IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 11 April 2000
LORD JUSTICE EVANS
LORD JUSTICE THORPE
and
LORD JUSTICE LAWS
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| (1) MARK JOHN KILLICK & MARGARET ROSE. NUGENT (2) EMMA JANE RITCHIE-BURRIDGE, IVOR RONALD BINNEY, CARL WILLIAM ADAIR |
Claimants | |
| – and – | ||
| WILLIAM RENDALL (sued on his own behalf and on behalf of those Lloyd’s Syndicates listed in the Schedule to the Writ of Summons) | Defendant |
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
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– – – – – – – – – – – – – – – – – – – – –
LORD GOLDSMITH QC (for the APPELLANTS)
MR WILLIAM WOOD QC (for the APPELLANTS)
MR COLIN EDELMAN QC (for the RESPONDENTS)
MR NICHOLAS RANDALL (for the RESPONDENTS)
Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE EVANS:
Matthew Harding and Anthony Burridge died in a helicopter accident on 22 October 1996. They were friends and business colleagues. Mr Harding was managing director of Benfield Group Ltd, a reinsurance business, and he was also a director of Chelsea Football Club. The fatal accident was in the late evening as the helicopter was returning to London from Bolton where they had attended a Chelsea `away’ fixture against Bolton Wanderers F.C. With them and also killed in the accident, as well as the pilot Mr Michael Goss, were two other men, friends of Mr Harding who were his guests on this occasion.
The claims in this action are made under a Personal Injury Accident policy dated 10 April 1996 issued by Lloyd’s underwriters. The insured under the policy was The Benfield Group Ltd and/or subsidiary companies and the amount payable in respect of the death of a “Director of the Assured” is £500,000 (Section 1 and the Schedule). The claims for these sums have been assigned by The Benfield Group to the personal representatives of Mr Harding and of Mr Burridge, who are the claimants in these proceedings.
The issue raised by the appeal, put shortly, is whether the deceased or either of them was travelling “on behalf of the Assured” within the terms of the policy on the journey in question. The judge Mr Justice Tuckey held that they were not and he dismissed the claim. The personal representatives appeal and they are now separately represented, by Mr William Wood Q.C. (Mr Harding) and Lord Goldsmith Q.C. for Mr Burridge’s representatives, who were also represented by Mr Wood at the trial.
Although some evidence was given orally, the bulk of it is found in an Agreed Statement of Facts and in a further “Schedule of Agreed Extracts from Plaintiffs’ Witness Statements”. We also have two witness statements, by Mr Coldman and Mr Wiltshire, and a short transcript of their oral evidence.
Outline facts
Mr Harding chartered the helicopter to take him and his guests from London to Bolton and back and he paid for it personally. But the trip included a visit to the factory of Linstrand Balloons Ltd at Oswestry in Shropshire. The Benfield Group was a £1 million sponsor for the Virgin Global Challenge flights then being organised by Sir Richard Branson and his Virgin group of companies, and the balloon was being manufactured at the factory in Oswestry. Mr Harding was to become the ground-based media co-ordinator of and official spokesman for the Challenge.
Provisional arrangements to charter the helicopter for the return flight to Bolton (and to six more `away’ matches during the season) were made at the end of September or in early October between Mr Harding and Mr Goss. These were altered to include a visit to Oswestry following a meeting between Mr Harding and executives of the Virgin Global Challenge in London on 7 October. They invited him to see the balloon with the Benfield Logo applied to it and to provide a press and PR opportunity, also so that he could add to his knowledge of the project in order to perform his role as spokesman for it.
From 28 September, Mr Harding’s plan was that he should be accompanied to the Bolton match by the three men who did in fact travel with him, including Mr Burridge. Mr Burridge was a long-standing friend of Mr Jonathan Warburton, the managing director of Warburton Ltd. which is one of the largest independent bakeries in the United Kingdom and based at Bolton. He had raised with him the possibility of Warburton Ltd. producing re-assurance business for Benfield, and before joining Benfield in August 1995 when he was in his previous employment with Bowring he had made a similar but unsuccessful attempt on Bowring’s behalf.
On one previous occasion in April 1996, Mr Burridge travelled with Mr Harding to a Chelsea away match at Bolton. So far as is known, it was the only away match Mr Burridge had attended outside London, although he was a season ticket holder at Chelsea after joining Benfield and he regularly attended home matches there. On that visit in April 1996, Mr Harding and Mr Benfield met Mr Brett Warburton who is Mr Jonathan Warburton’s cousin and a fellow director of Warburton Ltd. Mr Brett Warburton is also a director of Bolton F.C.
Sometime during the week commencing 14 October Mr Burridge’s personal assistant arranged with Warburtons for the helicopter to use the company’s car park as a landing area.
Events of 22 October
Mr Harding and Mr Burridge left Benfield’s offices at Fenchurch Street London EC3 at about 1.15 p.m. Both men were dressed in suits and had briefcases with them containing miscellaneous business papers. They were driven by cab to Battersea heliport by Grant Davis who drove for Mr Harding on a fairly regular basis, arriving at about 1.45 p.m. and meeting the two other passengers there, Raymond Deane and John Bauldrie.
The helicopter took off at about 2 p.m. and landed at the Lindstrand factory at Oswestry about one hour and twenty minutes later. They were met by Per Lindstrand, the principal of Lindstrand Balloons Ltd., and by the project manager and other representatives of Virgin Global Challenger. They toured the factory, inspected the balloon and were interviewed and photographed by the local press. The visit lasted about one hour.
The helicopter landed at Warburtons’ carpark just after 5 p.m. The party was met by Mr Jonathan and Mr Brett Warburton about 10 minutes later and they all drove into Bolton, where they spent about 20 minutes from 5.45 p.m. socialising (drinking) together. The Agreed Facts continue –
“(para.43) The Warburtons and Michael Goss then went for a meal locally, and were joined by ASB (Mr Burridge) later. The two groups subsequently met up again and went to the Bolton football ground together.”
Details are given of the seating arrangements there, but it is agreed that no business was in fact discussed. The helicopter took off just before 10.30 p.m. and crashed near Middlewich, Cheshire, about 20 minutes later.
Policy terms
The insuring clause reads as follows –
“We the underwriters hereby agree with the Assured, to the extent and in the manner provided, that if an Insured Person sustains Bodily Injury during the Period of Insurance, we will pay to the Assured, or to the Assured’s Executors or Administrators, according to the Schedule of compensation after the total claim shall be substantiated under this insurance.”
(The Schedule includes insured amounts for accompanying spouses and children.)
This is followed by –
“SECTION 1 PERSONAL ACCIDENT
To pay according to the following Scale of Benefits if at any time during a Period of Travel the Insured Person shall sustain bodily injury caused by an accident which shall solely and independently of any other cause result in his death or disablement as specified within 12 months from the date of such accident.”
“GENERAL PROVISIONS AND CONDITIONS” include –
1. Periods of travel
(i) For the purpose of this Insurance each Period of Travel shall be deemed to commence at the time that the Insured Person leaves his home or place of business whichever occurs the later for the purpose of proceeding beyond the confines of the United Kingdom on behalf of the Assured and to terminate at the time he returns to his home or place of business whichever occurs the earlier, from door to door. The United Kingdom shall mean England, Scotland, Wales and Northern Ireland.
(ii) Each Insured Person and each Period of Travel shall be deemed a separate insurance.
(iii) except where the Underwriters’ prior agreement has been obtained, no single Period of Travel shall exceed one year in duration.
(iv) Prior notice shall be given to the Underwriters of any proposed Period of Travel expected at its inception to exceed six months in duration. (Special terms may be required by Underwriters in respect of such Periods of Travel and separate documents of Insurance may be issued.
(v) Cover under this Certificate shall attach in respect of all Periods of Travel commencing during the Period of Insurance specified in the enclosed schedule.”
There is an exclusion of winter sports etc. and a Holiday Inclusion Clause which reads in part –
“Subject to the following terms and conditions, this Certificate is extended to cover the above Insured Person(s) during each and every holiday that they take where :
(a) the holiday destination is beyond the confines of the United Kingdom, and
(b) the travel and accommodation costs are paid for either in whole by the Insured Person and/or members of his family, or in whole or in part by the Assured, provided that the Assured’s contribution is not conditional upon the Insured Person performing business duties on their behalf during the holiday period.
(Note : where the performance of such duties is a condition of the Assured’s contribution, the trips shall be deemed a “Period of Travel” within the meaning of the Group travel Certificate itself).”
THE UNITED KINGDOM TRAVEL EXTENSIONS provides as follows –
“Notwithstanding the provisions of the Insuring Clause, journeys undertaken by the Insured Persons on the Assured’s behalf within the confines of the United Kingdom will be included as Periods of Travel for cover under those Sections of the Certificate specified in the enclosed Schedule, provided that such journeys include air travel and/or overnight stay away from the Insured Person’s usual place of residence. Cover shall apply from door to door as specified in General Provisions and Conditions 1(i) above except where commitment to air travel or overnight stay is not made until after a United Kingdom journey has commenced, when cover shall only take effect from the time that such commitment is made.”
The judge stated the issue at the outset –
“Underwriters say that the primary purpose of the journey was to attend a football match, so the deceased were not travelling on behalf of Benfield. The plaintiffs say that there is cover because the journey was made for a number of Benfield purposes.”
Those other purposes were (1) the Virgin Global Challenge visit (2) developing a busness connection with Warburtons, and (3) the opportunity for Mr Harding and Mr Burridge to discuss during the flight a meeting which they were due to hold the next day with Liberty Mutual, an important customer of Benfields.
After considering the Court of Appeal judgment in Seddon v. Binnians [1978] 1 Lloyd’s Rep. 381, the judge held that the question he had to answer in respect of each of the deceased was –
“What was the essential, predominant or primary purpose of his journey? That question has to be asked as of the time the journey was undertaken.”
He found that the visit to Oswestry was obviously important and was a Benfield purpose, and it was a material purpose, meaning that it could not be disregarded as trivial or de minimis. However, it was incidental or subsidiary to the primary purpose of the journey, which he held for each man was to go to the football match in Bolton. That was an uninsured purpose, and the claims therefore failed. He recognised that there were distinctions between the cases of Mr Harding and Mr Burridge, but as regards the latter –
“The inference is that he went willingly. If he went to ensure that the arrangement for attending the football match were satisfactory, [that] was not for Benfield purposes but for Mr Harding’s purposes or for his own purposes if he felt he needed to preserve or promote his relationship with Mr Harding.”
Construction of the policy
The terms of the Insuring Clause and of the material part of the policy “Section 1 Personal Accidents” are such that the insured event is an accident occurring “at any time during a Period of Travel”. That phrase is defined in clause 1(i) of the General Provisions and Conditions, two features of which are relevant for present purposes. First, the travel has to be “for the purpose of proceeding …. on behalf of the Assured”, meaning Benfield. The words of the United Kingdom Travel Extention are to the same effect. It refers to “journeys undertaken …. on the Assured’s behalf”. No one suggests that there is any difference between the two formulations.
Secondly, the Period of Travel is expressed in both clauses as “door to door” from start to finish of the journey in question. This of itself implies that each period of travel must be categorised as either within the policy terms or outside them. Foreign travel and even journeys within the United Kingdom which although made on behalf of Benfield would also include a non-business element must be taken to have been contemplated by the insured and by underwriters alike. This inference is reinforced by the fact that the period of foreign travel as defined in clause 1 may last for as long as six or even twelve months (clause I sub-clauses (iii) and (iv)). As Mr Wood put it, the policy covers overseas secondment as well as business trips. Such periods of secondment inevitably would include holidays and time used for non-business purposes.
As for the “door to door” provisions, neither party suggests that the journey undertaken in the present case, from London to Oswestry and Bolton then returning to London, could or should be sub-divided into two sections, part Benfield business at Oswestry and part non-Benfield at Bolton. This in my view is clearly right in the circumstances of this case, and it reinforces the need to have regard to the nature of the journey as a whole, in deciding whether or not it was made on behalf of Benfield. The claims made in respect of Mr Harding and Mr Burridge have to be considered separately, for the answer does not have to be the same in both.
The issues
The central issue is the correct legal approach : what the judge called the question he had to answer. It is common ground –
(1) that one purpose of the journey was to visit the football match :
(2) a second purpose was to visit Oswestry, which was “on behalf of” Benfield
(3) that both purposes were “material” in the sense that neither could be disregarded as “trivial or de minimis”
The issue of law is whether it is necessary for the claimants to establish that one of the two purposes was “primary” or predominant over the other. They submit that it is not necessary for them to do so, and that the claim succeeds under the policy if one of the two purposes was the insured purpose of travelling on behalf of Benfield. The Underwriters dispute this, contending that the insured purpose must be the primary or predominant purpose, or at least one of two or more purposes which are broadly equivalent to one another (MacGillivray (9th ed) para.19-5, though if the other purpose is excluded by the terms of the policy, insurers are not liable).
Seddon v. Binnions [1978] 1 Lloyd’s Rep.381
The competing submissions make it necessary to consider the judgment in Seddons v. Binnions with some care. The facts of the case were unusual. The issue was whether the driver, who was driving his son’s car, was using the car for social etc purposes which were covered by his own policy, or for other (his son’s business) purposes, in which case there was an express exclusion of the insurer’s liability. The trial judge held that the journey was for both purposes, and as one of them was excluded the insurers were not liable. The Court of Appeal did not dissent from this approach, but they preferred to ask what the “essential character” (per Roskill L.J.) or the “essential purpose” (per Browne L.J.) or the “primary purpose” (per Megaw L.J.) of the journey was. They held that “the essential character of this journey was …. that the father was using the son’s car for a business purpose” (per Roskill L.J. at 385). That purpose being expressly excluded, the father’s insurers were not liable under their policy.
Reference was made to part of the judgment in Passmore v. Vulcan Boiler Company (1936) 54 Lloyd’s Rep.92 also 154 L.T.258 where du Parq J. observed that a journey made for social purposes would not cease to have that character (using Roskill L.J.’s phrase) or cease to be insured, merely because the driver “as a matter of kindness, courtesy or charity gave someone a lift …. who happened to be on business of his own” (pp.94 and 259). In Seddon’s case, Browne L.J. recognised that any “incidental or subsidiary use for another purpose would not take the case outside the cover of the policy” (page 386).
The Court did not disapprove the trial judge’s “dual purpose” approach, and Roskill L.J. also said this –
“A journey may have one essential or predominant character, or, as the Judge thought, it may have two perhaps equally balanced, perhaps slightly disparate, elements in its make-up” (p.385).
Seddon v. Binnions therefore is clear and binding authority that the correct approach is to identify the “essential character” or “primary purpose” of the journey in question, if it had two or more purposes, unless the different purposes were equally balanced or not significantly disparate. In the latter case, the double purpose rules apply, meaning that insurers are liable if one purpose is within the cover unless the other purpose is excluded, as distinct from merely outside the cover, in which case they are not.
Mr Wood submits that it is this feature of the double purpose rule which underlines the Seddon v. Binnions decision, because the business purpose was expressly excluded in that case and the insured driver could not succeed merely by proving that one of two purposes was within the cover. Thus the need to establish the primary purpose or essential character of the journey arose in the context of defining the scope of the exclusion clause rather than the terms of the cover, and for that reason Seddon can be distinguished. The general rule that insurers are liable when one cause is within the scope of the cover, the other cause not being expressly excluded, should apply.
Mr Edelman Q.C. for the respondents referred us to MacGillivray paras. 29-65 and 67 and also reminded us of the underlying principle of insurance law that insurers undertake to indemnify the insured only against the risk specified in the policy for which they receive the premium which is appropriate for that risk. When problems of causation arise, the inquiry is whether the insured event was the proximate, dominant, effective or operative cause : see MacGillivray para. 19-1. Other contributory causes do not provide a basis for liability, although if there were two effective etc. causes the rules referred to in MacGillivray para. 19-5 apply and insurer’s liability depends on whether the uninsured cause was expressly excluded or not.
The same principle applies, he submits, in cases such as the present where it is necessary to decide whether the journey was made on behalf of Benfield within the terms of the policy. He accepts that the Benfield purpose was not negligible and that it cannot be disregarded altogether, but he says it was at best for the appellants a subsidiary purpose, not the dominant purpose and not capable of being regarded as one of two reasons, both of equal efficacy, on the facts of the present case.
Conclusion
In my judgment and in agreement with the judge, Mr Edelman is correct to submit that Seddon is authority for the proposition that in a case where the insurance cover depends upon the purpose for which a journey or period of travel was undertaken, the correct approach is to consider what was the primary purpose or essential character of the journey in question. The Court was concerned with the scope of the cover, not with the effect of an exclusion clause. The approach is analogous to the search for a proximate etc. cause when causation is in issue. It means that subsidiary or incidental purposes are insufficient to bring the journey within the scope of the cover, even though each is material in the sense of not being negligible or capable of being regarded as de minimis in the particular circumstances of the case. But it remains possible that a journey had two purposes, of equal or near-equal importance and neither dominant over the other, by analogy with losses for which there were two effective causes.
I turn to consider the facts of each case, therefore, on the basis that the relevant inquiry is whether the primary purpose or essential character of the journey was that it was made on behalf of Benfield. I also recognise that the journey could have two, what I may call equivalent purposes, or a dual character, in which case, if one was on behalf of Benfield, underwriters are liable for the claim.
Facts
The helicopter was chartered and initally at least the visit to Bolton was arranged by Mr Harding in order to visit the football match there. He invited Mr Burridge to join the group with the idea in mind of meeting the Warburton directors there. (According to Mark Killick, he said that he would also take Tony Burridge, because of his business connections with the Warburtons.) The Oswestry visit was included in their itinerary some days later. It was undoubtedly made “on behalf of Benfield” and it was, viewed in isolation, a substantial business purpose. No-one suggests that it should be regarded as trivial or de minimis or, I would add, as being insignificant, even in the context of the whole journey.
It is necessary, however, for the reasons given above to consider the “essential character” or primary purpose of the whole trip “from door to door” (in London) viewed overall. The fact that their Oswestry visit was included after the initial arrangements were made is immaterial. The question has to be asked and answered as at the moment when the trip began (“as Mr Harding and Mr Burridge left the Benfield offices to go to the heliport on the 22nd October” judgment p.12).
The common-sense answer to this question is that there were two purposes, one “on behalf of Benfield” and the other football. If these were equally balanced or no more than slightly disparate (per Roskill L.J.), or if the business element was predominant, then the journey was a period of travel within the cover.
Mr Wood submits that in Mr Harding’s case the two purposes were of equal or near-equal significance so that his claim should succeed. Lord Goldsmith contends that in Mr Burridge’s case the business purpose predominated, if the Seddon v. Binnions test is applied. Alternatively, he submits that the journey had a dual purpose character for Mr Burridge also.
On analysis, therefore, the question becomes, in each case, was the business purpose predominant or was the non-business purpose of visiting the football match at least equivalent with it, viewing the period of travel as a whole?
Mr Matthew Harding
The Judge clearly was influenced by the terms of a memorandum by the project manager of the Global Challenge, which he quoted (“Matthew Harding will be dropping in to the factory en route to a football match in Bolton”) and referred to later in his judgment (page 13A). As I read his judgment, he adopted this as a colloquial expression of the conclusion which he reached. I do not think the conclusion can be challenged because he referred to it.
Other criticisms of the judge’s reasoning are made in Mr Wood’s Skeleton Argument (para.7.5). He referred to the time factor : “most of the Period of Travel as defined by the policy was devoted to the football match”. But he also acknowledged that this was only one factor to be taken into account. He emphasised that no business discussions in fact took place with the Warburtons, thus overlooking,. it is submitted, the possibility that Benfield’s long term interests could best be furthered by not discussing business with the Warburtons on a social occasion.
Mr Wood made a powerful submission that if the period of travel was not covered then underwriters would not have been liable if the accident had occurred when the helicopter was landing at or taking off from the Oswestry factory.
In connection with the Warburtons, Mr Edelman Q.C. pointed out that according to the Agreed Statement of Facts Mr Harding spent very little time in their company after they drove him into Bolton.
Conclusion
The judge reached his conclusion with regret, and so do I, but I do not see any ground which entitles this Court to interfere with his judgment in Mr Harding’s case. The judge adopted the correct legal approach and found that the primary purpose of the journey for Mr Harding was to visit the football match in Bolton. The chance of doing business with Warburtons, either then or in the future, and even the visit to Oswestry, though far from trivial, were incidental and subordinate to it. In my judgment, and I would agree with the judge, the “period of travel” retained its non-business character even when those business purposes were added to it. I therefore would dismiss the appeal on behalf of Mr Harding’s estate.
Mr Anthony Burridge
It is clear that Mr Burridge’s case must be considered separately and that his status as an employee as well as a co-director (of a Benfield subsidiary) must be taken into account. There was evidence that Mr Harding included him in the party because of his Warburton connections (see above) but this is far from conclusive. The chairman of Benfield, Mr Ivor Binney, said that Matthew Harding liked to take a colleague with him to meet clients or potential clients and that Mr Burridge increasingly was fulfilling that role. According to Grant Davis (the driver), Matthew Harding saw Mr Burridge as his “heir apparent” in the business and was increasingly getting him involved in what was going on. On the evening before the journey, 21 October, a friend “accused ASB of “going on another jolly”, but he replied “No, there is business to be done on this trip”. Mr Norman Wiltshire. a senior executive, was with him in the United States the previous week and they discussed the Oswestry/Bolton visits. He said “I am pretty certain that if it had not been for the Warburton connection, Tony would not have gone up to Bolton just for the football match” ; he had only been to one Chelsea away match, and that was to Bolton earlier in the year.
Much emphasis was placed on the agreed fact that Mr Burridge told his family, who were on holiday in Spain on the morning of 22 October, that he could not join them there on the following day, as they hoped, because he was going to the Bolton v. Chelsea match that evening. But the trip was arranged three weeks before and the limited facts we know do not justify an inference that he changed his plans for that day in order to make it. But the facts demonstrate that he gave priority to it on the morning in question.
Conclusion
For my part I would find that the business purpose of the journey for Mr Burridge was at least equivalent to the social purpose of visiting Bolton for the Chelsea away match, and it is unnecessary to consider whether it was for him the primary purpose of the “period of travel” and predominant over the other. But the judge found otherwise and his decision should stand unless he erred in his approach. In my judgment, he did so err, in the passage which I have quoted above from his finding in Mr Burridge’s case. He remarked “The inference is that he went willingly” and that if he was involved in the arrangements for the visit, that was for Mr Harding’s purposes “or for his own purposes if he felt he needed to preserve or promote his relationship with Mr Harding”. This suggests that if Mr Burridge “went willingly” or in order to promote his own career interests with Benfield, then the journey was not made “on behalf of Benfield”. I disagree. The key lies in the fact that an employee may take part in business activities, or part business and part social activities, in order to further his employer’s interests as well as his own. It seems to me that this is most likely to have been the essential character of the journey for Mr Burridge. The business purpose and the social purpose were of equal or near-equal weight. The fact that he went for personal reasons, if he did so, does not mean that the business aspect was not on behalf of his employers, Benfield.
I therefore would allow the appeal in Mr Burridge’s case and hold that his personal representatives are entitled to judgment for £500,000 plus interest under the terms of the policy.
LORD JUSTICE THORPE:
I have had the advantage of reading in draft the judgment of my lord, Lord Justice Evans and am in complete agreement with all that he has written on the construction of the policy, the authorities and their application to the claim on behalf of Mr Harding’s estate. I differ from him only in the application of the law to the facts in the claim on behalf of Mr Burridge’s estate. Accordingly I will explain my conclusions briefly. Quite apart from authority I am unable to see how it would be possible to construe the relevant clause of the insurance policy sensibly and fairly without adopting some sort of primary purpose or essential character test. The decision of this court in Seddon v Binnions fortifies that conclusion. I do not see any relevant distinction between the two labels. The primary purpose of a journey stamps its essential character. I am in no doubt that the judge adopted the correct approach to the construction of the policy in law and applied that test properly to the facts in the case of Matthew Harding. In my judgment it requires a considerable distortion to conclude that on the day in question Matthew Harding left his office on behalf of Benfield. Realistically he left on behalf of the Chelsea Football Club, of which he was a director, alternatively in pursuit of his passion for football and to boost the prospects of the team by his presence. The pre-arranged trip simply offered the opportunity to generate publicity for Benfield’s sponsorship at the expense of a relatively minor diversion.
However in relation to the claim on behalf of Tony Burridge’s estate the judgment is clearly vulnerable. The judge deals very briefly with the different facts and circumstances relating to Tony Burridge and he does not deal explicitly with the consideration that Mr Burridge travelled as an employee of Benfield or with the evidence of Mr Wiltshire. The witness statement of Mr Wiltshire put the case for Mr Burridge high when it described John Warburton as a business connection and then went on to say that but for that business connection Mr Burridge would not have been on the helicopter. Lord Goldsmith tellingly emphasises that Mr Edelman did not cross examine on either assertion. Mr Edelman says that he successfully cross examined to the effect that Tony Burridge did not need to introduce Matthew Harding to John Warburton since they had already met before. But that was a free-standing point.
However if the judge dealt too briefly and inadequately with the considerations that put the claim in respect of Mr Burridge on a stronger footing I suspect that that was in part a product of a relatively brief trial at which Mr Wood represented both estates. Although I do not doubt that Mr Wood emphasised the relevant considerations, I very much doubt that they would have had the force that they have acquired in this court where they have been pressed to the full in the course of Lord Goldsmith’s advocacy. Although of course there was no conflict requiring separate representation, at least with the advantage of hindsight it seems to me that separate representation would have been desirable at trial.
Neither side seeks a retrial and we are scarcely at a disadvantage in re-appraising the claim in respect of Mr Burridge since the relevant facts are substantially agreed and the judge heard very little oral evidence. Whether the re-appraisal of the facts in this court leads to a different outcome seems to me a very finely balanced question. Although I have fluctuated in my opinion since my first reading of the case I eventually conclude that it does not. Against the considerations urged by Lord Goldsmith must be set the following facts and circumstances:
* Of the four available places on the helicopter one had been allocated to Tony Burridge in late September.
* Tony Burridge’s friendship with John Warburton dated back to their schooldays.
* Tony Burridge’s conversation with the family on the eve of the trip does not seem to me to be of particular significance. It was a usual enough exchange between an ambitious company director with a busy schedule including an important business meeting preceded by a trip that was likely to support his relationship with his chairman.
* The Oswestry diversion was essentially a photo opportunity for the chairman.
* The contents of his briefcase cannot materially contribute to the determination of the issue.
* The events at Bolton are significant: the social group divided into Londoners and Lancastrians with Mr Burridge bridging the two groups relatively briefly.
* There were no business discussions.
* There was no follow up beyond a return visit if and when Bolton played Chelsea at Stamford Bridge.
On those facts it seems to me that Mr Burridge used his old school friendship to provide a landing pad for the helicopter and transport to and from the ground. On that analysis I would say that Mr Burridge was there on his own behalf in advancing his career within the company and he was there on behalf of the social group in that his connections opened useful local facilities and services. Of course I recognise that a contrary interpretation within the agreed facts is equally possible but the burden of proving inclusion within the cover lies on the claimant and I share the judge’s view that it was not discharged.
LORD JUSTICE LAWS:
I have had the advantage of reading in draft the judgments of my lords, Lords Justices Evans and Thorpe. Like Lord Justice Thorpe I am in complete agreement with every aspect of Lord Justice Evans’ approach to the case relating to Mr Harding, so that in the result I agree that the appeal brought by his estate must be dismissed. It follows also that I too would adopt a “primary purpose” or “essential character” test in deciding whether any given journey was undertaken by any given individual “on behalf of the Assured” within clause 1(i) of the General Provisions and Conditions contained in the policy of insurance.
As regards Mr Burridge, my lords differ upon the application of the law to the facts. This is a case in which we are in effect in as good a position to decide the relevant facts as was the learned judge at first instance, before whom there was very little oral testimony and no dispute of any significance upon any question of primary fact. For my part, I agree with Lord Justice Evans’ conclusion that, for Mr Burridge, the business purpose of the journey was at least equivalent to the social purpose of visiting Bolton for the Chelsea away match. With great respect it seems to me that the undisputed primary facts tell against Lord Justice Thorpe’s conclusion that “Mr Burridge was there on his own behalf in advancing his career within the company ….”. I doubt whether the matter is capable of any greater elaboration than is accorded to it in the judgment of Lord Justice Evans, and, like him, I would allow the appeal brought by Mr Burridge’s estate.
(Order does not form part of the approved judgment)
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