BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?

No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!



BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Adcock v Co-Operative Insurance Society Ltd [2000] EWCA Civ 117 (7 April 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/117.html
Cite as: [2000] Lloyd's Rep IR 657, [2000] LIRLR 657, [2000] EWCA Civ 117

[New search] [Printable RTF version] [Help]

Click here for Picture

Case No: CCRTF 1999/0822/B2

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NORWICH COUNTY COURT
HIS HONOUR JUDGE LANGAN QC.
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday 7 April 2000
B e f o r e :
LORD JUSTICE WALLER
and
SIR CHRISTOPHER SLADE
- - - - - - - - - - - - - - - - - - - - -

ADCOCK

Appellant


- and -



CO-OPERATIVE INSURANCE SOCIETY LIMITED

Respondent


- - - - - - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -

Mr Philip Kolvin (instructed by Messrs Morgan Jones & Pett for the Appellant)
Mr Digby Jess (instructed by Messrs B K J Lewis for the Respondent)
- - - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©


LORD JUSTICE WALLER:
This is the claimant's appeal against the judgment of His Honour Judge Langan QC given on 6th May 1999 at Norwich County Court, brought by permission of Aldous LJ.
The claimant brought proceedings against the defendant insurers asserting that they had failed to pay all that was due under a policy of fire insurance. The claimant was refurbishing and extending 30 Clay Road, a semi-detached house in Caister on Sea. On 13th January 1990 a fire caused serious damage to that house. The claimant essentially demolished the house and rebuilt it putting some of the walls in slightly different positions from those in which they had previously been, and claimed under the insurance policy for the cost of reinstatement, the cost of clearing out, and the value of certain items which had already been brought on to the site.
The insurers paid £10,800 against the cost of reinstatement, and £5,577 for materials lost in the fire, those payments being made as to £8,877 on 15th August 1990 and as to £7,500 on 8th January 1992. The claimant maintained that larger sums were due on the basis that he had been instructed to demolish the cottage after the fire and/or that it was necessary to demolish after the fire, and that thus he was entitled to the total cost of rebuilding the same. That claim seems to have been pursued through various representatives over about 3 years until proceedings were commenced on 21 December 1995. The trial of the action ultimately took place between 4th and 6th May 1999. The judge awarded a further £13,577 for reinstatement costs, and awarded interest of £6,788. The judge ruled that there had been no instruction to demolish and/or no necessity to demolish, and the figures were thus below those to which the claimant claimed to be entitled.
On the cost of reinstatement despite ruling that there was no instruction to demolish and no necessity to rebuild the judge made an award in the claimant's favour in relation to work done to the party wall, but there were two issues on which the judge ruled against the claimant. The first related to the question whether demolition of the west or fourth wall was necessary. It was in the context of this issue that the judge dealt with the claimant's primary case that a Mr Nudd, the Building Control officer, had in fact required total demolition of the external walls including the road facing fourth wall. The judge decided that Mr Nudd did not so require and he also decided that demolition of the fourth wall was not necessary. The second issue related to the question of foundations. The defendants suggested that on any view there was no necessity to put in new foundations to any of the external walls. In particular they submitted that if the judge was right in concluding that demolition of the fourth wall was unnecessary, no necessity had been shown for putting new foundations in any of the remaining external walls. The judge accepted the defendants' arguments and refused to award any sum for foundations.
On this appeal it is those issues decided against the claimant in relation to reinstatement which are challenged by the claimant.
On the question of interest the judge ruled that because of delay interest should only run for a period of six years and a little more, and he awarded interest at the rate of 8% from 1 February 1993. The claimant was seeking interest at much higher rates from the date of the fire up until 1 February 1993.
Reinstatement costs
There are as I have said two aspects of the points taken on appeal in relation to reinstatement costs. It is convenient to take what I can call "the fourth wall point" first. That point must again be divided into two; first whether Mr Nudd ever gave an instruction to demolish or was understood to have done so; and second whether even without that instruction the claimant can establish it was necessary to demolish that fourth wall.
I ought to spell out in a little more detail the history so far as the walls are concerned. Let me first explain that 30 Clay Road was a small semi-detached house which backed on to the sea. The wall that backed onto the sea is marked D on the plan with our papers (plan 3024), and is the East wall to both upstairs and downstairs. Wall A ran between the house and a garage on the then ground floor and wall C upstairs was the continuation of that wall without the garage on its outside. Wall E was the west wall, and so-called fourth wall facing the road but with a kitchen and bathroom apparently of brick construction plus a conservatory of wooden construction on its outside. Wall F was an internal wall running upstairs and downstairs.
It seems that prior to the fire part of wall A between the lounge and the garage i.e. south wall ground floor, had been demolished as part of the redevelopment work. Mr Nudd in his statement, adopted in his evidence, said that after the fire he recommended demolition of only wall C i.e. upstairs south, and F i.e. the internal wall, he noting that wall A had been demolished. Mr Nudd was also worried about wall D the east wall backing onto the sea. The note he made at the time indicates that he did not think it showed any signs of distress due to the fire, but his concern related to the fact that there was an opening into a greenhouse without a lintel. He, according to his statement, advised the claimant to ensure its stability following demolition of wall C.
As regards wall E "the fourth wall", Mr Nudd's note reads "the west wall is reasonably solid as is the garage and the kitchen /bathroom".
As regards the party wall, Mr Nudd's note records that it was stable but that it did not continue into the roof space. A colleague from the Building Control department, Mr Baker, on a visit on 22nd January recorded in a note that he came to inspect the chimney in the party wall which appeared not very safe; it further records "told builders agent that the best plan would be to pull chimney down from the top and rebuild with new work to roof level before any further work is done in this area".
Although in summary Mr Nudd's evidence was that the only walls that he thought it was necessary to demolish were the internal wall F and the upstairs wall C, by the end of the trial it seems that it was not in issue that the fire had made it necessary to demolish wall A as well as wall C i.e. the whole south wall, and wall D the east wall.
As regards the party wall it was not in issue that the rebuilding of the chimney was necessitated by the fire.
At some stage, and in an order which is not precisely clear, considerable building work was done to the party wall including underpinning of the same. Details are set out on page 8 of the bundle. The details would indicate that the work did not involve a demolition of the party wall but a building of a further skin of brickwork and an underpinning. It was not conceded at the trial that this work was necessary as a result of the fire. Furthermore the claimant actually demolished the west wall E, and the kitchen/bathroom and the garage. He then rebuilt certain walls and it seems from the plans that he rebuilt the south wall further south i.e. in a different position from that which it had previously occupied, and he rebuilt the west wall further west than the original wall.
Thus the claimant sought to establish that the demolition he carried out and the building or rebuilding work he carried out was necessitated by the fire, or more accurately, so far as the south and west walls were concerned, that rebuilding of the walls where they had previously been would have been required as a result of the fire, and that the rebuilding in fact done was no different from that which would otherwise have been done.
Was a direction given or understood to have been given by Mr Nudd?
It is convenient to deal with this question first. The question is whether on the 15th January [i.e. before any work had started on demolition or rebuilding] on the inspection that he had done, Mr Nudd gave instructions, or was understood to give instructions, that a total demolition of the external walls should take place.
Mr Kolvin submitted that the judge was wrong to reject the claimant's evidence, at least to the extent that Mr Nudd was reasonably understood to say the whole house would have to be demolished. He submitted that the claimant was supported in his evidence as to what he understood Mr Nudd to say by the evidence and contemporaneous notes of Mr Hoxley. Mr Hoxley was a Chartered Building Surveyor representing Mrs Ward who lived in No 32 Clay Road, the other half of the semidetached properties. A note which he dictated in the car immediately after visiting the scene recorded "Met David Nudd Building Control Officer on site and he indicated that no 30 would need to be demolished and re-built". Mr Hoxley was later to represent the claimant and in that context wrote a letter dated 6th August 1990 in which he said:-
"As you know, Mr Adcock's case is that he was instructed verbally by the Building Control Officer to completely demolish no. 30, to underpin the party wall and add a new skin of blockwork to the party wall. My involvement at the time does not lead me to doubt this view at all."
The difficulty for the claimant arises out of the following points.
First, Mr Nudd was found by the judge to be an impressive witness. He was clear that he did not say that the whole house should be demolished, or anything that could be misunderstood as so saying. I should add that it does not appear that the claimant was actually contending at the trial that he did say the other things about "underpinning the party wall" or "adding a new skin of brickwork to the party wall" as suggested in Mr Hoxley's letter, but that is another matter.
Second, the fact that Mr Nudd did not record in his own note the requirement to demolish, and indeed recorded factors in relation to all the walls other than C and F, which would be contrary to the need to demolish, is a strong pointer against anything being said which could be misunderstood in the way Mr Kolvin was submitting.
Third, and critically, the fact that the claimant did not say to Mr Turner the loss adjuster that he had been instructed to demolish when Mr Turner visited in the afternoon is another strong pointer against the claimant ever having understood that he had been instructed by Mr Nudd to demolish the whole.
Mr Kolvin submitted that the judge failed to take account of the fact that the claimant did tell insurers of the instruction through a Mr Skoyles the defendants "local agent" two or three days after the fire [see paragraph 13 of the claimant's statement]. It is true that the judge does not refer to the claimant's alleged conversation with Mr Skoyles, but Mr Skoyles had died by the time the trial took place, and thus it was difficult to make any assessment as to whether the conversation alleged had taken place. What is more Mr Skoyles was not the loss adjuster with whom the claimant had been informed he should deal. It seems to me that this alleged conversation with Mr Skoyles added very little to the picture which the judge was assessing.
The fact is that the judge simply rejected the claimant's evidence that he had been instructed to demolish, and, as it seems to me, he was perfectly entitled so to do.
Was demolition of the fourth wall and rebuilding in fact necessary?
The claimant, through Mr Kolvin, submitted that once one gets to the stage of three walls needing rebuilding, the reality is that all walls would require demolition and rebuilding. He suggested that it would be odd in the light of the fact that the fourth wall was the only remaining wall if demolition was not required particularly in view of the fact that the judge accepted that the party wall "lurched to the right" which one might think would involve movement of the fourth wall. He further sought to support that contention by referring to various pieces of evidence which he sets out in paragraph 9 of his skeleton. He referred again to the letter from Mr Hoxley and to it being "his" view that demolition was required. He referred to what he describes as the claimant's unchallenged evidence that when works were carried out to the chimney and the party wall "the property virtually collapsed". He referred to the statement of Fred Dobson, deceased, who worked on the building post-fire and said that when they moved rafters in the vicinity of the chimney "the entire building moved to the right. It seems to me that the roof was acting as a stabiliser to each of the external walls that had been damaged [my emphasis] and that when it was lifted this caused each of the walls to become unsound". He also relied on a letter written by Mr George dated 20th June 1990 addressed to no-one but said by Mr George in his statement to be one "which appears to have been handed to [the claimant] for his use on or about 20th June 1990". Mr George was, according to the letterhead, an architectural consultant. Mr George in the letter said that he did not examine the existing external walls in general, and concluded the letter with two paragraphs which read as follows:-
"Without an full examination of the structure remaining, including a check on the degree to which the external walls had moved from the vertical as a result of the roof collapse, it would have been difficult to determine whether new work could have been raised from the existing.
Bearing in mind also that the existing support to the walls comprised brick footings courses, as opposed to the modern day concrete type foundations, it would be difficult to guarantee that the rebuilding of the structure from the remaining support walls would have resulted in a building free from future structural problems."
Mr Kolvin also relied on what he says was the unchallenged evidence of the claimant that the fire had caused the brickwork and mortar to crumble.
The difficulty for the claimant is that Mr Hoxley did not carry out a detailed inspection on behalf of the claimant; the claimant's evidence of the property virtually collapsing and of bricks and mortar having crumbled is of the most general kind and not directed at the fourth wall. Mr Dobson's evidence is directed at walls that had been damaged by the fire and it is to say the least unclear that the fourth wall had been. Mr George, in his statement to which the letter was an exhibit, was at pains to say that he was not able to conclude that there was a need for demolition (see paragraph 6).
When one looks at the photographs and takes account of Mr Nudd's note recording that the fourth wall was reasonably sound, and further takes account of the fact that the party wall was not in fact demolished, it seems to me that the judge was entitled to form the view he did. The claimant had simply failed to establish his case that it was the fire that necessitated the demolition of the fourth wall.
Were new foundations necessary?
As regards foundations, it was the claimant's case that because total demolition was required a complete set of new foundations were also required. The judge rejected the case that total demolition was needed. Even if it had been needed Mr Turner's evidence was that the foundations did not require demolition (page 96).
Ultimately the question is, once the case for total demolition has been rejected, has the claimant established that new foundations would have been needed for the walls that it was accepted had to be rebuilt because of the fire? Those walls were simply the south wall and the east wall. The claimant in presenting his case simply put forward one global figure for the installation of new foundations. That must have included the cost of foundations for the fourth wall in a different position (not due to the fire), foundations for the south wall in a different position when part of the ground floor section of the south wall had already been demolished prior to the fire, and foundations for the east wall which faced the sea which, as the photograph shows, had a considerable opening in it prior to the fire.
It seems to me unsurprising that the judge should have found that once the claimant had failed to establish his case that total demolition was necessary, the claimant had also not established that the fire had made it necessary to put in new foundations or would have made it necessary to put in new foundations if the walls had been rebuilt as they were before the fire.
Interest
That brings me to the question of interest. I have found this the most difficult aspect of this appeal, and must therefore go into some detail in dealing with it.
The claimant commenced these proceedings in the High Court. As required by Order 18 rule 8 the Rules of the Supreme Court he pleaded his claim to interest in the following terms:-
"5. Further the Plaintiff claims interest pursuant to section 35A of the Supreme Court Act 1981 on the amount found due to him at such rate and for such period as the Court shall think fit."
(I note in passing that that would not be sufficient under the Civil Procedure Rules which would require the percentage rate to be identified, the period over which interest is claimed must be stated etc. see Part 16.4 (2)).
Section 35A (1) Supreme Court Act 1981 is in the following terms:-
"Subject to rules of court, in proceedings (whenever instituted) before the High Court for the recovery of a debt or damages there may be included in any sum for which judgment is given simple interest, at such rate as the court thinks fit or as rules of court may provide, on all or any part of the debt or damages in respect of which judgment is given, or payment is made before judgment, for all or any part of the period between the date when the cause of action arose and -
(a) in the case of any sum paid before judgment, the date of the payment; and
(b) in the case of the sum for which judgment is given, the date of the judgment.
. . . .
(6) Interest under this section may be calculated at different rates in respect of different periods."
Thus, as the section makes clear, the power to award interest is discretionary, the rate is discretionary and the period over which interest should be payable is also discretionary within the ambit of the date of the cause of action and the entry of judgment.
Some assistance can however be gained from the authorities as to the parameters within which the discretion should be exercised. Jefford v Gee [1970] 2 QB 130 is an authority concerned with interest on personal injury awards, but it emphasises certain points which are of general application. First, interest is intended to compensate a claimant from being kept out of money which ought to have been paid to him. The words of Lord Herschell in London, Chatham and Dover Rlway Co v South Easter Ry Co. [1893] AC 429 at 437 quoted by Lord Denning MR at page 143 end with the following sentence.
"Therefore if I could see my way to do so, I should certainly be disposed to give the appellants, or anybody in a similar position, interest upon the amount withheld from the time of action brought at all events."
As Lord Denning said at 146A "It should only be awarded to a plaintiff for being kept out of money which ought to have been paid to him". That led him in the context of personal injuries to say in relation to damages for pain and suffering in some cases that would be from the date of the letter before action or at the latest date of service of the writ. (See 147G).
Second, where a plaintiff has been guilty of gross delay the court may diminish the rate or the period [see Lord Denning at 151]. But it should not be forgotten that where a defendant has been actually holding on to sums which it can be said he ought to have paid to the plaintiff or claimant, it is unlikely that the defendant will have been pressing on with the action himself, and it gives a defendant a windfall if the court penalises a plaintiff for delay in prosecuting proceedings by not awarding interest from the time when the defendant ought to have paid.
In the old 1999 Supreme Court Practice there is a useful note relating to the award of interest at 6/L/1 to 6/L/20. 6/L/16 provided in part as follows:-
"(f) Ordinary interest - It has been said that there is no such thing as "ordinary" or "correct" interest. In practice the Court will sometimes assess interest by reference to the rates of interest available on monies invested in Court on special account during the relevant period, or by reference to Judgment Act rates. This is the rate awarded on default judgments and in most cases by the Masters in the QBD. Such rates will be relied on, however, only where no better guide is appropriate or available. There are other methods of assessment which may be used, e.g. one or more per cent. over base rate from time to time in force, which are more sophisticated and accurate than the slow moving special account rate, or the even slower moving Judgment Act rate (United Bank of Kuwait v. Hammond [1988] 1 W.L.R. 1051 at 1064 CA). The usual practice in the Commercial Court is to award interest at one per cent above base rate, unless such rate would be unfair to one or other of the parties (Shearson Lehman Hutton Inc. v. Maclaine Watson & Co. Ltd (No. 2) [1990] 3 All E.R. 723).
Useful notes also appeared in the County Court Practice 1998 (page 196) including a reference to awarding 1% above base rate in commercial cases, citing Tate and Lyle Food and Distribution Ltd v GLC [1981] 3 All E R 716, not it should be stressed a commercial court case.
In the new CPR no real guidance is given in the notes at Part 40.8.6. This may be because it is hoped that the court should simply exercise a broad discretion unhampered by previous authority. But it seems to me that some assistance in this instance is gained from how courts have exercised their discretion in the awarding of interest in the past, and the notes in the 1999 Annual Practice are useful.
When it was suggested to counsel that base rate plus 1% might have been the starting point in this case, a claim under an insurance policy, both counsel seemed to suggest that nothing so "commercial" would be adopted in county courts up and down the country. We were informed by Mr Jess that in the County Court the practice has been to follow the Special Account rates in cases outside the personal injury context and that in the result before February 1993 when the Special Account rates were high for some years the usual award was 15%; after February 1993 when the Special Account rates came down to 8% the practice for a period was to award 15% for any period prior to February 1993 and 8% for any period thereafter; and that at some undefined time it became difficult to persuade courts to award more than 8% whether the period stretched back before February 1993 or not.
This is all somewhat anecdotal, and somewhat rough and ready if it be accurate. Interest can be quite a significant factor in an award, and it seems to me that, if a judge in the county court was dealing with a "commercial" dispute such as a claim under an insurance policy and his attention was directed to the notes to which I have drawn attention, and if base rates were established in evidence which they can be with ease (as was demonstrated by Mr Kolvin in this case obtaining a full list of the same for the relevant period over the mid-day adjournment), it would be unlikely that a judge would refuse to pay attention to them. No doubt an award of 8% will not be far away from base rate plus 1% over recent years, but with the aid of a calculator there is no difficulty in being more specific. In this case I accept it would be unfair on the defendants to allow base rate plus 1% now to be used, and this court must use the same material as was before the judge.
The broad picture of the case, as it must have appeared to the judge when he came to assess interest, would have been as follows. The fire had occurred as long ago as January 1990; the claimant had made his first claim in March 1990 on a basis that ultimately the judge rejected totally, and persisted with that claim throughout. Second the defendants had made a part payment of £8,877.13 on 15th August 1990, but that was lower than they were prepared to concede when they made a further payment of £7,500 on 8th January 1992. There was some correspondence which was not shown to the judge, some of which, as the transcript shows, was without prejudice. Proceedings were not commenced until 21st December 1995. Those proceedings then took until May 1999 to come on for hearing. The claimant at the trial obtained a judgment for a substantial sum albeit by no means all that he was claiming.
Mr Kolvin submitted to the judge that interest should be awarded on the sum for which the claimant had obtained judgment based on rates varying between 14.25% and 10.25% for the period from the fire up to February 1993, and at the rate of 8% thereafter up to the date of judgment; and that a deduction from that interest should be made at similar rates on the sums paid by the defendants but of course only from the dates of payment of those sums. The precise calculations are set out in Schedule 4 to Mr Kolvin's skeleton before us, and the rates he was using were the Special Account rates, although Mr Kolvin's submission to the judge was that he should use an average rate of 9.5%.
The defendants in a counter schedule to their pleadings had asserted that interest from the date of the fire was appropriate and second that the rate they would contend for overall was 8%. The basic point taken by their counsel in argument was that the claimant had failed ever to put a claim which could be considered properly and the delay was such that it was appropriate not to award interest for the whole period.
The response of Mr Kolvin for the claimant was that 8% in the earlier years was too low, and he suggested that the delay should be "culpable" before a deduction should be made otherwise there would be an element of unjust enrichment.
The judge decided that there had been delay and ruled as follows:-
"If it appeared to me that there was any history of real obstruction on the part of the Defendant, I would be hesitant to deprive the Claimant of interest for any part of the period. However, it seems to me that in the circumstances of this not very complex case, that six years and a little more of interest should suffice. What I will do is to award interest on the Judgment sum at eight percent from 1 February 1993; the reverse interest will be credited from the same date at the same rate."
Mr Kolvin appreciated that he must demonstrate that the judge was plainly wrong or that he had misdirected himself in some way or that the conclusion that the judge reached was "outside the generous ambit within which a reasonable disagreement is possible". G v G [1985]1 WLR 647. With that in mind he attacked the ruling on three bases. First, he said to curtail the period was unfair because no "gross delay" had been established. It is not enough to simply look to see whether the defendants had obstructed the bringing on of the claim; some gross or culpable delay must be established before what is in effect a windfall is given to the defendants. Second, he submitted that taking the period from February 1993 led the judge to the rate at 8%, and in the result the claimant has been unfairly penalised. If an earlier date had been taken as the starting point then a higher rate would have been appropriate and the effect of the judge's order is only to give about two and half years interest using the higher rates as shown on Mr Kolvin's schedule 3. Third, by taking the period he did and taking precisely the same period for the "reverse interest" on the sums the defendants had paid, the judge failed to make any allowance for the fact that the defendants had not in fact paid those sums for seven months and 2 years respectively. The response of Mr Jess was to point to the wide discretion that a judge has under Section 35A, and to submit that in the context of a confused and exaggerated claim in relation to which there had been very substantial delays, the judge's approach could not be faulted.
At first sight there appears to be considerable force in Mr Kolvin's submissions, and it is for that reason that I have gone into the detail which I have. But the question ultimately is whether the view the judge took is outside the generous ambit to which I have referred. The difficulty for Mr Kolvin is that the spectrum of views that might be formed about this case when it came to the award of interest was a wide one. One judge might have taken the view that to have deducted any period for the delay simply provided the defendants with a windfall, and further might have decided that since the defendants seemed to accept the date of the fire was the appropriate starting point, the calculation was a simple one. He could simply have followed the schedule put in by Mr Kolvin if Special Account rates were being used.
But another judge might have taken the view that the claimant had always put forward a claim on a basis which was inappropriate, and that thus there was no delay by the defendant insurers in making the first payment, and in searching for the date by which the defendants ought to have paid what they were ultimately ordered to pay, the date of the second payment was the earliest date. On this view the defendant was never kept out of money prior to January 1992. In addition this judge might have taken the view that to take 7 years to bring a not very complex claim to trial showed culpable delay unless proven otherwise. The same judge might also have taken a not very favourable view of the way in which the claimant had conducted his claim against insurers generally.
If the judge's view were to the latter end of the spectrum, then it would be difficult either to criticise the judge for commencing with a date of February 1993, or to criticise him for taking the 8% rate rather than any earlier higher rate or for simply calculating the "reverse interest" in the way that the judge did in this case because there were no periods for which the claimant was out of his money.
The judge in his judgment did not put the matter as I have put it in relation to the second judge. Maybe in that regard it could be argued that he misdirected himself by concentrating on delay rather than on both delay and the date by which the defendants ought to have paid. But since we are dealing with a discretion being exercised and since as it seems to me both from remarks in the judge's judgment and from his choice of appropriate period and rate, the judge had not formed a favourable view of the way the claimant had conducted his insurance claim, it would not seem to me to be right to interfere with the judge's decision on interest in this case. In the alternative, even if there was a misdirection, and even thus if this court had the right to exercise the discretion afresh, my view would coincide with that which one can infer that the judge held, and I would not interfere with the award of interest that the judge made.
I would dismiss this appeal.
SIR CHRISTOPHER SLADE: I agree.
Order: Appeal dismissed. Appellant do pay the Respondent's costs of the appeal, to be subject to detailed assessment on a standard basis in default of agreement, and those costs be set off against damages and costs awarded to the Appellant in the court below.
Legal Aid assessment of Appellants costs.
(Order does not form part of the approved judgment)

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/117.html