Seele Austria GmbH & Co Kg v Tokio Marine Europe Insurance Ltd

This is a further, perhaps final, chapter in what Coulson J described as the long and rather unfortunate history of these proceedings.

Seele Austria GmbH & Co KG (“Seele”) has brought a claim arising out of the construction of a new building known as St Martin’s Court, 3 Paternoster Square, London EC4. On 16^th January 2002 Seele entered into a trade contract with BLS St Martin’s Ltd (“the employer”) for the design, procurement, installation and erection of the Atrium roof glazing, Atrium Wall glazing, shop fronts and external curtain walling of the building. Pursuant to that contract Seele began to install punched hole windows into levels 2 to 4 of 3 Paternoster Square.

In September 2002 some of the windows were discovered to be leaking. In order to remedy the defects it was necessary to dismantle and remove works carried out by others, including Irvine & Whitlock, the cladding sub-contractors. What had to be dismantled included stone and brickwork cladding and finishing works to internal walls and ceilings. When the defective windows had been repaired it was necessary to restore that which had been dismantled and taken away.

Seele’s claim is made pursuant to Memorandum 18(3) of a Combined Contract Works and Third Party Liability Insurance Policy dated 12 November 1999 No 5048 700099 (“the Policy”) which was underwritten by the defendants.

The Insurance had three sections (1) Contract Works; (2) Increased Cost of Construction of Outstanding Work (following loss or damage covered by Section 1): and (3) Third Party Liability. The policy was said to be effected on behalf of a number of interests including:

“in respect of Section 1 only

(3)

All other Contractors and/or Sub-Contractors and/or Work/Trade Contractors of whatsoever tier and/or Suppliers engaged for the purpose of The Project (as to the extent stated in Memorandum 15).”

The Operative Clause of the policy provided that

“…The Insurer hereby agrees to indemnify the Insured …in respect of

any occurrence of loss damage or liability during the period of insurance …”

The insuring clause in section 1 read:

“The Insurer(s) will indemnify the Insured against loss of or damage to the Insured Property from any cause other than as hereinafter excepted”

Memorandum 18(3) provided an indemnity:

“...in respect of intentional damage necessarily caused to the Insured Property (a) to enable the replacement repair or rectification of Insured Property (a) which is in a defective condition subject to the Insureds Retained Liability being the first £ 10,000 of the cost of each and every occurrence or series of occurrences arising out of any one event.. ”.

Property (a) was the entire Works. Exception 4 in Section 1 provided that the Insurer (s) would not be liable for “penalties under contract for delay or non-completion or consequential loss not specifically provided for herein”.

Seele contends that the costs associated with gaining access to remedy the defects in the punched hole windows (the “access damage costs”) were in respect of:

“intentional damage necessarily caused to the Insured Property (including the punched hole windows) to enable the replacement repair or rectification of Insured Property (i.e. the punched hole windows)”.

Costs in this category were, it claims, deducted by Bovis Land Lease Ltd (“Bovis”), the Project Manager, from payments which would otherwise have been due to Seele. On 12^th May 2003 Bovis sent Seele a schedule setting out its claim for “Delay Effect Cost” and “Contra Change Cost”. Seele relied on this schedule (“the delay costs schedule”) as showing (when some apportionment had taken place) the access damage costs to be allocated to the relevant windows.

The case began in the Commercial Court. After a three day trial in June 2007 of 13 issues ordered to be tried by Steel J, Field J concluded that Seele was not entitled to be indemnified under the Policy. Seele was granted permission to appeal by Lord Justice Rix on 25 September 2007, Field J having previously refused permission. The substantive appeal was heard by the Vice President of the Court of Appeal, Lord Justice Moore-Bick and Lord Justice Richards. Judgment was handed down on 7 May 2008. A majority of the Court held that Seele was entitled to an indemnity under the policy in respect of the access damage costs. But it was not entitled to the cost of rectification of any of the defective windows.

The Court of Appeal also held that Seele’s claim was limited to a claim for the access damage cost in excess of £ 10,000 per window since each defective window was the relevant occurrence. Issue 13 ordered by Steel J was:

“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).”

Field J had understood that Seele had conceded that the deficiencies in each window constituted a separate occurrence so that the retained liability was

Moore-Bick LJ considered various possible candidates for “event”. In the course of his judgment he said:

“56 …..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 or 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 that there were defects in the design or manufacture of the termination bars, but it is not at all clear that 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 a workman 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 a unifying event, but the judge’s findings pointed 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 a 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 appeal was allowed to the extent indicated and costs were reserved to the quantum trial. Issue 13 was answered:

“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.”

The Claim Form was issued in June 2006 some 3.5 years after the access damage had occurred. The claim in the original Particulars of Claim was as follows:

“The total cost thereby incurred by the Claimant in respect of the remedial works was £ 1,237,709.48 which (in summary) was made up as follow, namely:

14.1.

The cost of dismantling and/or reinstating works by others

£ 638,860.11

14.2.

The cost of supervising dismantling/reinstatement of work

by others £ 84,808.63

14.3.

The cost of installing replacement windows £ 427,987.00

14.4.

Materials £ 40,081.84

14.5.

Additional tests £ 13,604.14

14.6.

Supervision of the Claimant’s own remedial works

£ 32,367.76

£ 1,237,709.48

Two features of this pleading are important. Firstly, over £ 500,000 of the costs claimed were irrecoverable because they constituted the cost of remedial works in respect of the defective windows. Secondly, no mention was made in the pleadings of the Retained Liability or in what manner it was said that the amounts claimed exceeded that liability.

The proceedings were then transferred to the TCC. On 21^st November 2008 Seele served draft Amended Particulars of Claim on the defendants. The defendants took objection to the proposed amendment, inter alia on the grounds that it pleaded that the defective design of the windows constituted one event so that the total Retained Liability was £ 10,000. This issue was said to be res judicata, the raising of it an abuse of process and the amendment liable to be refused as a matter of discretion.

On 26 November 2008 the Court gave directions for the hearing of two applications which had not at that stage been issued: (i) the claimant’s intended application to amend its Particulars of Claim and (ii) the defendant’s application for summary judgment and/or to strike out the then existing Particulars of Claim.

Judgment on these applications was handed down by Coulson J on 17 February 2009. In essence he refused to permit an amendment to rely on defective design as the qualifying event on the ground that the matter was res judicata. He allowed the pleading to be amended to put forward a different case on quantum. He required the provision of particulars and supporting documentary information in respect of the two live claims for access costs and supervision. He also required a statement by the claimant of the detail of its case on dominant cause and/or apportionment of cost, whether (and if so to what extent) the claim included a claim for delay costs, parallel working etc and any other point of relevance that had been raised in the extensive debate about the amendments. As a result the claimant served Amended Particulars of Claim, a quantum schedule and a bundle of supporting documents.

The Amended Particulars of Claim struck out the previous paragraph 14 and substituted the following paras:

“14

As can be expected the amount of dismantling and reinstatement work required to be carried out varied depending on how much work other contractors had already done on or around each defective window. In summary, the windows can be broadly divided into overlapping categories as follows:

Category	No of Windows	Removal/Reinstatement (Access) Works required
D	All (150)	Remove decorative stone work (masonry)
C	76	As in D+ plasterboard
B	39 (part of the 76)	As in C + ceilings and floors
A	18(part of the 39)	As in B + outer stone cladding

15

The third-party access costs, which Seele incurred and is claiming for are, in summary, as follows:

15.1.

Category D Not Claimed

15.2.

Category C £ 56,191.36

15.3.

Category B £ 93,024.70

15.4.

Category A £ 740,856.65

15.5

Total for all categories £ 890,072.71

16

A breakdown of these costs is attached to these Particulars of Claim as Annex 3.

17

Additionally, Seele was responsible for supervising the dismantling/reinstatement works were £ 84,808.95.

18

Seele’s total costs for which it claims under the Policy are therefore £ 974,881.34 subject to a deductible of £ 10,000.”

In the prayer the sum claimed, in the alternative to a declaration of liability to indemnify, was £ 964,881.34. It is apparent from the facts (a) that the total costs were said to be £ 974,881.34 subject to a deductible of £ 10,000 and (b) that the damages claim was put at £ 964,881.34 that Seele’s pleading, taken at face value, was claiming that the total deductible was £ 10,000 despite the judgment of the Court of Appeal, and despite the decision of Coulson J that Seele could not reopen the question of whether or not the design defect constituted an event from which a series of occurrences resulted.

As is apparent from the pleading there were 150 windows in all which had to be repaired. They all had “decorative stonework” which was installed with the windows and was part of the window to be repaired, and was not the property in respect of which Seele was entitled to indemnity. But many of these windows did not have associated access costs.

Annex 3 to the pleading contained two documents. The first was an eight page spread sheet summarising various costs totalling £ 890,072 which were said to be costs incurred in consequence of the need to access the defective windows and repair them. These costs, which were grouped according to the nature of the operation and not by window, were largely derived from the delay costs schedule. Of those costs Seele had apportioned £ 828,722 to access damage, as opposed to repair, costs. As can be seen from the spread sheet it contains a substantial number of individual items which raise questions as to their attributability to the two competing causes (access damage and repair).

The second document apportioned total costs of £ 829,140.3 as between four items (a) stone cladding; (b) ceilings and floors; (c) plasterboard, internal EPDM & insulation and (d) Window Masonry & Termination Bar. The amount shown in relation to item (d) was nil, no doubt because it was recognised to be an irrecoverable item of repair. The windows concerned in the four categories numbered 18, 39, 76 and 150 respectively. Figures were given for the total costs in the first three categories (£ 687,105.18; £ 86,665.48; £ 55,169.66) and the cost per work item per affected window.

A box at the bottom gave a total claim in respect of all the windows affected of £ 829,140.32. That claim was broken down as follows:

A number of matters are apparent from this Annex. First, the claim in respect of the 18 windows is only in respect of stone clad windows. The stone clad windows were on the north and east elevations. The windows on the south and west elevations were clad with brickwork. No claim was made in respect of brickwork cladding. Secondly, the costs per window in respect of the 18 windows were said to be the same for every window on level 2 and the same (but a different figure) for every window on level 3. The costs per window in respect of all 18 windows exceeded the £ 10,000 deductible. Thirdly, in respect of the 21 and 37 windows the costs were less than £ 10,000 per window. It is plain, therefore, that, applying the decision of the Court of Appeal, the only tenable claim being put forward was in respect of 18 stone clad windows on the north and east elevation. The costs in respect of them were £ 740,263.43 (£ 647,730.50 + £ 92,532.93). After the deductible the claim would be for £ 560,263.43.

The position was made clear beyond doubt in a letter from Bryan Cave, Seele’s solicitors, dated 3^rd April 2009, (“the clarification letter”), in which they wrote as follows:

“Turning now to the Amended Particulars of Claim, we are concerned that in an effort to remain as close as possible to the draft Amended Particulars of Claim, the Amended Particulars of Claim may appear to be confusing , particularly in light of the judgment of Coulson, J.

We therefore write to make it crystal clear that, since Coulson J held that a deductible of £ 10,000 per window applies, our client’s claim is limited to the Category A windows in these sums and on the basis of the calculation (allowing for the apportionment) set out in detail in annex 3 to the Particulars of Claim and the Schedule contained in the quantum file as follows:

Category A Number Apportioned Cost Total £

Windows per window £

Level 2 14 46,266.46 647,730.44

Level 3 4 23,133.23 92,532.92

Subtotal 740,263.36

Less

Deducible 18 10,000 180,000

Net Claim after

Deductible £ 560,263.36

We hope this clarifies our clients’ position

We trust that you do not require a formal Re-Amendment of the Particulars of Claim, but if contrary to our expectation, you do so require, we propose to provide a draft of the Re-Amended Particulars of Claim in advance of the trial and apply for formal leave at the commencement of the trial.”

The defendant engaged a quantity surveyor to assist with understanding the claimant’s amended case and, following receipt of the clarification letter, filed and served its amended defence, and a quantum counter schedule, on 24 April 2009.

The amended defence referred to the clarification letter, asserted (correctly) that, in the light of it, the suggested division of the windows into categories was irrelevant, and averred that the 18 windows in respect of which the claimant pursued its claim were certain specified windows on level 2 of the East and level 2 and 3 of the North elevations. This deduction was not difficult (it is, and was later admitted by Seele to be, correct) since the stone clad windows on those levels and elevations which required dismantling were known. The defence alleged, inter alia, that the scope of the access works to the North and East elevations was much narrower than to the South and West and required at most 3 days work; and, in effect, that the amount claimed for the 18 windows was far too high.

At a restored CMC on 8 May 2009 Coulson J gave further directions for trial including permission for expert evidence. No inkling appears to have been given of the volte face that was about to occur eleven days later.

On 19 May 2009 Steele served its amended reply. This averred, inter alia, that

“the Claimant admits that, contrary to its initial assessment, some of the access costs claimed for relate to more than 18 windows and, the claimant further accept, that parts of those access costs must therefore be allocated so as to take fairly into account those additional windows.”

The Reply went on to say that in consequence of this admission and in response to the Defendant’s allegation (that the costs claimed related to work not related to the 18 windows) the claimant had produced a schedule, which was attached, which specified for each head of claim in the quantum schedule which windows it related to, the total number of windows for each head of claim, the apportioned sum for each window in relation to each head of claim, and the total allocated sums for each window. As a result the total number of windows affected for which there was a deductible in excess of £ 10,000 was 31 and a deductible of £ 10,000 would apply to them. Accordingly the total claim in excess of the deductible and for which the defendant was liable to the claimant stood at £ 356,779.19.

On one reading this document appeared to be saying that the claim was now for 18 windows and other windows as well. In fact that was not so, as was apparent from the annexes. The claim was now said to be in relation to 31 brick clad windows on the South and West elevations. No claim was made in relation to the 18 windows on the North and East elevations.

On 26^th May 2009 Kennedys for the defendants wrote to Coulson J’s clerk drawing his attention to the new pleading, pointing out that it appeared that Seele were advancing a wholly new case, stating that the defendants had incurred substantial expense on the previous case and that it was unacceptable that they should now be faced with a different case, and inviting the court to decide how the matter should go forward. They sought guidance from the court as to which case the defendants were expected to meet.

Bryan Cave replied in a letter dated 29th May which included the following:

“Our clients’ claim is as set out in the Amended Reply, the Methodology Statement, the corrected Summary of Rebuild Costs and the Sketch Elevation cost Comparison. This is the case our clients are putting forward and which your clients, if so advised, are required to respond to.

Accordingly there is no question of there being two different claims which your clients are required to meet.

With respect to the deductibles, we believe the position is simple. Our clients’ original case was that there was only one deductible for all the windows, but the Court of Appeal has, in effect held, that each window is one separate incident and therefore one deductible of £ 10,000 applies to every window in respect of which a claim is made.

………

Your letter to Mr Justice Coulson

We believe that you are misstating our clients’ claim, which is very simple and is for the Access Costs which have arisen.

……

These Access Costs then need to be allocated to individual windows or, where appropriate, classes of windows and once this exercise has been done one gets Access Costs per window, with each window being a distinct claim subject to a deductible of £ 10,000.

…..

Again, our clients’ basic case on this has not changed from that put forward in the Amended Particulars are Claim….”

That letter recognised, in my opinion rightly, that each window was a separate incident and a distinct claim.

At a pre-trial review on 13 July 2009, I ordered the claimant to file and serve a further stand-alone pleading setting out its claim and an amended quantum schedule setting out the financial particulars of the claim. The claimant did so by 16 July 2009. This confirmed that the claim was limited to 26 windows on the south and west elevations. It had become apparent to Seele that no claim was maintainable in respect of 5 of the 31 windows because only 26 windows had brickwork cladding installed. Despite the reduction in the windows claimed for, the claim had now become £ 395,870. At this hearing Mr Reed on the part of the defendants made it plain that he had it in mind to apply at the end of the opening (when, as he put it, the claimant’s case had finally been decided) to strike out the claim on the ground that it was not maintainable, having been introduced only by way of reply and after the expiry of the limitation period.

CPR 16 PD 9.2. provides as follows:

“A subsequent statement of case must not contradict or be inconsistent with an earlier one: for example a reply to a defence must not bring in a new claim. Where new matters have come to light the appropriate course may be to seek the court’s permission to amend the statement of case.”

Section 35 of the Limitation Act 1980 provides:

“35 New claims in pending actions: rules of court.

(1)

For the purposes of this Act, any new claim made in the course of any action shall be deemed to be a separate action and to have been commenced

(a)

in the case of a new claim made in or by way of third party proceedings, on the date on which those proceedings were commenced; and

(b)

in the case of any other new claim, on the same date as the original action.

(2)

In this section a new claim means any claim by way of set-off or counterclaim and any claim involving either —

Except as provided by section 33 of this Act or by rules of court, neither the High Court nor any county court shall allow a new claim within subsection (1) (b) above, other than an original set-off or counterclaim, to be made in the course of any action after the expiry of any time limit under this Act which would affect a new action to enforce that claim….

Rules of court may provide for allowing a new claim to which subsection(3) above applies to be made as there mentioned, but only if the conditions specified in subsection (5) below are satisfied, and subject to any further restrictions the rules may impose.

The conditions referred to in subsection (4) above are the following —

CPR 17.4 (2) provides:

“(2)

The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.”

In Goode v Martin [2002] 1 WLR 1828 the Court of Appeal held that, in the light of the ECHR, CPR 17.4 (2) should be interpreted as though it permitted an amendment whose effect would be to add or substitute a new claim where the new claim arises out of the same facts or substantially the same facts as are already in issue on an existing claim.

The first question is whether or not the Reply contained a new claim. In my judgment it did. The Reply substituted for the claim in the Amended Particulars of Claim (clarified, if clarification was needed, by the clarification letter) which was in respect of access damage in relation to 18 stone clad windows on the North and East elevations, a claim in respect of access damage in relation to 31 brick clad windows on the South and West elevations. “A claim for damages is a new claim, even if in the same amount as originally claimed, if the claimant seeks, by amendment, to justify it on a different factual basis from that originally pleaded”; per Auld, LJ, in Lloyds Bank Plc v Rogers [1999] 3 EGLR 83. Here the claim put forward in the Reply (which is not in the same amount as originally claimed) is sought to be justified on a different factual basis.

Mr Williamson submits that there was no substitution of a new cause of action for a different one. Seele’s claim is and always has been for the access damage costs. All that the Reply did was to give different particulars of the proportion of the access costs being claimed. That submission makes it necessary to consider the nature of Seele’s cause(s) of action under the Policy.

The first thing to note is that the defendant insurers are only under any liability under the Policy if the amount recoverable under the terms of the policy exceeds the £ 10,000 per window which, in the light of the decision of the Court of Appeal, represents Seele’s Retained Liability. It is, thus, a necessary part of Seele's cause of action, a fact without which it has no claim, that the costs in relation to each window for which there is a claim should exceed that figure.

In Travelers Casualty & Surety Co of Canada v Sun Life Assurance Co of Canada (UK) [2006] EWHC 2716 (Comm) there was a policy with a $ 25 million deductible and a dispute as to whether the assured had known of circumstances which could give rise to a claim “within the scope of the proposed coverage”. I said:

“The scope of the proposed coverage extends to two matters. The Claim must be in respect of a risk for which the policy provides indemnity … and its amount must exceed the retention of $ 25,000,000. Unless both conditions are satisfied the Claim is outwith the scope of the cover provided by the policy......Such a conclusion is also consistent with the approach of Lord Templeman in Lord Napier & Ettrick v Hunter [1993] AC 713….”

Coulson J addressed this point in the present case when dealing with the question of issue estoppel in terms with which I respectfully agree:

“88

Mr Williamson’s next point was the submission that, because the operation of the deductible formed no part of the claimant’s cause of action, issue estoppel could not arise. I have concluded that, if the application of the issue estoppel principle should be so restricted (as to which I reach no conclusion), the principle would still apply in the present case.

89

I accept Mr Reed’s submission that the £ 10,000 deductible was identified in the relevant contract of insurance and was described as a “Retained Liability”. In other words, if an event had occurred which cost £ 9,999 to remedy then the claimant would have had no cause of action at all, because the claimant’s retained liability would have overtopped the amount of any putative claim.

90

On that analysis, in order to have a valid cause of action in a situation like this, the claimant needs to demonstrate a liability on the part of the defendant which was greater than the liability which the claimant itself had retained. Being able to demonstrate this was an inherent ingredient of the claimant’s cause of action. Thus, the Court of Appeal’s decision on the deductible point at Issue 13, which was itself a reflection of the ‘design v workmanship’ issue, went to an element of the claimant’s cause of action. The principle of issue estoppel would therefore apply in this case.”

In short, the claimant’s cause of action is not accurately described simply as a claim for the access damage costs; nor can an essential ingredient of the cause of action (damage in excess of £ 10,000 per window) be glossed over because the original pleading did not address the question of the Retained Liability at all.

The second point is the significance of the Retained Liability being £ 10,000 per window. A cause of action will arise whenever access damage has occurred in respect of any given window if, but not unless, the damage exceeds £ 10,000. In those circumstances, as it seems to me, there is a separate cause of action in respect of the damage relating to each window. Since liability or non-liability is to be determined window by window a cause of action may arise in relation to one but not another; and, depending on when the work of dismantling was done, may arise at different dates even though the work was done in a continuous stream. If the windows were dismantled at the rate of one a day over a 30 day period and the limitation period expired on day 15 the cause of action in respect of the first 15 would not, but the cause of action in respect of the 15 would, be time barred. For these reasons the identity of the window is a relevant and essential part of the cause of action.

Some reliance was placed on the decision in Maridive & Oil Services (SAE) v CAN Insurance Co (Europe) Ltd [2002] EWCA Civ 369. In that case the limitation period expired in August 2000. The reply was served on 14^th March 2000. The Court decided that the reply contained a new claim and that, but for the reply, the new claim could not be pleaded by amendment to the point of claim. But the reply was not a nullity and the court could regularise the case by allowing an amendment to the statement of claim after the expiry of the period. That was, however, a case in which a new claim had been made before the limitation period expired.

The next question is whether or not the limitation period in respect of the claim for 26 windows expired more than six years before 19^th May 2009. In this context the onus is on Seele to establish that leave to amend should be granted, by persuading the Court that the defendants do not have a reasonably arguable case on limitation which will be prejudiced by the new claim or that they can bring themselves within the conditions prescribed by the statute and rules: Welsh Development Agency v. Redpath Dorman Long [1994] 1 WLR 1409 (CA), 1425H. I am satisfied that the defendants do have a reasonably arguable case that the limitation period in respect of all 26 windows expired before 19th May 2009, indeed some time in January 2009.

The section of the policy under which the claim is made is the section covering the Contract Works. It affords cover against damage to property. It is not the section dealing with third party liability.

In those circumstances, Mr Reed submits, the cause of action accrues when the insured peril occurs, i.e. in this case on the happening of the event which causes damage to the property, and not the date when the loss is manifested or the assured incurs expenditure: Colinvaux’s Law of Insurance, 8^th Edition 9-32; Callaghan v Dominion Insurance (1997) 2 Lloyd’s Rep 541 and the cases there cited. The contractual relationships between Seele and others may be relevant for the purposes of showing that Seele had an insurable interest in property of which it was not the owner; but they cannot alter the nature of the insurance. An insured is entitled to be indemnified against the damage and a:

“contract of indemnity gives rise to an action for unliquidated damages, arising from the failure of the indemnifier to prevent the indemnified person from suffering damage”: per Lord Goff in The Fanti [1991] 2 AC 1, 35;

see also The ‘Italia Express’ (No 2) [1992] 2 Lloyd’s Rep 281; Sprung v Royal Insurance Co (UK) Ltd [1997] CLC 70. The right arises on the occurrence of the damage since, as a general rule “Indemnity requires that the party to be indemnified shall never be called upon to pay”: In Re Richardson [1911] 2 KB 705, per Buckley, LJ.

Mr Williamson submits that, whatever may be the position in relation to a standard property insurance policy, the present case is somewhat different. Seele were one of many Insureds who were participating in a project which had a matrix of contractual relationships. The acts and omissions of individual participants in that project would be capable of injuriously affecting the operations of others and thus giving rise to loss and expense. The insurance in question insured against intentional damage to the property of someone other than the claimant insured. In those circumstances the policy was akin to a liability policy. Time should not be regarded as beginning to run unless and until the claimant had been charged by someone with some sum on account of the intentional damage in question. Otherwise a claimant might find himself time barred because the damage had occurred when he was unable to say whether, and, if so, what he would be charged until after the expiry of the limitation period.

Mr Williamson has a tenable argument. But Mr Reed’s position is the orthodox one and the defendants have a well arguable case that the limitation period in this case expired in about January 2009.

In those circumstances it is plain that the Reply was contradictory of, or, at the lowest, inconsistent with, the claim in the amended Point of Claim. It asserted that the claim was in respect of 31 windows on the South and West elevations whereas the Amended Particulars of Claim had asserted that the claim was limited to 18 windows on the North and East, in circumstances where it was highly material to know which windows were in question. It also introduced a new claim. The Reply was thus liable to be struck out under CPR 3.4 (2) (c) and the claim in it could not be entertained unless it arose out of the same facts or substantially the same facts as are already in issue on an existing claim. If it did not so arise the Court has no discretion to entertain the claim. If it does so arise the Court has a discretion whether to allow the amendment to the Particulars of Claim which Mr Williamson tendered to plead a claim in respect of 26 windows.

Seele submits that the claim in respect of the 26 windows arises out of substantially the same facts as are already in issue on an existing claim. The critical factual question underlying the claim (in whatever form). Seele submits, is the level of the access damage costs, and the apportionment of the costs as between access damage costs and costs of repair. Allocation of the costs to individual windows is secondary. The access costs claimed for originally were those set out in the delay costs schedule less some £ 60,000 worth of costs: see item 6 of the Further Information of the Particulars of Claim. Some new costs were added to the Schedule to the Amended Particulars of Claim but the schedule did not alter thereafter. Once the access costs have been determined it is necessary to allocate them to the windows, the result of which is now said to be that a claim lies in respect only of the 26. But the access costs damage issue is essentially the same.

I do not agree. In my judgment a claim in respect of 26 brick clad windows on the South and West elevations does not arise out of the same or substantially the same facts as a claim in respect of 18 stone clad windows on the North and East elevations. In relation to both claims there is a substratum of common facts: the building contract, the policy, the defective windows and the need to repair them, and the settlement with the employer. There is also the pool of what are said to be access damage costs a proportion of which is sought to be recovered.

But a claim in respect of the 26 windows differs substantially from a claim in respect of the 18. The central facts which gives rise to a cause of action is the identification of specific windows and the allocation of access damage costs to those windows. The insured property (i.e. the dismantled works) is different in (a) nature (stone or brick cladding) and (b) location as between the 18 and the 26 windows. The extent to which the installation of the windows was complete when it became necessary to access them in order to carry out repairs was different, as was the work required in order to gain access, and, therefore the cost. The timing of the works (and thus of any resulting delay costs both direct and consequential) was different. The costs to be allocated to the windows differ markedly because the relevant considerations differ. In respect of the 18 windows the attribution was originally stated to be between about £ 23,000 and £ 46,000 per window. It is now said to be less than £ 10,000 per window for those 18 windows. In respect of the 26 windows there was in the Amended Particulars of Claim no claim for costs in excess of £ 10,000 per window. There are now said to be claims exceeding £ 10,000 between £ 16,000 and £ 46,000 per window. The evidence prepared in relation to the 18 windows differs from that in relation to the 31 or 26.

Whether a new claim arises out of the same or substantially the same facts may in a borderline case essentially be a matter of impression but in others it must be a matter of analysis: Welsh Development Agency v Redpath Dorman Long Ltd [1994] 1 WLR 1409, 1418D; Paragon Finance plc v DB Thakerer & Co [1999] 1 AER 400, 418; Aldi Stores Ltd v Holmes Building [2003] EWCA Civ 1882. Both my impression and my analysis is that the claims do not so arise.

I am prepared to accept that the question whether or not Seele had incurred access damage costs in respect of any of the 150 windows was formally in issue under the original Particulars of Claim and Defence. This is because, although the Particulars of Claim made no mention of the Retained Liability, the defendants referred to it in the Defence and, on the pleadings as they then stood, that issue arose. (I say “formally” because the pleadings at that stage contained no indication from Seele of what exactly their case was on the operation of the £ 10,000 Retained Liability provision and to which windows, if any, it applied). But that ceased to be so when the Amended Particulars of Claim made clear that the claim was only in respect of the 18 windows. When section 35 of the Act and CPR 17.4. (2), as interpreted by the Court of Appeal, talk of facts “already in issue” they must, as it seem to me, be contemplating that the facts remain in issue at the time when it is sought to introduce a new claim. They are not dealing with facts that once were but which, for whatever reason (e.g. amendment, discontinuance, strike out, or summary judgment) have ceased to be in issue.

In those circumstances I have, in my judgment, no discretion to allow the new claim. I shall, therefore, strike out the Reply under CPR 3.4.2 (c), refuse leave to re-amend the Amended Particulars of Claim and dismiss the action, it being conceded that no claim is maintainable in respect of the 18 windows the subject of the Amended Particulars of Claim.

I do not regard this approach as over technical. In this respect the observations of Mummery, LJ, in NEC Semi-Conductors Ltd v HMRC [2006] EWCA Civ 25 are apt:

“131

While it is good sense not to be pernickety about pleadings, the basic requirement that material facts should be pleaded is there for a good reason - so that the other side can respond to the pleaded case by way of admission or denial of facts, thereby defining the issues for decision for the benefit of the parties and the court. Proper pleading of the material facts is central for the orderly progress of the case and for its sound determination. The definition of the issues has an impact on such important matters as disclosure of relevant documents and the relevant oral evidence to be at used at trial. In my view, the fact that the nature of the grievance may be obvious to the respondent or that the respondent can ask for further information to be supplied by the claimant are not normally valid excuses for a claimant's failure to formulate and serve a properly pleaded case setting out of the material facts in support of the cause of action. If the pleading has to be amended, it is reasonable that the party, who has not complied with well-known pleading requirements, should suffer the consequences with regard to such matters as limitation.”

In case I am wrong on that I turn to consider whether or not I should exercise my discretion in favour of allowing an amendment to the Particulars of Claim. In this respect Seele shoulders the burden of persuading me of the justice of allowing them such an amendment even though the limitation period has arguably expired: Hancock Shipping v Kawasaki [1992] I WLR 1025. The discretion to be exercised in those circumstances is different in nature to the discretion which is to be exercised in allowing an amendment of a pleading where no question of limitation arises: Hancock, 1031 F – 1032 B. The Court will examine the length of the delay, the reasons for the delay, and any prejudice resulting therefrom. That prejudice may consist of the effect of delay on the defence of the new claim, which is the most usual head of prejudice. But, in an appropriate case, it may involve consideration of the prejudice suffered by reason of the fact that a tenable case has not been pleaded until after the expiry of the limitation period before which either an unexplained or, when explained, an untenable case was put forward.

For the reasons set out below I have not been persuaded that justice calls for me to allow an amendment.

Firstly, to do so will deprive the defendant of a possible limitation defence which may and, in my judgment, is likely to be a good one. The relevance of that as a consideration is established in Hancock, 1029H – 1030G; cited with approval in Lloyd’s Bank v Rogers. That is not conclusive. The very existence of a discretion contemplates that it may be exercised in favour of an amendment when the limitation period has expired in circumstances where the new claim arises out of the same or substantially the same facts as are already in issue. That is a condition which I do not regard as satisfied in this case. But, if I am wrong on that it would still be relevant to take into account that there are many differences between the claim in the amended claim and the claim now sought to be made.

Secondly, the limitation period is six years. It is apparent from Mr Holzleitner’s statement that the documents and evidence were to hand by February 2004. So there was ample time for Seele to get its tackle in order. Its failure to do so is in no way the fault of the defendants or the result of circumstances beyond Seele’s control. The proceedings were not started until June 2006. There has been a long delay, for which there is not much by way of excuse, before a tenable claim saw the light of day on the pleadings. No attempt appears to have been made to grapple with the important question of the Retained Liability until a late stage.

Seele says with some fervour that they have lost on the issue of whether there was only a £ 10,000 deductible in all by default, in that the decision against them was reached as a matter of issue estoppel and not judicial decision. But the default was largely their own. The Particulars of Claim said nothing about Retained Liability. The Defence referred to it and contended that:

“Workmanship deficiencies in each window are to be treated as one occurrence or event”: para 11 (B).

Issue 13 raised the question whether that was so, but not in terms which would suggest with any clarity that what was being said by Seele was that there was a single £10,000 retention because all the loss arose from a series of occurrences resulting from a single event namely the defective design of the windows. This was very much a point for Seele to make and to make clearly. Field J was left with the impression that the defendants’ position was conceded (Footnote: ¹). Whatever the reason for that he could scarcely have assumed what he did if Seele had clearly put forward and maintained their design defect case.

Coulson J’s judgment records how matters proceeded before Field, J. The contention that the loss was one loss for aggregation purposes was made in Seele’s written opening but neither party appeared to deal in any detail with that issue in their closing submissions. The judge was told, after his draft judgment had been received, that no such concession had been made. The draft order remained unaltered, for reasons which are not apparent but may relate to the fact that the judge thought that any such concession was correct. The course of events before the Court of Appeal is set out in paras 49 – 64 of Coulson, J’s judgment which show how that Court grappled with the unsatisfactory state of the evidence bearing on the issue. The focus of the submissions of Mr Williamson, who did not appear before Field J, was that the relevant “event” was either the remedial scheme or a common workmanship defect or series of such defects giving rise to the need for remedial works. The Court of Appeal reached the conclusion to which I have referred in para 12. Seele then belatedly attempted to resurrect a design defect case despite the decision of the Court of Appeal, thus leading to a substantial hearing, in part on that issue, on which Seele lost.

By the time of the decision of the Court of Appeal at the very latest Seele knew that they would have to fashion their case by reference to a deductible of £ 10,000 per window, although the fact that that was a potential issue was or should have been apparent from the defence. The Amended Particulars of Claim was intended by Coulson J to be the definitive statement of Seele’s case, supported by all the documentation relevant for that purpose. That case was set out in the amended pleading and expounded in the clarification letter. Less than a month after the amended defence a completely different case was put forward in the amended reply.

The upshot of all that is that until after what is likely to be the expiry of the limitation period the defendants have been faced with a shifting case on the application of the deductible which was initially insufficiently pleaded and, therefore, obscure, and then, when produced apparently in definitive form, was, as it now appears, wholly unsupportable. A final version of the case was then produced out of place and out of time in the Reply without any application to amend. On the way Seele attempted to resurrect a critical point decided against it by the Court of Appeal.

All this has inevitably given rise to wasted time and expense on the defendants’ part, not wholly compensatable in costs. The proceedings seem to have been conducted with scant regard to the overriding objective. Seele are not to be criticised in any way for the fact that Field J decided against them and that his judgment fell to be overturned by the Court of Appeal. But the failure of Seele to engage with the deductible point timeously and in an efficient fashion (e.g. by pleading its case on deductible at an early stage, by formulating a claim based on a deductible of £ 10,000 per window at some stage earlier than March 2009, and by properly formulating the issues to be tried by (as it happened) Field J) is not consistent with either the spirit or the letter of the overriding objective.

I do not ignore the fact that the apportionment of the costs claimed as between access damage costs and repair costs is an issue arising under the Amended Particulars of Claim and the new claim. Nor do I ignore the fact that the defendants have, at short notice, got themselves up to speed, in that the statements of their two witnesses from Bovis, Mr Holton and Mr Rice, now cover both the 18 and the 26 windows, and that the defendants’ expert has only dealt with the 26 windows. The defendants cannot, therefore, say that they are in no position to deal with the new claim.

I do not however regard that as determinative. The defendants had to deal with both claims, the first because it was pleaded in the Amended Particular of Claim and the second because it was pleaded in the Reply and might be allowed to be run. If they had not attempted to do so it would no doubt have been said that they had only themselves to blame. But there is a broader question as to whether, having regard to all the circumstances, they should be required to answer a very late new claim, which completely departs from its predecessor.

There is a further material consideration. The correct determination of the extent to which the costs claimed are properly to be regarded as access damage costs or repair costs and, in particular, whether and, if so, to what extent, the very substantial prolongation costs are the result of repairs or access damage (or both), and the allocation of costs as between one window and another, is dependent in significant measure on what was happening with the building from week to week or even from day to day. The issue is also complicated by the potential need to determine what was the dominant cause of incurring any costs and whether or not there were two causes one of which was covered by the policy (intentional damage) and one of which (rectification or repair) was not.

If the new claim goes ahead the court will be required to determine these issues as to what was happening on the ground in circumstances where memories will inevitably have dimmed progressively. Further the difficulties of attribution and allocation are illustrated by the remarkable change of case as between Amended Particulars of Claim and Reply.

In addition there is a major dispute as to whether or not, in the light of the negotiations for the final account, Seele has in effect paid out any more than £ 350,000.

In his statement of 2^nd July 2009 Mr Holtzleitner says that the final payment worked out in the following manner:

“Trade Contract Sum £ 3,762,071

Seeele’s claims (£ 2,165,829)

Reduction (£ 350,000)

Countercharges (£ 947,109)

Total £ 4,630,790.

Say £ 4,650,000”

The £ 947,109 is said to be the product of (i) £ 697,151; (ii) Demolition costs of £ 107,978 and (iii) Preliminaries of £ 142,880.

Mr Reed drew attention to a contemporaneous document (E 3 986) which, taken at face value describes the position in respect of the Preliminaries as “Reserved”, they being crossed out of the account. He, also, pointed out that the £ 107,978 was not in the delay costs schedule. He also drew attention to the fact that in the Further and Better Particulars of the original Particulars of Claim the Seele claims appears as £ 1,922,181 (£ 1,237,929 Agreed and £ 684,252.15 Disputed) and not £ 2,165,829 and the contra charge as a result of the effect of defects, programme delays and other matters appear as £ 697,151 and not £ 947,109. (These discrepancies which go in opposing directions roughly even out so that they may reflect different ways of expressing the same overall calculation (Footnote: ²)). No reference is made in the Particulars to the demolition and preliminary costs, which, when added to £ 697,151 make £ 947,109. According to the statement of Mr Rice of Bovis neither sum was claimed against Seele or applied to adjust their final account.

He also drew attention to the fact that an attachment (as it is now appreciated to be) to the final agreement confirms that the “all-up” final settlement of £ 4,650,000 was calculated as follows:

“Trade Contract Value £ 3,762,071

Adjustment

Major Variations £ 700,000

Agreed Minor Variations £ 280,000

Other Minor Variations £ 208,000

Mark up £ 49,929

Sub-total £ 5,000,000

Less Set off £ (350,000)

Total Fixed Account Sum £ 4,650,000”

That indicates, so he submits, that the only set off was £ 350,000. If that is spread across all the windows, in respect of many of which there are only repair costs, the likelihood is that there is no claim in respect of any one window above the deductible. That tallies, he submits, with a letter from Seele dated 24^th March 2004 to loss adjusters which included the following:

“At the final meeting held on 21^st October 2003, Seele Austria GmbH & Co KG still argued over the validity and quantum of the Set-Offs then pending at £ 352,704.37. Bovis Lend Lease Ltd contended that having now agreed the final accounts of all of the other Trade Contractors on the Project, the level of the Set-Off was valid and properly incurred by them.

To progress the settlement, Bovis Land Lease Limited agreed to reduce the level of their Set –Off to £ 350,000 and to withdraw their previous stance over recovery of additional costs of £ 500,000 (Loss of bonus) and £ 142,880,000 (Prelims).

Seele Austria GmbH & Co KG having been informed that the level of the Set-Offs had actually been incurred by Bovis Land Lease Limited they would, without admitting full liability for the level of costs, accept a Final Account incorporating a deduction of £ 350,000 (see Appendix J) providing they were given a copy of the claim submitted by Bovis Land Lease Ltd under the Combined Contracts Works and Third Party Liability Insurance Policy in order to use the same as the basis of their claim …”

Mr Reed further draws attention to the fact that Field J accepted Mr Leuthner’s evidence that the £ 350,000 was, in the negotiations between the parties, not broken down and represented a commercial settlement. As he held “no one knows the extent to which the total is reflected in the final account sum”. In those circumstances it is not possible to say that any part of the sum represents access damage costs.

In the light of this, Mr Reed contends, it is plain that Seele has no realistic prospect of success, or, alternatively only very limited scope for claiming. What, however, Seele proposes to do is to call Mr Holtzleitner, who was not present at the final settlement meeting, and not to call Mr Leuthner, who was present and who gave evidence before Field J. The case, he submits, is so weak in the light of these (and other) considerations that permission should not be granted to run it.

Mr Williamson submitted, rightly, that I could not conduct a mini-trial on the first day of the hearing. At the same time it seems to me that the matters upon which Mr Reed relies are relevant in two respects. Firstly, it is relevant to have some regard to the strength of the claimant’s case in deciding whether or not to allow an amendment at this late stage: Savings & Investment Bank Ltd v Fincken [2003] EWCA Civ 1630 at para 76. These documents, together with the abrupt change of claim at the last moment, which involved a fundamental re-allocation of costs, indicate that the claim put forward rests on a somewhat shaky foundation. In addition to the points which arise from those documents it seems to me distinctly questionable whether prolongation costs, which constitute a substantial part of the costs claimed for are recoverable in view of the exclusion of consequential losses. Field J held that they were not. I also entertain doubts as to whether it will be possible adequately to distinguish delay costs attributable to damage and those attributable to repair. It may well be that much or, at any rate, some of the delay costs are attributable to both causes and that they are irrecoverable on that account as being partly caused by an excepted peril.

Secondly, and more importantly, it is evident that there is to be a dispute as to what happened in October 2003 when the reckoning took place, in respect of which the documentation is far from clear, and where recollection nearly six years later, particularly from someone involved at one stage removed (if called) is unreliable.

Mr Williamson contends that these considerations are of limited significance since similar problems would have arisen if the claim for 26 windows had been pleaded in 2006. All that has happened because it was not so pleaded is that there has been some delay after the hearing in the Court of Appeal in formulating a claim which takes account of the deductible.

I look at the matter differently. If the present claim had been formulated in 2006 the question of apportionment and allocation in respect of the 26 windows would have been apparent and it would have been possible for those concerned to address the question when what had happened was much closer in time. No doubt Mr Leuthner would have been involved in that exercise. Further, although this is in no way essential to my conclusion, it seems to me that, when asked to allow an amendment to bring a claim in what may be outside the limitation period I am not necessarily restricted to looking at the prejudice that has been suffered since the issue of the claim form but am entitled to compare and contrast the position in which the defendant will find itself if the new claim is allowed to go ahead outside the period and the position in which he would have been if the claim now sought to be put forward had been brought forward with reasonable expedition. Were it otherwise a person who brought an action 6 months before the expiry of the limitation period who tried to substitute a new claim one month after the period expired would be in a more favourable position than someone who initiated an action 2 years after the accrual of the cause of action and sought to amend to add a new claim one month after it expired. In the present case there seems to me no reason why a claim could not have been brought much earlier than it was.

I also bear in mind the sums involved. The claim has progressively reduced from over £ 1,000,000 to about £ 500,000 to somewhere around £ 350 - 390,000. The timetable agreed by the parties envisaged a five day trial, with two counsel on each side. I am, of course, conscious that a much higher figure in costs has been run up by both parties, that most of the past costs have been reserved to the quantum hearing, and that the amount in issue (although not on liability) in respect of costs is in seven figures. Nevertheless in deciding whether to allow this amendment I take some account of the fact that, if it is allowed, what is in issue so far as the claim is concerned is not that large and about 1/3^rd of what was originally sought and that, even looking only at the future costs, it will involve a disproportionate expenditure in addressing.

Taking all these matters into consideration I am not persuaded that justice calls for the claimant to be granted what is an indulgence. The limitation statutes have been described as “statutes of repose”. In this case my judgment is that, in the absence of a properly formulated claim before the expiry of the limitation period, the defendants were entitled to that repose. Accordingly, had I held that there was a discretion to exercise I would not have exercised it in Seele’s favour.