City & General (Holborn) Ltd v Royal & Sun Alliance Plc

Permission to appeal may be granted where the lower court’s limitation decision may have failed to address separate causes of action or a material argument on when time accrued. The Court of Appeal may also permit a new point to be ventilated where it is relevant to the issues already arising and could otherwise require separate proceedings. This is particularly so where the lower decision may create an issue-estoppel obstacle to a fresh claim.

The appellant sought permission to appeal from a judgment of Christopher Clarke J in the Technology and Construction Court. The judge had refused to extend time for service of the claim form, or had set aside an earlier ex parte order extending that time.

The proposed appeal concerned three insurance claims arising from a construction policy: crane collapse, water ingress and alleged pseudomonas infection. The appellant argued that the claims and limitation issues should have been considered separately, that the water-ingress claim accrued day by day, and that the insurers had acknowledged the claim. The respondent was not represented.

1. Application granted. The Court of Appeal granted permission to appeal against the refusal to extend time for service of the claim form and the setting aside of the earlier ex parte extension order.

2. The proposed grounds raised sufficiently arguable issues concerning the separate treatment of the three causes of action and whether the water-ingress claim accrued progressively from the first occurrence of water ingress. The lower court appeared not to have fully considered the day-by-day limitation argument, which had been advanced orally even though it was not stated expressly in the appellant’s skeleton argument.

3. The lower court had made no finding concerning the alleged pseudomonas infection. That omission reinforced the appropriateness of permitting the appeal so that the distinct claims could be considered properly.

4. The Court also allowed the appellant to raise an acknowledgment point, although it was a new argument. The point could bear on the issues to be considered on the appeal and might otherwise require separate proceedings.

5. The court noted that the usual course where limitation is disputed in connection with renewal of a claim form is to allow the issue to be determined in a new action. Here, however, the appellant faced the contention that the lower court’s limitation ruling concerning water ingress would create an issue estoppel automatically defeating any new claim. That circumstance justified allowing the appeal to proceed.

6. The application was granted. The court indicated that the appeal was likely to require a four-hour hearing before a three-member constitution, including a Lord Justice qualified in Technology and Construction Court work.

• Court of Appeal (Civil Division): Permission to appeal granted from the judgment of Christopher Clarke J in the Technology and Construction Court.
• Technology and Construction Court, Queen’s Bench Division: The judge refused to extend time for service of the claim form and set aside the earlier ex parte order extending time.