- Court of Appeal on continuing breach and concurrent causes of action in negligence indemnity claim (Capita (Banstead 2011) v RFIB Group)
- Practical implications
- What was the key issue in this case?
- Relevance of the post-transfer date conduct
- Continuing breach of contract or duty as a concurrent cause—the authorities in limitation cases
- Lady Justice Gloster's dissenting judgment on the continuing breach point
- Why did it matter whether the post-transfer date was a concurrent cause?
- Court details
Dispute Resolution analysis: The Court of Appeal has considered issues of continuing breach as a concurrent cause of action in seeking to apportion liability for losses in light of an indemnity in a share sale agreement which rendered the seller liable for losses arising out of services provided before the transfer date. The issue was whether the pre-transfer negligence was considered to be a breach of duty continuing to occur after the transfer from day to day, such that daily a new cause of action arose which would mean that there was a concurrent cause of action alongside the indemnified breach which, per EE Caledonia, would prevent the appellant relying on the indemnity. The majority view, differing from the first instance decision, held that there was no continuing breach thus no concurrent cause of action and the indemnity could therefore be relied on after the transfer date up until new fresh causes of action arose (as they did some nine months later). Lady Justice Gloster disagreed and upheld Popplewell J’s judgment in full. In the course of the judgment, Lord Justice Longmore expressed the view that until some higher court decides otherwise, the inconsistency between the conflicting decisions in Midland Bank and Bell on continuing breach (both limitation cases) should be determined in favour of Bell as the authority to be followed. What is clear from the judgment is that whether or not there is a continuing breach in any given case will very much be fact dependant.
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