Mrs Justice Rose has today handed down judgment on a preliminary issue in the ongoing copper fitting litigation. The preliminary issue concerns section 1(4) of the Civil Liability (Contribution) Act 1978, which applies where the main claim against the contribution claimant (in this case, Travis Perkins’s claim against IMI) has settled. Under section 1(4), the liability of the contribution claimant (IMI) to the main claimant (Travis Perkins) cannot be re-opened by the contribution defendant (Delta) if IMI have been liable “assuming that the factual basis of the claim against him could be established”. Where the section applies, the contribution defendant (Delta) cannot deny liability to make a contribution on the basis that the contribution claimant (IMI) was never liable in the first place.
In the present case, Delta sought to resist IMI’s claim for contribution on the basis that the main claim against IMI by Travis Perkins was time barred. Mrs Justice Rose rejected that argument, holding that, under section 1(4), Travis Perkins’ plea in Reply that the cartel was deliberately concealed is assumed to be true; as a result the limitation argument failed. Mrs Justice Rose noted that the burden of proving deliberate concealment fell on Travis Perkins, and hence it was part of the factual basis of the main claim, which was assumed to be true.
The Judge however granted Delta permission to appeal, on the basis that the effect of section 1(4) merits consideration by the Court of Appeal.
Please click to view a copy of the IMI PLC & anr -v- Delta LTD & ors judgment.