England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
(His Honour Judge Richard Havery QC)

		Royal Courts of Justice Strand London WC2 Monday 29th October, 2001

1. LORD JUSTICE MAY: Lord Justice Kay will give some short reasons.
2. LORD JUSTICE KAY: This an application for permission to appeal against the decision of His Honour Judge Richard Havery QC sitting in the Technology and Construction Court on 25th May 2001. The court was considering two preliminary issues and decided them in favour of the claimant. The defendant wishes to appeal against those rulings.
3. The issue that was at the centre of the ruling was interpretation of a clause in what has been found to be the contract governing work done by the claimant for the defendant at a wood chipboard facility in Auchinleck, Scotland. The relevant clause in question was clause 22 of the contract, and in particular sub-paragraph (2)(a). That was a paragraph requiring insurance to be taken out firstly by the employer to insure in the joint names of the employer and the contractor and his sub-contractor the works; and then a similar provision in relation to the contractor in respect of the construction plant. Then follow the following words:

"... against all loss or damage from whatever cause arising for which the Contractor is responsible under the terms of the Contract ..."

4. The focus of the consideration was on that part of the provision.
5. The judge's conclusion was that those words meant what they said and had to be taken literally so as to require insurance cover for any loss or damage from anything done by the contractor, whether resulting from his negligence or otherwise. In those circumstances, he went on to answer the questions that were provided in the issues that were before the court.
6. The argument that was advanced against that finding was that those words could not be taken to have that meaning for a variety of reasons, principally because the consequences were quite remarkable in the context of the case.
7. The view that I have formed in relation to this matter is that, whilst at the end of the day it may well be that Judge Havery is right, the arguments advanced on behalf of the defendants as to the consequences merit at least consideration by the full court.
8. For those reasons, I would grant permission.
9. LORD JUSTICE MAY: I agree.
10. When this court is considering granting permission to appeal it has to have regard to the provisions of Rule 52.3(6), which says that:

"Permission to appeal will only be given where the court considers that the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard."

11. If I were confined to the first of those (that is to say (6)(a)), I think I should be in some difficulty. But I do think there is some other compelling reason why the appeal should be heard: that which my Lord has articulated.
12. This is a case which carries a lot of money, it is important to the parties and Judge Havery's result, whilst it may very well be right, is, on the face of it, surprising. I would grant permission.
ORDER: Application for permission to appeal granted; costs in the appeal; respondent to file written submissions within 21 days, with permission to apply in that respect (and in any other) to both parties to the supervising Lord Justice; case to be put into the Short Warned List, but with elasticity as to whether it should be half a day or more; an attempt to be made to list it in that list before Christmas on a Friday. (Order not part of approved judgment)