Alex Ustych appears in Flanagan and another v Greenbanks Ltd (Cross, Part 20 defendant) [2013] EWCA Civ 1702 offering guidance on breaks in the chain of causation

Alex Ustych (assisted by DLA Piper via LawWorks) represented the Appellant, David Cross, before Lord Justice Maurice Kay and Lady Justices Rafferty and Macur in a case described as offering “extremely useful guidance on the test to be applied to the question of how potent a ‘new event’ must be in order to constitute a novus actus interveniens and break the chain of causation” [LexisNexis Editorial Comment].

The Appellant was the defendant in a Part 20 claim brought by installers of cavity wall insulation (CWI) in private residences. The installers were initially sued by several customers in respect of defective CWI installation in timber-framed houses (for which CWI was unsuitable). Mr. Cross’s role in the arrangement with the installers was to refer properties to them in exchange for commission. The trial judge held that Mr Cross was in breach of an implied contractual term to confirm suitability for CWI, and  that this breach had not been overtaken (for purposes of breaking the chain of causation) by the admitted negligence of the installers in failing to check the properties’ suitability for CWI (where industry guidelines required them to do so).

The Court of Appeal considered the application of the test summarised in Borealis AB v Geogas Trading SA [2010] EWHC 2789 (Comm). This multifactorial test encompassed matters such as the extent of the third party’s knowledge of the underlying negligence/breach of contract and the severity of the third party’s own negligence (particularly whether it crossed the threshold of ‘recklessness’). The principles outlined in Borealis dictate that neither recklessness nor actual awareness by the claimant of the defendant’s earlier negligence/breach of contract are required for the chain to be broken, but the presence of these factors make it likely that a novus actus interveniens will be made out.

While Maurice Kay LJ and Rafferty LJ determined that the installers’ negligence did not “obliterate” the Appellant’s earlier defaults, Macur LJ, in a dissenting judgment, considered that the chain of causation had been broken. Macur LJ held [at par. 49] that “the authorities militate against a literal interpretation of the word ‘obliterates’ to permit the lower courts to avoid careful appraisal of the reality of the circumstances in the case… there is no all-embracing test for what may constitute the breaking of the chain of causation”.

The Appellant is in process of seeking leave to appeal, including in respect of the different approaches to the applicable test (the “all-embracing” ‘obliteration’ test as opposed to the multifactorial test) adopted by the LJs Maurice Kay and Rafferty on the one hand and LJ Macur on the other.

The judgment Click here  contains a useful summary of the test applicable to novus actus cases at paragraph 18 (equally applicable outside professional negligence and construction/insurance litigation).

Alex regularly appears in the appellate courts (including the Court of Appeal and the EAT) in respect both general common law and employment matters.