![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Technology and Construction Court) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Margate Theatre Royal Trust Ltd v White (t/a AI Moleing Services) & Anor [2005] EWHC 2171 (TCC) (06 October 2005) URL: https://www.bailii.org/ew/cases/EWHC/TCC/2005/2171.html Cite as: [2006] Lloyd's Rep IR 93, [2005] EWHC 2171 (TCC), 106 Con LR 1 |
[New search] [View without highlighting] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION
TECHNOLOGY and CONSTRUCTION COURT
St. Dunstan's House London, E.C.4 |
||
B e f o r e :
____________________
MARGATE THEATRE ROYAL TRUST LIMITED |
Claimant |
|
- and - |
||
PATRICK WHITE (t/a AI MOLEING SERVICES) -and- AXA INSURANCE UK PLC |
Defendant/Part 20 Claimant Part 20 Defendant |
____________________
MR. MICHAEL DAVIE (instructed by Messrs. Keoghs) appeared for the Part 20 Defendant
____________________
Crown Copyright ©
His Honour Judge Peter Coulson QC:
Introduction
Background
"I am pleased to submit the following estimate.
To cut in a two inch crutch cock and bleed-off valve on the existing two inch galvanised pipe.
The total cost of materials and labour will be £365.21.
There is a two year guarantee on all pipe work laid by us.
If you have any queries please contact us."
At the bottom of this estimate there were the printed words:
"P. White (CABWI Qualified)
Water, Gas and Electrical Services Laid. All Plumbing Undertaken."
"In completing this proposal you must disclose all material facts, i.e. those which an insurer would regard as likely to influence the assessment or acceptance of the risk. Failure to do so could invalidate the insurance. If you are in doubt as to what facts are material you should for your own protection disclose them."
The Contract of Insurance
"In the event of accidental
(a) injury to any person;
(b) loss or damage to property;
(c) obstruction, trespass, nuisance or interference with any right of way, air, light or water or other easement;
(d) wrongful arrest, detention, imprisonment or eviction of any person or invasion of the right of privacy;
occurring within the territorial limits during the period of insurance and in connection with the business we will indemnify you in respect of all sums which you shall be legally liable to pay as damages in respect of such event provided that we shall not be liable for any amount exceeding the limit of indemnity. We will in addition pay costs and expenses."
"Misrepresentation
This insurance shall be voidable if there has been misrepresentation, mis-description or non-disclosure of any material fact."
That provision, amongst other factors, is relied on by AXA in declining cover to Mr. White.
Later Events
"Given the nature of the work undertaken by you which has led to the claim being pursued by the Margate Theatre Royal there is no cover under your policy for any liability that may be established against you by the Theatre. The activities undertaken by you fall outside the activities specified in the schedule of your policy."
"The policy wording states that cover for Public Liability is only provided where damage occurs in connection with the Business which is defined as including the activities of ground work and pipe moleing. It is therefore my view that as this cover is only provided for the activities of ground work and pipe moleing, there is no cover provided for claims arising from other work. It therefore seems to me that the firm's position in refusing to deal with this claim is not unreasonable."
It is fair to say that the Ombudsman's report assumes, without really dealing with the detail of the issue at all, that the work performed by Mr White at the Margate Theatre could not be ground work and pipe moleing.
The Issues
1. What was the type of work carried out by Mr. White at the Margate Theatre in November 1997?
2. What is the ordinary and natural meaning of the words "ground work and pipe moleing?"
3. Is there a special/technical meaning to be ascribed to the words "ground work and pipe moleing" which is different from or affects in any way the ordinary and natural meaning identified above?
4. Did the parties (in the telephone conversation between Mr. White and Miss Thomas) ascribe a meaning to the words "ground work and pipe moleing" which was different from or affecting in any way the ordinary natural meaning identified above?
5. Are AXA estopped as a result of the telephone conversation between Mr. White and Miss Thomas from asserting that the words "ground work and pipe moleing" did not include the type of work carried out by Mr. White at the Margate Theatre in November 1997?
6. In the light of the answers to issues 1 to 5 above was the work carried out by Mr. White at the Margate Theatre in November 1997 covered by the description "ground work and pipe moleing"?
"Mr. White contends that this phrase includes the following matters:
17.1 Boring or 'moleing' operations including boring holes under roads and using such holes to provide services (such as water or gas) to domestic and commercial properties. This may include the use of thrust boring. Pipe work is then installed.
17.2 The pipe work then is to be connected to the rest of the relevant system, such as a domestic water system. He carries out this work himself as part of a contract. This would generally require general plumbing work in the sense that the pipes have to be physically connected to the system. Such work generally does not require work on the system itself. For example, connecting a domestic property will not require internal work to the services. This is to be distinguished from typical plumbing such as a household having to have a drain unblocked or a hot water pipe mended.
17.3 Installing water mains and connecting them to properties. This includes general plumbing work in the sense described above.
17.4 General pipe work including the installation of gas mains, electrical cabling, ducting and reinstating it again. Again this will require work to connect such services."
In his closing submissions Mr. Quiney confirmed to me that this remained Mr. White's case as to what, for these purposes, was included in the expression "ground work and pipe moleing".
Issue 1: What was the type of work carried out by Mr. White at the Margate Theatre in November 1997?
Issue 2: What is the ordinary and natural meaning of the words 'Ground Work and Pipe Moleing'?
"On the other hand simply as a matter of the words used which are of the widest import I can see no reason why both these disputes as to mistake leading to rectification and as to misrepresentation or mistake leading to damages should not in each case be a dispute as to 'any matter or thing of whatsoever nature arising … in connection with' the contract. As on any question of construction the issue is incapable of much elaboration. It is a matter of how the words strike the reader."
Issue 3: Is there a special/technical meaning to be ascribed to the words 'Ground Work' and 'Pipe Moleing' which is different from or affects in any way the ordinary and natural meaning identified above?
"Q: A pipe moler will include termination work?
A: It depends. Maybe, maybe not.
Q: The capping and the termination work would not be excluded from the definition of pipe moleing?
A: No, it may very well not be excluded ….
Q: Pipe moleing does include capping and termination?
A: With some companies, not others.
Q: It is included by what the trade means by pipe moleing?
A: It can be included …
Q: A person who does pipe moleing and capping and construction, he would be a pipe moler?
A: That is quite likely to be the case …
Q: Just because a pipe moler did that one type of work, i.e. he just did the termination element, that would still mean that he was a pipe moler?
A: That could well be the case.
Q: The trade does not distinguish between a pipe moler and a plumber?
A: That might be the case. The trade does not really rely on that sort of distinction."
"Q: These are the sorts of activities that a pipe moler would undertake?
A: Certain pipe molers can provide these services, as possibly Mr. White does.
Q: You would still describe it as pipe moleing?
A: Yes.
Q: It falls within that description?
A: Yes.
Q: It is still described as pipe moleing by the trade?
A: Yes."
There were then some questions on the basis that, using a Venn diagram as an analogy, this work would be in two intersecting circles, representing both pipe moleing and plumbing. Mr. Highfield accepted that:
"Q: It would be the sort of work that the pipe moler would do, the work at the theatre?
A: Yes.
Q: And a plumber?
A: Yes.
Q: So this work could be done by a pipe moler or by a commercial plumber?
A: Yes.
Q: It is more likely than not, is it not, that it would be done by a pipe moler?
A: It is probably, yes. The connection side is an add-on.
Q: But it is still pipe moleing?
A: Yes, you could still call it that."
Issue 4: Did the parties (in the telephone conversation between Mr. White and Miss Thomas) ascribe a meaning to the words "Ground Work and Pipe Moleing" which was different from or affects in any way the ordinary and natural meaning identified above?
Issue 5: Are AXA estopped as a result of the telephone conversation between Mr. White and Miss Thomas from asserting that the words "Ground Work and Pipe Moleing" did not include the type of work carried out by Mr. White at the Margate Theatre in November 1997?
Issue 6: In the light of the Answers to Issues 1-5 above, was the work carried out by Mr. White at the Margate Theatre in November 1997 covered by the description "Ground Work and Pipe Moleing"?