![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Civil Division) 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 Court of Appeal (Civil Division) Decisions >> Hurstwood Developments Ltd v Motor & General & Andersley & Co Insurance Services Ltd & Anor [2001] EWCA Civ 1785 (21 November 2001) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2001/1785.html Cite as: [2002] Lloyd's Rep PN 195, [2001] EWCA Civ 1785, [2002] PNLR 10, [2002] Lloyds Rep IR 185, [2002] Lloyd's Rep IR 185 |
[New search] [View without highlighting] [Printable RTF version] [Help]
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
(ORDER MADE BY HH JUDGE GILLILAND Q.C.
(SITTING AS A JUDGE OF THE HIGH COURT)
Strand, London, WC2A 2LL Wednesday 21 November 2001 |
||
B e f o r e :
LADY JUSTICE HALE
And
LORD JUSTICE KEENE
____________________
HURSTWOOD DEVELOPMENTS LIMITED |
Claimant |
|
- and - |
||
MOTOR & GENERAL & ANDERSLEY & CO INSURANCE SERVICES LIMITED And H. B. BORING & CO LIMITED |
Defendant Part 20/ Claimant (Appellant) Part 20 – Defendant (Respondent) |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr S. Furst Q.C. and Mr M. Rowlands (instructed by Berwin Leighton Paisner for the Respondent)
____________________
Crown Copyright ©
LORD JUSTICE KEENE.:
"Subject to the following provisions of this section, any person liable in respect of any damage suffered by another person may recover a contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise)".
"If, contrary to its case, MGA is found liable or accepts liability for all or any of the alleged loss and damage, MGA claims an indemnity or contribution from the Part 20 Defendant on the basis that the Part 20 Defendant is liable to the Claimant for the same loss and damage; namely the loss and damage alleged in para 10.7. The nature of the alleged damage which gives rise to the contribution claim and leads MGA to seek an indemnity or contribution from the Part 20 Defendant is therefore the loss and damage pleaded in para.10.7"
"liable in respect of the same damage (whether jointly with him or otherwise)".
"That is quantified by reference to the remedial works, but the remedial works themselves are in no way the damage caused by the defendants. The defendant simply has nothing to do with the carrying out of the construction works on site. It does seem to me that there has to be some causal relation in relation to the damage in that both the person seeking to recover contribution must have caused the damage and the person against whom contribution is sought must also have caused that damage."
"A person is liable in respect of any damage for the purposes of this Act if the person who suffered it (or anyone representing his estate or dependants) is entitled to recover compensation from him in respect of that damage (whatever the legal basis of his liability whether tort, breach of contract breach of trust or otherwise)."
"It is difficult to imagine a broader formulation of an entitlement to contribution. It clearly spans a variety of causes of action, forms of damage in the sense of loss of some sort, and remedies, the last of which are gathered together under the umbrella of "compensation". The Act was clearly intended to be given a wide interpretation……."
"In any proceedings for contribution under section 1 above the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage in question".
"As to the judge's reliance on the word "responsibility" in section 2(1) of the Act, it is "a word which, in my view, has some elasticity of meaning in this context. It may or may not, depending on the circumstances, connote some notion of breach of duty or default. It has an obvious role when apportionment on "just and equitable" principles has to be made, but it is not to be so narrowly construed as to restrict the wide language of section 6(1). The final words of that provision, in particular, "whatever the legal basis of his liability" and "or otherwise" make plain that it was not intended to confine the operation of section 1(1) to liability arising from breach of duty or default."
"But it seems to me that a simple test should be applied to identify a claim capable of being one to which the 1978 Act can apply. That test is this: Suppose that A and B are the two parties who are said each to be liable to C in respect of "the same damage" that has been suffered by C. So C must have right of action of some sort against A and a right of action of some sort against B. There are two questions that should then be asked. If A pays C a sum of money in satisfaction, or on account, of A's liability to C, will that sum operate to reduce or extinguish, depending upon the amount, B's liability to C? Secondly, if B pays C a sum of money in satisfaction or on account of B's liability to C, would that operate to reduce or extinguish A's liability to C. It seems to me that unless both of those questions can be given an affirmative answer, the case is not one to which the 1978 Act can be applied. If the payment by A or B to C does not pro tanto relieve the other of his obligations to C, there cannot, it seems to me, possibly be a case for contending that the non-paying party, whose liability to C remains un-reduced, will also have an obligation under section 1(1) to contribute to the payment made by the paying party."
"Although Sir Richard Scott V-C in Howkins & Harrison posed the mutual discharge question as a necessary threshold question for the purpose of identifying whether a claim to contribution was capable of being a claim to which the 1978 Act could apply, I cannot believe that he intended that the answer to what can itself be quite a difficult question would not ordinarily resolve also the question whether the relevant parties were liable for the same damage. If this were not so, questions of contribution would become unnecessarily complex and there would be a danger that the Act would not be given the wide interpretation it was intended to have."
LADY JUSTICE HALE
THE PRESIDENT