Buttar Construction Ltd v Arshdeep
| Jurisdiction | England & Wales |
| Judge | Lord Justice Stuart-Smith,Elisabeth Laing LJ,Peter Jackson LJ |
| Judgment Date | 29 September 2021 |
| Neutral Citation | [2021] EWCA Civ 1408 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2021/1147 |
[2021] EWCA Civ 1408
Lord Justice Peter Jackson
Lord Justice Stuart-Smith
and
Lady Justice Elisabeth Laing
Case No: B3/2021/1147
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
HHJ BIRD (SITTING AS A JUDGE OF THE HIGH COURT)
H90MA035
Royal Courts of Justice
Strand, London, WC2A 2LL
Andrew McLaughlin (instructed by Plexus Law) for the Appellant
Michael Lemmy (instructed by Law Together LLP) for the Respondent
Hearing date: 16 September 2021
Approved Judgment
Introduction
This is an appeal against the decision of HHJ Bird, sitting as a Judge of the High Court, by which he ordered the Appellant [“Buttar”] to make an interim payment of £150,000 to the Claimant. The appeal raises issues about the proper construction of CPR 25.7(1)(e) and wider questions about the construction of CPR 25.7(1).
On 21 August 2020 the Claimant was working as a labourer on a building site in Swindon when he suffered catastrophic injuries. He was employed by the second Defendant [“YKS”] who were engaged by Buttar as independent brickwork contractors. The first and third Defendants are the individuals who control YKS and Buttar respectively. By the time of the application to the Court below, no interim payment was sought from them; the application was pursued against YKS and Buttar.
The Claimant was working during the summer vacation, as he was entitled to do by the terms of his Student Visa. It was either the second or third day of his employment. YKS had carried out a risk assessment for the work they were undertaking and provided a method statement dealing with how the work should proceed. The method statement required bricks and blockwork to be stored on secured platforms. That did not happen. Instead, bricks and blocks were stored on sheets of hardboard that were spread over joists above head height for those working below. Acting on instruction from YKS, the Claimant was handing up bricks and blocks to a fellow worker, who was stacking them while standing on the joists. The accident happened when the joists and the walls supporting them collapsed. Subject to one point to which I will return, the exact mechanism of failure does not matter. What matters is that the joists, wall, bricks and blocks collapsed and fell and, in so doing, crushed the claimant causing him to suffer injuries of maximum severity. It is not disputed that he is in urgent need of rehabilitation. For reasons that do not affect the outcome of this appeal, he is at present not entitled to effective rehabilitation at public expense. Hence, if the Claimant can obtain one, there is a compelling need for an interim payment to enable him to fund an appropriate rehabilitation package himself.
The proceedings
These proceedings were issued on 5 February 2021. The claim is brought in negligence against each of the four Defendants. The claim against YKS is founded on the duties owed by YKS to the Claimant as his employer. In briefest outline, it is alleged that YKS failed to provide a safe place of work or system of working. The Claimant alleges multiple breaches of the relevant regulations as evidence of negligence on the part of YKS, it being common ground that breaches of the regulations do not of themselves give rise to any statutory cause of action. The Claimant alleges that Buttar was negligent in causing or permitting the bricks and blocks to be stacked as and where they were without there being any adequate assessment of the strength and stability of the joists and supporting walls. He also alleges that Buttar were negligent in causing or permitting him to stand in an unsafe place and in failing to provide him with a safe place of work. Once again, multiple breaches of relevant regulations are cited as evidence that Buttar, as main contractor on site, was negligent in and about the construction of the works and, specifically the stacking of bricks and blocks on the joists as happened.
YKS's defence admits that the Claimant was working at its direction and under its control, though it avers that he was engaged as a self-employed labourer. That distinction may not matter as it admits it owed a duty of care to the Claimant. It asserts that it had no responsibility for the erection of the timber framework of the building and that the frames (including the joists) had been erected by the third Defendant and/or Buttar. It denies negligence and expressly denies that the joists were overloaded. On the contrary, it submits that the use of first floor joists as a loading platform was a safe and accepted method of temporary storage during the erection of brickwork and that Buttar would have known that to be the case; that there was nothing to indicate to YKS that the joists were faulty; and that the joists had (or should have had) additional support from the existing brickwork. On that basis, it characterises the collapse as “an unforeseeable event for which liability is denied.” For good measure, it adopts the allegations of negligence made by the Claimant against Buttar.
Buttar admits that it is a construction company and that it was at all material times the principal contractor on the site. It denies that it owed any relevant duty of care to the Claimant, he being an employee of Buttar's independent sub-contractor. It relies upon express terms of the contract between it and YKS that YKS would build the walls with reasonable skill and care including in relation to health and safety; and that bricks and blocks would be stacked securely on specific loading-out platforms at convenient locations, which would not be overloaded. It denies having knowledge of the means or position adopted by YKS for storing bricks and denies that it (Buttar) had stored or stacked the bricks in that place or way. It asserts that the joists were bought from a reputable supplier, that they were installed by another independent contractor, and that there was no evidence that any of them were substandard (if, which is denied, they were). On this basis, Buttar asserts that it did not create the danger, and that it neither had knowledge of any danger nor should have done. It adopts the allegations of negligence made by the claimant against YKS. In briefest outline, it asserts that YKS should have stacked the bricks and blocks as it had said it would do by its risk assessment; and that YKS created the risk and danger by stacking the bricks and blocks as they did and, if it was a factor, by their manner of constructing the existing wall.
CPR 25.7: the applicable principles
CPR 25.7, so far as material, provides:
“(1) The court may only make an order for an interim payment where any of the following conditions are satisfied –
(a) the defendant against whom the order is sought has admitted liability to pay damages or some other sum of money to the claimant;
(b) the claimant has obtained judgment against that defendant for damages to be assessed or for a sum of money (other than costs) to be assessed;
(c) it is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against the defendant from whom he is seeking an order for an interim payment whether or not that defendant is the only defendant or one of a number of defendants to the claim;
(d) …
(e) in a claim in which there are two or more defendants and the order is sought against any one or more of those defendants, the following conditions are satisfied —
(i) the court is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against at least one of the defendants (but the court cannot determine which); and
(ii) all the defendants are either —
(a) a defendant that is insured in respect of the claim;
(b) a defendant whose liability will be met by an insurer under section 151 of the Road Traffic Act 1988 or an insurer acting under the Motor Insurers Bureau Agreement, or the Motor Insurers Bureau where it is acting itself; or
(c) a defendant that is a public body.
…”
In HMRC v GKN [2012] EWCA Civ 57 at [32]–[39] Aikens LJ (with whom Ward and Lewison LJJ agreed) gave guidance on the proper approach to be adopted to the conditions set out in CPR 25.7(1)(c), including the following:
“33. [I]t is obvious that the claimant seeking the Interim Payment has the burden of satisfying the court that the necessary conditions have been fulfilled for it to consider exercising the power to grant an Interim Payment order. An Interim Payment order is one that is obtained in civil proceedings. Whatever conditions have to be satisfied must be to the usual standard of proof in civil proceedings unless there is an express indication in a statute or rule of court to the contrary. Here there is none. Therefore the claimant has to satisfy the court that the requisite conditions have been fulfilled to the civil standard, which is upon the balance of probabilities. Since the House of Lords' decision in Re H it is well established that there is only one civil standard of proof on a balance of probabilities. In the case of an application for an Interim Payment order under CPR Pt 25.7(1)(c), of course, the claimant has to satisfy the court on a balance of probabilities about an event that has not, in fact, occurred; that is, that if the claim went to trial, he would obtain judgment (and for a substantial amount of money).
…
36. That leads on to...
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...Ltd v Arshdeep [2021] EWCA Civ 1408 Background The recent case of Buttar Construction Ltd v Arshdeep [2021] EWCA Civ 1408 considered the issue of whether an insured Defendant ceases to be "insured in respect of a claim" for the purpose of CPR r 25.7(1)(e) if the insurer reserves its positio......
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...Ltd v Arshdeep [2021] EWCA Civ 1408 Background The recent case of Buttar Construction Ltd v Arshdeep [2021] EWCA Civ 1408 considered the issue of whether an insured Defendant ceases to be "insured in respect of a claim" for the purpose of CPR r 25.7(1)(e) if the insurer reserves its positio......
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...and Amy Held take a look at Buttar Construction Ltd v Arshdeep [2021] EWCA Civ 1408 Background The Claimant was employed as a labourer by the Second Defendant ('YKS') who, in turn, were engaged by the Appellant Fourth Defendant ('Buttar') as an independent brickwork contractor. The First an......
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Surely, I'm Insured?! Is A Defendant Insured Only When Sure The Insurer Will Pay Out?
...and Amy Held take a look at Buttar Construction Ltd v Arshdeep [2021] EWCA Civ 1408 Background The Claimant was employed as a labourer by the Second Defendant ('YKS') who, in turn, were engaged by the Appellant Fourth Defendant ('Buttar') as an independent brickwork contractor. The First an......