AXA INSURANCE UK PLC V THERMONEX LTD

[2012] EWHC B10 (Mercantile), Mercantile Court, His Honour Judge Simon Brown QC, 8 August 2012

Insurance (public liability and Contractors' All Risks) - Property allegedly defective - Whether public liability policy covered remediation costs - Notification clauses - Whether condition precedent - Whether failure to notify - Negative declaratory relief - CPR 40.20

Thermonex, was between 2004 and 2008 a sub-contractor engaged in the construction of 118 Golf Villa residences in Ireland. In September 2009 proceedings were commenced in Ireland against Orchardville, a sub-contractor, by the main contractor, Gem Construction, seeking damages for breach of contract, breach of warranty restitution and negligence in respect of the design, supply and installation of basements in the development, which were alleged to have developed leaks. Thermonex was not joined to those proceedings. No other property was damaged and the estimated costs of remedial works were undertaken, and the total estimated cost was just under €4.1 million. Thermonex did not notify AXA, its public liability and CAR insurers, and went into liquidation in the middle of 2011. Gem threatened to join Thermonex to the Irish proceedings and AXA sought a declaration in the English courts that there was no liability under the policy.