Buttar Construction Limited v Arshdeep  EWCA Civ 1408
October 28, 2021
David Sandiford considers the recent decision of the CA in Buttar Construction Limited v Arshdeep  EWCA Civ 1408.
In September of this year the CA gave its judgement in this interesting interim payment case involving multiple defendants where liability was disputed.
The claimant had been working as a labourer on a building site when he suffered catastrophic injuries. Bricks and blocks stored on hardboard sheets above head height collapsed and fell.
The claimant had been employed by D2 which was engaged by D4 as an independent brickwork contractor. There were two other defendants controlling D2 and D4.
D2 did the risk assessment and method statement which required bricks to be stored on secured platforms. Clearly that didn’t happen. The claimant had been acting on the instructions of D2 at the time of injury.
D2 obviously admitted a duty of care to the claimant but argued D4 was responsible for joists which collapsed and therefore negligent. D4 denied any duty and blamed D2.
The claimant was in need of rehabilitation without the means to pay for it and therefore sought an interim payment against D4 and D2 under rule 25.7(1)(e) which applies where there are two or more defendants and an order is sought against one or more of them. Both defendants had insurance but their insurers were reserving their positions.
The judge at first instance was satisfied that if he was dealing with the case at trial it was more likely than not that judgement would be entered against at least one of D2 or D4 but he couldn’t be satisfied which. He was satisfied damages would be substantial. He held that both were insured in respect of the claim even though the insurers might repudiate the policy. He exercised his discretion and ordered D4 and D2 each make a substantial interim payment.
The CA refused the appeal, rejecting the argument that on an interim payment application of this nature a sequential approach was needed whereby the court should first consider whether condition specified r.25.7(1)(c) in respect of the other defendant was met. The CA drew attention to the opening words of r.25.7 referring to ‘any of the following conditions’ in the rule being satisfied.
The CA re-emphasised that the judge had not been entitled to conduct a mini trial.
Further, if the judge at first instance had been unable to determine whether the claimant would obtain judgement against D2 alone or D2 and D4 then it could not determine which of the defendants would become subject to judgement and therefore the requirement in r.27.7(1)(e)(i) was clearly met.
Of particular interest in the judgment is that the word ‘insured’ in the rule should not be interpreted as ‘indemnified’. To argue otherwise would be an open invitation to the parties to engage in satellite litigation which would be undesirable. The merits or reasons for insurers reserving their rights is seldom ever be capable of proper scrutiny by a court on an interim payment application. However the possibility that an insurers would not indemnify was a material consideration – which the judge had considered. In the event, the judge found the reasons for reserving to be thin.
So this is an interesting and useful decision to consider where you are involved in an application for an interim payment in a case involving multiple defendants. It is a good analysis of the relevant rule and is useful in its consideration of any arguments over insurers potentially seeking to repudiate.