No Reply…so what? Court clarifies the absence of a Reply and its bearing on factual findings.

Zanatta v Metroline Travel Ltd [2023] EWCA Civ 224

The Claimant brought a personal injury claim against a bus driver. At trial the judge had found in favour of the defendant bus company. The Court of Appeal dismissed the Claimant’s appeal.

The appeal focused on the Claimant’s allegation that the trial judge disregarded matters of common ground and made findings that were not open to him, rendering the decision “unjust because of serious procedural irregularities” and “in any event wrong”. Lady Justice Andrews set out some of the issues as to whether facts were agreed or not:-

“The fact that the claimant did not serve a Reply did not mean that it could be assumed by the defendant, let alone the judge, that the version of events pleaded in the Defence was accepted. In fact, the bus driver’s evidence was criticised at trial as being unreliable, because of variations in his accounts over time, and the judge was urged to treat it with caution. The claimant was fully entitled to make those submissions, but she would not have been if the version of the facts pleaded in the Defence (based on the driver’s witness statement) had been common ground. Despite this criticism, the claimant sought to rely on selective parts of that evidence as a foundation for her case, as the judge recorded at [64](c) of the judgment. By so doing, the claimant was doing no more than urging the judge to make certain fact findings. He was not obliged to do so” (paragraph 52)

A Reply to Defence is a useful tool in the right circumstances, but its presence (or absence) is limited in effect to that confirmed by CPR 16.7:-

Reply to defence (CPR r, 16.7)          

(1)         A claimant who does not file a reply to the defence shall not be taken to admit the matters raised in the defence

(2)         A claimant who –

(a)     files a reply to a defence; but

(b)     fails to deal with a matter raised in the defence, shall be taken to require that matter to be proved.

The full judgment can be accessed here.

A blast from the past: World War II bomb damage held to be excluded from insurance cover.

Allianz Insurance Plc v University of Exeter [2023] EWHC 630

In the first decision of its kind the High Court (HHJ Bird sitting as a Deputy of the High Court) considered whether a War Exclusion clause applied to damage caused by a World War II bomb.

A 1000kg SC1000 thin cased, high explosive bomb dropped by German forces during World War II, and nicknamed “the Hermann” after Hermann Göring, was discovered on land adjacent to the University’s campus.  Upon discovery, a safety cordon was established and halls of residence falling within it were evacuated. The bomb was safely destroyed by way of a controlled detonation at the hands of the Explosive Ordnance Disposal Team from the Royal Logistic Corps, who confirmed that a controlled detonation on site was “the only realistic course open to the team” but that damage to the University’s halls of residence was “unfortunate, but unavoidable”.

Allianz had issued an insurance policy to the University of Exeter covering damage to property unless excluded.  A clause within the policy, known as ‘The War Exclusion’ excluded damage “occasioned by war”. It was agreed by all parties that a proximate cause test applied.

In short, the insurer sought a declaration that it did not have to cover damages due to the controlled explosion. The University accepted that the dropping of the bomb was an act of war within the meaning of the Exclusion clause.  It argued however that this act was neither “the” proximate cause nor even “a” proximate cause of the loss and that the controlled detonation should be viewed as the sole proximate cause.

In a comprehensive judgment HHJ Bird rejected the University’s submissions holding that:

• The Policy did not disapply the usual rule on concurrent proximate causes that if there are concurrent proximate causes, one insured against and the other excluded, the exclusion applies (see Wayne Tank and Pump v Employers Liability Assurance Corp. [1974] QB 57 cited at para.174 of FCA v Arch [2021] UKSC 1 and para 27 of Brian Leighton (Garages) Limited v Allianz [2023] EWCA Civ 8).
• Therefore, Allianz only needed to prove that the dropping of the bomb was “a” proximate cause.
• “Proximate cause” meant the efficient or effective cause, or the agency of change, viewed with common sense as established in Reischer v Borwick 1894 2 QB 548 and Leyland Shipping Company v Norwich Union Fire Insurance Society Limited [1918] AC 350 and reconfirmed in FCA v Arch.
• Applying this test the dropping of the bomb was “the” proximate cause. He held: “ … It is the presence of the bomb that leads to both the need for the detonation and the inevitability of the damage. As a matter of common sense, the dropping of the bomb and its consequent presence at the site, was the proximate cause of the damage … The defendant submits that the passage of time means that this conclusion is wrong. I am unable to accept that submission … Is there any suggestion that the passage of time had reduced the potency of the explosive load of the bomb? In my view there is not. It is clear from the incident report (paragraph 10 above) that the bomb as an object had degraded over time. The photographs clearly show that it had rusted (as the parties agree) and the incident report makes specific reference to the deterioration of the bomb’s fuze. There is however no suggestion at all that the explosive load of the bomb had become any less lethal over time … the passage of time had no relevant or material impact on the danger posed by the bomb.” (Judgment paragraphs 46, 47 and 49.)
• Alternatively, HHJ Bird found, the dropping of the bomb was “a” proximate cause finding that “ … the alternative analysis must be that the damage was (as a matter of common sense) caused by the combined effect of the detonation and the presence of the bomb.” (Judgment paragraph 54.)

The loss was therefore excluded by the War Exclusion clause.

The full judgment can be accessed here.

 For any other enquiries, or to discuss instructing the Civil Team at Atlantic Chambers, please contact clerks@atlanticchambers.co.uk