Lim (an infant) v Walia
Court of Appeal decides whether deceased had severable interest in life insurance policy benefit/insurers' duty to exercise discretion reasonably
http://www.bailii.org/ew/cases/EWCA/Civ/2014/1076.html
The claimant, whose mother had died, applied under the Inheritance Act 1975 for an order that the court re-distribute assets from her estate. The deceased had taken out a joint life insurance policy with her husband. The policy provided that the insurer would pay out on the first death of the couple and also that "on proof to the [insurer]'s satisfaction that the life insured is suffering from a terminal illness, we will bring forward the payment of the sum insured".
The deceased separated from her husband (but was never divorced from him). She formed a relationship with another man and gave birth to their son in 2009. She was diagnosed with a terminal illness in February 2011 and died the following month. The insurers paid the insurance proceeds to her husband in May 2011, triggering this application to the court. The claimant sought to rely on section 9 of the 1975 Act which provides that if a deceased was "immediately before his death beneficially entitled to a joint tenancy of any property", the court can order that the value of that severable share of property immediately before death be treated as part of the deceased's estate.
At first instance, it was held that immediately before her death, the deceased had been beneficially entitled to a joint tenancy of the terminal illness benefit under the policy. On appeal, McCombe LJ (dissenting) agreed with that conclusion. He noted that an insurance policy and its proceeds are a chose in action and so the deceased had had an interest in the policy from its inception. He went on to hold that the deceased had had a severable share in the right to claim the terminal illness benefit at the moment immediately before death and the fact the money was paid by the insurer for another reason (i.e. death) did not negate the existence of that share for the purpose of section 9. He also referred to the policy condition that a claim had to be established to the satisfaction of the insurer and said that that "must be taken to mean its reasonable satisfaction; the insurer could not have rejected a claim out of whim or caprice".
However, the other two Court of Appeal judges disagreed with the conclusion of McCombe LJ and the judge at first instance on section 9. Arden LJ said that it was correct to say that the deceased had had a severable interest in the terminal illness benefit. However, in this case, no claim had been made for the terminal illness benefit before death and therefore "the insurer was justified in paying the death benefit to the appellant. So the value of the severable interest in the terminal illness benefit immediately prior to death was nil". McFarlane LJ agreed. Here, there had been only one sum to be paid out (either on death or on proof of terminal illness): "There were not two sums, each with a realisable value...... If payment of the sum insured was not brought forward to a time before the first death, then the deceased's severable interest in the right to make a claim to bring it forward (the terminal illness benefit) evaporated and was of no value".
Accordingly, the appeal was allowed and the deceased's husband was allowed to keep the insurance proceeds.
Travis Coal v Essar Global
Whether ICC arbitration award could be enforced after "summary judgment" by tribunal
http://www.bailii.org/ew/cases/EWHC/Comm/2014/2510.html
The claimant applied to enforce an ICC arbitration award in its favour. After judgment was entered by the English court, the defendant applied under section 103 of the Arbitration Act 1996 for an order setting aside the judgment, or an adjournment of the decision on recognition and enforcement of the award, pending the determination of proceedings being brought in the US (challenging the award). The claimant challenged the award on the grounds of due process and breach of agreed procedure.
Blair J rejected the argument that (in the absence of an express power) a summary judgment process by arbitrators necessarily amounts to a denial of due process. In any event, he held that the tribunal had had the power to adopt this procedure. The arbitration agreement had provided that the arbitrators could hear any dispute "in accordance with such procedure as the arbitrators may deem appropriate" and this gave them a wide power. Furthermore, the 2012 ICC Rules also allows tribunals to adopt such procedural measures as they consider appropriate, whilst also ensuring that each party has a reasonable opportunity to present its case. The judge held that there had been such an opportunity in this case, since oral testimony had been received: "so far as it was summary, the procedure fell within [the arbitration agreement]".
Tchenguiz v The SFO
Whether disclosed documents could be used in separate proceedings overseas
http://www.bailii.org/ew/cases/EWHC/Comm/2014/2597.html
Weekly Updates 28/14 and 16/14 have set out the background to this case. The defendant, the Serious Fraud Office, disclosed certain documents to the claimant, who now wishes to use those documents in a pending appeal in separate proceedings in Guernsey. The permission of the court was needed to use the documents in that way. Eder J acknowledged that the documents in question were potentially relevant and that the claimant's desire to use the documents went beyond his own private interests because there was a very strong public interest in discovering the truth. Nevertheless, he refused permission for the following reasons:
(1) The English court should not leave the evaluation of the likely significance of the documents entirely to the Guernsey courts. The evidence before the judge suggested that the documents in question were far from being "crucial" or "decisive" to the Guernsey proceedings.
(2) It was also a "very weighty consideration" that the documents contained information relating to a criminal investigation carried out by the SFO (including the methodology employed by the SFO and its interaction with the Guernsey authorities). There was a very strong public interest against permitting the use of such documents for collateral purposes.
(3) Similarly, the documents were provided by the Guernsey authorities pursuant to a specific request from the SFO for mutual legal assistance. There is a public interest in not jeopardising the willingness of foreign states to cooperate in respect of similar criminal investigations in the future.
Symes v St George's Healthcare
The effect of a default judgment in a negligence case/whether causation can be contested
http://www.bailii.org/ew/cases/EWHC/QB/2014/2505.html
The claimant obtained default judgment against the defendant in a clinical negligence case. The order provided that "No acknowledgment of service having been filed, it is ordered that the defendant must pay the claimant an amount which the court will decide, and costs". The master subsequently held that the matters pleaded in the particulars of claim should stand as conclusive on the issue of causation of the losses claimed and the defendant appealed against that decision.
The judge reviewed the relevant caselaw and concluded that there is no bar to a defendant challenging causation in the face of a judgment in default where damages have been ordered to be assessed. It does not matter that the claimant's statement of case alleges that particular losses were caused – the defendant can argue that, whilst "some damage" was caused, it was not the damage alleged by the claimant in his statement of case.
Here, the defendant had not just accepted that "some damage" had been caused by its negligence, but also that it had caused some of the actual damage which the claimant had alleged in the particulars of claim. Accordingly, unless it can be said that the default judgment represents a decision that all of the damage alleged by the claimant was suffered by him as a result of the defendant's negligence, then it must be open for the defendant to advance its causation objections to the other aspects of damage alleged by the claimant. The judge confirmed that here the default judgment did not cover all the damage alleged in the particulars of claim.
Nor had the defendant acted in breach of the CPR by not serving a defence setting out its case on causation. A defendant is not required to set out its case on causation in the defence because it can advance that case in the context of the assessment of damages process. However, the judge did note that it "would have been more sensible" here to have served a defence.
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