http://www.bailii.org/ew/cases/EWCA/Civ/2018/2403.html

The first instance decision in this case was reported in Weekly Update 14/18. Insurers appealed from the first instance decision that the insured was entitled to an indemnity under its property insurance policy following a fire at its waste processing plant.

The Court of Appeal noted that "Complaints about factual findings and expert evaluation…are surprisingly commonplace" and it therefore re-stated the following general principles:

  1. To be overturned on appeal, a finding of fact must be one that no reasonable judge could have reached. In practice, that will usually occur only where there was no evidence at all to support the finding that was made, or the judge plainly misunderstood the evidence in order to arrive at the disputed finding;
  2. A first instance judge's assessment of, or evaluations based upon, expert evidence adduced at trial must be approached by an appellate court with similar caution; and
  3. Because a judgment in the TCC is likely to involve detailed findings of fact in an area of specialist expertise, obtaining permission to appeal on such matters in a TCC case may be harder than in other, non-specialist types of case.

The Court of Appeal found that the appellant in this case had failed to surmount the high hurdle required to convince it to give permission to appeal. Most of the issues raised were factual and the judge had been entitled to reached the conclusions which he had.

One of the points considered by the Court of Appeal when reaching its decision was the meaning of "storage" in the policy. The policy required the insured "to store materials more than 6 metres from fixed plant and machinery".  The insurers argued that materials had to be "placed (kept)" 6 metres away, but the judge rejected that argument and instead found that the term "storage" imports "a degree of permanence and a deliberate decision to designate an area to place and keep material". The Court of Appeal agreed with the judge's finding, stating that the insurer's interpretation "would mean that any piece of waste placed less than 6m from the plant and machinery, no matter how small and no matter how it got there or how long it remained, would negate the insurance altogether. That is not a common sense reading of the policy. It substitutes the word "stored" for the word "kept" or "placed"". By contrast, it was said that the judge's interpretation "gives meaning and effect to the word "stored" as denoting a deliberate act of storage for at least a period of time".