[2013]

CA]

INSURANCE AND REINSURANCE

ACE European Group Ltd v Chartis Insurance UK Ltd

COURT OF APPEAL
45 February; 22 March 2013

ACE EUROPEAN GROUP LTD AND OTHERS

v
CHARTIS INSURANCE UK LTD
[2013] EWCA Civ 224
Before Lord Justice LONGMORE,
Lord Justice MOSES and
Sir Alan WARD
Insurance (marine) Cargo damaged
Whether damage occurred before or after
delivery Doctrine of proximate cause
Proof of cause.
This was an appeal by the defendant insurer
against the decision of Popplewell J, [2012]
Lloyds Rep IR 603, holding the defendant
Marine Insurer liable for damage to economisers
insured by Lakeside Energy from Waste Ltd.
Lakeside was the developer of a waste
recycling plant at Colnbrook near Slough.
Lakeside obtained from Vulcan SA in Bucharest,
Romania, 16 economiser blocks for use in two
boilers which generated the heat to drive steam
turbines. Each boiler contained an economiser
made up of eight economiser blocks arranged
in two lines of four, and each economiser block
consisted of 24 rows of 40 vertical steel tubes
welded to tubular steel headers at the top and
bottom of each row.
Fourteen of the 16 blocks were transported by
road from Bucharest to Constanta, by ship from
Constanta to Southampton and by road from
Southampton to the Lakeside Facility. The other
two blocks made the entire journey overland by
road. Fatigue crack damage to the tubes was
discovered in February 2008, when gas tight
tests prior to commissioning led to the detection
of leaks. By that time the economisers had been
on site at the Lakeside Facility for between four
and six months. It was common ground that
the fatigue cracking was caused by resonant
vibration which must have occurred between the
time the blocks left the factory in Bucharest and
the discovery of the cracks on site.
The claimants were the subscribing insurers
to an Erection All Risks, Public Liability and
Delay in Start Up Insurance (EAR) Policy,
which provided cover against physical loss,
destruction or damage to all items designated
for incorporation in the project. Cover for
equipment and materials procured from outside

485
PART 8

the United Kingdom commenced upon the

attachment of lifting gear to such equipment
and materials once at the Lakeside Facility. The
defendant was the sole subscribing insurer to a
Primary Marine Project Cargo/Delay in Start-Up
Insurance Policy. The Marine Policy covered
Lakeside during transit against all risks of loss
or damage to plant, equipment, materials and
machinery in connection with the project. So
far as the economisers were concerned, cover
commenced from the time the goods left the
factory in Bucharest and terminated on delivery
to the Lakeside Facility.
Lakeside claimed under both policies for the
costs of repairing the tubes and associated costs.
A dispute arose between the EAR Insurers and
the Marine Insurer as to whether damage had
been suffered prior to arrival at the Lakeside
Facility. The Marine Insurer contended that the
necessary vibration could not have occurred
during road and sea transport and that it was likely
to have resulted from turbulent wind causing the
tubes of the economisers to vibrate whilst the
economisers were exposed to the elements at
the Lakeside Facility. The EAR Insurers contended
that the vibration which caused the fatigue failure
occurred during transport (predominantly or
exclusively the road transport, rather than the sea
transport) by reason of missing packing between
the rows of tubes in the economisers.
The EAR Insurers settled the claim for
4,600,000 and sought indemnity or contribution
from the Marine Insurer. At first instance
Popplewell J held that the loss had been
proximately caused by vibration during transit
and that the Marine Insurer was liable to provide
an indemnity. The judge found that: (1) a range
of stress cycles suffered by the tubes of between
20,000 and 80,000 stress cycles must have
occurred to cause the observed fatigue cracking
in the economiser blocks; (2) wind excitation
could effectively be ruled out as a cause of the
fatigue cracking; (3) it was necessary to assess
whether road transport vibration was more likely
than not to have caused the damage since, if it
was not, then the proximate cause could not
be identified; and (4) there was a realistic and
credible possibility that fatigue cracking could
have occurred during road transport given that
there was packing missing between the tubes in
the economiser blocks and each of the blocks
was transported over a sufficiently rough road
to have allowed the necessary cycles of stress to
have occurred.
The Marine Insurer appealed on the grounds
that: there was no or insufficient evidence that
the packing between the tubes of the economiser
blocks was inadequate; there was no or insufficient

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evidence that the road surfaces over which the

blocks were transported was rough enough to set
up a vibration; and the resonant vibration had to
be caused by a narrowband frequency response
but the evidence was that any resonant response
was a broadband frequency response.
Held, by CA (LONGMORE and MOSES LJJ,
and Sir Alan WARD) that the appeal would be
dismissed.
(1) It was not disputed that the judge correctly
directed himself in holding that, where there were
two competing theories of loss, each of which
was improbable, that having rejected one it was
logical to accept the other as being the cause if
on the balance of probabilities it was correct. The
conclusion reached by the judge was one open to
him and it was indeed more likely than not that
the damage occurred during the transportation to
Colnbrook (see para 35);
The Popi M [1985] 2 Lloyds Rep 1;
[1985] 1 WLR 948, Ide v ATB Sales Ltd [2008]
EWCA Civ 424, applied.
(2) The judges conclusion that photographic
evidence produced by the Marine Insurer showing
packing in place did not provide a complete and
systematic record and did not enable the blocks
to be identified was justified, in that the Marine
Insurer had not, even on appeal, securely proved
which photograph was of which block, let alone
that the gaps between the relevant rows were
adequately packed (see paras 23 and 25).
(3) There would have been plenty of time
for the vibrations to have occurred on the road
journey. There was, moreover, evidence that
the motorway had a rumble strip at the border
between the road itself and the hard shoulder,
and it was quite likely that a great part of
the motorway journey would have been over
that rumble strip which would itself set up
vibrations if there had not been adequate packing
(see paras 31 and 32).
(4) The judges rejection of the Marine
Insurers submission that it had not been shown
that a narrowband resonant response could have
been achieved was amply justified (see para 34).

The following cases were referred to in the

judgment:
Ide v ATB Sales Ltd (CA) [2008] EWCA Civ 424;
Rhesa Shipping Co SA v Edmunds (The Popi M)
(HL) [1985] 2 Lloyds Rep 1; [1985] 1 WLR 948.

Andrew Bartlett QC, Rachel Ansell and Simon

Goldstone, instructed by DAC Beachcroft LLP,

[CA

for ACE; Simon Rainey QC and Gemma Morgan,

instructed by Waltons & Morse LLP, for Chartis.
Friday, 22 March 2013

JUDGMENT
Lord Justice LONGMORE:
1. This is a dispute between two sets of insurers.
The claimant insurers provided cover to the assured
under the terms of an Erection All Risks Public
Liability and Delay in Start Up Insurance Policy
(the EAR Policy). The defendant was an insurer
providing Marine Cargo Insurance to the same
assured pursuant to the terms of a contract of
marine insurance (the Marine Policy). In broad
terms, the Marine Policy covered loss in transit; the
EAR Policy covered loss at the relevant site.
2. The claimant insurers claimed an indemnity
or a contribution from the defendant, the claimants
having themselves indemnified the assured.
The claimants sought to recover sums from the
defendant on the basis that the damage suffered by
the assured whom they had indemnified was in fact
covered by the Marine Policy, rather than the EAR
Policy.
3. The insured, Lakeside Energy from Waste
Ltd (Lakeside), was engaged in 2007 in the
construction of an energy from waste facility in
Colnbrook, near Slough (the Lakeside Facility).
Certain contractors, Itochu Corporation and Takuma
Corporation (together, the EPC Contractor),
were engaged by Lakeside as the Engineering,
Procurement and Construction Contractor for the
development of the waste facility.
4. Both Lakeside and the EPC Contractor were
named as co-assureds under the EAR Policy. The
Marine Policy named Lakeside as the assured
and Lakesides engineering and procurement
contractors, which included the EPC Contractor,
as co-assureds. Both policies contained a 50/50
clause providing that in the event that it was not
possible to ascertain whether the cause of the
damage to the insureds property occurred before
or after the arrival of the property at the Lakeside
facility, the EAR and Marine Insurers would each
contribute 50 per cent of any properly adjusted
claim.
5. The waste facility incorporated two boilers,
which each housed an economiser, a heat exchanger
through which water flows. The water is heated by
hot air which is blown through the economiser. Each
of the two economisers comprises eight economiser
blocks which consist of banks of vertical tubes, 24
tubes long by 40 tubes wide. The outer 12 tubes on
each row are cranked so to allow them to connect

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to tubes two rows away, thereby allowing the flow

of water through the economisers tubes.
6. The economisers tubes are welded at the
top and bottom of each row of 24 tubes to headers
(the upper headers and the lower headers
respectively) and the upper headers are welded
together. Each block is about 3.6 m wide, 2.8 m
deep and 6.3 m high in dimension and, once
installed, suspended from the upper headers so as to
be free-hanging with space beneath.
7. The economisers were manufactured by
a company called Vulcan SA (Vulcan) at its
manufacturing facility in Romania in mid-2007.
The 16 economisers were transported variously by a
combination of road and sea from Vulcans facility
in Romania to the Lakeside facility site throughout
July and August 2007 and installed between
August and October 2007. The economisers were
installed while the construction of the waste facility
was ongoing. Fourteen of the economisers were
transported by a combination of road and sea (via
the port of Constanta in Romania to Southampton),
whereas two of the economisers were transported
by road alone.
testing
carried
out
during
8. During
commissioning of the economisers on 9 February
2008 microscopic cracks were discovered in certain
weld joints of the economisers where the cranked
tubes met the upper header. Further testing revealed
further crack and crack-like indications in a number
of the cranked tubes. Ultimately, the weld joints
where the cranked tubes met the upper headers were
all replaced.
9. The assured notified claims under both the
EAR Policy and the Marine Policy in February
2009. The claimants subsequently paid Lakeside
and EPCs claims and entered into an agreement on
13 August 2009 with the defendant which provided
that the parties would either agree or litigate between
themselves the issue of correct apportionment of
the assureds claim as between the two policies.
10. The claimants assert and the defendant
denies that the loss and damage suffered by Lakeside and/or the EPC Contractor was covered under
the Marine Policy. The defendants assert and the
claimants deny that the loss and damage occurred at
the site and was covered by the EAR Policy.
11. The main dispute for determination by
the judge was, simply, when the damage to the
economiser blocks occurred. Was it during road
or sea transport, thereby falling within the scope
of the Marine Policy, or whilst on-site at Lakeside,
thereby being covered by the EAR Policy?
12. Both parties experts agreed that the cause of
the damage in the relevant weld joints was fatigue
failure due to cyclic stress loading which had been
caused by resonant vibration.

487
[LONGMORE LJ

13. The defendants case at trial was that the

necessary vibration could not have occurred during
road and sea transport and that it was likely to have
resulted from turbulent wind causing the tubes of the
economisers to vibrate whilst the economisers were
on-site and exposed to the elements at Lakeside.
The claimants case was that the vibration which
caused the fatigue failure occurred during road
and/or sea transport by reason of missing packing
between the rows of tubes in the economisers and
by reason of transport over rough roads in Romania;
it did not occur when the economisers were on-site
at Lakeside because the wind was not sufficiently
strong to excite vibration in the tubes.
14. The court heard expert evidence from experts
from each side in four areas: metallurgy, welding,
road transport and wind. Brief factual evidence was
also given on both sides.
The judges reasoning
15. The judge found in favour of the claimants.
His essential reasoning was as follows:
(1) A range of stress cycles suffered by the
tubes of between 20,000 and 80,000 stress cycles
must have occurred to cause the observed fatigue
cracking in the economiser blocks.
(2) Wind excitation could effectively be ruled
out as a cause of the fatigue cracking observed in
the economiser blocks.
(3) Once one had eliminated wind as a theory
for the cause of the damage, it was necessary to
assess whether road transport vibration was more
likely than not to have caused the damage since,
if it was not, then one could not conclude which
cause was the proximate cause, both would be
equally unlikely and the 50/50 clause would be
applicable.
(4) The claimants experts theory (based
upon finite element analysis modelling) that the
fatigue cracking could have occurred during road
transport if the two factual pre-conditions set out
in (5) below had occurred at the relevant time
was, on the evidence before him, credible. The
defendants argument that road transportation
could not have resulted in the resonant vibration
response of the economiser tubes (which the
parties agreed must have occurred in order to
explain the observed damage) was rejected.
(5) The two necessary factual pre-conditions for
the required resonant vibration had occurred viz:
(a) there was sufficient packing missing
between the tubes in the relevant places of the
economiser blocks to have allowed resonant
vibration to occur during road transit;
(b) each of the economiser blocks was
transported over a sufficiently rough road for
a sufficient amount of time to have allowed the

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necessary cycles of stress to have occurred to

cause the fatigue cracking.
(6) The judge accordingly found that it was
a realistic and credible possibility that the
observed fatigue cracking occurred during road
transport and accordingly found for the claimants.
16. Permission to appeal against the judges
findings was granted by Stanley Burnton LJ before
his recent and much-lamented retirement. The parties
agree that the damage to the economisers must have
occurred either during the road transportation or
while awaiting installation at Colnbrook and that
it must have been caused either by a combination
of inadequate packing and rough road surfaces on
the one hand or by wind excitation at Colnbrook
on the other. There was no other potential cause
of the damage. In these circumstances there were
effectively three grounds of appeal:
(1) there was no or insufficient evidence that
the packing between the tubes of the economiser
blocks was inadequate;
(2) there was no or insufficient evidence
that the road surfaces over which the blocks
were transported was rough enough to set up a
vibration; and
(3) the resonant vibration had to be caused
by a narrowband frequency response but the
evidence was that any resonant response was a
broadband frequency response.
17. Other potential grounds of appeal such as
that the judge should have dealt with the points
in a different order and that he should not have
decided that wind excitation at Colnbrook could be
ruled out as a possible cause evaporated during oral
argument.
Inadequate packing
18. The judge relied on four matters in particular
to establish a credible case for inadequate packing:
(1) The manufacturing process was conducive
to missing or insufficient packing. The packing
was inserted while the tubes were being welded
to the headers; when the cranked tubes were
lifted up to be welded, there could not have
been a single strip running the length of the gap
between the rows and anything less could easily
have slipped out or become displaced.
(2) Packing strips of different lengths were
used many of which did not extend to the full
length of the gap between the rows of tubes; if
a short strip fell out, some of the tubes would be
unsupported and could then set up the necessary
vibration resonance.
(3) Packing was not applied in even
thicknesses across the economiser blocks; so
even if only two strips out of the five packing

[2013]
[CA

strips per gap were to be missing or fall out,

sufficient movement of tubes would occur to set
up the necessary vibration response.
(4) There was what the judge called cogent
photographic evidence that some elements of
packing were missing during transportation.
19. Mr Simon Rainey QC (who did not appear
below) attacked the conclusion of the judge by
submitting that, so far from there being cogent
photographic evidence of inadequate or missing
packing, the photographic record showed that the
packing was entirely satisfactory or, at least, far
from unsatisfactory. He produced for the court a
schedule of photographs said to have been taken
on 28 August 2007 as well as a diagrammatic
representation supposedly showing which blocks
were being photographed and in what position the
photographer must have been standing. He then
invited the court to compare that schedule and that
diagram with a distribution map (produced for the
judge) which showed the rows in the blocks where
welds had been found to be cracked. He then invited
the court to conclude from the photographic evidence
that there had been proper and adequate packing in
the gaps either side of the row of tubing in the upper
header of which the cracks had been found. He
pointed out that most of the damage had occurred in
block 3 of Boiler 1 (together with some damage in
blocks 2, 4 and 5) and that the photographs could be
shown to be of precisely those blocks. He submitted
further that the court was in just as good a position
as the judge to examine the photographs and draw
appropriate conclusions from them.
20. There are, as it seems to me, a number of
difficulties with Mr Rainey QCs submission. First,
it is based on incomplete material. The distribution
map relied on did indeed show (in black) weld joints
which were found to be cracked. But it also showed
(in red) weld joints where crack-like indications
were found and it was agreed that these joints
may well have included joints which were in fact
cracked. Moreover it showed yet further (in yellow)
places where joints were not even tested. Some of
those joints may also have been cracked.
21. Secondly, it is wrong to infer that merely
because one knows the position of a crack that it
must follow that the place where the packing was
missing was the gap either side of the tube at the
top of which the crack was found. Mr Andersons
expert report makes clear his view that, if a block
has (say) six gaps due to inadequate or missing
packing, a series of rows of tubes could start
vibrating together and set off a vibration that could
cause cracking elsewhere in the block. (I have in
mind passages in his written evidence at 4/812 to
813 and in his cross-examination at Day 4 pages 11,
20 to 23 and 27.) The judge (para 125) accepted that

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ACE European Group Ltd v Chartis Insurance UK Ltd

part of Mr Andersons evidence and it was open to

him to do so, especially in the light of his general
preference of Mr Andersons evidence to that of the
defendants expert, Dr Hunt.
22. Thirdly, the photographic record was not
nearly as secure as Mr Rainey QC claimed. The
existence of the photographs on which the defendant
now relies only become apparent on exchange of
experts reports. Although the photographs had
been in the defendants possession or control since
September 2011, they were not disclosed until 20
March 2012 (two days before the trial started) when
the disclosure statement said that the photographs
were undated. The trial began on 22 March and
Mr Anderson gave evidence on Days 3 and 4 of
the trial with a little bit extra on Day 5. Only after
his evidence had been given was the computer disk
produced which contained certain metadata such
as the apparent time and date of the photograph.
Naturally enough, in view of this late disclosure,
the judge asked for details of the provenance of the
disk. No reliance had up to this time been placed by
the defendant on the metadata and the judge made
it clear that he would not draw conclusions from
the disk without evidence of its provenance. On the
following day (Day 6) Ms Ansell for the claimants
made it clear that it would be unfair if anything
from the disk was to be relied on, since whatever
might be relied on had not been put to her expert,
Mr Anderson. Mr Anderson was in fact recalled
for a short time on Day 7 but nothing was put to
him about the date and time of the photographs as
recorded on the disk. The evidence concluded on
Day 8 (2 April). The judge ordered that written
closing submissions should be exchanged by 08.00
the next day (3 April) preparatory to oral closing
submissions being made on 4 April. The judge and
the claimants were then presented with over 100
pages of written submissions from the defendant
which included submissions about the dates and
time of the photographs without evidence of
provenance having been given as required by the
judge on Day 5.
23. In these circumstances the judge was
eminently justified in saying (para 123) in relation
to a photograph on which the defendant placed
particular reliance as being of block 3 in Boiler 1
that the attribution was insecure. He added:
The series of photographs, whose source
is Takuma, have amongst them photographs
of a name plate identifying the block number.
The Defendants argument assumed that the
photographs which followed the photograph of
the name plate were of that block. But it can be
determined that some photos of the block which
follows such a name plate must be of a different
block. The metadata on the disk of photographs
with which I was provided suggests that the

489
[LONGMORE LJ

photographs are a selection of those taken, not a

complete and systematic record.
He also said in response to the submission that
the existence of damage in particular blocks was
inconsistent with photographs of such blocks
showing the packing in place:
But all the individual points made in support
of the contention started from the false premise
that one could identify which block was the
subject matter of a particular photograph.
That was also a remark which is eminently
justified.
24. As Mr Andrew Bartlett QC for the claimants
pointed out, it was also a curious fact that whereas
at trial and in the defendants skeleton argument
for this court it was said that the block shown in
the photographs was the block after the photograph
recording the number of the block, Mr Rainey QC
in his oral submissions asserted, at least in some
cases (eg photograph 713) that it was of a block
before the number of the block (number 2) which
was recorded on the photograph.
25. In the circumstances the defendant has not,
in my judgment, even now securely proved which
photograph is of which block, let alone that the gaps
between the relevant rows were adequately packed.
26. Furthermore, while this is of significance
in itself what is even more significant is that the
defendants case, based (as it now is) in tying
particular photographs to particular gaps between
tubes in particular blocks, was never put to the
claimants expert witness, Mr Anderson. It is just
not right to say that unprovenanced photographs can
speak for themselves and that this court can examine
them in just the same way as the judge can. If a case
was to be made that particular photographs showed
particular blocks, that is a case which should have
been placed before the claimants expert with time
given to him so that he could assess that case in the
context of the litigation as a whole. It is not right
for such a case to be mounted in written closing
submissions for the first time, let alone for it to be
mounted even better, after time for reflection, in this
court.
27. That is sufficient to dispose of the positive
arguments in favour of the first ground of appeal
but I would add that the first three of the matters
relied on by the judge are important. His findings in
relation to manufacturing process, the length of the
strips and this uneven thickness were open to him on
the evidence. Moreover the fact that the defendant
cannot call on the photographs to justify its positive
assertions that the packing was sufficiently tight
and workmanlike to avoid the risk of vibration does
not mean that the photographs produced cannot be
relied on to justify the various points made by the
judge in subparas 122(3) to (6).

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Roughness of road surface and journey times

28. Mr Rainey QC relied on the judges finding
that the range of cycles of resonant vibration required
to cause the observed fracturing was a minimum of
20,000 cycles and a maximum of 80,000 cycles. A
frequency (which was likely) of between 4.4 Hz and
5 Hz would then give the following times necessary
to accumulate the relevant number of cycles:
(1) for 20,000 cycles, between 67 and
75 minutes;
(2) for 50,000 cycles, between two hours 47
minutes and three hours and 10 minutes; and
(3) for 80,000 cycles, between four hours
17 minutes and five hours three minutes.
29. The judge further said that the journey from
the factory in Bucharest to the port of Constanta was
about 215 km of which 65 km was on urban roads
of poor quality (where the average speed would
have been about 25 km/hr and the journey time
would have been over 2 hours) and 150 km on
a motorway. The judge accepted hearsay evidence
that two years after the transport the motorway was
of tolerable quality but only after improvements
had been made in the intervening period so that the
surface of the motorway might have been worse
when the economisers were transported.
30. Mr Rainey QC submitted that, if one ignored
that hearsay evidence as the judge ought to have
done, the journey on the urban roads was too short
for the necessary vibrations to have occurred.
31. That is not necessarily right because with a
minimum of 20,000 cycles there would have been
plenty of time for the vibrations to have occurred
and, even if 50,000 cycles was a more approximate
figure, two hours and 47 minutes equates,
respectably enough, to the time the judge found
would have been taken of over 2 hours.
32. There was, moreover, evidence that
the motorway had a rumble strip at the border
between the road itself and the hard shoulder.
Since the economiser blocks were extremely
large and the lorry transporting them needed to be
correspondingly wide, it is quite likely that a great
part of the motorway journey would have been
over that rumble strip which would itself set up
vibrations if there had not been adequate packing.
Narrowband response
33. Here the submission was that Dr Hunt had
given evidence, with the assistance of a model
made for the purpose, that for the damage to have
occurred the frequency would have had to have
been a narrowband resonant response and that
there was no way in which it had been shown
that such a narrowband response could have been
achieved.

[2013]
[CA

34. The judge understood this submission but

did not accept it for the reasons given in para 103
of his judgment; he also made clear in paras 88
to 91 that he could not accept Dr Hunts model.
Mr Anderson dealt with the point in his evidence
saying that vibration could be set up if only one
or a few tubes vibrated and such vibration could
have been at a narrowband frequency (vol 4, tab
38, pages 830 and 831). Moreover Dr Hunt never
went as far in his evidence as to say that damage
occurring during road transport was impossible; he
could only say that in his view it was very unlikely.
In the circumstances the judges rejection of the
submission seems to me to be amply justified.
Standing back
35. It is not disputed that the judge correctly
directed himself in accordance with Rhesa Shipping
Co SA v Edmunds (The Popi M) [1985] 2 Lloyds
Rep 1; [1985] 1 WLR 948 and Ide v ATB Sales Ltd
[2008] EWCA Civ 424. In the latter case at para 6
Thomas LJ said:
As a matter of common sense it will usually
be safe for a judge to conclude, where there are
two competing theories before him, either of
which is improbable, that having rejected one it
is logical to accept the other as being the cause on
the balance of probabilities.
Of course the judge has to be satisfied that the
second theory is, on the balance of probabilities,
correct. That is what Popplewell J decided and
that was a conclusion which was open to him on
the evidence. In any event I agree with him that it
was indeed more likely than not that the damage
occurred during the transportation to Colnbrook. In
the circumstances I would dismiss the appeal.
Lord Justice MOSES:
36. I agree that the appeal should be dismissed
for the reasons given by Longmore LJ. I wish to
underline the audacity, if not effrontery, with which
the appellants have advanced this appeal.
37. The foundation of their argument lay in the
appellants assertions as to what should be derived
from the photographs referred to in Longmore LJs
judgment at para 19. In my view the appellants
ought never to have been permitted to rely on those
photographs either at trial or on appeal.
38. As Longmore LJ has pointed out, the
appellants had the photographs in their possession
in September 2011. They were not disclosed, as
they should have been, at that time, six months
before the trial. That would have given all parties
and their experts ample time to determine their
provenance, the times and dates when they were
taken and obtain the views of the experts as to their
significance. On the contrary, not only were the

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photographs hidden from the respondents scrutiny,

the appellants did not even obtain for themselves
such evidence as would have been necessary before
any reliance could be placed upon them. Without
accurate evidence of precisely which loads were
illustrated in the photographs, they seem to me of
little use and, possibly, misleading. That evidence
depended on accurate evidence of when, where
and from what position they were taken. They
were digital photographs; there can have been
no difficulty in obtaining such information. No
explanation was given either to Popplewell J or to
this court as to how or why the appellants allowed
this state of affairs to arise.
39. The photographs were disclosed shortly
before the trial. They should not have been
disclosed without at the very least the details I
have identified. Some of those details, some of the
metadata, but by no means all, were disclosed five
days into the trial by which time it was far too late
for witnesses or the parties and still less the judge to
assess their significance. The judge did his utmost
to be of assistance on the sixth day. He warned that
he would be unable to draw conclusions without
proper evidence as to provenance and what they
illustrated. But he was not invited, at that stage, to
rule that they should not be admitted. He asked for
further information.
40. The following day, the seventh day of the
trial, counsel for the respondents, emulating the
courtesy of the judge, put down what she described
as a marker. She pointed out that if reliance was
to be placed on the dates of the photographs, they
had not been put to the witnesses. The judge noted
the comment and the trial continued on a different
point.
41. Despite the manner of their disclosure, the
appellants counsel, who appeared below, did
rely on the photographs in his final submissions
as a major method of attacking the respondents

491
[Sir Alan WARD

arguments as to the cause of damage. The judge was

focusing on the dense and technical expert evidence
as the clarity and cogency of his exposition in his
judgment demonstrates. But he was prepared at
least to consider the photographs before dismissing
the arguments based on what they were said to
illustrate.
42. The respondents counsel was placed in a
position which ought never to have been allowed
to occur. It is difficult for counsel in a civil case to
object to evidence on the basis it has been adduced
far too late and without adequate background
evidence as to whether it is reliable and significant.
Too strident an objection may prompt a Gertrudelike judicial response to the protestations of the
Player Queen. But the judge had every right to
invoke the overriding objective and exclude the
evidence of the photographs pursuant to CPR
32.1(2). He should have been invited to take that
course. That would, at least, have flushed out the
full extent of the defects in their reliability. If
the appellants had wished to make good those
defects, they would have been forced to ask for an
adjournment. That might well have been refused,
putting a quietus on their deployment as a tool for
challenging the respondents theory.
43. But far from being consigned to the dustbin
of last-minute evidence, the photographs were resurrected on appeal, with the assistance of Mr Rainey
QC, who cloaked what was in reality impermissible
fresh evidence with beguiling assertion and with a
bicoloured sketch plan which he had drawn. Had
Stanley Burnton LJ appreciated the circumstances
in which those photographs emerged and the reliance which would be placed upon them, he would
surely never have given permission to appeal, however imminent his retirement.
Sir Alan WARD:
44. I agree.