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“Who dunnit?” – Cooper and another v Thameside Construction Company Ltd (in administration) [2016] EWHC 1248 (TCC)

The case of Cooper and another v Thameside Construction Company Ltd (in administration) (2016) EWHC 1248 (TCC) is a reminder that in a competing theories case claimants must diligently gather and test all...

...material evidence in support of their case theory to persuade a court that no plausible alternative competing theory exists. 

In Cooper, the claimants’ property had been damaged by a substantial flood in 2010 caused by defective plumbing work carried out during a large scale refurbishment of the property between 2005 and 2009. The Claimants’ insurers brought a subrogated claim against the defendant contractor for the loss suffered. 

The case, as stated by Carr J was essentially a “who dunnit”: was the defective plumbing installed by the defendant, its servants or agents as part of the works under the contract or was it installed by other contractors or sub-contractors outwith the responsibility of the defendant? The claimants bore the burden of proof. The defendant did not have to prove that some other third party outside its control installed the defective plumbing, but if there was no possible alternative that would be material to the issue of liability.

The parties accepted that in a competing theories case:

  1. The court was entitled to engage in a systematic analysis of  competing theories and eliminate one in favour of the other;
  2. That, in itself, may lead to the conclusion that the preferred theory was more likely than not to be true; but
  3. The court must always then stand back and ask itself the ultimate question as to whether or not the preferred explanation was more likely than not to be true.

The claimants had failed to properly marshal the evidence they sought to rely on to prove their case. The was a dearth of evidence and material witnesses called by the claimant to establish that only the defendant, their servants or agents could have carried out the defective works. There was some evidence that other third party contractors and subcontractors were involved in the plumbing work who were outwith the control of the defendant.  As there were alternative plausible explanations for the installation of the defective plumbing, the claimants’ claim was dismissed.


Elizabeth Dwomoh / 6th Jun 2016


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