“95. During the tender phase in Spring 2012, Mr. Ian Higgs, then employed by RLF, acting on behalf of the RFU, told Mr. Brian Morris of FMC that the RFU would obtain a project insurance policy in respect of the upgrade works at the Twickenham Stadium, of which the A07.1 works formed part for the benefit of all involved in those upgrade works. 96. Conway authorised the RFU to procure project insurance for both itself and the RFU, on such terms as the RFU considered appropriate, provided that the cover was at least as comprehensive as necessitated by the intended contract terms. 97. In respect of paragraph 96 above, FMC will rely (without limitation) on the following facts and matters: 97.1 FMC made no allowance in its tender for insurance cover in respect of any loss or damage arising out of the A07.1 works. 97.2 FMC did not procure any insurance cover in respect of any loss or damage arising out of the A07.1 works. 97.3 FMC and the RFU continued to participate in the tender process and/or FMC commenced the A07.1 works on16 July 2012 pursuant to the Letter of Intent and/or FMC continued with the A07.1 works. 98. Accordingly, FMC authorised the RFU to procure a project policy of insurance, and the RFU intended to do so, on the basis that, if FMC was awarded the contract for the A07.1 works, FMC would be jointly insured alongside the RFU. 99. At the pre-start meeting which took place on4 July 2012 and was attended by representatives of Conway, the RFU and RLF (amongst others), it was again confirmed by or on behalf of the RFU that the RFU intended to and would be procuring a project policy for the benefit of Conway (as reflected at paragraph 2.4 of the minutes). 100.As explained further below, an insurance policy was procured by the RFU in respect of the upgrade works at the Twickenham Stadium, which made no distinction between the extent of insurance cover enjoyed by the RFU on the one hand and by FMC on the other hand. 101.FMC will rely on the facts and matters contained in paragraph 99 and 100 above in support of the fact that the RFU procured insurance cover for FMC on the same terms as the RFU … 109. FMC has the benefit of insurance cover under the project policy on the same terms as the RFU because: 109.1 The RFU had the necessary authority to procure and did procure the project policy on the basis that FMC would be jointly insured alongside the RFU to the same extent as the RFU; and/or 109.2 The project policy and the JCT contract read together establish that FMC is jointly insured to the same extent as the RFU.”
“3. It is intended that the form of the Contract will be based upon the document produced by Forsters LLP incorporating the JCT Standard Building Contract Without Quantities 2011 (DOC ID: 3202342 6).”
“5. Although the Contract has not yet been entered into, all the terms and conditions of the Contract will apply to any work carried out by you pursuant to the instructions contained in this letter. … “10. Within 7 days of the date of this letter and as a pre-condition of entry to the site of the Works in any event you must provide us with certificates of verification of insurance cover confirming that all insurances which you are (or will be) required to maintain under the terms of the proposed Contract are in place upon the required terms and at the required levels. In particular (to the extent that they have not been provided to us to date) we require evidence of your Contractor's All Risks, Professional Indemnity, Employer's Liability, Public Liability and (if applicable) JCT clause 6.5,1 (or similar) insurances.”
“If the Contract is concluded between us, the terms of the Contract will supersede this letter which will thereupon cease to have any further effect. In that event, any work carried out by you pursuant to the instruction in this letter will be deemed to have been carried out under the Contract…”
“(a) Rugby Football Union as the Principal and/or associated and/or subsidiary companies (b) The contractor for each Project (c) All other contractors and/or sub-contractors of any tier and others engaged to provide goods or services in connection with the Project insured hereunder. (d) Consultants, suppliers and vendors, all of any tier, whilst carrying out physical work associated with the Project on or about the Project Site or caused by their physical presence on or movement about the Project Site (e) Barclays Bank plc as financier and/or funder: (f) The employees, directors or officers of any of the above (g) Including all such parties, whether named hereunder or not, or whether appointed prior to inception of the Contract of Insurance or subsequently but excluding any such party to the extent that they are subject to any economic and trade sanctions, export control and anti- boycott laws and regulations (“Trade Sanctions”) by the United States of America, United Nations or European Union. Each for their respective rights and interests”
“The financing, pre-fabrication, design, engineering, procurement, demolition, site clearance, construction, erection, all testing including Hot Testing and Commissioning and maintenance of the Twickenham Stadium Upgrade Works Programme involving 17 Sub Projects comprising pitch replacement, mid tier LED advertising, hospitality box upgrades, MEU infrastructure, IT backbone, additional toilets, infill seats, public seat replacement, safety and security upgrade, turnstile and access control, additional catering facilities, debenture restaurant, west stand refurbishment, connected stadium, upgraded television facilities, replacement video screens and north car park resurfacing and all ancillary work connected therewith”
“Permanent works, materials (including those supplied free to the Project by or on behalf of the Principal, provided the value is included in the Contract Works sum Insured), temporary works, equipment, machinery, supplies, temporary buildings and the contents thereof, camps and the contents thereof and all other property used for or in connection with the Project”
“The Insurers shall, subject to the Terms of this Contract of Insurance, indemnify the Insured against physical loss or damage to Property Insured, occurring during the Period of Insurance, from any cause whatsoever whilst within the Geographical Limits including whilst in transit (other than by sea or air) including loading and unloading and/or temporary off-site storage.”
“Design Exclusion 3 (DE3) Design, Plan, Specification, Materials or Workmanship `Consequences’ Damage to and the cost necessary to replace repair or rectify (a) Property Insured which is in a defective condition due to a defect in design plan specification materials or workmanship of such Property Insured or any part thereof (b) Property Insured lost or damaged to enable replacement repair or rectification of Property Insured excluded by (a) above Exclusion (a) above shall not apply to other Properly Insured which is free of the defective condition but is damaged in consequence thereof. For the purpose of the Contract of Insurance and not merely this Exclusion the Property Insured shall not be regarded as lost or damaged solely by virtue of the existence of any defect in design plan specification materials or workmanship in the Property Insured or any part thereof.”
“a) It is noted and agreed that if the Insured described in the Risk Details comprises more than one insured party each operating as a separate and distinct entity then (save as provided in this Multiple Insureds' Clause) cover hereunder shall apply in the same manner and to the same extent as if individual Contracts of Insurance had been issued to each such insured party provided that the total liability of the Insurers to all of the insured parties collectively shall not exceed the Sums Insured and Limits of Indemnity including any inner limits set by memorandum or endorsement stated in the Contract of Insurance b) It is understood and agreed that any payment or payments by Insurers to any one or more such insured parties shall reduce, to the extent of that payment, Insurers' liability to all such parties arising from any one event giving rise to a claim under this Contract of Insurance and (if applicable) in the aggregate. c) It is further understood that the insured parties shall at all times preserve the various contractual rights and agreements entered into by the insured parties and the contractual remedies of such parties in the event of loss or damage d) It is further understood and agreed that Insurers shall be entitled to avoid liability to or (as may be appropriate) claim damages from any of the insured parties in circumstances of wilful act or with fraud, material mis- representation, material non-disclosure or breach of any warranty or condition of this Contract of Insurance each referred to in this Memorandum as a Vitiating Act e) It is however agreed that (save as provided in this Multiple Insureds' Clause) a Vitiating Act committed by one insured party shall not prejudice the right to indemnity of any other insured party who has an insurable interest and who has not committed a Vitiating Act f) Insurers hereby agree to waive all rights of subrogation which they may have or acquire against any insured party except where the rights of subrogation or recourse are acquired in consequence of or otherwise following a Vitiating Act in which circumstances Insurers may enforce such rights notwithstanding the continuing or former status of the vitiating party as an Insured.”
“It is expressly understood and agreed that this Contract of Insurance provides primary cover for the Insured and that in the event of damage or liability covered by this Contract of Insurance which is also covered either in whole or in part under any other Contract of Insurance or policies of insurance effected by or on behalf of any of the parties comprising 'the Insured' the Insurers will indemnify the Insured as if such other Contract of Insurance or policies of insurance were not in force and the Insurers waive their rights of recourse if any against the Insurers of such other Contract of Insurance or policies of insurance other than claims where Memorandum 3 to Section 1 may apply”
“The Contractor shall carry out and complete the Works in a proper and workmanlike manner and in compliance with the Contract Documents, the Construction Phase Plan and other Statutory Requirements, and shall give all notices required by the Statutory Requirements.”
“The Contractor shall be liable for and shall indemnify the Employer against, any expense, liability, loss, claim or proceedings in respect of any loss, injury or damage whatsoever to any property real or personal insofar as any such loss, injury or damage arises out of or in the course of or by reason of the carrying out of the Works or of any obligation pursuant to clause 2.38 and to the extent the same is due to any negligence, breach of statutory duty, or omission or default of the Contractor or of any of the Contractor’s Persons. This liability and indemnity is subject to clause 6.3 and, where Insurance Option C (Schedule 3, paragraph C1) applies, excludes loss or damage to any property required to be insured thereunder caused by a Specified Peril.”
“.1 subject to clauses 6.3.2 and 6.3.1, the reference in clause 6.2 to `property real or personal’ does not include the Works, work executed and/or Site Materials up to and including whichever is the earlier of: .1 the date of issue of the Practical Completion Certificate; or .2 the date of termination of the Contractor’s employment.” .1 the date of issue of the Practical Completion Certificate; or .2 the date of termination of the Contractor’s employment.”
“insurance which provides cover against any physical loss or damage to the work executed and Site Materials and against the reasonable cost of the removal and disposal of debris and of any shoring and propping of the Works which results from such physical loss or damage but excluding the cost necessary to repair, replace or rectify: … (b) any work executed or any Site Materials lost or damaged as a result of its own defect in design, plan, specification, material or workmanship or any other work executed which is lost or damaged in consequence thereof where such relied for its support or stability on such work which was defective;” ii) “Joint Names Policy” which was defined as: “ a policy of insurance which includes the Employer and the Contractor as composite insured and under which the insurers have no right of recourse against any person named as an insured, or, pursuant to clause 6.9, recognised as an insured thereunder.” iii) Footnote 60 to the definition of All Risks Insurance explained that “the risks and costs that All Risks Insurance is required to cover are defined by exclusions”.
“a waiver by the relevant insurers of any right of subrogation which they may have against [Conway] in respect of loss or damage by the Specified Perils to the Works or relevant Section, work executed, and Site Materials …”
“[The RFU] shall take out and maintain a Joint Names Policy for All Risks insurance with cover no less than that specified in clause 6.8 for the full reinstatement value of the Works or (where applicable) Sections (plus the percentage, if any, stated in the Contract Particulars to cover professional fees) and (subject to clause 2.36) shall maintain such Joint Names Policy up to and including the date of issue of the Practical Completion Certificate or, if earlier, the date of termination of [Conway’s] employment (whether or not the validity of that termination is contested).”
“If during the carrying out of the Works there is any loss or damage of any kind to any of the existing structures or their contents and/or if loss or damage affecting any executed work or Site Materials is occasioned by any of the risks covered by the Joint Names Policy referred to in paragraph C.2 or C.3 then, upon its occurrence or later discovery, [Conway] shall forthwith give notice both to the Architect/Contract Administrator and to [the RFU] of its extent, nature and location.”
“Lord Hope is there contemplating that the provision for joint names insurance under a construction contract between an employer and a contractor would give rise to an implied term that neither party could make claims against the other in respect to damage caused to the contract works covered by the risks against which the policy insured both parties. Presumably, however, the position might be different if on the express terms of their contract one party might be liable to indemnify the other for its breach, default, or negligence.”
“The critical question is whether the contractual scheme between the owners and the demise charterer precluded any claim by the former against the latter for the insured loss of the vessel. This is a matter of construction. It has become a common practice in various industries for the parties to provide for specified loss or damage to be covered by insurance for their mutual benefit, whether caused by one party’s fault or not, thus avoiding potential litigation between them. The question in each case is whether the parties are to be taken to have intended to create an insurance fund which would be the sole avenue for making good the relevant loss or damage, or whether the existence of the fund co-exists with an independent right of action for breach of a term of the contract which has caused that loss. Like all questions of construction, it depends on the provisions of the particular contract: see, for example, Co-operative Retail Services Ltd v Taylor Young Partnership Ltd[2002] 1WLR 1419 .”
“(1) Where at the time when the contract of insurance was made the principal assured or other contracting party had express or implied actual authority to enter into that contract so as to bind some other party as co-assured and intended so to bind that party, the latter may sue on the policy as the undisclosed principal and co-assured regardless of whether the policy described a class of co-assured of which he was or became a member. (2) Where at the time when the contract of insurance was made the principal assured or other contracting party had no actual authority to bind the other party to the contract of insurance, but the policy is expressed to insure not only the principal assured but also a class of others who are not identified in that policy, a party who at the time when the policy was effected could have been ascertained to qualify as a member of that class can ratify and sue on the policy as co-assured if at that time it was intended by the principal assured or other contracting party to create privity of contract with the insurers on behalf of that particular party. (3) Evidence as to whether in any particular case the principal assured or other contracting party did have the requisite intention may be provided by the terms of the policy itself, by the terms of any contract between the principal assured or other contracting party and the alleged co-assured or by any other admissible material showing what was subjectively intended by the principal assured.”
“…unnecessary to consider on the facts of the present case what is the position where, at the time when the contract of insurance was entered into, the alleged co-assured could not be ascertained as a member of the class referred to in the policy, but only qualified for membership at a later stage or where at the time of the policy it was only intended to insure all persons in the class or who might in future qualify as members of the class, although it would then have been impossible to identify the alleged co-assured as such.”
“There are two points to note if the standing offer is the correct analysis, which I consider it is. The first is that the offer is said to be one made by the insurers. The second is that the offer is `made by the insurer to insure persons who are subsequently ascertained as members of the defined grouping’. The offer would be accepted by a sub-contractor joining, upon execution of the sub-contract, what the authors of McGillivray would describe as `the defined grouping’. The acceptance of that offer leads to the implication of a term in the contract between (here) [the party effecting the insurance] and [the party claiming to be a co-insured]. …”
“Again and again throughout the authorities, emphasis is placed upon the fact that the answer in any particular case is one of construction, and it therefore critically depends upon the provisions of the particular contract in each case.”
“Given that, if the parties had not inserted an express waiver of subrogation, such a term would have been implied and such a term would have had the effect of a waiver of subrogation only in respect of losses insured for the benefit of the sub-contractor, it is, in my view, entirely unsurprising that the parties should have inserted a waiver clause in their policy and that its proper construction should give it an effect exactly equivalent to the term which business efficacy would otherwise require to be implied.”
“This insurance would prevent expensive delays which would inevitably occur if one contractor was unable to complete their works on time, and unnecessary costs. It would prevent claims arising between contractors and their separate insurance companies, and I considered it would make the whole process much smoother if any issues arose. It would avoid possible issues with gaps in insurance cover.”
“2.4.1 The intention was to establish stadium work project insurance, although this would not cover plant, equipment and welfare, but this hasn’t been achieved. [Conway] were asked to ensure they provide cover for all works. … 2.4.3 When the project insurance is established, [Conway] will be notified and any claims will need to be issued directly to Marsh. Claim Forms will be provided when available.”
“Construction programmes (the process of managing several related projects) provide insurers with a unique challenge in that no one programme faces the same risk exposures as another. An important element of the successful management of a construction programme is tailoring the risk management/insurance approach to the programme’s specific exposures. Insurance brokers therefore rely on the project team provide details for each specific project and for the governance in place to minimise risk in order to reduce the premiums.”
“This is an important point given that Rugby Football Union’s contracts may utilise various agreements with several different contractors. One policy covering all parties will ensure wide, consistent cover for all, and avoid difficulties with any phase and/or partial handovers. “Importantly, an OCIP only transfers the responsibility for the arranging of specific insurance coverages to the owner. It does not affect the contractual and legal responsibilities or liabilities of contractors, subcontractors, suppliers or consultants; the risk still remains with those parties.”
“All contractors are included in the policy – avoiding arguments over who covers what, as well as the need to check the policy is in place and covers what has been stipulated. This can be extended to cover all other contracting parties if required such as subcontractors.”
“The policy includes cover for own/direct contractors – where contracts have multiple agreements i.e. Rugby Football Unions building and civil contractors and in turn their subcontractors, design consultants civil and structural engineers, name suppliers and potential fit out contractors and others, the contractual relationships between the parties can be extremely complicated and particularly so where they relate to insurance arrangements. Any significant loss could inevitably end up in court to be settled. An OCIP would overcome this.”