Cavity wall insulation installed in April 2018
Damage was reported almost 2 years later
Referencing a legal precedent involving similar principles and the legal definition of damage, we highlighted that there was no evidence the walls had been damaged at the point of installation – appeal dismissed
Cavity wall insulation (CWI) has been included in all new properties built since the 1990s and is designed to improve the thermal efficiency on buildings. Following changes in building regulations regarding CWI, retrofitting in older homes became very popular to reduce heating costs. However, not all properties are suitable for retrofitting CWI, and last year, we explored why.
A year on, and CWI claims continue to be a challenge – in this particular case, the claimant had CWI installed in their property in April 2018. At the time of installation, the installer held public liability insurance, but in June 2018 the policy was cancelled, with the installer entering voluntary liquidation in August 2018 and ceasing to trade. Unfortunately, in the CWI claims arena, this is an all too familiar story, and once an installer has ceased trading it can make the claim process difficult to navigate.
Almost two years after the CWI installation, in February 2020, the claimant’s property was affected by high damp readings, caused by rising and penetrating damp. The claimant pleaded that damp hadn’t been an issue prior to the CWI installation, and claimed that the cavity wall structures were physically changed by the introduction of CWI, making them less useful and effective.
The allegations made against the installer included a failure to follow appropriate guidance; failure to carry out a proper pre-inspection survey; installing CWI when the property was not suitable; and failing to carry out the installation with reasonable care and skill.
As the installer was no longer trading, the claim was litigated against our client insurer under the Third Party (Rights Against Insurers) Act 2010. As part of the defence our client responded with an application to have the claim struck out and for summary judgment to be entered on the grounds the claim had no reasonable prospects of success. The Judge at first instance ruled in favour of the defending insurer and with the claimant’s subsequent appeal against that first instance decision also dismissed.
Our Adjuster wrote to the claimant’s lawyers in June 2020 and argued that as the installers’ insurance ceased in June 2018 and with the policy written on a ‘damage occurring’ basis, the policy could offer no indemnity towards the claimant’s claim. To claim against the insurer, the damage would have to have occurred during the period when the policy was active.
The claimant’s lawyers response was that the property walls were damaged at the point of CWI installation. However, our Adjuster then provided to the claimant lawyer in December 2020 a detailed explanation of the policy limitations, stating quite clearly that if the damage was noticed by the claimant in February 2020 then that was long after the policy ended and with no damage occurring to the property during the period when the policy was active. Utilising our knowledge of CWI claims, our Adjuster referred to case law we considered to be supportive of our interpretation of when damage occurred.
The Judge hearing the appeal ruled that for the claimant to pursue the allegation that the walls were damaged at point of installation, they would require evidence from an expert in the field. This wasn’t provided in the original case, nor the appeal.
The Judge dismissed the claimant’s appeal and in doing so referenced our detailed pre-litigation correspondence to the claimant’s lawyers – paying specific attention to our Adjuster directing the claimant lawyers to consider case law which the Judge agreed was directly relevant. The claimant has leave to appeal further, but as it stands, they face paying the not insignificant legal costs of both sides.
To find out more about how we tackle claims involving historic CWI installations, please get in contact with our Managing Director of Casualty Claims, Stephen Kavanagh on Stephen.firstname.lastname@example.org.