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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> TFW Printers Ltd v Interserve Project Services Ltd [2006] EWCA Civ 875 (27 June 2006) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2006/875.html Cite as: [2006] EWCA Civ 875 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE KNIGHT
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE DYSON
and
LORD JUSTICE CARNWATH
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TFW Printers Ltd |
Appellant |
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- and - |
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Interserve Project Services Ltd |
Respondent |
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Smith Bernal WordWave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr D Sears QC (instructed by Messrs Davies Arnold Cooper) for the Respondent
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Crown Copyright ©
Lord Justice Dyson:
Introduction
The contract
"Progress payments and retention
4.2 The Architect/The Contract Administrator shall if requested by the Contractor, at intervals of not less than four weeks calculated from the date for commencement, certify progress payments to the Contractor in respect of the value of the Works properly executed, including any amounts either ascertained or agreed under clauses 3.6 and 3.7 hereof, and the value of any materials and goods which have been reasonably and properly brought upon the site for the purpose of the Works and which are adequately stored and protected against the weather and other casualties, less a retention of 5%/……..% and less any previous payments made by the Employer, and the Employer shall pay to the Contractor the amount so certified within 14 days of the date of the certificate.
Penultimate certificate
4.3 The Architect/The Contract Administrator shall within 14 days after the date of practical completion certified under clause 2.4 hereof certify payment to the Contractor of 97½%/………% of the total amount to be paid to the Contractor under this Contract so far as that amount is ascertainable at the date of practical completion, including any amounts either ascertained or agreed under clauses 3.6 and 3.7 hereof, less the amount of any progress payments previously made by the Employer, and the Employer shall pay to the Contractor the amount so certified within 14 days of that certificate.
Final certificate
4.4 The Contractor shall supply within three months …………. from the date of practical completion all documentation reasonably required for the computation of the amount to be finally certified by the Architect/the Contract Administrator and the Architect/ the Contract Administrator shall within 28 days of receipt of such documentation, provided that the Architect/the Contract Administrator has issued the certificate under clause 2.5 hereof, issue a final certificate certifying the amount remaining due to the Contractor or due to the Employer as the case may be and such sum shall as from the fourteenth day after the date of the final certificate be a debt payable as the case may be by the Employer to the Contractor or by the Contractor to the Employer."
"Injury or damage to property
6.2 The Contractor shall be liable for, and shall indemnify the Employer against, any expense, liability, loss, claim or proceedings in respect of any injury or damage whatsoever to any property real or personal (other than injury or damage to the Works) insofar as such injury or damage arises out of or in the course of or by reason of the carrying out of the Works and to the extent that the same is due to any negligence, breach or statutory duty, omission or default of the Contractor, his servants or agents, or of any person employed or engaged by the Contractor upon or in connection with the Works or any part thereof, his servants or agents. Without prejudice to his obligation to indemnify the Employer the Contractor shall take out and maintain and shall cause any sub-contractor to take out and maintain insurance in respect of the liability referred to above in respect of injury or damage to any property real or personal other than the Works which shall be for an amount not less than the sum stated below for any one occurrence or series of occurrences arising out of one event:
insurance cover referred to above to be not less than:
£ TWO MILLION"
"6.3A The Contractor shall in the joint names of Employer and Contractor insure against loss and damage by fire, lightning, explosion, storm, tempest, flood, bursting or overflowing of water tanks, apparatus or pipes, earthquake, aircraft and other aerial devices or articles dropped therefrom, riot and civil commotion, for the full reinstatement value thereof plus …….% to cover professional fees, all work executed and all unfixed materials and goods delivered to, placed on or adjacent to the Works and intended therefore.
After any inspection required by the insurers in respect of a claim under the insurance mentioned in this clause 6.3A the Contractor shall with due diligence restore or replace work or materials or goods damaged and dispose of any debris and proceed with and complete the Works. The contractor shall not be entitled to any payment in respect of work or materials or goods damaged or the disposal of any debris other than the monies received under the said insurance (less the percentage to cover professional fees) and such monies shall be paid to the Contractor under certificates of the Architect/the Contract Administrator at the periods stated in clause 4.0 hereof."
"6.3B The Employer shall in the joint names of Employer and Contractor insure against loss or damage to the existing structures (together with the contents owned by him or for which he is responsible) and to the Works and all unfixed materials and goods delivered to, placed on or adjacent to the Works and intended therefore by fire, lightning, explosion, storm, tempest, flood, bursting or overflowing of water tanks, apparatus or pipes, earthquake, aircraft and other aerial devices or articles dropped therefrom, riot and civil commotion.
If any loss or damage as referred to in this clause occurs then the Architect/the Contract Administrator shall issue instructions for the reinstatement and making good of such loss or damage in accordance with clause 3.5 hereof and such instructions shall be valued under clause 3.6 hereof."
The first issue: does the insurance obligation in clause 6.3B continue between the date of practical completion and the date when the defendant's obligations under clause 2.5 have been discharged?
The submissions
Discussion of the first issue
"24. It also seems to me that there are sound practical and commercial reasons why the joint insurance provision under 6.3B, the parties having struck out 6.3A, should continue up to the date of the expiration of the defects liability period. If, for example, the contractor is called back to deal with work instructed under that clause, it is for the benefit of both parties that that joint insurance should remain in place, otherwise the parties would not only lose the benefit of that provision but it would lead to uncertainty as to where responsibility for that loss and damage lay. Mr. Aeberli says that clause 6.2 would remain in force, and, so far as the employer is concerned, he would be able to fall back on his property insurance. That may be the case, but it seems to me that that introduces an element of uncertainty and is a far worse situation than if the employer maintains the insurance pursuant to clause 6.3B."
Lord Justice Carnwath:
Lord Justice Sedley: