Howard Palmer QC

QC: 1999  Call: 1977

Expertise

Insurance & Reinsurance
Personal Injury
Private International Law
International Arbitration & Projects
Professional Negligence
Property Damage

Appointments

Queen’s Counsel, 1999

Bar of Brunei, 2001

Recorder of the Crown Court, 2005

Practice Profile

Howard Palmer is joint leader of the Insurance and Re-Insurance Group of 2 Temple Gardens. Both he and the set are recommended in Legal 500 as Leaders in the field.

He is further recommended by Legal 500 as a Leading silk  in Professional Negligence, and by Chambers & Partners 2008 in Environmental Law (predominantly fire and flood work – see Property Damage below).

He has wide experience in national and international litigation and arbitration, including conflicts of laws, insurance and re-insurance, construction and engineering contracts, fire and flood recoveries, professional and clinical negligence and personal injury. He has been admitted ad hoc to the Bar of Brunei.

He is presently involved in the Employer's Liability Trigger Issue litigation (Durham v BAI and Ors.) which was heard at first instance by Burton J. (Judgment in November 2008), and is due to be heard on Appeal in November 2009.

He has recently conducted two House of Lords appeals in the field of professional negligence and conflicts of laws (Haward v Fawcetts; Harding v Wealands). Recent work includes: policy disputes relating to long tail asbestos liability claims (Bolton MBC v Municipal Mutual; Durham v BAI and Ors.); multi party actions for environmental flood damage (Arscott v The Coal Authority); acting for the Liquidators of Amedeo Development Corporation in Brunei.

 

Insurance & Reinsurance

Howard Palmer is joint leader of the Insurance and Re-Insurance Group of 2 Temple Gardens, both of which are recommended in Legal 500 as leaders in the field of Insurance and Re-Insurance. His practice includes:

• Major disputes on policy wordings, particularly in the field of asbestos liability risks (see Cape Insurance Plc v Iron Trades Employers’ Insurance Assn; Bolton MBC v Municipal Mutual; and the ongoing EL Trigger Issue litigation
• Repudiations of Liability for fraud, non disclosure, misrepresentation, breach of warranty, failure to comply with conditions precedent etc.
• Waiver of the right to avoid.
• Enforcement of Insurance Rights by Third Parties (see Charlton v Fisher), in the context of Road Traffic Act Liability, Employers’ Compulsory Insurance, Public Liability Insurance, Third Parties (Rights against Insurers) Act 1930 and The Contracts (Rights of Third Parties) Act 1999
• Aggregation, and application of multiple deductibles.
• Insurance Recovery actions in cases with complex technical element (e.g. flooding; electrical malfunctions; fires; see Arscott v The Coal Authority; Bybrook Barns v Kent CC)
• Limitations on rights of subrogation against co-assureds – particularly under the standard form of building contracts (see also under International Arbitration & Projects).
• Insurance Liability and Recovery in Foreign Jurisdictions (see under International Practice).

Howard has recently been instructed to give expert evidence on the English insurance law of non-disclosure and misrepresentation to the US Courts.

He recently appeared for a company director who was denied insurance cover by his Company’s EL insurers under the ‘Private Work for Directors’ extension to the Company’s policy.

He is presently instructed in the appeal in the Employer's Liability trigger litigation, involving policy disputes in long tail asbestos liability claims (Durham v BAI and others).

 

Personal Injury

and Clinical Negligence

Howard has appeared in numbers of catastrophic injury claims, and large stress-at-work claims, arising both in the Clinical Field and in the context of traditional accident litigation and therefore has wide experience of such litigation, for instance:

• Principles applicable to large FAA claims;
• Disputes about life expectancy;
• Care Claims for catastrophically injured victims;
• Alternative Accommodation claims;
• Analysis of accountancy evidence in speculative loss of earnings claims.
• “Slow Burn” Injuries: Chronic Carbon Monoxide poisoning; asbestos induced diseases etc.

 

In the Clinical Negligence field, Howard has appeared both for Claimants and Defendants. He acted for the NHSLA in the foetal anti-convulsant syndrome (FACS) litigation; he has also been instructed in several ‘wrongful birth’ claims against hospitals, GPs and specialists, as well as the more usual large clinical negligence claims.

 

Private International Law

Within the context of his other specialisations Howard Palmer has been involved in high profile Conflicts of Laws cases in the recent past. These have concerned insurance disputes (Hamill v Hamill – Spanish Insurers of British driver in Spain); Employer’s Liability disputes (W. Moore (a patient) v HCI (Kent) Ltd.- Employer suing third party over scaffold accident in the Netherlands); and motor accidents (Harding v Wealands (HL) – questions of applicable law and the proper application of foreign law of quantum).

In 2007 he acted for a Canadian ski resort in a case arising out of a skimobile accident, involving application of the Ontario Law of Contract. He also acted for an American National who was killed in a private plane crash in Minnesota USA as a result of the negligence of an English Pilot who could only be sued in England. In 2008/9 he acted for the Australian Insurers in Cooley v Ramsey (Tugendhat J. and CA), where an English National sought to sue an Australian driver in England in respect of a motor accident in New South Wales.

He is presently conducting a claim by a paraplegic victim against his mother and her Spanish Insurers, arising out of a Road Traffic Accident in Spain; and a claim by a victim rendered tetraplegic by an accident on board a private yacht in Portuguese territorial waters.

He is experienced in the application of the Brussels Regulation, the Rome Convention, the Private International Law (Miscellaneous Provisions) Act 1995, Rome II and the Contracts (Applicable Law) Act 1990.

Howard Palmer has appeared in arbitration and litigation overseas. He has been called ad hoc to the Bar of Brunei.

 

International Arbitration & Projects

Construction and International Arbitration/Litigation

Howard has experience of most of the major national and international forms of Building and Engineering Contracts (JCT (and DOM, NSC and NFBTE/FASS forms of sub contract), ICE (and FCEC forms of sub contract), CRINE General Conditions for Offshore Services, FIDIC forms, I Chem E forms, GC Works forms, NEC form, Hong Kong GC form, Singapore Institute of Architects form).

Howard also deals with arbitration and Court control of arbitral proceedings under domestic and international regimes (see Birse Construction Ltd. v St. David Ltd., Jones v Thyssen, John Mowlem v Carlton Gate).

Howard has been instructed in Heavy Engineering and Civil Engineering disputes (oil rig construction, shipbuilding, marina construction, subsea engineering etc.)

Howard is particularly skilled in litigating disputes with a high technical content (weld failures, fatigue cracking, steel erection and piling failures, bearing seizures, fires, electrical and electronic control failures etc.)

Howard has been instructed in Insurance disputes under Building Contracts – in particular dealing with waiver of rights of subrogation, ability of contractors to sue and be sued when ‘project insurance’ (CAR and similar) has been taken out – clauses 22A to 22C of the JCT 1998 forms.

 

Professional Negligence

Howard Palmer is recommended in Legal 500 as a leading silk in the field. He appeared in the House of Lords case of Haward v Fawcetts and his experience encompasses professional negligence litigation in the fields of insurance, engineering, construction services and legal services professionals.

He has appeared at Disciplinary Tribunals for a variety of professions and served for several years on the Bar Council's Professional Conduct and Complaints Committee. 

See Gray v TP Bennett; Kensington & Chelsea v Wettern Composites; George Fischer v Multi Design & DLE; John Mowlem v Neil F. Jones; Haward v Fawcetts.

 

Property Damage

Environmental and other Damage to Property

As well as having particular technical expertise in causes of floods, fires, electrical faults, weld failures etc., Howard is recommended in Chambers & Partners as a leading silk in the area of Environmental Law for his work in cases concerning floods and flood damage (see  Bybrook Barns v Kent County Council (CA) and Arscott v The Coal Authority (CA)).

Notable Cases

Employers’ Liability Policy Trigger Litigation (Durham v BAI & Ors) [2009] 1 Lloyds LR IR 295 – acting for Municipal Mutual Insurance Ltd. in interpretation of EL policies of insurance issued between 1965 and 1992 – whether they responded to indemnify in respect of mesothelioma suffered in years after 1992

Harding v Wealands [2007] 2 AC 1 (H.L.) – acting for Insurers and Re-Insurers in application of the Private International Law (Misc. Provisions) Act 1995 – accident in New South Wales – whether English or NSW Law applied to tort – whether quantification of damage should be in accordance with English or NSW law of quantum.

Haward v Fawcetts  [2006] 1 WLR 682 (H.L.) – accountants’ negligence – whether claim barred for limitation - application of s. 14A Limitation Act 1980 – requirements for establishing ‘knowledge’.

Bolton MBC v Municipal Mutual Insurance Ltd. [2006] 1 WLR 1492 (CA) – interpretation of public liability policy of insurance – whether triggered by event of illness or exposure to asbestos – date of event of illness of mesothelioma – analysis of U.S. authorities on ‘triple trigger’ - whether double insurance – contribution between co-insurers.

Filobake Ltd. v Rondo Ltd. [2005] EWCA Civ 563 (C.A.) – sale of goods – express and implied terms – computation of claim for loss of profit.

John Mowlem Construction Plc v Neil F. Jones [2004] EWCA Civ 768 (C.A.) – solicitors’ negligence – whether solicitor under duty to advise client to notify claim to insurers – whether assignment of client’s claim to constructions company valid.

Arscott & Ors. v The Coal Authority [2004] EWCA Civ 892 – liability for environmental flooding – local authority’s obligations in relation to Main River flooding caused by development of flood plain.

Cape PLC v Iron Trades Employers’ Insurance Assn [2004] Lloyd's Rep IR 75  (Rix J.) - Liability under 1960’s insurance policy which excluded asbestosis but not mesothelioma

Campbell v Conoco(UK) Ltd. [2003] All ER (Comm) 35 (C.A.) – liability for accident in oil rig construction – application of indemnity clause – consideration of offshore oil industry practice – whether insurer could bring subrogated claim against sub-contractor.

L.E. Jones (Insurance Brokers) Ltd. v Portsmouth CC [2003] 1 W.L.R. 427 – environmental nuisance - liability for tree root damage – consideration of H.L. decision in Delaware Mansions v City of Westminster;

R and R (2002, Wright J and C.A.) – wrongful birth – life expectancy – expert evidence

Knauf UK GmbH v Fritz Peters & Co. KG [2002] 1 W.L.R. 907 – Conflicts of Laws – ‘Tie break’ rules under article 21 of Brussels Convention – appropriateness of regime for alternative service of foreign defendant.

Charlton v Fisher [2002] Q.B. 578 (C.A.) - Liability of Insurer for Deliberate Criminal Act – Third Parties Rights against Insurers Act 1930 – section 151 RTA 1988.

Re. Tokenspire Properties (2001, TCC) - Employer, Contractor and Sub contractor all co-insured – whether rights of subrogation barred under standard forms of contract.

Rohde Nielsen (Hong Kong) Ltd. v Hyundai Engineering Ltd. (2001, Brunei C.A.) - Construction of Marina in Brunei - Mareva Injunction – Discharge – Measure of Damages on undertaking as to damages.

Bybrook Barns v Kent County Council [2001] BLR 55 (C.A.) – Liability for Environmental flooding – Highways Authority liability for culvert under highway.

Birse Construction Ltd. v St. David Ltd. 2000 BLR 57 (C.A.) – stay pursuant to Arbitration Act 1996 – whether court can find arbitration agreement on affidavit evidence.

Jolley v London Borough of Sutton [2000] 1 W.L.R. 1082 (H.L.) – personal injury – whether type of injury foreseeable

George Fischer (GB) Ltd. v Multi Design Consultants Ltd. and DLE 61 Con. LR 85 (TCC) – design and construction of warehouse roof – liability under collateral warranty – liability of DLE in negligence as Employer’s Representative

Cape Industrial Services Ltd v Royal and Sun Alliance Insurance Plc (Com. Ct.; Interpretation of public liability policies of insurance in respect of cover for mesothelioma, where policies written in period 1932 to 1965; consideration of US ‘triple trigger’ concepts)

In The Matter Of Amedeo Development Corporation Sdn Bhd (In Brunei Court Winding Up) (Acting for Liquidators in the Brunei winding up of Prince Jefri’s development company – various issues)

Baxenden Chemicals v Nat. Emp. Mutual (Com. Ct.; Non disclosure, misrepresentation)

General Accident v Toms and Provincial Insurance (QBD; RTA. – whether insurer of vehicle or of driver liable to indemnify; contribution between Insurers)

Hanson v Airedale Hospital NHS Trust (QBD; Clinical Negligence – application of Bolitho proviso to Bolam test)

Wayne Moore (a patient) v HCI (Kent) Ltd. (Accident in the Netherlands – workman fell from scaffolding – employer and designer of scaffold both sued in England – whether indemnity claim properly brought by employer against designer of scaffold under Brussels Regulation and CPR)

Thomas v Sun Alliance (Repudiation for fraud – “faked burglary”)

Craig and Others v CAIB and Others (TCC; Catastrophic failure of rail wagon wheel – fatigue cracking – whether imposed system of preventive maintenance adequate)

Gulf Oil (GB) Ltd. v CAIB UK Ltd. (TCC; catastrophic bearing failure – mechanism of failure – liability for fire)

Bilfinger + Berger UK Ltd. v Croda Mebon (TCC; Didcot B Power Station – universal paint failure – mechanism of failure – liability of ultimate suppliers under alleged collateral warranty)

D.o.T. v HPC Coatings Ltd. (TCC; catastrophic collapse of gantry slung under the Severn Road Bridge – analysis of electrical and electronic control mechanisms and interlocking devices)

Taylor v Avon Insurance (Com. Ct.; Non disclosure of commission of offence (no conviction at time of proposal))

Carbin v Hertfordshire Fire and Rescue Service (1998, C.A.) – fire – duty of brigade to own commander

The Foreign Trade Association of the Republic of Uzbekistan v Lotus Commodities Limited (Com. Ct. and C.A.; alleged commercial fraud - tracing remedies - jurisdictional issues)

Irish Nat. Insurance v 1976 Eagle (Com. Ct.; Binding authority for reinsuring miscellaneous risks)

Jones v Thyssen (TCC & C.A., 57 BLR 116; Whether stay to arbitration permitted when one party is legally aided)

Gray v TP Bennett (TCC, 43 BLR 63 – architects’ and engineers’ negligence)

Richardson v Orion Insurance Company Plc (Com. Ct.; Fraudulent arson of hotel)

Bansals Ltd. v Guardian Royal Exchange (B’ham Merc. Ct.) Arson of Bathroom Warehouse – Fraudulent exaggeration of claim)

Kensington & Chelsea v Wettern Composites (TCC, 31 BLR 57 – architects’ and engineers’ negligence)

John Mowlem v Carlton Gate (TCC, 51 BLR 104 - Summary judgment on architect’s certificate; circumstances for stay to arbitration)

Additional Information

Languages:

• Working knowledge of written German

 

Academic:

• Lecturer in Law, King's College London 1977 – 1978