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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Greene Wood & McLean LLP v Templeton Insurance Ltd [2009] EWCA Civ 65 (12 February 2009) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2009/65.html Cite as: [2009] 1 CLC 123, [2009] 1 WLR 2013, [2009] WLR 2013, [2009] EWCA Civ 65, [2009] CP Rep 24 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
THE HONOURABLE MR JUSTICE TEARE
2008 FOLIO 309
Strand, London, WC2A 2LL |
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B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE LONGMORE
and
THE RIGHT HONOURABLE LORD JUSTICE HOOPER
____________________
GREENE WOOD & MCLEAN LLP |
Respondent/Appellant |
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- and - |
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TEMPLETON INSURANCE LIMITED |
Appellant/ Respondent |
____________________
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Derek Sweeting QC (instructed by Manches LLP) for the Insurers
Hearing dates : 19th January 2009
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Crown Copyright ©
Lord Justice Longmore:
GWM's Contract Claim
"…. a claim form may be served out of the jurisdiction with the permission of the court if
…
(5) a claim is made in respect of a contract where the contract
(a) …
(b) …
(c) is governed by English law."
"MINEWORKERS' Group action
…..
The GWM Guarantee to clients"
and relevantly provided:-
"No win, no fee, no risk, no cost!;
We, Greene Wood & McLean LLP confirm to our clients that we will handle their claims in relation to the above matter on the basis that ….
2) We have obtained a policy of After The Event Litigation Expense Insurance for our clients underwritten by Templeton Insurance Limited a regulated insurer of Douglas Isle of Man;
3) The policy will cover adverse costs, own disbursements and the insurance premium … Below I set out what the costs implications are – win or lose ……
b) Lose…. ii) Disbursements – these are recoverable from the insurance policy … iv) Adverse costs – this is recoverable from the insurance policy."
"The above document was submitted in draft to Mr Maule who approved it subject to an amendment suggested by him (which was at paragraph 3(a)(iii) of the document). Having approved the documentation Mr Maule authorised the claimant, on behalf of the defendant, to enter into agreements with the miners whereby they became parties to the policy to be issued by the defendants."
The judge accepted that this paragraph raised a serious issue to be tried namely whether Mr Maule had entered into a binding and enforceable contract to authorise GWM to enter into agreements with the miners whereby they would become parties to the ATE policy to be issued by Templeton which would then bind Templeton to meet valid claims under the policy. That was sufficient for the jurisdictional gateway of CPR 6.20(5)(c) since such a contract would be governed by English law just like the ATE policy itself.
"the Claimant was enabled to give its guarantee to the miners by the defendant's agreement that the miners would have an enforceable claim against the defendant to be indemnified in respect of adverse costs on the terms of the ATE policy to be issued to then."
The claim for contribution
Section 1(1) of the 1978 Act: the "same damage"
"Subject to the following provision of this section, any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise)"
This has to be read together with the interpretation provision, section 6(1):-
"A person is liable in respect of any damage for the purposes of this Act if the person who suffered it … 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)."
Thus the basis of the liability does not matter but the damage for which both the claimant and the defendant are liable has to be "the same damage". So the second question, which must be addressed, is whether GWM and Templeton are liable for the same damage.
"an expansive interpretation of the words "the same damage" so as to mean "substantially or materially similar damage."
That is now the basis on which section 1 of the 1978 Act must be interpreted. But in the present case for the reasons given, the damage is not just substantially or materially similar. It is, in fact, the same damage.
Conclusion
Lord Justice Hooper:
Master of the Rolls: