Goodway & Anor v Zurich Insurance Company

J U D G M E N T

1. SIR WILLIAM ALDOUS: This is an application for permission to appeal the orders of his HHJ Thornton QC sitting in the Technology and Construction Court in London. It is also an application for an extension of time in which to bring the application for permission. I can deal with that at the outset. Having looked at the documents in this case, I can see that there was a misunderstanding, the delay is not large, and in my view, if it would be right to grant permission, it would also be right to grant an extension of time.

2. If permission is granted, the applicants seek at the appeal an order that there should be a new trial, and, pending a new trial, a stay of execution of the judgment.

3. The application before me has been made by Mr Goodway on his own behalf and on behalf of the company of which he is the managing director, namely Carabos Limited.

4. Before coming to the grounds upon which permission is sought, I must set out the factual basis which led to the dispute which came before the judge. The essential facts were properly set out by the judge in the beginning of his judgment. Zurich Insurance Company, who are the defendants, ran an insurance scheme called the Newbuild scheme, which provided indemnity cover for the purchasers of newly built domestic property. Membership of such a scheme was required for a builder to obtain mortgage funding. Under the scheme Zurich would reimburse the owner of a covered property for the costs of any latent defects that a member failed to remedy and would then seek to recover the payment from the member, who was the builder.

5. Mr Goodway registered as a builder with Zurich on 2nd May 1995. As a sole trader, he constructed two houses, the first called Merrythought and the second called Orotava on the Isle of Wight. They were registered under the scheme in 1996 and 19967, and I refer to them as the Merrythought properties. In March and April 1998 the owners of those properties informed Zurich of defects, or perceived defects, relating to the drainage of the properties. Zurich inspected the site and required Mr Goodway to rectify the defects. Mr Goodway disputed liability, leaving Zurich in the position of appointing an independent contractor to perform the remedial work. According to Zurich, it cost about £60,000. As Mr Goodway refused to reimburse Zurich for the money they had paid out, he was removed from the scheme's register of members.

6. In 1998, Mr Goodway set up Carabos, which began to trade as a house building development company in, I think, May of that year. On 17th September 1998, Carabos registered with Zurich as a member of their home builder scheme, placing £5,000 as security into a escrow account with Zurich. Carabos then constructed, or were in the process of constructing, two adjacent houses in Ryde on the Isle of Wight. I refer to them as the Ryde properties. They were registered with Zurich. As a result of the ongoing dispute between Zurich and Mr Goodway, Carabos was removed from Zurich's register. However, under rule 18 of the Newbuild scheme, the Ryde properties continued to be covered by the scheme.

7. I have set out very shortly the background to the litigation, which started on 31st January 2001. On that date, Carabos issued proceedings in the Isle of Wight County Court against Zurich. Zurich defended the claim. At the same time Mr Goodway commenced an action in his own name in relation to the Merrythought properties. Zurich defended that case also, and counterclaimed the sum of about £60,000 in respect of the remedial work which a contractor had done on their behalf on the Merrythought properties. The two actions were consolidated and transferred to the Technology and Construction Court in London. The trial was fixed for early July 2002, and disclosure took place. On 25th June, that is shortly before the trial, the parties, all of whom were at that stage represented legally and had the advantage of experts, met to hold a settlement meeting. Agreement was reached to settle the proceedings upon terms which were set out in a Tomlin Order, which was entered by the court on 27th June. It is the Tomlin Order which is central to the dispute which subsequently happened. The schedule to the Tomlin Order contained these terms: first, Mr Goodway/Carabos Limited should pay the defendant, that is Zurich, the sum of £75,000 in addition to the defendant retaining the escrow of money currently held by it in full and final settlement of the claim and counterclaim, including interests and costs. There was then set out clauses as to how that money was to be paid. Mr Goodway/Carabos would pay the defendant the sum of £15,000 within 14 days as part payment, next they would pay the sum of £60,000 on the first sale, or if the sale or proceeds of the first were insufficient, the outstanding sum was to be paid from the sale proceeds, or in any event within four months of the issue of Final Certificates. Clearly what was intended was that the £75,000 would be paid after the properties were sold. The schedule also contained an obligation upon Zurich to provide written confirmation that Final Certificates in respect of plot A and plot B would be issued once any works considered necessary by its independent surveyor/engineer had been completed to the satisfaction of Zurich's own surveyor/engineer. On receipt of that confirmation, Carabos would provide the defendant with escrow in the sum of £10,000 in respect of plot A, and in respect of plot B. Thus a sum of £20,000 would be paid prior to the issue of the certificates. Zurich would hold the escrow money for a period of two years from the date of the Final Certificates issued by them. Subject to the issue of Final Certificates the policies in respect of plot A and plot B would each carry a £10,000 excess for each and every loss throughout the duration of the policies for a maximum of ten years from the date of the Final Certificates until the expiry of the policies.

8. There was also a requirement for a written undertaking that Mr Goodway and Carabos would pay Zurich the full costs, including VAT, of the structural survey to be carried out by the defendant's surveyor/engineer prior to the issue of the Final Certificates.

9. The settlement negotiations were followed by a series of delays by both parties. Zurich failed to nominate a surveyor until July 2002 and Mr Goodway objected to the choice of that surveyor. There were two basic reasons for his objection: one was cost, in that the surveyor was not a local man, and secondly, that he was not properly instructed.

10. On 8th November 2002, Zurich issued an application seeking an order that Mr Goodway and Carabos should allow the surveyor that they had chosen access to the site. Mr Goodway and Carabos consented to the order being made and the survey finally took place on 6th January 2003 with the surveyor's report being issued on 26th February 2003. I need not read the surveyor's report, but I will just read the summary and recommendations.

"5.1 A walkover survey of No 1 and No 2 Downsview has confirmed that the buildings have been constructed generally in accordance with the specifications of the geotechnical and structural engineer and the architect. The evidence of the survey suggests that there are no significant defects that could impair the structural performance of the building components or affect their durability.

"5.2 The form of connection of some of the surface water drains to the combined sewer may not be in accordance with the requirements of the building regulations or the architects specifications and this deficiency has the potential to adversely affect the building foundations. It is recommended that the builder be asked to expose the roof drainage connections and to make good those that do not conform.

"5.3 A major defect in the front boundary wall of No 1 Downsview has been identified. The defect is considered to have been caused by the failure of measures intended to allow for the presence and continuing growth of the root of a retained conifer. The damage is unrelated to the stability of the adjacent bungalow which is not threatened by the presence of the tree. The defect is not likely to cause early collapse of wall but the damage is severe and may be ongoing. It is recommended that the tree be removed and that the damaged section of the wall be rebuilt."

11. Carabos did not respond to Zurich's request for the recommendations to be carried out, certainly not initially and Mr Goodway found alternative insurance called a Premier Guarantee ten year structural plan.

12. On 2nd June 2003, Zurich issued an application seeking an order that Mr Goodway and Carabos should undertake the work recommended. That was resisted in a response dated 2nd June 2003. Following an argument over disclosure, the case was heard on 17th, 18th, and 19th November and 17th December 2003. During the hearing, Mr Goodway and Carabos provided documents confirming that the Ryde properties complied with the building regulations, and an agreement was reached on that issue. However, four outstanding issues remained. Those issues were set out by the judge in his judgment, and I will take them from his final judgment.

"1. Would the Zurich have been entitled to an order in the terms sought but for the developments that occurred during the hearing? This issue is primarily related to the inevitable costs application for its costs of this application by the Zurich and a responsive cross-application for their costs from Carabos and Mr Goodway of that application in the light of it no longer being pursued."

13. The judge's conclusion on that was, and I quote:

"57. It follows that a court would have concluded that there had been no established breach of the Tomlin Order entitling the Zurich to mandatory relief, no basis for showing that Zurich intended to be ready and willing to be bound by the

Tomlin Order and no basis for the court to exercise its discretion in favour of the Zurich given the mutual failure to implement the terms of the Tomlin Order. Therefore, the equitable relief being sought would not have been granted, even if the application had been maintained until the end."

14. Thus, the judge found the first issue in favour of Mr Goodway and Carabos, and therefore one would have expected that his costs order would have reflected that conclusion.

15. The second issue was in these terms:

"2. Were the Zurich in breach of the Tomlin Order by the delay in its being implemented in part and, if so, what damages may be recovered by Carabos and Mr Goodway?"

16. The judge's conclusion on that is contained basically in paragraph 59, which I will read in full as it formed the basis of criticisms by Mr Goodway at the hearing before me.

"59. This claim is misconceived for essentially two reasons. Firstly, any conduct causing delay was mutual and secondly, any delay caused by the Zurich caused them no loss since they were neither ready or willing to market the properties even if the Newbuild cover had been offered in the period up to at least April 2003. Throughout the period from late June 2002 until the hearing of the applications in December 2003, neither Carabos nor Mr Goodway were ready or willing to perform the Tomlin Order. The following factors show that both had evinced an intention not to be bound and not to cooperate and partner in the putting into effect the terms of the Tomlin Order as speedily as possible:

"1. At no time [up to at least April 2003] did either defendant [claimant] seek to put the properties on the market, to advertise them or to instruct agents to market them.

"2. Throughout the period from July to September 2002, both Carabos and Mr Goodway sought to prolong with petty objections the discussions as to the terms of appointment and the identity of the surveyor. Both could have notified the Zurich at the outset of their objections and then asked the Zurich to appoint the surveyor on appropriate terms and continue the discussion about fees whilst the surveys were being arranged and carried out.

"3. Both decided ... that they would seek alternative insurance cover for the properties which they successfully achieved in February 2003. Notwithstanding that, the properties were not then [immediately] marketed.

"4. Both failed [adequately] to respond to the Zurich's invitation to undertake the proposed remedial work, to seek to show that the drains were satisfactory or to propose an alternative scheme to deal with the boundary wall once the Needham report was served on them.

"4. Neither defendant [appeared to have] had the means or the intention to provide the £20,000 deposit required before the Final Certificates were issued."

17. The judge upon those findings concluded Mr Goodway's and Carabos's claims based upon breaches of the terms of the Tomlin Order had not been made out, and therefore that part of the counterclaim failed.

18. The third issue was concerned with whether the Tomlin Order should be set aside. The judge put it in this way:

"3. Is the Tomlin Order to be set aside or are damages for misrepresentation inducing it to be recovered on account of misrepresentations by the Zurich addressed to Mr Goodway and Carabos prior to its being finalised which induced the settlement and, if damages are to be awarded, what damages are recoverable?"

19. The judge set out the contentions as he saw them. Both Mr Goodway and Carabos contended that the Zurich had on two occasions misrepresented the strength and nature of its claims in the first set of proceedings; that those misrepresentations had induced the settlement agreement, and that the settlement agreement had caused them loss and damage. He dismissed those allegations of misrepresentation, and the core part of his judgment on them is contained in paragraph 67:

"67. This claim suffers from a series of fundamental defects:

"1. There is no misrepresentation alleged. The best that can be suggested is that the list of documents amounted to a misrepresentation that it contained all disclosable documents when the facts and the covering breakdown were not disclosed but were in BLM's possession. However, the nature and extend of the non-disclosure is so limited that the list, as served, cannot amount to any misrepresentation as to disclosable documents or as to the potential weakness of Zurich's case.

"2. The fax is a privileged document since it was a communication from a witness to the Zurich's solicitor for the purpose of preparing Zurich's case for trial.

"3. The documents do not clearly show that the damages claimed was inflated, dishonestly calculated or relating to work which was not done or which did not itself relate to defects caused by Carabos and Mr Goodway.

"4. There is no evidence that a payment into court ... would have been ... that any assessment of the defendant's prospects and risks would have [been made, or had any assessment been made that it would have] relied to any extent on these documents [had they been disclosed and then] made available to Carabos and Mr Goodway.

"5. The documents, and their absence from the discovery provided in November 2001, did not induce or even influence Carabos and Mr Goodway in their thinking, in agreeing to enter into the settlement reached in June 2002."

20. The judge went on to deal with a second complaint, namely that certain documents were not disclosed at the time of the witness statements.

21. The fourth issue concerned what would happen if the Tomlin Order were to remain. Were Zurich entitled to take further steps to recover the outstanding sum of money? The judge, based upon the reasoning to which he had come, indicated that Zurich could seek to enforce the Tomlin Order in the future.

22. The judge gave another judgment after the hearing, dealing with costs. Having refused an application for permission to appeal, he said this:

23. "The parties have submitted detailed submissions as to costs. I have carefully considered these and I have concluded that, taking into account the parties' relative success on both the claim and the counterclaims; the pleaded allegations that were not pursued by each set of parties; the parties' conduct throughout the dispute; and the very damaging allegations made by Mr Goodway and Carabos and the resources reasonably devoted to each part and stage of the dispute by the Zurich, the appropriate costs order is as follows:

"1. The costs of both claim and counterclaims be assessed together.

"2. Zurich is to recover one half of its costs on both claim and counterclaim and Mr Goodway and Carabos are to recover none of their costs."

24. He went on to order a detailed assessment and to conclude that the costs incurred in the costs proceedings including those incurred in preparing written submissions were to be assessed as part of the detailed submissions. He awarded Zurich its costs of an application and cross-application issued and heard on 4th July and on the hearing on 31st October.

25. In round terms, the conclusion of the judge was that the claim and the cross claims should be dismissed and that Zurich would obtain half its costs of the consolidated hearing.

26. Following the judgment of 27th February, I think both the Zurich and Mr Goodway applied to the judge for amendments to be made to the judgment. In the bundle before me there are no details of these applications, but a further judgment, which Mr Goodway has called Judgment 1B, was received on or around 5th March 2004 with a few amendments. Importantly, there is another judgment, called 1C, in which the judge has maintained the amendments and has expanded in his judgment a passage relating to the future.

27. Although altering his judgment, the judge maintained the conclusions that he reached; in particular the ability of Zurich to enforce the £60,000 debt. The judge also concluded that there were no grounds entitling him to amend his order and that the final wording of the judgment did not detract from his reasoning in the first judgment. He refused permission to appeal.

28. Against that background, I come to the application that has been made by Mr Goodway, and turn at the outset to his first submission, which was that there should be a new trial because of unfairness. He referred me to the case of Co-operative Group (CWS) Ltd v International Computers Ltd [2003] EWCA Civ 1955. In that case, this court had to consider an appeal in which it was alleged that the trial was unfair because the judge had made adverse findings about the motives of CWS's senior managers, the credibility of its witnesses, and the confidence of its advisors which were unfair, unjustified, and not suggested by ICL. It was said that those findings tainted the whole of the judgment and that the injustice to CWS could only be remedied by ordering a retrial.

29. Lord Justice Tuckey, who gave the judgment of court to which all had contributed, said this, and I quote:

"84. In these circumstances we have concluded, much to our regret, that we have no alternative than to recognise this the judge has erred so fundamentally in his approach to this trial as to have lost, or at least given the appearance of losing, his ability to try CWS's claim with an objective judicial mind (cf Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 at 480F/G). It is not that he has come to the trial with any preconceived prejudice or predilection or bias: but that over the course of it he has demonstrated an inability to grapple objectively with the issues of fact and law presented to him. In the result the trial was unfair."

30. The court went on in that case to order a retrial. Mr Goodway suggested that the judge fell into the same category as the judge in the Co-op case. He had three main heads of submission. First, that the judgment was full of factual inaccuracies; second, the judge had not dealt with the issues of law that had been dealt with; and third, he had not dealt properly with the cross claims as he had amalgamated them together.

31. It is convenient, before coming to that overall submission, to look at the individual elements upon which Mr Goodway relies. Firstly, the question of factual inaccuracies. In his skeleton argument Mr Goodway has referred to nearly 20 factual inaccuracies. I have looked at them all and have come to the conclusion that there were really only three which could be cases where the judge could be criticised. I have come to the conclusion, looking at those three, that they do not in any way vitiate the reasoning of the judge. I will however deal with the ones to which Mr Goodway specifically drew my attention. They are contained in paragraph 59, which I have already read.

32. In paragraph 59 of the first judgment, the second sentence concluded:

"Even if the Newbuild cover had been offered up to the period ending June 2003."

33. In the revised judgment, that has been altered to:

"Even if the Newbuild cover had been offered in the period up to at least April 2003".

34. That alteration, in my view, could not have affected the conclusion that the judge reached. The reasoning that he puts forward in the five points that follow the correction are just as pertinent. The alteration no doubt was made at the suggestion of the parties, and in my view, the judge cannot be faulted for including it. It is not a material difference.

35. Secondly, there is a change in paragraph 59.1. There it is said that at no time up to at least April 2003 did either defendant (claimant) seek to put the properties on the market.

36. That is accurate, and the reason being was that alternative insurance was not available until April 2003, although it was sought in February.

37. Next I turn to paragraph 3. Here it is said that both parties decided soon after the Tomlin Order being made that they would seek alternative insurance cover for the properties, which they successfully achieved in February. That is incorrect, they did not achieve them until April. That, again, is an error in the judgment, but I cannot see how it has any effect upon the reasoning of the judge or the conclusions which he came to. Here he is setting out reasons as to why the delay was mutual, and any delay by Zurich had not caused any loss. To put the date back to April seems to enforce the judge's point.

38. Mr Goodway criticises the finding in paragraph 4 that they failed to respond to Zurich's invitation to undertake the proposed remedial work, and he says that this was all Zurich's fault. That was the case that he put before the judge, which the judge rejected.

39. In my view, the allegations which are made by Mr Goodway do not vitiate the reasoning of the judge. No doubt he disagrees with the findings of fact that have been made, but it was for the judge to make those findings of fact, and it is not for this court to make alternative findings of fact. It does not have the advantage of seeing the witnesses and hearing all the evidence.

40. I do not believe that the allegations made by Mr Goodway suggest that the judge had an inability to grapple with the facts such as to bring it within the Co-op v International Computers case.

41. Next I come to the cross claims. The main contention forming the basis for his allegations is that there were three cross claims pleaded. They were set out before the judge, in a written submission which appears at page 216 in the bundle. In that submission it was alleged that the agreement for the Tomlin Order was vitiated because of three misrepresentations made by Zurich. The first one was that in the letter of 16th October 2000, Zurich made the statement of fact that they had, "full details" of their reimbursement demand of about £60,000. That, it was alleged, amounted to a representation that Zurich's outlay in relation to those claims were about £39,000 in respect of Orotava, £22,000-odd including fees for Merrythought. Over 82 per cent of the demand was subsequently found to be for alleged renewal works by a company called Costs Construction Management Limited, whose managing director was a Mr Stephen Drakeford. It is alleged that the claimants have now found that the "full details" representation was false. Therefore, the claimants submitted that Zurich never had "full details" of the demand. Thus the statement was false.

42. The second misrepresentation relied on occurred when Zurich had a duty under the civil procedure rules to disclose documents in order for the claimants to consider a Part 36 offer. By letters in November, the claimants' solicitors requested the defendants' solicitors to let them have copies of all documents in their possession which contained details of work which CCM and any other contractors were requested to do, and the work they actually did. There was then an order for disclosure, and in December 2001 Zurich replied to the claimants' request for a full itemised statement of their £60,000 demand, but there was no relevant itemisation. It was submitted that Zurich's silence and non-disclosure constituted falsity, as they had a duty to prove that their representation of the availability of "full details" was true; and further that Zurich had a core duty of utmost good faith to disclose and not to stay silent. As the full details had never been disclosed, there had been a material misrepresentation which had led to damage.

43. The third misrepresentation related to an unsigned witness statement of Mr Drakeford. It was alleged that paragraph 14 of that witness statement had stated that 36 pages of a full description of the works, together with the sketches of budget information, were sent to Zurich after completion of the works. Ultimately the exhibit was found to be only 34 pages, and it seemed, or was alleged, that the particular document was not a contemporaneous document and may have been prepared during the proceedings.

44. Unbeknown to the claimants, Zurich were in possession of a 14-page fax which stated on the first page that Mr Drakeford at that time had only four lines of budget costs, but could amplify if requested. That formed the basis of this submission:

"It is submitted that Zurich, as signatories, sought not to disclose a document which would prove that the 34 pages of CCM costings were not contemporaneous as sworn but were compiled during proceedings, and that this is a material misrepresentation."

45. The misrepresentations were dealt with by the judge in a compendious form, and the criticism of Mr Goodway is that he did not take them one by one and deal with them. The judge summarised them in this way.

"61. Both Carabos and Mr Goodway contend that the Zurich misrepresented the strength and nature of its claims in the first set of proceedings on two occasions, that those misrepresentations induced the settlement agreement and that the agreement has caused them loss in the form of an unduly favourable settlement. In consequence, they claim [the] rescission of the Tomlin Order or damages in lieu of rescission."

46. That is not a bad summary. I will take them one by one starting with the last one. This is an allegation that there was a misrepresentation by silence based upon a statement in a witness statement which was acted upon by Mr Goodway and Carabos. I can find absolutely nothing in the papers to believe that that is so. It must be remembered that Mr Goodway and Carabos were represented by counsel and by an expert. They were in a position to come to the conclusions as to the costs involved in any of these matters. The second one is based upon an assumption that there is a misrepresentation arising from an order for disclosure. I know of no such misrepresentation.

47. The first one, which is at the heart of the complaint, is that there was no proper disclosure of how the £60,000-odd was made up. That is the point that the judge concentrated upon in the passage that I have read.

48. In my view, there is no real chance of persuading this court that those misrepresentations, if they were misrepresentations, would amount to, or enable rescission, of this agreement. There was no evidence from the solicitors or counsel who were instructing Mr Goodway and Carabos as to whether any representation was material to the advice that they gave. There is no evidence of the advice that he was given; and no evidence whether any failure of disclosure played any part or were considered to be absolutely irrelevant.

49. Clearly questions of settlement depend upon the chances of success, the length of delay of the proceedings, the costs of proceedings: all those things had to be considered entering into an order in the form of the Tomlin Order. There is not sufficient here to enable this court to conclude that the judge's judgment was wrong.

50. It is possible with hindsight that the judge could have dealt with certain issues more fully, but in my view he adequately dealt with the misrepresentations which were put before him in the written submissions.

51. There was at one stage a suggestion by Mr Goodway, and it is suggested in his skeleton argument, that the judge's judgment showed bias. That was not pursued. Mr Goodway was right to base his submissions upon his view that the matters dealt with by the judge showed an inability to grasp the facts properly and to consider the issues of law before him.

52. Mr Goodway also said that the judge had not dealt adequately with the law which was argued before him. True, there is no case law set out in the judgment. However, he has not drawn to my attention any case or text which would suggest that the judge had not adequately had in mind the submissions of law that were made to him. I know that Mr Goodway thinks the judgment is wrong; but he has approached the issues correctly.

53. Mr Goodway also criticises the judge's judgment on the determination of the way forward. He says in his skeleton that the appeal court should consider the equity of the determination made by the judge. He submits that the direction that the contract should continue is inconsistent with determinations made earlier in the judgment that the parties failed to implement the terms of the Tomlin Order, and therefore it was inequitable now for Carabos to be required to implement the conditions. That submission does not stand a real chance of success. Why parties who enter into an agreement should not be bound by the terms of the agreement, even though during a period the parties failed to implement it, I cannot understand.

54. Finally I come to the question of costs. I have already read the judge's judgment as to costs. Mr Goodway referred me to the Lavelle case, George Lavelle v Tracy Lavelle & Ors [2004] EWCA Civ 223, in which this court made it clear that costs orders were important and judges must ensure that their reasons for costs orders are clear. They should not be left to inference.

55. Mr Goodway says that this is a case where no party had won, and the correct order was that each party should pay its own costs. He submitted that the reasons were not full; and the bill of costs which the other party submitted showed that the submissions that had been made to the judge were wrong.

56. The judge's judgment on costs is concise. However, he was the person who heard the whole trial; he was the person that heard the submissions, and he was in the best position to estimate the length and depth of both the claim and the counterclaim. Mr Goodway and Carabos had won the claim and the counterclaim had been won by Zurich. The judge had to weigh up the time spent and the work involved when coming to the conclusion as to the correct proportion the claim and counterclaim should bear. In the end he gave Zurich half their costs of both the claim and the counterclaim. He made a deduction of 50 per cent of their costs on the basis that Mr Goodway and Carabos were entitled to be paid a proportion of their costs.

57. A judge has a wide discretion on costs. That discretion will only be reviewed by this court if it can be demonstrated that he has either taken into account something that he should not have taken into account or has failed to take into account something that he should have done, or has gone clearly wrong.

58. I do not believe that there is a real possibility that this court would come to the conclusion that the judge's decision was not within the bounds of the discretion which the judge had. In those circumstances I would not give permission to appeal on a costs order. The application is therefore refused.