Wingrave v CGU Insurance Plc

Permission to appeal should not be granted where the proposed appeal would merely retry factual findings and the trial judge had ample evidence on which to rely. An insured claimant bears the burden of proving, on the balance of probabilities, that an insured risk materialised and that the loss was caused by an event falling within the cover. A claim based on unsubstantiated, gradual and unidentified pollution does not meet that burden. Breach of a legal expenses policy does not justify substantial damages without proof of loss caused by the breach. A litigant who proceeds after disclosure of a judge’s professional connection with a party, having had an opportunity to object, cannot later complain of that disclosed connection.

Mrs Wingrave applied for permission to appeal from findings made by Mr Recorder Stead in the Exeter County Court. She claimed under buildings and contents insurance for alleged airborne pollution and under legal expenses insurance after the insurer failed to respond substantively to her claim.

The recorder found that she had not proved pollution or contamination, that any alleged loss would in any event have resulted from gradual, foreseen and unidentified emissions outside the policy cover, and that she had proved no loss from the breach of the legal expenses policy. He awarded nominal damages of £10 on that head. Mrs Wingrave also alleged a procedural irregularity because the recorder had disclosed that he had acted, and hoped to act, for the defendant. The central questions were whether there was an arguable error warranting permission to appeal and whether a retrial was justified.

Application refused; no order for costs.

1. Sir Denis Henry held that the recorder was entitled to make the challenged findings of fact. The evidence included the absence of photographs, samples and independent corroboration, negative testing for hydrocarbons, and the absence of similar complaints from later occupiers. The trial judge was better placed than an appellate court to assess the evidence and the credibility of witnesses. Nothing in the judgment suggested that he had failed to use those advantages properly.
2. The claimant had to prove, on the balance of probabilities, that pollution or contamination had occurred and that an insured risk had materialised. If pollution had been established, she would also have had to prove that the loss was caused by a sudden, unforeseen and identifiable accident. Her case was based on alleged emissions over several months, which the recorder was entitled to treat as neither sudden nor unforeseen, and whose source and nature had not been adequately identified.
3. The insurer had breached the legal expenses policy by failing to respond to the claim. However, the claimant failed to prove loss caused by that breach. She had not shown that advice, had it been provided, would have led to a successful claim or that she would have acted on advice that the proposed proceedings had no reasonable prospects. Nominal damages of £10 were therefore appropriate.
4. The alleged procedural irregularity provided no basis for a retrial. The recorder had disclosed his past and prospective professional connection with the defendant, offered the claimant an opportunity to make submissions, and she elected to proceed. She could not later complain about that disclosed course of conduct. In any event, the evidence disclosed no realistic prospect that a retrial would enable her to prove the underlying claim.

1. Court of Appeal (Civil Division): On 27 March 2002, Sir Denis Henry refused permission to appeal and made no order for costs.
2. Exeter County Court: Mr Recorder Stead rejected the claim for insurance cover, awarded nominal damages of £10 for breach of the legal expenses policy, and made findings that Mrs Wingrave sought to challenge.