UK: Insurance And Reinsurance Weekly Update - 10 June 2014

Last Updated: 17 June 2014
Article by Nigel Brook

Collins v Secretary of State for Business Innovation and Skills & Ors

Court of Appeal decides whether court can take account of the claimant's delay from date of exposure to asbestos when deciding whether to disallow limitation period

http://www.bailii.org/ew/cases/EWCA/Civ/2014/717.html

The claimant worked as a dockworker between 1947 and 1967. He assisted in unloading cargos of asbestos during that time and was diagnosed with lung cancer in May 2002 (from which he subsequently recovered). After seeing an advert in July 2009, he contacted solicitors and commenced proceedings in May 2012. At first instance, the judge held that his claim was time barred and he appealed. The Court of Appeal has now dismissed that appeal.

The Court of Appeal agreed with the judge that the claimant ought to have inquired about the possible causes of his lung cancer by mid-2003. If he had have inquired, his doctor would have mentioned his exposure to asbestos. Accordingly, he had had constructive knowledge of a possible link between his cancer and his exposure to asbestos by that time and so his claim was brought outside of the six year limitation period.

The judge had refused to exercise his discretion under section 33 of the Limitation Act 1980 to disapply the limitation period. Section 33 provides that the court shall have regard to "all the circumstance of the case", including (a) the length and reason for the delay; and (b) the extent to which the evidence is, or is likely to be, less cogent than if the action had been brought in time.

In reaching his decision, the judge had taken into account delay occurring since 1947 and the principal question of law in the appeal was whether he had been entitled to do so. Although prior caselaw had considered whether delay prior to expiry of the limitation period can be taken into account, it has not done so at any length and nor has it considered the position for long tail industrial disease claims. Jackson LJ noted that there is caselaw authority for the principle that the court can take account of delay before the date of actual or constructive knowledge. However, he said that "it would be absurd if the defendant could rely upon all the prejudice accruing from the date when the breaches of duty occurred, alternatively from the date when (unknowingly) the claimant suffered injury... Loss of cogency of evidence during the limitation period must be a factor which carries more weight than ... the loss of cogency of evidence before the limitation clock starts to tick". Therefore: "although the court will have regard to time elapsed before the claimant's date of knowledge, the court will accord less weight to this factor. It will treat pre-limitation period effluxion of time as merely one of the relevant factors to take into account".

Here, there had been a time lag between breach and causation of injury and then a further delay before the date of constructive knowledge and so it was not possible to characterise the claimant's inactivity over the entire period since 1947 as "dilatoriness". However, the judge had not given undue weight to historic delays when reaching his decision. Furthermore, inconsistencies in the claimant's three witness statements did not only harm the claimant's own case, it also made it difficult for the defendants to deal with the relevant issues. The Court of Appeal held that judge had been "obviously correct".

Delaney v Secretary of State for Transport

Whether UK government was entitled under EU law to exclude cover for an uninsured driver where the car was being used to further a crime

http://www.bailii.org/ew/cases/EWHC/QB/2014/1785.html

As detailed in Weekly Update 46/11, the claimant suffered severe personal injuries when the car in which he was a passenger crashed due to the driver's negligence. The driver's insurers had avoided his motor insurance policy (on the ground, inter alia, that he had not disclosed, or had misrepresented, that he was a habitual cannabis user) and so he claimed under the Uninsured Drivers' Agreement 1999 ("the Agreement"). The Court of Appeal held that his claim failed because of clause 6(1)(e)(iii) of the Agreement, which excludes a claim by a claimant who has allowed himself to be carried in a vehicle if he could reasonably be expected to know, or ought to have known that "the vehicle was being used in the course or furtherance of a crime". Here, the judge had found that the purpose of the car journey had been to collect and transport illegal drugs (cannabis) for subsequent re-sale. (A defence of ex turpi causa failed, on the basis that the joint criminality was only the occasion, and not the cause, of the accident)

The claimant then brought proceedings against the Secretary of State for Transport, arguing that clause 6(1)(e)(iii) was incompatible with the relevant EU Directives (specifically, Article 1(4) of Directive 84/5 (the Second Directive), which provides for only one exclusion: namely, where a person voluntarily entered the vehicle knowing that it was uninsured. This is a separate ground for exclusion of a claim under clause 6 of the Agreement). Jay J held as follows:

  1. Article 1(4) does apply where a valid insurance policy was taken out but subsequently was avoided. It is not confined to situations where there was no valid insurance taken out in the first place. A raft of ECJ decisions has made it clear that a situation cannot arise whereby an insurer's avoidance of liability leaves a victim without any remedy at all.
  2. Articles 1(4) and 2(1) of the Second Directive require Member States to ensure that compensation is paid in all circumstances, save those expressly excluded within the text of those provisions. ECJ caselaw has made it clear that Member States cannot carve out additional exceptions.
  3. Clause 6(1)(e)(iii) is not consistent with the specific exceptions permitted by the Second Directive. Nor is it a sub-set of the separate exclusion relating to uninsured vehicles (the argument having been run that everyone knows that a vehicle being driven in the course or furtherance of crime is uninsured).

The judge went on to conclude that the defendant was guilty of a serious breach of Community law, entitling the claimant to compensation.

COMMENT: This decision will have no impact on motor insurers, who remain entitled to decline cover where a claimant has allowed himself to be carried in a vehicle being used to further a crime. Instead, the insurer of last resort, the Motor Insurers' Bureau, will no longer be able to refuse compensation on that basis.

Holloway & Ors v Transform Medical Group & Ors

Whether applicants should be allowed to join the group litigation after the cut-off date

The applicants applied to join the register of claims in this group litigation. The Group Litigation Order had provided that no claim may be added to the group register without the court's permission after a certain given cut-off date and the applications were made after that date. Thirlwall J dismissed the applications.

She held that CPR r3.9 applied in this situation, the cut-off date being a "sanction": "It is difficult to characterise as something other than a sanction a consequence that those who have not joined the group may not do so without the permission of the court". In reaching this conclusion, she rejected the applicants' argument that Taylor v Nugent Care Society [2004] applied (in that case, the Court of Appeal drew a distinction between a claimant who is part of a group not complying with a direction and the position of a claimant who has not yet joined).

Here the delays had been serious and the trial will take place in October. There was no good reason either – delays had been caused by staff shortages within the law firm retained by the applicants and "decisions to dismiss staff were presumably taken for commercial reasons. The consequent neglect of the files was entirely foreseeable". To grant the application would have been to undermine the discipline of the litigation and to render the cut-off date meaningless.

Coll v Floreat Merchant Banking

Whether committal proceedings can be brought against solicitor for breaching an undertaking given to a party and not the court

http://www.bailii.org/ew/cases/EWHC/QB/2014/1741.html

The novel issue in dispute in this case was whether the court has jurisdiction to allow committal proceedings to be brought against a solicitor for breaching an undertaking which was made to the other party and not to the court. Hickinbottom J summarised the position as follows:

  1. Although the High Court has a wide jurisdiction over solicitors as officers of the court (in addition to its inherent and statutory powers in relation to contempt), there are boundaries on the exercise of that jurisdiction.
  2. The High Court's jurisdiction is in addition to, and runs parallel to, the regulatory functions of the Law Society in relation to the discipline of solicitors, which are now performed by the SRA. However, unlike the High Court, the SRA has no power to order compensation for the breach of an undertaking (and nor does the court in its contempt jurisdiction). So the High Court's jurisdiction will only usually be exercised where someone has "lost out" as a result of the solicitors' conduct and the court is the appropriate forum to put right that loss.
  3. The courts have a general power summarily to enforce any undertaking given by solicitors. Where a solicitor is unable to comply with a positive undertaking (e.g. because it has become impossible to perform), the beneficiary of the undertaking may seek compensation. Where a solicitor has failed to perform a negative undertaking (i.e. that he/she will not do something), the appropriate course will be to seek an injunction: "It may also be appropriate to report the solicitor to the SRA for the breach of the regulations that require a solicitor to comply with undertakings he gives as a solicitor. It will not usually be appropriate to seek to commit the solicitor straightaway, because these other steps will usually be available".
  4. Furthermore, proceedings to commit a solicitor for breaching an undertaking not to the court should generally be discouraged on public policy (and European Convention on Human Rights) grounds. That is because: "There is clear potential for tactical mischief by a party seeking to commit a solicitor, which application might require that solicitor, at least temporarily, to withdraw from acting from his client".

The judge refused permission to bring the committal application.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Nigel Brook
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.