UK: (Re)Insurance Weekly Update - 11 June, 2013

Last Updated: 18 June 2013
Article by Nigel Brook

Elvanite Full Circle v AMEC Earth

Meaning of limitation clause requiring "filing" of a claim

The parties entered into a contract which contained a provision that "all claims by the client shall be deemed relinquished unless filed within one (1) year after substantial completion of the services". The parties to a contract may vary the ordinary six year limitation period - for example, in Inframatrix Investments v Dean Construction (see Weekly Update 31/11), the parties agreed that no action or proceedings were to be brought after the expiry of one year. However, in this case, the clause required all claims to be "filed" within one year. Coulson J noted (obiter, since he had already decided that the claim would fail) that in the High Court proceedings are commenced when a claim is issued in accordance with CPR r7.2. Accordingly, the word "filed" was not apt to describe the commencement of proceedings: "in particular, the "filing of claims" is not a process recognised by English court procedure".

However, the judge accepted an argument that the clause could properly be read as a reference to the sending of a properly particularised Letter of Claim, as required under the Professional Negligence or the TCC Pre-Action Protocols. The clause was intended to provide some form of certainty and so the claimant should have provided at least a clear summary of the fact on which each claim is based, as well as the basis on which each claim is made (ie the contractual term or statutory provision being relied on). It meant something more than simply the intimation that, at some point in the future, a (wholly unparticularised) claim might be made. The use of the word "filed" also denoted a degree of formality, suggesting the actual making of a claim rather than a generalised notice of such a claim.

The contract also excluded consequential or incidental damages. Coulson J said that whether or not a claim for lost profit fell within this exclusion depended on the nature of the contractual obligations. Here, the defendant had been obliged to act with reasonable care and skill in completing a planning application on behalf of the claimant. Any loss of profit would therefore be an indirect loss because it required an intention to sell the site on to a third party - it was very different from, say, the sale of profit-making equipment which fails.

MacDermid Offshore v Niche Products

Whether English court should grant stay if proceedings commenced first in non-EU court

A US company commenced proceedings against an English company in Texas. A month later, the English company commenced proceedings against the US company in England and the US company sought a stay of those proceedings on the basis of forum non conveniens. The US company sought to argue that, since proceedings were already afoot in the US, a three stage test should be applied by the court: (a) should the foreign proceedings be taken into account?; if yes (b) is the foreign court "a natural and appropriate forum" (ie a suitable forum) to hear the dispute?; and, if yes, (c) would it cause injustice to deprive the English claimant of some personal or juridical advantage? The US company sought to rely on the case of MV Olympic Galaxy [2006] in running this argument.

Warren J rejected that argument. Relying on prior caselaw (eg The Abidin Daver [1984] and Spiliada Maritime v Cansulex [1987]), he concluded that the existence of earlier foreign proceedings is just one factor to be taken into account by the English court. Where the foreign proceedings are only at the initiating stage, they are likely to be irrelevant. However, "They may move to such an advanced stage – to take an extreme example with preparation for trial almost complete – as to become not only a relevant factor but a factor of decisive importance, so that the foreign court becomes the inevitable choice as the appropriate forum for the resolution of the dispute. To put it another way, the stage which the foreign proceedings have reached may make it clear that the foreign court has become the 'clearly more appropriate forum'."

Berney v Saul

Court of Appeal decides when damage arose in a solicitors' negligence case

The claimant was injured in road traffic accident and commenced proceedings against the other driver in 2002. The other driver's insurers admitted liability. However, the claimant's solicitors failed to file the particulars of claim in time and the other side's solicitors agreed not to take any procedural defence up until 25 January 2005. After that date, counsel advised the claimant that she had only a 20% chance of succeeding in an application to extend time for filing of the particulars. She eventually settled her claim (on 1 November 2005). She sought to sue her solicitors for negligence and the issue in this case was whether the claim was time-barred. The Court of Appeal has now held that it was not.

Gloster LJ highlighted that the issue of when damage is first sustained in a case such as this one is highly fact-sensitive. What needs to be determined is "when is the claimant worse off financially by reason of a breach of the duty of care than he would otherwise have been" (as per Lord Hoffmann in Forster v Outred [1982]). Gloster LJ said that, on the facts, there had been no real risk that the claimant would have failed to get an extension of time to file the particulars (despite counsel's opinion), applying the factors set out in the (then) CPR r3.9 and hence she first suffered loss on 1 November 2005. However Moses LJ (with whom Rimer LJ agreed) did not share that view. He held that from 25 January 2005 a real risk had arisen that time would not have been extended or her claim would have been restricted and hence she first suffered loss on that date. However, this difference in opinion did not matter, since on both views the claim was not time-barred.

Shoreline Housing v Mears

Scope of an entire agreement clause

The contract between the parties in this case contained an entire agreement clause which read: "This contract is the entire agreement between the parties". In Axa Sun Life Services v Campbell Martin [2011] it was held that an exclusion for liability for misrepresentation has to be expressly stated in an entire agreement clause (and a reference to "representations" will not suffice). In this case, the Court of Appeal held that the entire agreement clause did not bar a claim for estoppel either. It distinguished this case from Springwell Navigation v JP Morgan [2010], where there was an extensive express exclusion clause (which led the Court of Appeal to conclude that the parties had agreed that, at the time they entered into the contract, a representation-free state of affairs existed).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Nigel Brook
In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.