Tradigrain SA & Ors v Intertek Testing Services (ITS) Canada Ltd & Anor [2007] EWCA Civ 154 (28 February 2007)

Tradigrain SA & Ors v Intertek Testing Services (ITS) Canada Ltd & Anor [2007] EWCA Civ 154 (28 February 2007)

The waiver of recourse clause applies only to persons holding formal positions such as directors or equivalent, not to those with de facto control like Mr. Rackham. The failures attributed to Mr. Rackham did not amount to gross negligence under German law, considering both objective and subjective elements. Even if...

Source-derived case information.

Citation
[2007] EWCA Civ 154
Parties
Claimant/appellant: Tradigrain S.A.; Claimants/appellants: Societa Italiana Assicurazioni e Riassicurazioni (SIAT) S.p.A. and Others; Defendant/respondent: Intertek Testing Services (ITS) Canada Limited; Defendant/respondent: Caleb Brett India Pvt Limited
Jurisdiction
England and Wales
Judgment Date
28 February 2007
Procedural Posture
Appeal (civil) / Court of Appeal Judgment on Appeal From High Court (commercial Court)
Outcome
Appeal dismissed
Legal Topics
Construction of Insurance Contracts, Limitation of Liability, Gross Negligence Under German Law, Waiver of Recourse Clauses, Attribution of Acts to Corporate Insureds
Insurance Law Contract Law Commercial Law Construction of Insurance Contracts Limitation of Liability Gross Negligence Under German Law Waiver of Recourse Clauses Attribution of Acts to Corporate Insureds

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Summary, issues, holding and outcome

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Parties

Tradigrain S.A.

Claimant/appellant

Societa Italiana Assicurazioni e Riassicurazioni (SIAT) S.p.A. and Others

Claimants/appellants

Intertek Testing Services (ITS) Canada Limited

Defendant/respondent

Caleb Brett India Pvt Limited

Defendant/respondent

Procedural Posture

Appeal (civil) / Court of Appeal Judgment on Appeal From High Court (commercial Court)

Legal Issues

  1. 1 Whether Mr. Rackham was a 'representative' of CBI within the meaning of the waiver of recourse clause
  2. 2 Whether the loss was caused by gross negligence on Mr. Rackham's part under German law
  3. 3 Whether CBI is entitled to limit its liability under clause (i) of Schedule III to the CMA in the event of gross negligence

Ratio Decidendi

The waiver of recourse clause applies only to persons holding formal positions such as directors or equivalent, not to those with de facto control like Mr. Rackham. The failures attributed to Mr. Rackham did not amount to gross negligence under German law, considering both objective and subjective elements. Even if gross negligence were established, the limitation of liability clause in the CMA would apply to limit CBI's liability. The appeal was therefore dismissed.

Court Disposition

Appeal dismissed