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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Tioxide Europe Ltd v CGU International Plc & Ors [2005] EWCA Civ 928 (20 July 2005) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2005/928.html Cite as: [2005] EWCA Civ 928 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
COMMERCIAL COURT
MR. JUSTICE LANGLEY
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE TUCKEY
and
LORD JUSTICE KEENE
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TIOXIDE EUROPE LTD. |
Appellant |
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- and - |
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CGU INTERNATIONAL PLC & ORS |
Respondent |
____________________
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Andrew BARTLETT Q.C. and John LOCKEY (instructed by Messrs Kennedys) for the Respondents
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Crown Copyright ©
Lord Justice TUCKEY:
The Policies
(I have numbered the relevant paragraphs for ease of reference).
Loss Notification Option
1. The insured may notify a Loss, other than arising out of Automobile Liability Hazard, to this Policy by sending notice of such Loss, in writing, by registered or certified mail during the period of this policy, to the entity designated in item 6 of the declaration [Marsh] provided:-
(1) the Loss being notified is a loss for which a claim or claims have already been made in writing, against the Insured, and(2) the Loss is such that it is likely to involve this policy,In the event the Insured so notifies a loss to this Policy then any claim which is made, in writing, against the Insured, as respects such Loss, within 10 years after the applicable date shown below shall be deemed to have been first made, in writing against the Insured on such date. …. [deals with loss arising out of Automatic Liability Hazard]
2. The applicable date as referred to above is:-
a) the date of the first written demand against the Insured for money or services as respects the notified attached Loss if the date of such written demand was during the period of this Policy, orb) if the date of such written demand for money or services was prior to the inception date of this Policy, the date of the notification of the attached loss provided that it was notified in accordance with this Insuring Agreement …
3. If the Insured shall notify Underwriters of any Loss, as aforesaid, within 90 days of the end of any Annual Period of this Policy, then provided such Loss happened prior to the end of such Annual Period, Underwriters, at the Insured's request, will deem such notice as having been given on the last day of the Annual Period immediately preceding receipt of such notification.
4. Notwithstanding anything contained in the foregoing to the contrary, in the event that a Loss is notified to any of the Underlying Insurers… and is not notified to Underwriters because such Loss did not appear to involve this Policy yet subsequently would appear to involve this Policy, then this Policy shall not be prejudiced, provided notice, in writing, is given to Underwriters immediately after the Insured is aware of this situation. If the date of such written demand for money or services was prior to the inception date of this Policy, then for the purpose of this paragraph the date of the notification of the attached Loss shall be deemed to be the date upon which the notice of the said Loss was first sent, in writing, during the period of this Policy to any of the Underlying Insurers…
5. It is noted that this insuring agreement is an option for the insured and not an obligation and does not alter the provisions of condition B - reporting of claims.
LOSS NOTIFICATION
Dear Janet
PINKING CLAIMS
Further to our telephone conversation on Friday with regard to the above mentioned claims, I wish to trigger the Loss Notification Option of the policy with regard to the pinking problem.
I acknowledge the claims which have been notified to date will remain in their respective underwriting years, however, any future claims should attach to the 1996/97 underwriting year.
I accept this may well arise after the end of the present underwriting year but I believe I am well within the 90 day period which is set aside for notification of losses in such circumstances.
I trust that this letter is sufficient for the purpose intended and should you have any queries then please do not hesitate to come back to me immediately.
Dear Peter
Further to our telephone conversation of 25 January last I attach a copy of the letter we have received … triggering the Loss Notification Option under the policy. Please note our claim reference number as PL990101972.
Regards
A copy of the letter of 2 July 1997 was attached.
(a) A loss to be notified to any of the primary insurers.
(b) The loss not to be notified to excess insurers because the excess layers did not appear to be involved.
(c) Notice in writing to be given to excess insurers immediately after Tioxide became aware that the loss did appear to involve the excess layers.
But the fax was not sent by or (at least expressly) on behalf of Tioxide nor was it sent to Excess Insurers but to Marsh, nor did it say any more than it was attaching the 2 July 1997 letter.
There was no obligation upon Tioxide to exercise the Option. The question is did Tioxide exercise it. The first difficulty for Tioxide is, therefore, that the fax did not comply with the provisions of the LNO as regards at least the addressee. Marsh were, absent agreement otherwise, the agents of the insured not agents of excess insurers to receive such a fax. Moreover, if Tioxide is to rely on the opening words of the LNO as applicable to the fax it was not sent by registered or certified mail. Whilst these deficiencies might well have been of no significance if there was evidence that excess insurers in fact received the "immediate" notice for which the LNO stipulates, in the absence of such evidence I think they are fatal, and certainly so taken together with the second difficulty faced by Tioxide. Nor do I think the bare facts that insurers did not take these points until April 2003 could amount to a waiver of them and there is no evidence at all to support any case of estoppel in favour of Tioxide.
The second difficulty Tioxide faces is that the fax itself merely refers to an earlier telephone conversation with a representative of Marsh and encloses the 2 July letter. It does not purport to give notice to anyone of the exercise of the LNO in the excess policies or of awareness that those polices might be involved albeit I think it may be a fair inference that the fax was sent to enable Marsh to give such a notice and in the expectation that Marsh would do so. But for this reason also in my judgment the fax fails to comply with the LNO.
Have the formal requirements for the LNO contained in the … excess layers of the policy been complied with?
No.
Lord Justice Keene: I agree.
Lord Justice Ward: I also agree.