Allen v Robles
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DANCKWERTS,LORD JUSTICE FENTON ATKINSON,LORD JUSTICE PHILLIMORE |
| Judgment Date | 19 May 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J0519-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 May 1969 |
[1969] EWCA Civ J0519-1
In The Supreme Court of Judicature
The Court of Appeal
Lord Justice Danckwerts
Lord Justice Fenton Atkinson
Lord Justice Phillimore.
MR. LEONARD LEWIS, Q.C., instructed by Messrs. Trevor Reid & Co., appeared for the Appellants (Third party).
MR. J.B. GOLDING, instructed by Messrs. Goodger Lowe & Co., (Burton on Trent) stated that he had no instructions from the Respondent (Defendant), but was appearing as a matter of courtesy.
I will ask Lord Justice Fenton Atkinson to give the first judgment.
On 9th April of 1967 an American citizen who was then in this country, called Mr. Robles, was driving his car. He drove it in such a dangerous manner that he collided with the house of a Mr. Allen and as a result Mr. Allen suffered some personal injury, some loss of earnings and a lot of damage to his property. In duecourse Mr. Allen made a claim against Mr. Robles, and there was a hearing at Nottingham Assizes, where Mr. Justice Brandon held that the defendant was liable for the accident and assessed the damages suffered by the plaintiff at £190 for personal injuries, £54 in respect of loss of earnings and £1,131, the actual physical damage to his property.
At the material time Mr, Robles was insured by the third parties in the action, Compagnie Parisienne de Garantie, a French insurance company, who had insured Mr. Robles in his use of this motorcar for a period of one year from 22nd August of 1966. When Mr. Allen brought his action against Mr. Robles, Mr. Robles brought in the insurance company as a third party, but they denied liability to indemnify Mr. Robles on this ground, that, contrary to a condition of the policy, he had failed to give notice of the claim within five days, and they said that accordingly, on the terms of the policy, they were not bound to indemnify him. The third party producings which have given rise to this appeal was heard and a later date to Mr Justice Mocatta.
The relevant clause of the policy which has given rise to this litigation is this: "Article 22 - Claims. Obligations of the Insured when claim occurs. The Insured must, at the risk of forfeiture (except in unavoidable circumstances or due to act of God) advise the Insurer immediately he has knowledge of a claim and at the latest within five days (twenty-four hours in the case of theft) in writing or verbally against a receipt, either to the head office of the Insurer or to the agency indicated on the policy. He must, in addition"; and then follow five specific provisions of steps which must be taken by the insurer, which are not really relevant here. Then, after those five specific provisions, again in large type, it says: "The omission by the Insured to comply with all or any of the obligations set out in paragraphs 1 to 5 above, except in unavoidable circumstances or due to act ofGod, will permit the Insurer to claim an indemnity proportional to the damage which such omission on the part of the insured has caused him"; and finally there is this provision: "The insured who knowingly makes false declarations as to the nature and causes, circumstances and consequences of a claim is deprived of all right to coverage for that claim".
There was an issue on the facts as to whether Mr. Robles had given notice within five days. He claimed that he had, I think, three days after the accident written to the agency indicated on the policy, which was the Motor Insurers Bureau. He said that he had written a letter. He was then serving, I think, at some air force station in this country, and he said that he handed the letter to an R.A.F. postman for delivery. But, at any rate, after hearing all the evidence and hearing evidence from the Motor Insurance Bureau, the learned judge found that Mr. Robles had not, as he recollected, given that notice within five days. There was no challenge to that finding, and the case has proceeded on the basis that Mr. Robles was in breach of that condition in article 22, that he had failed within five days to give notice of the claim. The question is: What are the legal results of that failure?
Correspondence followed. First of all, there were letters on behalf of the plaintiff direct to Mr. Robles, one of the 18th April and one of 28th June, and on the learned judge's finding Mr. Robles did nothing to forward those letters to the Motor Insurance Bureau; and it was not until he was summoned to appear in a...
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