A C Ward & Son Ltd v Catlin (Five) Ltd and Others

JurisdictionEngland & Wales
JudgeLord Justice Etherton,Lord Justice Wilson,Lord Justice Sullivan
Judgment Date10 September 2009
Neutral Citation[2009] EWCA Civ 1098
Docket NumberCase No: A3/2009/0102
CourtCourt of Appeal (Civil Division)
Date10 September 2009
Between
AC Ward & Son
Appellant
and
Catlin (Five) Ltd & ORS
Respondent

[2009] EWCA Civ 1098

(HHJ David Mackie QC)

Before: Lord Justice Wilson

Lord Justice Etherton

and

Lord Justice Sullivan

Case No: A3/2009/0102

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr J Stuart-Smith QC (instructed by Reynolds Porter Chamberlain) appeared on behalf of the Appellant.

Mr D Bailey QC (instructed by Rosling King) appeared on behalf of the Respondent.

1

(As Approved)

Lord Justice Etherton
2

Lord Justice Etherton:

3

Introduction

4

1. This is an appeal from an order of HHJ David Mackie QC on 19 December 2008 by which he dismissed the Defendants' application for summary judgment against the Claimant on the entirety of the claim, or alternatively certain issues arising on it.

5

2. The Claimant is a member of the Booker Group of companies. It operates, amongst other things, a warehouse at Victor House, West Thurrock, Essex (“the Warehouse”). During the weekend of 17 th and 18 th March 2007 professional burglars broke into the Warehouse and stole about £450,000 worth of cigarettes and alcohol. None was recovered. The burglars cut through at the first floor level of the Warehouse, which then led them to the mezzanine level where the stock was stored. The Claimant was insured by the Defendants under a “Multiline Commercial Combined Policy” of insurance (“the Policy”). The Policy included in Section C cover against theft of stock up to a limit of £1.5 million. The Claimant made a claim under the Policy. After investigation the Defendants refused to pay on a variety of grounds relating to security arrangements.

6

3. The Defendants issued an application on 15 August 2008 for reverse summary judgment in respect of the Claimant's claim under CPR 24.2(a)(i) and (b) (“the Application”) on the grounds that the Claimant has no real prospect of succeeding in its claim for an indemnity and there is no other compelling reason why the case should be disposed of at trial. The Application Notice referred to a list of issues, upon which the Defendants sought summary determination. The basis of the Application was that the claim was bound to fail because of the breach of two warranties in the Policy (“the Warranties”) namely a Protection Maintenance Warranty (“the PMW”) and a Burglar Alarm Maintenance Warranty (“the BAMW”). The issues which the Defendants wished to have summarily determined concerned the proper meaning and effect of the Warranties. The Claimant opposed the Application on the grounds that there were many issues of fact that required a full trial to resolve fairly and because the issues were too numerous and complicated. The rival contentions were set out in witness statements made on behalf of the Defendants by Catherine Percy, the Defendants' solicitor, and witness statements of Georgina Squire, the Claimant's solicitor.

7

4. The Judge dismissed the Application, as I have said. Subject to the outcome of this appeal, the trial of the action is due to take place on 9 November 2009 with an estimate of five to six days.

8

The facts

9

5. Following a submission on behalf of Blueheath Holdings Plc (“Blueheath”) by their agent, Henderson Insurance Brokers (“Hendersons”), ADT Underwriting Agency Limited (“ADT”) sent a quotation on behalf of the Defendants. On 17 November 2005 Blueheath submitted a proposal (“the Original Proposal”). The Policy was subsequently issued. The schedule to the Policy (“the Schedule”) made express reference to the inclusion of the PMW and the BAMW. In relation to the BAMW the Schedule stated:

“Make & type of Burglar Alarm System: Not provided.”

10

The Claimants had asked for details of the burglar alarm system, but the Defendants had not provided them.

11

6. Cover was not initially provided for the Warehouse because Blueheath did not acquire the Claimant until about November 2005 after the inception of the Policy. In about March 2006, Hendersons approached ADT in order to add two further businesses to the Policy, those being that of the Claimant and CTM Wholesale Limited. The matter was handled on behalf of ADT by Mr Paul McAndrew.

12

7. The PMW was in the following terms:

“It is warranted that:

(a) the whole of the protections provided for the safety of the insured property shall be maintained in good order throughout the currency of this insurance and that they shall be in full and effective operation at all times when the Insured's premises are closed for business and at all other appropriate times, including when the said premises are left unattended, and that such protections shall not be withdrawn or varied to the detriment of the interest of the Insurers without their consent;

13

(b) all keys and duplicate keys relative to the above protections are removed from the premises when the premises are closed for business, and at all other appropriate times, including when the said premises are left unattended.

All defects occurring in any protections must be promptly remedied.”

14

8. The BAMW was in the following terms:

“It is warranted that:

(a) the premises containing the Insured property are fitted with the burglar alarm system stated in the Schedule, which has been approved by the Insurers and that no withdrawal, alteration or variation of the system, or any structural alteration which might affect the system shall be made without the consent of the Insurers,

(b) the burglar alarm system shall have been put into full and effective operation at all times when the insured's premises are closed for business, and at all other appropriate times, including when the said premises are left unattended,

(c) the burglar alarm system shall have been maintained in good order throughout the currency of this Insurance under a maintenance contract with a competent specialist alarm company who are approved by the Insurers,

(d) the burglar alarm signalling system, where applicable, shall be maintained under British Telecom Total Care,

(e) all keys and duplicate keys relative to the above alarm are removed from the premises, when the premises are closed for business, and at all other appropriate times including when the said premises are left unattended, and

(f) immediate advice be given to the Insurers of any warning or notice of withdrawal of police or any other security force or protection.

All defects occurring in any protections must be promptly remedied.”

15

9. At the time of the theft the security arrangements for the Warehouse included a CCTV system, and a vibration detector wire. As regards the former, an ADSL line was provided by which the CCTV images were relayed to a central monitoring station while the Warehouse was closed for business. The vibration detection wire is a device which is installed to detect attempts to breach the perimeter of a building. It is triggered by vibration or hammering. Such a device was installed at the Warehouse on the inside base of the building cladding within the mezzanine floor.

16

10. The theft began in the early hours of 18 March 2007, when the perimeter of the site was breached. The thieves cut three holes in the Warehouse, with a petrol driven angle grinder, before gaining access to the mezzanine floor through the external cladded walls. Stock was removed into a transit type van and a larger panel van until shortly before 7.20 am. The thieves returned at 7.30 pm the same day. The intruder alarm system activated at 7.42 pm, at which point the thieves left.

17

11. The factual basis of the Application was that, at the time of the burglary, the vibration detector wire was not in working order, and the CCTV relay was suffering from an intermittent fault which interrupted the transmission of pictures.

18

The hearing of the Part 24 Application

19

12. In addition to seeking the dismissal of the entire claim, the Defendants, on the hearing of the Application, sought judgment on the following issues which were set out in the skeleton argument of Mr Turner, counsel for the Defendants:

“13. the issues which remain and need to be resolved in order to determine the present application can conveniently be summarised as follows:

(a) the proper characterisation of the relevant parts of the ‘warranties’ and whether such characterisation affects their meaning;

(b) whether the PMW applies only to protections notified to the insurer in writing prior to inception;

(c) whether sub-para (b) of the BAMW applies only to any burglar alarm system identified in the Schedule;

(d) the meaning of relevant parts of the ‘warranties’: in particular, whether the obligation imposed by the warranties is no more than an obligation promptly to remedy defects;

(e) whether the vibration guard wire was non-operation/ineffective at the time of the burglary;

(f) whether the ADSL line for the CCTV relay was:

(i) part of the protection provided for the safety of the insured property;

(ii) subject to an intermittent fault at the time of the burglary.”

20

13. The Judge rejected the Defendant's case that the PMW and the BAMW were merely conditions, breach of which would suspend cover. He held that they were true warranties, particularly in the light of the express definition of “warranties” in the Policy. That definition was as follows:

“A warranty is a fundamental term or condition of the Insurance the breach of which voids the Contract from the time of the breach.”

21

14. The Judge rejected the Defendants' submission that the court could and should conclusively decide at this stage that the PMW applies to all security protections in place, whether or not notified to the Defendants, and that the BAMW applies to any burglar alarm system at the Warehouse,...

To continue reading

Request your trial
163 cases
  • Sayed Zulfikar Abbas Bukhari v Syed Tauqeer Bukhari
    • United Kingdom
    • King's Bench Division
    • 1 March 2023
    ...by Lewison J in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) at [15] (and approved by the Court of Appeal in AC Ward & Sons Ltd v Catlin (Five) Ltd [2009] EWCA Civ 1098; [2010] Lloyd's Rep IR 301 at [24]): “i) The court must consider whether the claimant has a ‘realistic’ as oppos......
  • IG Index Ltd v Aryeh Ehrentreu
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 22 February 2013
    ...to summary judgment 13 The principles to be applied in deciding whether or not to give summary judgment are well-known: see AC Ward & Son v Catlin (Five) Ltd [2009] EWCA Civ 1098, [2010] Lloyd's Rep IR 301. For present purposes it is only necessary to mention two: i) Although a case may tu......
  • Astra Asset Management UK v The Co-operative Bank Plc
    • United Kingdom
    • Queen's Bench Division (Commercial Court)
    • 10 April 2019
    ...of construction appears to be short, it may be better to have a trial where there are standard terms used in the market: A C Ward & Sons Ltd v Catlin (Five) Ltd [2009] EWCA Civ 1098 [2010] Lloyd's Rep IR 301 § 35 per Etherton LJ; and v) the statement of Peter Smith J in Groveholt v Hughes......
  • Red Bull GmbH v Big Horn UK Ltd
    • United Kingdom
    • Chancery Division
    • 12 November 2018
    ...(Ch), in a formulation approved in a number of subsequent cases at appellate level, including AC Ward & Sons v Catlin (Five) Limited [2009] EWCA Civ 1098 and Mellor v Partridge [2013] EWCA Civ 477. It is unnecessary to set them out 45 As to striking out, the application notice refers to a......
  • Request a trial to view additional results
1 firm's commentaries
  • Business Insurance Cover During The COVID-19 Pandemic
    • United Kingdom
    • Mondaq UK
    • 4 May 2020
    ...premises - for example, to lock all windows and doors, to set security alarms and so on. Following AC Ward & Son v Catlin (Five) Ltd [2009] EWCA Civ 1098 there is an argument that where businesses are to be locked down in a hurry as a result of Government orders, Courts may be sympathetic t......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT