TRW Pensions Trust Ltd v Indesit Company Polska Sp. Z.o.o
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fraser |
| Judgment Date | 05 June 2020 |
| Neutral Citation | [2020] EWHC 1414 (TCC) |
| Date | 05 June 2020 |
| Docket Number | Claim No: HT-2018-000234 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2020] EWHC 1414 (TCC)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
TECHNOLOGY AND CONSTRUCTION COURT (QB)
Rolls Building
Fetter Lane
London, EC4A 1NL
THE HONOURABLE Mr Justice Fraser
Claim No: HT-2018-000234
Andrew Rigney QC and Caroline McColgan (instructed by RPC LLP) for the Claimants
Anneliese Day QC and Richard Liddell QC (instructed by Taylor Wessing LLP) for the First, Second and Fifth Defendants
Antony White QC (instructed by Reed Smith LLP) for the Third Defendant
Ben Elkington QC (instructed by Keoghs LLP) for the Fourth Defendant
Hearing date: 20 May 2020
Introduction
This is the judgment upon an application issued by the Second Claimant, TP ICAP plc, to amend its name to TP ICAP Group Services Ltd (“TP ICAP Group”), alternatively to be substituted by that latter company. Both TP ICAP plc and TP ICAP Group are members of the same group of companies. The application is put on two bases. The first is for the existing Second Claimant to amend its name to TP ICAP Group under CPR Part 17.4(3). The second, alternative, basis is to substitute TP ICAP Group for the existing Second Claimant pursuant to CPR Part 19.5(3)(a). This sub-paragraph of the CPR that was relied upon by the applicant was then amended, in an amended application notice, also to rely upon CPR Part 19.5(3)(b). I deal with this further below at [11]. The original application notice was issued on 5 March 2020, before the national lockdown due to the COVID-19 crisis, which was imposed on 23 March 2020. The hearing was originally set down for 3 April 2020, but that had to be vacated due to the crisis. It was subsequently conducted on 20 May 2020 remotely by the court using Skype for Business, somewhat later than would have been the case absent that crisis.
The substantive proceedings concern a fire which occurred on 24 August 2012 at Hanover Place, 8 Ravensbourne Road, Bromley, Kent BR1 1HP (“the Property”). That fire caused extensive property damage. It is the Claimants' case that the fire was caused by a defective dishwasher which was located on the second floor of the Property, and more particularly a defective pump heater assembly, or heater element within that assembly, within the dishwasher. The claim form states that the claim is in respect of “loss and damage which they (the Claimants) have suffered as a result of a fire (the “Fire”) which occurred on or about 24 August 2012 situated at [the Property] in respect of which the First Claimant was the freehold owner and the Second Claimant was the leasehold owner and/or tenant and/or occupier” (emphasis added). The model of the dishwasher is said to have been a Hotpoint Aquarius.
The Particulars of Claim identify in paragraph 2 that the Second Claimant was formerly known as Tullett Prebon PLC, and was the leasehold owner and/or tenant and/or occupier of office space spanning the third floor of the Property, and that “the Second Claimant carries on business as a major international money broker and the Offices served as its disaster recovery suite”, thereby and for that reason containing a very large quantity of specialist IT equipment. By way of proposed re-amendment, that paragraph is to be changed slightly, in that it is now proposed that paragraph 2 will state that the Second Claimant was formerly known as Tullett Prebon Group Ltd, and that “the Second Claimant is a service company to the subsidiary companies of TP ICAP plc which carry on business as a major international money broker and for which the Offices served as a disaster recovery suite” thereby containing the specialist IT equipment. The status of the First Claimant as being the freeholder of the Property remains unaffected by this application.
The First, Second and Fifth Defendants are all represented by the same solicitors, and I will refer to these parties as the Whirlpool Defendants. The Whirlpool group has undergone some corporate re-organisation, including a merger on 3 April 2018 between the First and Second Defendant. Taylor Wessing, the solicitors acting for all the Whirlpool Defendants, has given the Claimants' solicitors various information about this, which is recited in paragraph 6 of the pleading. The Claimants aver that Whirlpool manufactured the Hotpoint dishwasher that caused the fire.
I shall refer to the Third Defendant as Eichenauer, which is a company incorporated in Germany which designs, manufactures and supplies electrical components for white goods, including dishwashers. The Claimants aver that Eichenauer manufactured the water heater used in the Hotpoint dishwasher, and that it was either the water heater, and/or the heating element within it, that caused the fire.
I shall refer to the Fourth Defendant as Askoll, an Italian company which also is responsible for the design, manufacture and supply of electrical components for white goods, including dishwashers. The Claimants' case is that Askoll manufactured the pump heater assembly within the Hotpoint dishwasher in question, using the water heater provided by Eichenauer. There are also contribution proceedings on foot between the different defendants, although those brought by Whirlpool were issued by way of separate proceedings with Whirlpool as the claimant, with case number HT-2018-000252.
The case of the First and Second Claimant against each of the defendants is explained in more detail in the Particulars of Claim. All that I have done in the preceding paragraphs is to provide sufficient outline detail relevant to this application. Essentially, the case against all of the defendants is that they were at the relevant times, for a variety of reasons, all involved in the design, manufacture and supply of the Hotpoint dishwasher in this case which caught fire and caused approximately £8.7 million of damage, such that each of them bear legal responsibility for those losses. Some of the losses are claimed by the Second Claimant, including a very sizeable head of loss relating to the IT equipment to which I have referred. Some of the losses are claimed by the First Claimant.
Before the fire, the dishwasher was actually sold to what was a well known firm, Comet Group Ltd, which in turn sold it to an English company called Networkers International (UK) Plc (“Networkers”). In February 2011 the dishwasher was installed in Networkers' office on the second floor of the office building which comprises the Property. The fire broke out in Networkers' office. The First Claimant is the freeholder of the Property, and the Second Claimant occupied the third floor, although the status of the Second Claimant and whether it should now become TP ICAP Group (rather than TP ICAP plc) lies at the heart of this application. The fire also caused substantial damage to Networkers' office, at the risk of stating the utterly obvious. However, none of Networkers' losses form part of these proceedings. Networkers brought separate proceedings of their own which were compromised by Whirlpool.
The final element to note, so far as all the general description of the proceedings is concerned, is that the Claimants had insurance. It is the insurers who bore the losses in the first instance, and these proceedings concern subrogated claims brought in the name of the Claimants by the insurers to recover those losses from those said to be legally responsible for the fire. The insurer for the First Claimant is Zurich PLC; for the Second Claimant, the insurance was provided by Allianz Global Corporate and Chubb Insurance Co of Europe SE (“Allianz” and “Chubb” respectively). This point only becomes relevant because Askoll, which opposes the application with the other defendants, maintains that there will be no prejudice caused to the Second Claimant if the application is refused, as it is not that party that is bringing the claim, because the claim is brought by the insurers. I shall deal with that point first, as in my judgment it mis-states the nature of a subrogated claim. It is put in the following terms in Askoll's skeleton.
“123. It is apparent from the evidence that the action being brought in the name of C2 is a subrogated claim being pursued on behalf of C2's insurers, Allianz and Chubb. There is no evidence that either C2 or TPGSL will themselves suffer any loss or prejudice if these proceedings fail.
124. If Allianz or Chubb suffer any loss, then that is an issue that they can take up with their insured (C2) (which apparently gave misleading instructions to RPC) and/or with RPC (which failed to ensure proceedings were issued in the name of the correct claimant).”
I do not accept these submissions. They mis-state the nature of a subrogated claim. In a subrogated claim, the insurer stands wholly in the position of the insured. It is wholly circular to deal with potential prejudice to a party to litigation to state that because its insurer is standing in its stead (on a subrogated claim), that party would not suffer prejudice because it is the insurer who is the real party, not the actual insured. I will deal with prejudice more generally later, but there is no proper basis, in my judgment, for any distinction to be made between the insurers who bore the loss in the first instance, and the claimants in whose name those insurers bring their subrogated claims. Also, the evidence served in response by RPC makes it clear that Allianz and Chubb insured both TP ICAP plc (the existing Second Claimant)...
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