“There are many causes of action which can only be established by proving that two or more different conditions are fulfilled. Such causes of action involve as many separate issues between the parties as there are conditions to be fulfilled by the plaintiff in order to establish his cause of action; and there may be cases where the fulfilment of an identical condition is a requirement common to two or more different causes of action. If in litigation upon one such cause of action any such separate issues as to whether a particular condition has been fulfilled is determined by a court of competent jurisdiction, either upon evidence or upon admission by a party to the litigation, neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was.”
“One way of answering this is to say that any determination is involved in a decision if it is a ‘necessary step’ to the decision or a ‘matter which it was necessary to decide, and which was actually decided, as the groundwork of the decision’ (Reg v Inhabitants of Hartington Middle Quarter Township 4 E&B 780, 794). From this it follows that it is permissible to look not merely at the record of the judgment relied on, but at the reasons for it, the pleadings, the evidence (Brunsden v Humphrey[1884] 14 QBD 141 , CA) and if necessary other material to show what was the issue decided (Flitters v Allfrey LR 10 CP 29). The fact that the pleadings and the evidence maybe referred to, suggest that the task of the court in subsequent proceedings must include that of satisfying itself that the party against whom the estoppel is set up did actually raise the critical issue, or possibly, though I do not think that this point has yet been decided, that he had a fair opportunity, or that he ought, to have raised it.”
“Yet I take it to be too clear to need citation of authority that the parties to the suit are bound by the determination of the issue. They cannot subsequently in the same suit advance argument or adduce further evidence directed to showing that the issue was wrongly determined. There only remedy is by way of appeal from the interlocutory judgment and, where appropriate, an application to the appellate court to adduce further evidence; but such application shall only be granted if the appellate court is satisfied that the fresh evidence sought to be adduced could not have been available at the original hearing of the issue even if the party seeking to adduce it had exercised due diligence.”
“The underlying public interest is the same; but there should be finality in litigation and that a party should not be twice vexed in the same manner. This public interest is reinforced by the current emphasis on efficiency and economy in the context of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse of the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it were to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the abuse proceedings involves what the court regards as unjust harassment of a party. It is however wrong to hold that because the matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic approach to what in my opinion should be broad merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focussing attention on the crucial question, whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.”
“Workmanship deficiencies to each window are to be treated as one occurrence or one event. Accordingly in respect of the loss and damage to each window there is a deductible of£10,000 to be applied”
“5.3.1.The thickness of the termination bar was not appropriate and/or the distance between fixings was excessive. 5.3.2. During the offsite installation, the position of the fixings were determined by the drawings which were drawn in error and they showed the fixings spaced at too great a distance between each one. 5.3.3. During installation on site, the fixing of the membrane to the substructure was inadequate and/or there was insufficient sealing of patches on the Halfen channels and/or holes in the membrane were not discovered and sealed.”
“In essence, both [parties] are proposing that matters of principle (e.g. issues relating to policy interpretation etc) are dealt with in advance of any hearing in which the actual cost of the remedial works is investigated. It probably matters not whether it is called a trial on liability or a trial of preliminary issues.”
“The parties appear to be in agreement that all issues regarding the interpretation of the policy or to be determined at the liability trial, including the meaning of ‘intentional damage’ in Memorandum 18 (3) and which of the heads of loss (if any) pleaded in paragraph 14 of the particulars of claim fall within the meaning to be given to those words.”
“Whether or not workmanship deficiencies to each window are to be treated as one occurrence or one event for the purposes of Memorandum 18(3).”
“I recall that at the time my view and the consensus on site was that a number of the problems were due to Seele Austria’s poor workmanship. This included the fixing of the membrane to the structure and sealing of patches on the Halfen channels and holes in the membrane.”
“It took some time to discover the cause of the leaks and prepare a remedial scheme. We discovered two principal faults, firstly, the membrane was not properly fixed to the concrete pillars and permitted water penetration. This was a workmanship fault. Secondly, it appeared that the aluminium strip which clamped the membrane to the body of the window was not fixed strongly enough to the window (not enough screws) and the membrane was not properly glued/clamped to the window under the aluminium strip. This was a design fault.”
“…these defects were caused by: 32.1 mistakes in the design of the window, in particular the sealing strip of the membrane was designed only to be screwed down every 30cm and the membrane was not glued on both sides. 32.2 incorrect assembly of the window elements, in that the membranes were not properly sealed to the window frame. 32.3 defective installation in that the membranes were not properly glued to the concrete structure.”
“I hope very much that a schedule can be constructed indicating the agreed matters and the non-agreed matters. This is not really a court that is used to wading through a Scott Schedule… it would be far better if the parties can make substantial agreement as to the answers to the questions which really go to factual matters”
“Because what the excess is dealing with is the occurrence or series of occurrences arising out of any one event and the event, in my submission, is the installation of the windows in a commonly defective fashion and the occurrence and occurrences is the campaign of work arising out of that.”
“A Member of the Bench: The defects were, as it were, a result of faulty workmanship, is that right? Mr Williamson: That is right, yes A Member of the Bench: And were the workmen all acting pursuant to, as it were, a standard set of instructions or were they just all doing the job badly in slightly different ways? Mr Williamson: I am not sure there was any evidence about that particular point. A Member of the Bench: Is there not more than one cause of the problems that the judge identified? It is not just…incorrect installation, use of too few screws, faulty doing, faulty fixing, penetration, pin holes in, failures to see it; lots of different problems Mr Williamson: That is right but just going back to the language of the clause; in simple terms, one has this. One has installation of windows at a particular time, a particular phase of the works which, it is discovered subsequently, have a number of common problems albeit more than one problem.”
“It is quite close in places to a moot some of this. There are some points of general findings in the air, without it being clear how they are going to be applicable to a concrete set of facts and very difficult to determine the correctness or otherwise of those matters without having a concrete set of facts.”
“The best I can say is there were a whole range of errors as we can see from the judge’s judgment; incorrectly putting in screws to not correctly sealing cuts and screw holes and they were actually put through this material, through to the termination bar not being correctly…. For this purpose all I need to say is that the judge cited at least five examples of possible … A Member of the Bench: I do not think they were exhaustive either. Mr Reed: No, they were not… of workmanship errors. It has not been the appellant’s case to date that all that arises out of one failure to specify a method statement with particular accuracy or… there is a theme that runs throughout, common to all. What we say is the contrast between design and workmanship is that workmanship by its very nature is something which is, every time it happens, a new occurrence or event because it is the individual making an error in and about his labour which he applies to the construction of whatever item it is.”
“… It is not clear to me, looking back on the papers, to what extent the issues of the kind your Lordships have been raising were actually gone into, debated, and certainly not decided. So there we are.”
“I think it is clear that the defects in the sealing of the windows had to be rectified because they allowed water to enter the building. Sooner or later that would have caused physical damage to internal finishing and perhaps to other parts of the building, such as electrical installation. Mr Williamson submitted that some damage had been caused to the windows by the defective workmanship and it is true to say that the judge found that pin holes had been made in the sealing membrane by welding carried out by Seele’s workmen on site, but I think that is properly to be regarded as part and parcel of inherently faulty workmanship rather than as consequential damage. The other defects identified by the judge are all in the nature of defects in the construction or the consequence of slipshod work. This was not a case, therefore, in which work carried out by Seele was damaged due to a defect in workmanship; poor workmanship simply caused each of the windows to be defective.”
“56. I can start with the water-testing. That was not the cause of the damage; it merely demonstrated that there were deficiencies in the sealing of the windows, which simply throws one back to the installation of the defective windows. I do not think that the installation of defective windows can be regarded as an event for these purposes either, however. If they had all suffered from a common defect in design and manufacture which lay at the root of the problem, it might have been possible to argue, despite the number of separate units involved, that the installation of windows with a common defect was an event for these purposes, but as I understand the judge’s findings, that is not really the case. It is true there were defects in the design and manufacture of the termination bars, but it is not at all clear that of itself was sufficient to cause each of the seals to fail. Rather the impression one obtains from the findings in paragraph 5 of the judgment below is that poor workmanship was really to blame. It seems fairly clear that similar shortcomings in workmanship affected all the windows and I am prepared to assume for present purposes that in each case the same mistakes were made. However there is no evidence that those mistakes were attributable to a single event, such as giving the workmen wrong instructions which they then conscientiously followed so as to produce a series of similar defects. Again, had that been the case, it might have been possible to argue that giving faulty instructions was the unifying event, but the judge’s findings point to the conclusion that the defects were simply the result of poor workmanship repeated over and over again. 57. That leaves the implementation of the programme of work to make good the defects in the windows. The fact that all the access damage formed part of single programme of remedial works no doubt represents a unifying factor of a kind, but I do not think that either the decision to carry out the programme of remedial work or the implementation of that programme amounts to an event of the kind contemplated by the clause. The remedial work provided the context in which the damage was caused, but was not itself the underlying cause of it. That lay in the defects which gave rise to the need for it. In these circumstances I do not think that it is possible to identify a single event that can be regarded as the underlying cause of all the access damage required to enable the defective sealing membranes to be renewed.”
“the workmanship deficiencies to each window represent a separate occurrence; there was a series of occurrences, but they did not arise out of one event.”
“If loss is occasioned by delay in the discharge of cargo, whether sound, unsound, or putrid, at the port of destination, this is not damage to hull and machinery, and the loss must be covered, if covered at all, by one of those policies which cover losses not undertaken by underwriters upon a policy upon hull and machinery, or possibly by a policy upon freight. A delay occasioned by discharging cargo is not, as before stated, a deprivation of the use of the hull and machinery to the owner by reason of an injury to the subject-matter insured, and forms no part of the deterioration to hull and machinery for which an underwriter upon hull and machinery is alone liable and a fortiori the mere extra expense of getting out the cargo is no part of his liability.”
“The Insurers will additionally indemnify the Insured in respect of intentional damage necessarily caused to the Insured Property…”
“Moreover, the onus is on Seele to establish that a cost for which it seeks to be indemnified under Memorandum 18 (3) was solely in respect of access works to enable the repair and rectification or that a specified part of a charge it had to bear is solely referable to such works.”
“In my opinion, costs due to delay are not ‘in respect of’ the intentional access work. Further, such costs in the context of this Contractors All Risk policy are a consequential loss, and as such are excluded by Exception 4. Additionally, the onus of proof being on Seele, the evidence did not establish that the delays that were charged for were caused solely by the access works or that there was a reliable basis of apportionment.”
“Where a charge was made for the provision of facilities which were needed partly because of the access remedial works and partly for some other reason, Seele submitted in its written closing submissions that the charge could be apportioned. This was the first time of apportionment surfaced at the hearing. In his closing submissions in reply, Mr Reed submitted that as a matter of principle, there is no right to an indemnity for an apportioned sum. It seems to me that there is considerable force in Mr Reed’s argument but I decline to express a concluded view, particularly since I have not had the benefit of any submissions from Mr Sears in reply to Mr Reed.”
“9. The learned judge held that on a true construction of the Policy, and/or as a matter of general law, the onus was on the Appellant to establish that a cost for which it seeks to be indemnified under Memorandum 18(3) was a) solely in respect of access works to enable repair and rectification or b) that a specified part of the charge it had to bear was solely referable to such works. The Appellant contends that the learned Judge erred in law and ought to have held that, on a true construction of the Policy and/or as a matter of general law, it was not necessary for the Appellant to show that there was no other cause, and/or that the Appellant was in any event entitled to be indemnified for costs which relate partly to remedial access works, and partly to other works (even if those works are not within the scope of coverage), provided that either the remedial access works were the dominant and/or primary cause for incurring the costs, or in the quantum hearing there is an evidentiary basis on which to apportion such costs. 10. The learned judge held that, on a true construction of the Policy, even if Memorandum 18(3) did apply, the Appellant would only be entitled to the direct cost of the dismantlement and the reinstatement of the cladding and internal finishes, which was required to give access to the defective windows. The Appellant contends that the learned judge erred in law and ought to have held that, on a true construction of the Policy, Memorandum 18(3) encompasses and includes a) indirect costs of dismantling and reinstatement work, and b) costs arising from the works on the windows and the defective parts. 11. The learned judge held that on a true construction of the Policy costs levied on the Appellant in respect of delays to the project caused by the access work on the cladding and internal finishes were in any event irrecoverable because a) they were not “in respect of” intentional damage necessarily caused to gain access to remedy a defect, and b) they were consequential losses excluded by Exception 4 of the Policy. The Appellant contends that the learned judge erred in law and ought to have held that, on a true construction of the Policy, costs levied on the Appellant, which costs arose from delays caused by intentional damage, and incurred as a result of an altered time schedule for carrying out the works, were recoverable under the Policy because a) they were “in respect of” intentional damage, and b) were not consequential losses within the meaning of Exception 4. 12. The learned judge held that costs levied on the Appellant in respect of delays to the project caused by the access work on the cladding and internal finishes were irrecoverable for the additional reason that the evidence did not establish a) that the costs levied were caused solely for the purposes of the access works or b) that there was a reliable basis for apportionment. The Appellant contends that the learned Judge erred in law and ought to have held that it was not necessary for the Appellant to establish that the sole cause of those charges was the access works, and that any apportionment issues in respect of each charge were really quantum issues falling under Issue 14, and hence were to be determined after trial of the issues of liability (Issues 1-13). 13. The learned Judge held that costs levied on the Appellant in respect of measures that were necessary to allow the access works to be carried on at the same time as other work on the project were recoverable by the Appellant only if such measures had to be taken because of the remedial access works and the timing of those works was determined by consideration of the overall impact of such work on the completion of the project. The Appellant contends that the learned judge erred in law and ought to have held that these costs were recoverable even if the measures were taken partly for the purpose of remedial access works, and partly for other reasons, provided that the dominant and/or primary cause for the costs was the remedial access works, or alternatively if a reliable basis of apportionment could be established when determining issues of quantum.”
“A number of other issues decided by the judge in the course of answering the questions raised by the preliminary issues were the subject of appeal. However, since they are primarily relevant to the determination of damages, it was agreed between the parties that they should make submissions on the status of those decisions at the trial of damages and that, insofar as they might be held to be binding, they should be challenged, if necessary, on appeal from the later judgment, subject to obtaining permission to appeal in the ordinary way. It is unnecessary, therefore, to consider them on the present appeal.”