Lloyd's Law
Sifting through the legalease

Loft fires

Lloyd Rehman & Co.  have been involved with a number of cases where over the last few years where uptodate loft insulation has been installed in homes covering tube heaters which had not been properly identified by the Installers.

The effect of this, is that when the tube heaters are turned on, to try and keep the water in the cold water tank from freezing during cold nights, the tube heaters are unable to lose heat quickly enough and they can become hotter and hotter. If they reach a temperature where nearby material will combust, it is probable that a fire will result.

At present it does not appear the the relevant British Standard covering loft insulation takes account of the need to identify tube heaters let alone how they should be dealt with. We have had involvement with a number of such cases, and know of a goodly number of other loft fires which appear to have been caused in this manner. Perhaps at some point in time, the BSI will update the relevant Standard, but until then, a trickle of such fires will continue to occur. There does not seem to be adequate data as to just how many lofts have tube heaters installed. At least I know that my loft at home does not have tube heaters. They are often not that easy to spot, so if you are having loft insulation installed, my strong advice to you would be to find out before the insulation is laid, and if you do have tube heaters in your loft, tell the Installers in writing, when they come to survey your property.

Nigel

2013 and all that!

Well here we are over half way through 2013. On the legal front  a lot of changes have taken effect this year, many of them quite worrying:- Legal Aid cuts; further Court closures and cuts to Court Staff.  The push continues towards making civil litigants go through some form of Alternative Dispute Resolution, such as Mediation or a Joint Settlement Meeting, which whilst often extremely useful,  may not always be the most just way of resolving litigation.

There are also fundamental changes to the way in which personal injury litigation is funded post April 2013. Instead of the Success Fee under a Conditional Fee Agreement being recoverable against a losing Defendant (usually their Insurers). The Success Fee will in future be recoverable out of the damages awarded to the Claimant. There is an uplift on General Damages to be awarded to compensate for this. There are however going to be difficulties with this, where a large component of the Losses claimed relate to financial losses (typically loss of earnings or care) I can think of one Traumatic Brain Injury case we are running currently where the Claimant’s legal costs of running the case to Trial will total circa £500,000, ignoring Success Fee, and the bulk of the Losses claimed relate to Special Damages for Loss of Earnings (past and future) and ongoing care requirements. The General Damages for the actually injuries sustained are far from huge.

If a similar case was being run under the new regime, i.e. where a retainer is signed post April 2013, the small uplift on General Damages awarded (maybe £10,000 or so) would fall way short of the Success Fee which most Claimant Personal Injury Lawyers would seek to recover out of the Damages ultimately awarded to the Claimant, which on the figure above would be likely to run into the hundreds of thousands of pounds. Obviously it remains to be seen just how the new system will work in practice. . . . !

The intended expansion of the scope of the RTA portal dealing with injuries resulting from road traffic accidents, and the cuts in the fees which Claimant Solicitors will be able to claim, will I am afraid result in a lower level of service and in a goodly number of cases may well result in Claimant’s being under-compensated. Last year I had one case where our Client suffered a whiplash injury. He had been advised by a previous firm of Solicitors that his Claim was worth circa £1,500 on the basis of some very poor medical evidence, obtained by that firm on his behalf. The Client was furious, as he knew the impact that the injury was having on him day to day. Accordingly, he sought a second opinion from Lloyd Rehman & Co. We looked at the case afresh, obtained a medico-legal report from a more experienced Expert which showed that the Claimant had suffered far more serious injuries than the original Expert had thought. Ultimately we settled the Claim at just under £60,000, which we considered to be a decent outcome, as did the Client. Had this Claim fallen to be dealt with under the RTA Portal scheme, then it would almost inevitably have been settled at the £1,500, as there would have been little scope for instructing a fresh Expert.

Lloyd Rehman & Co. had an interesting long-running Employer’s liability case which came to a conclusion towards the end of 2012. The case involved a Teacher at a Special Needs School who was seriously injured when a severely autistic child hurled an object in her direction and unfortunately, her head got in the way. The Local Authority’s argument was to the effect that there was absolutely no way that they could have foreseen that the child would have thrown the object, and so there was nothing which the LA could have done to reduce the risk of such an injury. After three years of seeking proper and full disclosure of all relevant documents from the LA, we managed to show that the child had a history of disruptive and violent behaviour, and further that the LA had failed to undertake adequate risk assessments. Following on from the reasoning in the Vaile v. London Borough of Havering case in the Court of Appeal, this was sufficient to persuade the LA to negotiate a settlement of the matter approximately one week before the scheduled Trial. Our Client walked away with a decent five figure settlement plus Costs, and felt vindicated that she had at last received some acknowledgement that the School were at fault for an accident that had cut short her teaching career.

Nigel Lloyd

Welcome to our website!

Welcome to our website. We hope that you like the look and feel of it and that it contains something of interest to you. Lloyd Rehman is not the average law firm. We like to think outside the box and put together the best team of professionals and strategy to bring your case to the best possible result. Almost all of our work comes on personal recommendation, so we work long and hard to keep our clients informed as to how their matter is progressing and discussing the various options available at any given time.

I have been in the legal profession for over 20 years and running my own firm for 20 years. In that time there have been all manner of economic booms and busts. It may be that we are heading for the real recession now, in which case the same problems as in previous recessions will come to the fore: Civil and Criminal Litigation, Insolvency, Cash Flow Difficulties, Mortgage Arrears, Redundancy and Employment issues. We have, over the years, advised many times on such problems, and again done our best to achieve the best possible outcome for the client.

If you need legal advice then please feel free to contact us to discuss your matter.

When Double Insurance Isn’t

Double Insurance arises more frequently than you would think. Take the example whereby I drive your car, with your permission. In that instance, I have Third Party cover under my own Motor Insurance Policy, but I also have the benefit of cover under your Motor Insurance Policy. So far so good.

The trouble arises when both Policies that are meant to be covering me, have an ‘escape’ clause, along the lines of:

“this Policy of Insurance will not indemnify you to the extent that you have the benefit of other Insurance.”

The problem is quite apparent. If both policies operate in this way, effectively, neither offers me any coverage. Consequently, despite the existence of two insurance policies for just such a risk, I am left liable for any and all damage if I do, God forbid, end up having an accident.

As peculiar as it sounds, situations like this have actually arisen in the past. In the 1930’s, Motor Insurers attempted to argue in Court that the odd outcome referred to above was correct in law. Given that it hardly seemed fair for the buck to stop with the policyholder, the Courts gave short shrift to such arguments.

The solution arrived at by the Courts was that in such instances, both Insurers would pay a proportion of the loss and the respective “Escape Clauses” would cancel each other out.

In a property case in which we were instructed, NFUM v. HSBC [2010] EWHC 773 (Comm), an historic house was severely damaged by fire after Exchange of Contracts but before Completion of a Sale.

The Background

To understand the Court’s conclusions with regard to Double Insurance, some background is necessary:

  1. The Contract provided that risk in the Property passed at Exchange of Contracts and the Seller was under no obligation to continue to insure the Building.
  2. The Buyer then duly took out Buildings Insurance for up to £2m with NFUM.
  3. After some delay, the Buyer duly completed the Purchase. The Seller received the contractual price for the Property plus contractual interest for late Completion. He had not thereby suffered any loss.
  4. In due course NFUM came to a cash settlement with the Buyer and paid him out almost up to the £2m limit on their Policy. However, NFUM expressly reserved their position.
  5. NFUM went on to assert that there was Double Insurance and that HSBC should contribute a due proportion of the loss. The HSBC Policy of Insurance had a Purchaser’s Interest clause that covered a Buyer after Exchange of Contracts provided that he had not obtained his own Insurance.
  6. NFUM sought to argue at Trial that this meant that there were opposing Escape Clauses and that they should cancel each other out, leaving HSBC to reimburse NFUM for roughly 54% of the sums they had paid out.

The Decision

When the issue came to be heard in Court, the learned Judge heard an extensive review of the worldwide authorities concerning such conflicts in Insurance Polices.

However, in the end the decision hinged upon a different point. The Learned Judge duly held that the Purchaser’s Interest clause was de facto an Extension Clause and that it was wholly open to HSBC (and indeed made perfect commercial sense) for them to limit that Extension Clause to a situation where the Purchaser did not have his own Insurance cover.

Conclusion

The point of the ‘Extension,’ in that sense, was to protect their Insured (the Seller) in a situation where a Purchaser had not taken out his own Insurance or did not Complete the Purchase, and the Property suffered damage between Exchange of Contracts and Completion.

Any view to the contrary would mean that the clause would have effectively have been inserted by HSBC to benefit a competitor.

Obviously, it would not be within the Seller’s power to ensure that the Buyer had obtained his own Insurance, which is precisely why, whenever risk passes to the Purchaser under a Contract of Sale, all prudent Conveyancers will advise their Client to continue their current Buildings Insurance up to actual Completion of the Sale. To have two Insurance Policies covering the same risk for a few weeks is far preferable to having a situation where the property was totally uninsured.