Dunlop Haywards (DHL) Ltd v Erinaceous Insurance Services

I now have to rule upon various matters consequential on my judgment of 19 November 2009. The principal issues which arise relate to costs. I propose to deal with those issues by considering first the position of the claimants and HPC, secondly the position of the claimants and Excess Insurers, thirdly the position of Excess Insurers and HPC and fourthly the position of Forbes and HPC.

It is not in dispute that the claimants are entitled to their costs as against HPC. The issues are; in respect of interest, (1) the period of interest on damages, (2) the rate of interest on damages; in respect of costs, (1) specific cost points, (2) the amount of any interim payment of costs.

The claimants argue for 21 February 2007, the date when insurers on the primary layer paid. They submit that the probability is that Excess Insurers would have done likewise, given in particular the common identity of a number of underwriters on the primary and excess layers, and the fact that claims of over £30 million were intimated by that stage. They stress the advantage to insurers of making prompt payment to avoid liability for defence costs. HPC argue for 14 July 2007, on the basis that it was not until 14 June 2007, when the claimants settled with MBS and the MBS judgment was delivered, that there was any ascertainment of liability that clearly fell within the excess policy. Until then, there was no ascertained liability, still less any ascertained liability which would, with certainty, breach the excess layer, let alone breach it in full.

Experience indicates that insurers do not generally pay up until their liability is clear. I consider that, notwithstanding the payment made under the primary layer and the common identity of some underwriters, there was sufficient uncertainty about the position under the excess layer to make it likely that Excess Insurers would not have paid out until the summer, as HPC contends. Further, although there were three common underwriters, the lead underwriter on the excess layer, Mitsui, was not on the primary layer. I accept that it is likely that it would have taken all the relevant excess underwriters some time to consider the position after 14 June and that one month is a reasonable period to do so. I therefore accept HPC's case that the date from which interest is payable should be 14 July 2007

On 16 January 2007, the claimants made a Part 36 offer to HPC for the sum of£9 million plus interest at base rate plus 1 per cent to the date 21 days from the making of the Part 36 offer. The offer was predicated on a minimum recovery under the excess layer policy of £10 million and gave a 10 per cent discount for contributory negligence and litigation risk. That offer was rejected. The claimants have beaten that offer since I have held that there should be no discount for contributory negligence. The parties are agreed that until 9 February 2009, the rate of interest on damages should be 1 per cent over the base rate. The issue surrounds the appropriate uplift on interest from that date to the date of judgment, as a result of the Part 36 offer having been beaten by the claimants.

CPR 36.14(3) provides that where a claimant obtains a judgment at least as advantageous as his Part 36 offer:

CPR 36.14(3) provides an incentive for a claimant to make an offer to settle proceedings. It has been said that its effects are not intended to be penal, but are intended to compensate the claimant for the inconvenience, anxiety, distress and interruption to business that result from being brought to a trial which he sought to avoid. In this connection I was referred to Petrotrade Inc v Texaco Limited [2002] 1 WLR 947, paragraphs 59 and 63 per Lord Woolf MR and McPhilemy v Times Newspapers [2002] 1 WLR 934, paragraphs 19 to 21 per Chadwick LJ.

In considering whether to make an order under CPR 36.14(3) and the rate at which to award interest on damages, the court takes into account all the circumstances, including those factors set out in CPR 36.14(4), being the terms of the offer in question, the stage of the proceedings at which it is made, the information available to the parties at the time the offer was made, and the conduct of the parties with regard to the giving or refusing to give information to enable the evaluation of the offer by the recipient.

The claimants argue for a 6 per cent uplift and rely on the following matters in particular. (1) The Part 36 offer was made on the same day that the parties provided standard disclosure. It was not made at a late stage of the proceedings. (2) There has never been any significant factual issue between the claimants and HPC concerning the placement. HPC was therefore well placed to evaluate the merits of the dispute as between the claimants and HPC at the time the Part 36 offer was made. (3) There has never been any suggestion that the claimants refused to provide HPC with any information relevant to the assessment of their case and the Part 36 offer. (4) The Part 36 offer itself was generous in its terms. It offered to accept the highest discount which HPC could ever realistically have asked for, as borne out at trial when HPC duly asked for a deduction of no more than 10 per cent. (5) HPC emphasises that the rectification case might have succeeded, but it did not. (6) Although HPC was in a position to assess its culpability when the offer was made, they waited until shortly before trial to admit breach, and they waited until shortly before trial to abandon a number of causation and estoppel points. All these points caused the claimants to incur unnecessary expense.(7) At trial the only substantive question as between HPC and the claimants was as to contributory negligence of Mr Davis. Even in that respect, HPC elected not to formulate fully their case on contributory negligence until closings, insisting that it had to await the totality of the evidence. The claimants duly attended the trial and sat through the totality of the evidence, only to find that, when the contributory negligence case was finally put, it was for the 10 per cent reduction which the claimants had already offered to accept.

HPC argue for a 1 per cent uplift. They contend that the offer made ignored the chances of the rectification case succeeding, and that it was reasonable for HPC to attribute considerable value to that case. However, the fact of the matter is that it did not succeed. The rectification case was always HPC's cause rather than that of the claimants. The claimants did not seek to join Excess Insurers to pursue it, and only adopted it reluctantly and passively. The claimants took the view that no discounts should be made in respect of the rectification case, and events have proved that they were right to do so. Further, if, as I have found, the origin of the instructions to obtain cover for commercial property management activities was Mr Hart of HPC, then HPC's case on rectification was always facing a seemingly insuperable hurdle.

HPC also stressed that the offer has only been bettered by about £1 million, or 9 per cent. They also point out that the current interest rate is at a historic low. The effect of any significant uplift is out of all proportion of the commercial reality as to the use to which money might otherwise be put. So for example, the maximum permissible uplift at 10 per cent is twice a base rate of 5 per cent, but is 20 times the current base rate.

Against that, the claimants point out that inter-commercial borrowing is now at a significantly higher rate than the base rate, so the comparison is a false one. Although there was no evidence before the court of inter-commercial borrowing rates, it is well known that they are currently higher than the base rate. The claimants also point out that, if there is a very low uplift, then it will not be much of an incentive or disincentive, and thereby undermine the primary purpose of the rule. HPC also rely on the payment received by NBS from Bank of Scotland on behalf of Erinaceous Group, in relation to which it is said they will be able to keep interest of about £135,000. The payment was made to Nationwide under a separate agreement, and in consideration of Nationwide not pursuing the winding up petition against the Erinaceous Group. The payment has no bearing on the first and second claimants' causes of action against HPC, or any entitlement to interest in respect thereof, the benefits of which have been assigned to Nationwide and are the subject matter of the proceedings. In my judgment, that is an independent matter which should not be taken into account.

I agree with the claimants that it is important to stand back and look at the figures in the round, rather than getting fixated on particular rates. If one stands back and considers the value of potential awards, the 6 per cent enhancement, ie, 7 per cent above base rate, calculated 19 November 2009, provides for a total enhanced interest value of just over £465,000, whereas the 1 per cent enhancement, ie, 2 per cent above base rate, which HPC contends, represents an enhanced value of just over £77,000. Those figures need to be considered in light of the value of the Part 36 offer itself, an offer to accept a £1 million reduction in the principal damages claim, and a concomitant reduction in interest.

Weighing all the various matters relied upon by the claimants and HPC in the balance and in the exercise of my discretion, I consider that the appropriate uplift in the circumstances of this case, is 4 per cent, which provides for an enhanced value of just over £310,000.

It is now agreed that the claimants are entitled to indemnity costs from 9 February 2009 and that is the date from which enhanced interest should apply to costs. It is accepted that the enhanced rate awarded on costs is generally lower than on the principal sum, and in this case I consider that the appropriate rate is 2 per cent.

The main point made by HPC on costs is that significant costs were unnecessarily incurred in dealing with aggregation and quantum issues, particularly in relation to disclosure, at a time when it should have been apparent to the claimants this was a clear case of aggregation. The claimant's response to that is that it was HPC who put aggregation in issue on the pleadings, and it could hardly be criticised for dealing with issues and disclosure by reference to the pleadings.

This is a point which potentially involves a significant amount of costs, and I consider it would be necessary to go into it in considerably more detail before making any ruling. I therefore consider it is best left to the stage of detailed assessment. However, this point relates only to the costs as between the claimants and HPC in relation to these matters. I am not satisfied that any basis has been made out for the claimants being required to pay any part of the costs payable by HPC to other parties on these issues.

The claimants’ bill is stated to be in excess of £1.85 million. They seek an interim payment of £1.25 million. HPC points out that about £500,000 of those costs relate to disputed quantum aggregation costs and I should take that into account in deciding on the appropriate order. I consider that the appropriate interim payment sum in this case is £1 million and that that should be paid within 28 days.

Excess Insurers ask the court to make a Bullock order requiring the claimants to pay Excess Insurers' costs and then adding those costs and such interest on them as is ordered to the sums payable by HPC to the claimants. The basis of seeking such an order is that formally it was the claimants who were making the rectification claim and construction arguments against Excess Insurers as the other party to the contract and that that claim has failed. Reliance is also placed on the concerns that Excess Insurers are said to have about the ability of HPC to pay the costs.

I agree with the claimants that Excess Insurers' argument ignores the reality of the proceedings, and focuses on form rather than substance. The reality is that it was HPC who were both introduced and pursued the rectification and construction arguments against Excess Insurers. Those arguments were only adopted by the claimants "with palpable reluctance" to ensure that any such arguments of HPC were not defeated on technical title to sue grounds. It was HPC who applied to join Excess Insurers to these proceedings before Field J and the Court of Appeal. In light of the order for joinder made by the Court of Appeal, the claimants had to re-evaluate their position and decide whether they could continue to refuse to lend their name to a claim for rectification now that joinder had been ordered, particularly bearing in mind the observations of Rix LJ that it might be the claimants alone who could formally seek rectification.

Had HPC succeeded against Excess Insurers on the facts and on the law, but without the claimants having joined the Excess Insurers as co-defendants and adopted the relief sought by HPC, failed on a single point of title to sue canvassed in argument, reasonable mitigation arguments might well have looked rather different.

Excess Insurers were joined as defendants to the claim for rectification by the claimants by consent at the CMC on 22 May 2009. However, that joinder did no more than allow a final adjudication on the claim advanced by HPC against Excess Insures under the excess layer insurance on the basis of construction or rectification. The claimants merely pleaded out the already pleaded HPC case on construction and rectification. Once Excess Insurers had responded by way of defence, it was HPC who replied and the claimants who then adopted that reply. At trial, the claims based on construction and rectification were run entirely by HPC. The claimant has advanced no positive submissions. It did not seek to cross-examine witnesses on the issues of construction or rectification.

Further, as is accepted, the making of an alternative claim by the claimants against the Excess Insurers had no impact on the costs that Excess Insurers had incurred. The costs incurred by Excess Insurers would have been materially the same if they had been left as Part 19.2(2) defendants. As was put in the claimants' solicitors' letter of 2 December 2009:

As to concerns about HPC's ability to pay costs, that suggestion appears to be based on speculation as to the security of HPC's E&O cover. However, Cayton & Co's letter of 11 December 2009 makes clear that HPC has no reason to believe that it will not be able to comply with any orders for damages, costs and interest made against it in these proceedings, and that has been confirmed by their counsel to the court.

Excess Insurers made various submissions as to HPC's accounts and suggested they gave rise to concerns about its ability to meet its liabilities in this litigation. However, I am not satisfied that there is any clear evidence of HPC's lack of insurance cover or its financial inability to meet its obligations and, as has been pointed out, it is part of a group owned by major banks.

I am not therefore persuaded that any credit risk has been proven, and in any event, in the circumstances of the present case, I would not consider that to be a good reason to change the order that would otherwise be appropriate. In all the circumstances I consider the reality is that the real claimants in respect of the rectification and construction arguments have always been HPC rather than the claimants. The costs orders should reflect the substance and reality of the proceedings. I accordingly reject Excess Insurers' application for a Bullock order and rule that its costs should be paid by HPC, an order that is not resisted by HPC.

The specific costs points

HPC make a number of specific costs points that they say should result in reduced cost recovery being made by Excess Insurers. In essence, HPC contends that there were a number of issues on which they were successful and that they should be taken into account in respect of the costs orders to be made. It is also contended that costs were unnecessarily incurred on issues and in gathering evidence in respect of matters not taken further at trial.

Particular stress is laid on the expert evidence relating to whether the FON was a contract or a held covered agreement, which ultimately proved academic. Stress is also laid on the market practice expert evidence, the introduction of which was resisted and that ultimately was essentially accepted by Excess Insurers' factual witnesses.

In litigation of this scale, there are bound to be individual issues upon which one party or another is successful. However, an issue-based costs order is only appropriate where there is a discrete issue or set of issues upon which a particular party has been successful. That is not the case here. The issues upon which HPC succeeded were essentially sub-issues of issues upon which they ultimately failed. The nature of the agreement made by a FON, for example, was potentially relevant to the issue of whether there had been a re- quote, an issue upon HPC failed. Nor do I consider that expert costs were unnecessarily incurred due to fault of Excess Insurers. Although Excess Insurers did not insist on their objection to admissibility of certain of the expert evidence on which HPC sought to rely, their position throughout was that it was of little, if any, relevance. HPC throughout was keen to expand the expert issues to address what were essentially factual matters, and I do not think that they can visit any part of the costs involved in that exercise on Excess Insurers. That case could have been made simply through cross- examination without any expert evidence. I am not therefore satisfied that this is an appropriate case to make a percentage reduction to Excess Insurers costs recovery.

Finally as to the costs reserved at the time of the PTR, I consider that these should be costs in the case.

Interim Payment

Excess Insurers put forward a costs bill of £1.55 million and seek an interim payment of £1 million, although they acknowledge that there is some doubt as to the amount of VAT to be included. HPC contends that this bill seems very high, given Excess Insurers' relatively late involvement in litigation and the fact that HPC was the main protagonist in the litigation and its own costs are in the region of £1.7 million. I consider that the appropriate interim payment at this stage will be one in the amount of £750,000, payable within 28 days.

Interest on costs

Excess Insurers seek an order for interest on costs at libor plus 1 per cent from the date on which costs were paid by individual insurers. I see no reason why it should be libor as opposed to base rate, which is the rate being used by all the other parties and I so rule

Interest and costs payable by HPC to the claimants

Forbes accepts that it should pay interest on the principal amount for which it is liable to HPC, namely £2 million, from 21 February 2007 until the date of judgment at a commercial rate, being base rate plus 1 per cent. Forbes, however, submits that there is no reason why it should be ordered to pay interest to HPC at the enhanced rate that HPC has to pay to the claimants, as a result of HPC's decision to reject the claimants' Part 36 offer. As they point out: (1) the claimants' Part 36 offer was made to HPC and was only available for acceptance by HPC; (2) HPC had not informed Forbes of the claimants' Part 36 offer; (3) HPC did not itself make any Part 36 offer in the Part 20 proceedings; (4) any liability which HPC may incur to pay an enhanced rate of interest, is a result of its own decision not to accept the claimants' Part 36 offer and not of anything or not done by Forbes.

They further submit that HPC's decision not to accept the claimants' offer was an unreasonable one in circumstances where the reduction it ultimately argued for at trial of 10 per cent was exactly the same reduction which HPC had previously been offered by the claimants under Part 36 and had declined to accept. HPC stresses that its decision to reject the offer was not unreasonable given its rectification case, a case in which Forbes would have benefited if succeeded. However, as already observed, the case failed. It was never supported and indeed it was opposed by Forbes, and on my findings it was contradicted by their own evidence.

I accept Forbes' submissions on this issue and consider that no good reason has been shown as to why Forbes should pay any part of the enhanced interest on damages awarded against HPC.

HPC claim a contribution from Forbes to the costs which HPC is ordered to pay to the claimants. Forbes submits that this claim should be rejected. They submit that the cause of those costs being incurred was HPC's own negligence and the way in which HPC chose to respond to the claim against it.

The case advanced by the claimants against HPC was based solely on HPC's own negligence. It did not allege or depend upon any breach of duty by Forbes. In particular: (1) HPC plainly had no defence to the claim, as its own case and Mr Hart's evidence was predicated on the contention that Mr Hart had failed, through oversight, to notice the limiting condition on the RRR, which in itself would obviously have been negligent. Nevertheless, HPC chose to dispute liability but only admitted negligence at the eleventh hour, just before the start of the trial. (2) HPC's decision to put forward and persist to the end with an allegation of contributory negligence was also entirely its own choice. Forbes did not at any stage give any encouragement or support to the allegation. (3) By unreasonably rejecting the claimants' Part 36 offer, HPC forwent the opportunity of obtaining a reduction in the amount paid to the claimants, with the result that Forbes would now have to pay more money in damages to HPC than if HPC had acted reasonably and accepted the offer. It would be unjust if, in these circumstances, Forbes were required to pay any part of the costs incurred by HPC in pursuing its contributory negligence case and otherwise defending the claim against it.

HPC submits that it was due to Forbes' negligence that it became embroiled in litigation, but on my findings, the primary responsibility for becoming embroiled in litigation rests with HPC itself. Further, having become so embroiled, it was HPC's own decision to fight the case against the claimants up to the trial on liability and up to the end of trial on contributory negligence, and also decision to reject the reasonable offer made to them.

I accept Forbes' submissions on this issue and consider that there is no good reason why Forbes should pay any part of the costs payable by HPC to the claimants. I similarly do not consider that Forbes can be held liable for any part of the costs HPC has to pay Excess Insurers. Those costs were incurred due to HPC's own decision to run the construction and rectification case against Excess Insurers, a decision for which there was no support from Forbes.

The costs of the Part 20 claim

Forbes accepts that the fact that HPC is entitled to a payment from Forbes, albeit small in relation to the amount claimed, means that HPC is the successful party for the purpose of CPR 44.3(2) and is therefore entitled to an order for costs, if the general rule is applied. However, they submit that this is a case where the court should make a different order under CPR 44.3(2)(b). There are three reasons why, in the circumstances of this case, they submit the court should not award HPC its costs of its Part 20 claim.

First, the amount awarded to HPC has been reduced by 80 per cent on account of what I have found to be serious and indeed serial negligence on the part of Mr Hart and HPC. It is not merely, therefore, that HPC has recovered only a small proportion of the full indemnity of which it claimed, it is also relevant and significant that the reason for this outcome is HPC's own conduct in that HPC has been held to bear the primary responsibility for its own loss, both in terms of blameworthiness and causative potency. As was said in the judgment, in essence HPC's complaint against Forbes is that they should have saved Mr Hart from himself.

The order as to costs should reflect the fact that HPC has been held to bear far more responsibility than Forbes for the loss which was the subject of the Part 20 claim.

In this connection, Forbes referred to and relied upon the judgment on costs of David Steel J in the Western Neptune [2009] EWHC 1522 (Admlty). In that case the claimants were held to be one-third to blame and were awarded only 65 per cent of their costs. David Steel J accepted that the starting point was that the claimants were the successful party and hence entitled to an order for costs. However, he went on to say at paragraph 11:

Forbes submits in this case the apportionment is very heavily in favour of the Part 20 defendant and not far from 90 per cent in David Steel J's example. In all the circumstances, this does justify a different approach to the normal case in which the defendant is principally responsible for the claimant's loss.

Secondly, Forbes relies on the fact that most of the costs of the Part 20 claim, judged on the basis of time spent, were incurred on issues on which Forbes and not HPC were successful. In particular: (1) a key issue, and one of the main areas of factual dispute, was what instructions HPC had given to Forbes, and in particular whether HPC had instructed Forbes to obtain quotes for cover for the commercial property management activities of the group. The court rejected Mr Hart's evidence and found in favour of Forbes on that issue. (2) Forbes estimate that about half of the evidence and time spent was occupied on the issues of whether Forbes had obtained a quotation from and placed cover with underwriters as requested by HPC and had drawn up a slip and policy which accurately and clearly reflected the terms agreed with underwriters. Part of Mr Bickell's evidence and the whole of Mr Gadd's evidence was concerned with these issues, which the court also decided in favour of Forbes. (3) Some time, including cross-examination of the claimants’ witness, was spent in addressing HPC’s contribution claim based on the contention that Forbes owed a contractual or tortuous duty of care directly to the claimants, which was abandoned by HPC after the end of the evidence. Overall, it is submitted that much more time and cost was therefore spent on issues on which HPC was unsuccessful than on the issue on which it was successful.

Thirdly, Forbes stresses the significance of HPC's attitude to litigation and to attempts to settle it. The court is required by CPR 44.3(4) to have regard to the conduct of the parties, and since the rules were amended in 2007, to any admissible offer to settle other than a Part 36 offer. An offer was made by Forbes in September 2009 to contribute £1.5 million, amounting to 25 per cent of a combined offer to be put to the claimants with Excess Insurers contributing a like amount. This proposal was rejected out of hand by Cayton & Co on behalf of HPC. They stated in their letter of response dated 30 September 2009, written without prejudice save as to costs as follows:

Forbes submits that this was an unreasonable and unrealistic approach to the litigation and to the merits of its case on the part of HPC and it constituted a complete barrier to any prospect of resolving the dispute without a trial.

I consider that there is real force in Forbes' contention that any costs order should have regard to the apportionment order that I have made. Although in one sense HPC was the winner against Forbes, it was very much a partial win. In terms of causative fault and blameworthiness, I have held HPC to be primarily responsible for what occurred. It was HPC who gave instructions to obtain a quote on a fundamentally wrong basis; it was HPC who repeatedly failed properly to inform the claimants about what had been done, it was HPC who repeatedly failied to heed the identified limitation in the cover which they had arranged. I also consider that it is right to have regard to the fact that Forbes did succeed on many of the issues between it and HPC, in particular HPC succeeded only on its fall-back case, which was to a significant extent, an expert rather than a factual case. The principal case revolved around the instructions allegedly given to Forbes and I found that case failed.

I am not satisfied this is a case in which I should hold HPC's conduct in relation to the offer of settlement against it. It is by no means clear that a more constructive response to this late offer could have led to a different outcome and it was not in any event an offer to settle the Part 20 proceedings.

Having carefully considered the parties' submissions, the case as a whole and its conduct, I am satisfied that this is a case where, although HPC is entitled to a costs order against Forbes, it should be significantly reduced. In the exercise of my discretion, I consider that the appropriate reduction is one of 50 per cent, and HPC is only entitled to recover 50 per cent of its Part 20 claim costs against Forbes.

Interest on those costs should be paid at 1 per cent above base rate from the date of payment. There should be an interim payment of £200,000 on account of those costs within 28 days.

Finally, HPC seeks permission to appeal. I refuse that application and I have set out a summary of my reasons in the appropriate form.