Summary

On 27 April 2023 Attleys Roofing used an oxyacetylene torch on lead detailing on a building at Horris Hill Preparatory School in Newbury. After the work finished, a fire broke out and damaged the building. The freeholder and leaseholder are threatening claims. Attleys sought a declaration that QBE must indemnify it under its contractors liability policy. QBE relied on the hot works condition at clause 6.5.4, which is labelled a condition precedent.

The preliminary issue was whether that condition is engaged only by recklessness, as a conventional reasonable precautions clause is, or by any failure to take the precautions it lists. It was common ground that Attleys had not acted recklessly, so the claim would succeed if Attleys was right. HHJ Pearce found for QBE. The listed precautions must be taken, and a negligent or innocent failure engages the condition. No breach has been found: the ruling decides only what the clause means.

Background and facts

The policy, an Advantage Contractors Liability policy, covered public liability for damage caused by an occurrence in the conduct of the business. Clause 2.4 told the insured that terms marked CONDITIONS PRECEDENT, if breached, would defeat the whole claim. Clause 6.5.4 carried that label. Where heat or oxyacetylene equipment was used away from the insured's own premises, Attleys and its employees had to take all 'reasonable precautions' to prevent damage, and had to make subcontractors comply with the 'reasonable precautions' set out below.

The clause then said the term 'reasonable precautions' would include, without being limited to, a list of eight. They included a person made responsible for fire safety, an examination of property within six metres before starting, a fire watch with a hose or two extinguishers during the work, and continuous monitoring for one hour afterwards. The phrase sat in single inverted commas on both occasions it appeared.

The issue

Attleys relied on the line of authority, accepted by both sides as background, that a conventional reasonable precautions clause in a liability policy is breached only by recklessness of the insured itself, as summarised in Tate Gallery v Duffy Construction [2007] EWHC 912 (TCC). An insurer wanting a harsher result must use clear words, and Attleys said none were used. The burning debris, skip hire and tar boiler conditions showed that QBE could demand specific steps without the qualifier. QBE's reading would leave Attleys uninsured for the very negligence the policy was there to cover.

QBE accepted that a general clause needs recklessness, but said clause 6.5.4 was a code for hot works carrying an absolute duty to take the specified precautions; only failures outside the list would need recklessness. It relied on Aspen Insurance v Sangster & Annand [2019] Lloyd's Rep IR 217, where specific hot works safeguards drawn from industry guidance were held to be strict conditions. It also pointed to an anomaly: on Attleys' reading, a subcontractor's innocent slip would defeat cover while the insured's own negligence would not.

The decision

HHJ Pearce accepted the common ground. A reasonable reader would take a conventional reasonable precautions clause to bite only on recklessness unless its language made a different standard clear. Clear language is easier to show where the policy names specific precautions, and QBE relied only on the named ones.

The inverted commas marked 'reasonable precautions' as a term of art within clause 6.5.4, so its use elsewhere in the policy did not help Attleys. The list supplied its content. The judge could see no justification for the subcontractor anomaly: if anything, a policy would be kinder to an insured whose loss came from a third party's act. Attleys' reading also made one word do two jobs.

It would be improbable for the word 'reasonable' to perform those two different functions within the same clause: the first concerned with the nature of the precautions, the second with the insured's state of mind.His Honour Judge Pearce, paragraph 58

The judge accepted that the drafting was less clear than it might have been, and set out wording that would have put the point beyond argument.

But the mere fact that the contract could have been better worded to express a particular meaning does not lead inexorably to the conclusion that it fails to achieve that meaning.His Honour Judge Pearce, paragraph 61

Taking the hot works context, where conditions precedent are common, the words used and the commercial improbability of Attleys' reading, QBE's construction was preferred. Clause 6.5.4 imposes an absolute obligation to take the specified precautions. A negligent or innocent failure engages it as a failed condition precedent, just as a reckless failure would.

Practical implications

For contractors doing hot works, the protection of the recklessness rule stops at the edge of the list. On this decision, where a policy labels a hot works clause a condition precedent, sets out named precautions and calls them 'reasonable precautions', each named step can be treated as mandatory, with no recklessness needed to lose cover. QBE accepted that failures outside the list would still need recklessness; the court was not asked to decide that.

This is a first instance ruling on one wording, on a preliminary issue with no facts found. Whether any listed precaution was missed, and whether a breach increased the risk of the loss that actually occurred under section 11 of the Insurance Act 2015, remain open. A different wording may be read differently.

Attleys Roofing Limited v QBE UK Limited [2026] EWHC 2742 (Comm), High Court of Justice, Business and Property Division, London Circuit Commercial Court (Shorter Trials Scheme), judgment of His Honour Judge Pearce handed down on 26 October 2026 following a hearing on 10 March 2026, claim number LM-2025-000247. Preliminary issue on the construction of the hot works condition at clause 6.5.4 of the policy decided in favour of the defendant insurer.