"15. In support of this submission Mr Havelock-Allan relied on an analysis of the third party notice from which he invited the court to reach that conclusion. Accordingly, we would reverse the Learned Judge’s conclusion on this aspect also.63. 6.5.4 The guarantees outlined in 6.5.3 are divided into absolute guarantees and penalizable guarantees.
b) Specific raw-material consumption between 100% and 102.75% of the guaranteed consumption. (e) That Davy were entitled to be regarded as co-insured on Deepak’s policy which insured the plant inter alia against fire and explosion.
6.5.4.1 Absolute guarantees are defined as those guarantees which DAVY shall establish without limitations as they cannot be satisfied by the payment of liquidated damages.
Then it is said that if, as the judge held, the indemnity was not apt to cover express contractual obligations, it would be incongruous if it had the effect of excluding liability of Davy to Deepak for breaches of duties in tort running parallel to Davy’s contractual obligations. We turn to consider Mr Wilmot-Smith’s submission, in which he was supported by Mr Mowschenson QC for ICI, that the judge was wrong to exclude liability for negligent misrepresentation and breach of collateral warranty from the scope of the indemnity.
Of particular note are the following: “2.1 General ...If there is a failure of the PLANT to operate as specified, DAVY shall have the right to modify the operating conditions and instructions within safe and stable operation of the equipment. 100,000 other than what is stated in Article 6.7.2. At DFPCL we recognise our responsibility to protect the information you provide to us “AS IS” voluntarily.DFPCL and / or its group companies are not liable for any claims, demands and damages (actual and consequential, direct and indirect) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of, or in any way connected with usage of this website.By continuing to use this website and by providing voluntarily any personal data (including sensitive personal data, if any) to DFPCL via this website or e-mail addresses provided in this website you agree and consent to DFPCL and its group companies to use your data and to transfer of your data between DFPCL group companies and/or to third parties; as necessary to process your application and should your application be successful, to administer your personal record. The first two provisions, indemnity and insurance can conveniently be considered separately.1.
That the PLANT has demonstrated acceptable quality and capacity, however, malfunctions in certain areas affects performance parameters.
The judgment of Rix J. at LLR p167 seems to suggest that the sole issue on Article 6.8 was whether an action for negligent misrepresentation was an action in tort (see LLR 2 at p167). Article 5 deals inter alia with the performance test which was to follow mechanical completion and form part of the commissioning of the plant. It is clearly alleged in the points of claim that the negligent misrepresentations resulted in the damage to the plant. For the purposes of this issue the critical words of Article 6.8 are: "... and in no event shall DAVY by reason of its performance or obligation under this CONTRACT be liable ... for loss [of] anticipated profits, catalyst, raw-material and products or for indirect or consequential damages."
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