Buckland v Palmer
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE GRIFFITHS |
| Judgment Date | 21 June 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J0621-2 |
| Docket Number | 84/0271 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 June 1984 |
[1984] EWCA Civ J0621-2
The Master of the Rolls
(Sir John Donaldson)
and
Lord Justice Griffiths
84/0271
Case No. 8202584
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE KEIGHLEY COUNTY COURT
(HIS HONOUR JUDGE PICKLES)
Royal Courts of Justice.
MR. EDWIN GLASGOW (instructed by Messrs. A.V. Hammond & Co. of Bradford) appeared on behalf of the (Plaintiff) Respondent.
MR. STUART BRIDGE (instructed by Messrs. Hatchett Jones & Kidgell, London agents for Messrs. Turner & Wall of Keighley) appeared on behalf of the (Defendant) Appellant.
On the 19th February, 1982 Mrs. Buckland was driving her Honda motor car when it was involved in a collision with an Alfa Romeo car owned and driven by Mr. Palmer. Mrs. Buckland's car suffered considerable damage which is said to have cost £1,142.11 to repair. Happily for Mrs. Buckland, she was insured under a comprehensive motor policy, but it was a term of that policy that she should bear the first £50 of each and every claim.
According to an affidavit by Mrs. Buckland, Mr. Palmer did not at the time dissent from the proposition that the accident was his fault, but he told her that he was insured with Palladin Policies at Lloyds and gave her details of his insurance brokers. Mrs. Buckland then acted as would most motorists in a similar situation. She notified her own insurers, Eagle Star. They informed her that they had a "knock for knock" agreement with Palladin, as a result of which, as between Eagle Star and Palladin (and thus Mr. Palmer), Eagle Star would be respondible for meeting the damage claim other than the first £50. For that £50 she would have to look to Mr. Palmer.
Mrs. Buckland did just that. On the 28th April, 1982 she began an action in the Keighley County Court ("the April action") claiming £50 and £5 court fees. She did not employ solicitors and stated the nature of her claim as being "uninsured excess on car insurance" and the grounds of her claim as being "Mr. Palmer was the liable party in a collision with my car and his in Highfield Lane, Keighley on 19.2.82."
On the 6th May, 1982 Mr. Palmer paid the full amount claimed (£50 plus £5 costs) into court. He, or someone acting on his behalf, completed the appropriate court form to show that he disputed the plaintiff's claim, he wished to make a counterclaim and, as to the payment into court, that "We are only paying this because it is a court order. We are not taking any liability at all" (his emphasis). Although the form encouraged him to do so, Mr. Palmer gave no reasons for disputing liability, nor did he say how much he was counterclaiming against Mrs. Buckland or what was the nature of that claim, although it would not doubt be possible to make an intelligent guess.
I assume that Mrs. Buckland was very satisfied at this speedy and, from her point of view, satisfactory outcome to her venture in do-it-yourself litigation. At all events, she accepted the £55. As a result, her action became stayed under Order 11, rule 3(3), of the County Court Rules 1981. Presumably it still remains on the books of the Keighley County Court, for the proceedings have never been concluded by withdrawal, judgment or striking out, but whilst that may disturb judicial administrators contemplating the thousands if not millions of dormant actions in county courts, I doubt whether it troubled or troubles Mrs. Buckland. She had been paid £50 by Mr. Palmer and Eagle Star had paid or were going to pay the balance of the cost of repairing her car.
It is at this point that complications arose, for Eagle Star found that Mr. Palmer was not or did not appear to be insured with Palladin Policies at Lloyds and it was one thing for them to forego trying to recover from Mr. Palmer if he was insured by an insurer with whom they had a "knock for knock" agreement and quite another if, as seems likely, Mr. Palmer was uninsured. In fairness to Mr. Palmer, I should add parenthetically that even if these facts are correct, it does not necessarily follow that at the time of the accident he knew that he was uninsured.
In these circumstances Eagle Star set about suing Mr. Palmer. For this purpose they had to avail themselves of the subrogation rights which they acquired upon meeting Mrs. Buckland's claim and to sue in the name of Mrs. Buckland. Their action, in her name, was begun in the Keighley County Court in September 1982 (the "September action"). In it they claimed the full sum of £1,142.11 but gave credit for the £50 which Mrs. Buckland had already received.
At this point I think that Mr. Palmer applied for and obtained legal aid. Thus armed, he applied to strike out the September action on the grounds that it was an abuse of the process of the court. The application was heard by Mr. Registrar T.M. Lamb, who dismissed it on the 20th September, 1983. Mr. Palmer appealed to His Honour Judge Pickles, who dismissed the appeal in a reserved judgment given on the 23rd November, 1983. The basis of this decision was that the matter was concluded by a decision of this court in Taylor v. O. Wray & Co. Ltd. (1971) 1 Lloyd's Law Reports 497. Mr. Palmer, who, having legal aid, needed only persistence and clearly has that, has appealed to this court with the leave of the learned county court judge and he has been ably represented by Mr. Stuart Bridge of counsel.
Mr. Bridge's submission is that where proceedings are in existence claiming damages based upon a particular cause of action, it is an abuse of the process of the court to begin a second action based upon the same cause of action. The correct procedure, in his submission, is to apply to the court seized of the first action for leave to amend the claim and for the removal of any stay on those proceedings. On being asked what practical difference it made whether the court dealt with the new claim in the first or in the second action, since there was no question of double liability, Mr. Bridge said that if the plaintiff had to apply to the court to re-activate the April action, Mr. Palmer would have an opportunity of resisting the application "on the merits". In answer to the obvious next question of "What merits?", it appeared that Mr. Bridge had no instructions to explain any merits of his client's case at this stage.
For my part, on the facts of this case, I can see no disadvantage to Mr. Palmer in the court considering the second claim in the September action rather than in the April action. If there are any "meritorious" reasons for not investigating the second claim or for dismissing it, that can be done as easily in the September as in the April action. However, that is not the end of the matter, for Mr. Bridge has a considerable body of law on his side, starting with the rule in Fetter v. Beal (1701) 1 Ld. Raym 339, 692, which is amply discussed in Winfield on Tort, 4th edition, at pages 669–673. For present purposes I can start, as did Mr. Bridge, with a decision of this court in Derrick v. Williams (1939) 2 All England 559.
In that case, like this, there were two actions although they were in the High Court rather than the county court. In the first action the plaintiff, as the personal representative of a child who had been killed in a motor accident, claimed damages for pain and suffering under the Law Reform (Miscellaneous Provisions) Act 1934. Death had followed very soon after the accident and such damages were necessarily small. The defendant paid £50 into court and this was taken out by the plaintiff. Two years later the House of Lords gave judgment in Rose v. Ford (1937) Appeal Cases 826 and it became clear that there might have been a valid claim for loss of expectation of life. The second action was then begun advancing that claim.
Mr. Justice Atkinson held, as a preliminary point of law, that the acceptance of the £50 in the first action precluded the plaintiffs from bringing a second action in respect of the same cause of action. That part of his decision was not appealed, but this court clearly accepted that it was correct. Mr. Justice Atkinson also gave leave to the plaintiff to amend his statement of claim in the first action. Although this court set that order aside, it did so on the merits and Sir Wilfred Greene, M.R., with the agreement of Lords Justices Finlay and du Parq, accepted that, for good reason a court would have power to remove a stay resulting from the acceptance of money paid into court and to...
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