Harrison & Ors v Shepherd Homes Ltd & Ors

Harrison & Ors v Shepherd Homes Ltd & Ors

The claimants have an arguable case under section 3 of the Buildmark policy that should not be struck out or summarily determined, as the exclusion clause's fairness under the 1999 Regulations is arguable and the claims are not so unparticularised as to warrant summary disposal. Claims for drainage defects are not sufficiently pleaded and do not fall for consideration on this application.

Parties
Claimants: Mr and Mrs Harrison and Others; First Defendant: Shepherd Homes Limited; Second Defendant: National House Building Schemes (NHBC); Third Defendant: NHBC Building Control Services
Jurisdiction
England and Wales
Judgment Date
08 January 2010
Procedural Posture
Civil Construction/insurance / Application to Strike Out And/or Summary Judgment
Outcome
Application dismissed
Legal Topics
Indemnity Insurance, Summary Judgment, Strike Out Applications, Unfair Contract Terms, Defective Premises, Remedial Works, Pre Action Protocol
Insurance Law Construction Law Contract Law Consumer Protection Indemnity Insurance Summary Judgment Strike Out Applications Unfair Contract Terms +3 more

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Parties

Mr and Mrs Harrison and Others

Claimants

Shepherd Homes Limited

First Defendant

National House Building Schemes (NHBC)

Second Defendant

NHBC Building Control Services

Third Defendant

Procedural Posture

Civil Construction/insurance / Application to Strike Out And/or Summary Judgment

Legal Issues

  1. 1 Whether claims against NHBC under section 3 of the Buildmark policy should be struck out or summarily determined
  2. 2 Whether section 3 exclusion clause is unfair under the Unfair Terms in Consumer Contracts Regulations 1999
  3. 3 Whether claims under section 3 can proceed where section 2 claims have been made or settled

Ratio Decidendi

The claimants have an arguable case under section 3 of the Buildmark policy that should not be struck out or summarily determined, as the exclusion clause's fairness under the 1999 Regulations is arguable and the claims are not so unparticularised as to warrant summary disposal. Claims for drainage defects are not sufficiently pleaded and do not fall for consideration on this application.

Court Disposition

Application dismissed

Orders

  • NHBC’s application to strike out or for summary judgment on section 3 claims is dismissed.
  • NHBC to decide how to proceed in relation to section 3 claims in light of the upcoming trial against SHL.