenchantly explained in Philips at p 481: “The courts’ usual role in contractual interpretation is, by resolving ambiguities or reconciling apparent inconsistencies, to attribute the true meaning to the language in which the parties themselves have expressed their contract. The implication of contract terms involves a different and altogether more ambitious undertaking: the interpolation of terms to deal with matters for which, ex hypothesi, the parties themselves have made no provision. It is because the implication of terms is so potentially intrusive that the law imposes strict constraints on the exercise of this extraordinary power.”” “The courts’ usual role in contractual interpretation is, by resolving ambiguities or reconciling apparent inconsistencies, to attribute the true meaning to the language in which the parties themselves have expressed their contract. The implication of contract terms involves a different and altogether more ambitious undertaking: the interpolation of terms to deal with matters for which, ex hypothesi, the parties themselves have made no provision. It is because the implication of terms is so potentially intrusive that the law imposes strict constraints on the exercise of this extraordinary power.””
“20. It is further submitted that on its proper construction the obligation under paragraph 2 a of the claims procedures condition is limited to an obligation to provide information within the insured’s possession or control at the time the Defendant requested it, and is not breached if the insured no longer has that information unless it ought to have realised at the time it disposed of it that the Defendant would want or need it.”
“If an insured knows, or should know, that evidence or information is or might reasonably be required by his insurers and does not retain it, that insured runs the risk of being unable to satisfy the condition precedent.”