Abstract

Indemnity Costs

Article

‘Liability Tree’

 

By what has come to be called the liability "tree", the insurer sitting at the top of the tree being primarily liable to provide indemnity, generally if an insurer higher up the tree falls out, then liability to indemnify or satisfy a judgment will rest with the insurer immediately below. This situation arises for example f a secondary insurer is liable undder its teerms in the absence of a primary insurer which is liable, and the primary insurer denies liability under its policy: Advantage Insurance Co Ltd v Stoodley & Anr 2018] EWHC 2135 (QB).

 

 

Indemnity Costs

The non-acceptance of a Calderbank offer is a factor, in some cases a strong factor, in an application for indemnity costs. As to whether it was unreasonable is judged at the time the offer was to be accepted, having regard to all existing circumstances, including the point the proceedings had then reached, and any assessment of prospects on material then available: Stewart v Atco Contracts Pty Ltd (in liq) (No 2) [2014] HCA 31; (2014) 252 CLR 331;  J & D Rigging Pty Ltd v Agripower Australia Ltd [2014] QCA 23; Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; Wiesac Pty Ltd & Anor v Insurance Australia Limited (No 2) [2018] QSC 171.