Court of Appeal plunges into notification issues
In a Judgment handed down yesterday, the Court of Appeal considered for the first time in over ten years issues regarding the effect of a notification of a “circumstance” to a professional indemnity policy: Euro Pools plc v RSA [2019] EWCA Civ 808 [1].
Introduction
The commercial background to the dispute was unusual. Typically, a policyholder will argue that its notification was wide in scope, so that in due course its notification will “catch” any ensuing claims. By contrast, the insurer to whom the notification was made will typically argue that the scope of the notification was narrow (or, sometimes, wholly ineffective), so that it is in a position to resist indemnifying the policyholder for the later claim(s).
Here the position was reversed. The insurer (RSA) argued that the notification in question was sufficiently wide to catch the later claims; and the policyholder argued that its original notification was very narrow, so that accordingly the claims in question could be said to arise from the (unquestionably wider) notification which it had made to its successive policy.
The reason for this apparent role reversal was the simple fact that the indemnity limit under the original policy (which was on an aggregate basis, not “per claim”) was exhausted, so that the policyholder needed to establish that the later policy (also written, as it happens, by RSA) would respond.
The facts
Euro Pools plc (“Euro Pools”) designed and installed swimming pools. One particular feature which it offered was the inclusion of vertical “booms”, which could be raised and lowered in order to compartmentalise the pool.
Initially, the booms were powered by an air drive system, whereby air would be pumped into and out of stainless steel tanks housed within the booms.
In February 2007, Euro Pools notified its 2006/07 policy (“the First Policy”) that the booms weren’t working. This was, it said, because of a perceived problem with the stainless-steel tanks. Euro Pools proposed an inexpensive solution whereby inflatable bags would be used instead of the steel tanks.
In June 2007, just before expiry of the First Policy, Euro Pools supplemented its original notification by informing RSA that, while it was continuing to replace the tanks with inflatable bags, the cost of which it expected would fall within its excess, it nevertheless wished “to ensure the matter [was] logged on a precautionary basis should there be any future problems”. [2]
Thereafter, during the course of its 2007/08 policy (“the Second Policy”, also written, as I have said, by RSA), it became apparent to Euro Pools that the inflatable bags were no more successful than the stainless steels tanks had been, and that the air drive system would need to be replaced with a hydraulic system - which would be far more expensive. Indeed, it appears that, with a view to preventing its customers from making claims against it, ultimately Euro Pools spent about £2m replacing the air drive system with a hydraulic system.
By this time, the limit under the First Policy was exhausted. The issue was therefore whether the £2m of mitigation costs had been spent in avoiding putative claims which, had they been made, would have arisen out of the circumstance(s) notified to the First Policy.
The Court of Appeal’s Judgment
Euro Pools argued that its notifications in February and June 2007 to the First Policy had been confined to a problem with the stainless-steel tanks. Relying on the principle that one cannot notify a circumstance of which one is not aware, Euro Pools submitted that when notifying the First Policy it had not been aware of a possible problem with the inflatable bags, let alone with any inherent defect in the air drive system generally, and thus could not have been notifying either of those as a “circumstance”.
That argument was accepted at first instance by Moulder J, who thus held, to RSA’s disappointment, that the Second Policy did respond. However, some commentators had criticised this decision on the basis that the Judge had confused the ability to notify a problem (here, that that the booms were not working) with the cause of that problem. As earlier cases such as Kidsons [3] and Kajima had had held, it is open to a policyholder to make a “hornets’ nest” notification - ie, a general notification of a problem, even where the cause of the problem and/or its potential consequences are not yet known.
The Court of Appeal (Hamblen LJ, Males LJ, and Dame Elizabeth Gloster) largely echoed those criticisms, and held that the notification to the First Policy had not been confined to the failure of the steel tanks and the consequential need to replace them with inflatable bags. Instead, the Court of Appeal agreed with RSA that the circumstances notified in February 2007 were that “multiple failures had taken place in relation to the [booms] and….[Euro Pools] was not sure what was causing the failures” and that the circumstances notified in June 2007 were that “in the face of continuing boom failures, Euro Pools had developed a potential solution involving the use of inflatable bags, but that it nevertheless wished to make a notification in case of ‘any future problems’ giving rise to possible third party Claims”.
“In other words,” said the Court of Appeal, “Euro Pools appreciated that it might not have got to the bottom of the problem in the sense of understanding what the root cause of the booms’ failure was. Thus, although Euro Pools hoped that it could make the boom design work by using bags in place of tanks, and that solution would fall within the deductible, it nonetheless wanted to make a general precautionary notification.”
Conclusion
In allowing the appeal, the Court of Appeal has re-stated the orthodox approach, as set out in previous cases such as Kidsons, Kajima and McManus [5]. Although the Court of Appeal’s decision was undoubtedly disappointing to this particular policyholder, in the long run its approach is likely to be beneficial to policyholders since it will assist them when, as is often the case, they wish to make a precautionary notification of a problem when the cause of that problem and/or its potential consequences are as yet unknown.
Notes:
[1] The full Judgement is here: https://www.bailii.org/ew/cases/EWCA/Civ/2019/808.html
[2] This request seems to have been prompted by a realisation on the part of Euro Pools’ broker that, owing to an administrative error, RSA had not opened a claims file following the original notification in February 2007.
[3] HLB Kidsons (a firm) v Lloyd’s Underwriters [2008] Lloyd’s Rep IR 237.
[4] Kajima UK Engineering Limited v The Underwriter Insurance Company Limited[2008] EWHC 83.
[5] McManus v European Risk Insurance Co [2013] Lloyd’s Rep IR 533.
Jonathan Corman is a partner at Fenchurch Law.
Avoid getting out of your depth with notifications – the Court considers the scope of notification in Euro Pools plc v Royal & Sun Alliance Insurance plc
In Euro Pools Plc v Royal & Sun Alliance Insurance Plc[1] the Court considered (amongst other things) the scope of notifications made to two successive design and construct professional indemnity policies.
The Insured
The Insured, Euro Pools plc, was in the business of designing and constructing swimming pools. The pools were designed with moveable floors, so that their depth could be increased and decreased, as well as moveable booms by which the length of the pool could be altered. (By raising the boom, a large swimming pool could be divided into two smaller pools.)
The Policies
The Insured had a professional indemnity policy with RSA for the period June 2006 to June 2007 (the “2006/07 Policy”), and a subsequent policy for the period June 2007 to June 2008 (the “2007/08 Policy”). As is usual with professional indemnity policies, they were written on a claims-made basis, with both policies providing that the Insured should notify the insurers:
“as soon as possible after becoming aware of circumstances…..which might reasonably be expected to produce a Claim”.
The Policies provided that any Claim arising from such notified circumstances would be deemed to have been made in the period of insurance in which the notice had been given.
The February 2007 notification to the 2006/07 Policy
The booms operated by way of an “air-drive” system, by which they were raised and lowered by applying or decreasing the air pressure in the booms.
In February 2007 a defect became apparent, whereby air was escaping from the booms and water was entering, resulting in the booms failing to raise and lower as intended. The Insured at this time did not consider that there was any issue with the air-drive system itself, and that instead the issue could be resolved within the Policy excess by inserting inflatable bags into the booms. The Insured made a notification to that effect (“the February 2007 notification”).
The Insured also notified an issue in respect of the moveable floors, which needed urgent attention at a cost which exhausted the 2006/07 Policy limit of £5 million.
The May 2008 notification to the 2007/08 Policy
By May 2008 the Insured had experienced problems with the inflatable bags that had been used in the air-drive system and reached the conclusion that there was an issue with the air-drive system itself, which would need to be replaced with a hydraulic system. The Insured notified this issue to the 2007/08 Policy year (“the May 2008 notification”).
Attachment
The Court considered whether the claim for the costs of replacing the boom system attached to the 2006/07 Policy by virtue of the February 2007 notification or the 2007/08 Policy by virtue of the May 2008 notification. As the 2006/07 Policy limit was already exhausted it was in insurers’ interests for the claim to attach to the 2006/07 year, but was not in the Insured’s.
What was necessary was for there to be both a causal, as opposed to a coincidental, link between the claim as made and the circumstance previously notified (as set out in Kajima UK Engineering Ltd v Underwriter Insurance Co Ltd[2]). In addition, the Insured was only able to notify circumstances of which it was aware at the time of notification.
The Court held that the Insured was not aware of the need to switch to a hydraulic system for the booms at the time of the February 2007 notification, and so could not have notified this issue as a circumstance. In addition, there was also not a causal link between what was notified to the 2006/07 year (an issue with the boom which could be remedied easily and not an issue with the air-drive system itself) and the subsequent claim relating to replacing the air-drive system with a hydraulic one.
The Court upheld the principle of a “hornet’s nest” or “can of worms” notification: where there is uncertainty at the time of the notification as to the precise problems or potential problems, the insured can make a notification of wide scope, to which numerous types of claims may ultimately attach. However, such a notification had not been made in this instance.
Lessons for policyholders
The case again highlights the issues that can arise in respect of notifications of circumstances, especially when made during a developing investigation. The overarching message is that in each case the extent and ambit of the notification and the claims that will be covered by such notification will depend on the particular facts and terms of the notification.
Although in this instance the Insured was aware of an issue with the booms in February 2007, the notification was held to be limited as a result of the Insured’s view that this was not a problem with the air-drive system itself, which was not considered to be the issue until the 2007/08 Policy year and the May 2008 notification. Applying a narrow interpretation of Kajima, the Court determined that it was not enough that the issue with the air-drive system was discovered as part of the continuum of investigations instigated following the initial discovery of issues in 2007.
In Kajima the insured had notified distortion of external walkways and balconies in a housing development due to settlement and, subsequently and following further investigation, discovered separate defects at the development (for instance in relation to the kitchens and bathrooms). The Court held that the defects that were discovered after the notification did not arise from the defect notified as a circumstance so as to attach to the Policy, as there was not a sufficient relationship between the defects notified and the separate defects discovered subsequently. Whilst the same reasoning was applied in the current case, arguably the position differed in Euro Pools as the Insured was aware of the defect (the malfunctioning boom) at the time of the notification, and did notify circumstances in relation to it. It was the cause of the defect of which the Insured was not aware at the time of notification.
This narrow interpretation worked in the Insured’s favour, given that the May 2008 notification was deemed to be valid and insurers did not seek to rely upon a clause within the 2007/08 Policy which excluded the consequences of any circumstances notified under any prior insurance or known to the insured at the inception of the insurance. However, the narrow interpretation of the scope of the May 2007 notification will not be to an insured’s benefit in other circumstances where, for instance, they do not have cover under a subsequent policy.
Policyholders can seek to avoid uncertainty by ensuring that careful consideration is given to the wording of any notification. If the policyholder intends the notification to have a wide scope so as to cover the widest possible range of claims arising out of a circumstance in a “can of worms” style, then the notification should be drafted in as broad a manner as possible so as to achieve this, subject to the overarching criterion that an insured can only notify a circumstance of which it is aware.
[1] [2018] EWHC 46 (Comm)
[2] [2008] EWHC 83 (TCC)
Tom Hunter is an associate at Fenchurch Law