Gurtner v Circuit

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE DIPLOCK,LORD JUSTICE SALMON
Judgment Date14 December 1967
Judgment citation (vLex)[1967] EWCA Civ J1214-1
Date14 December 1967
CourtCourt of Appeal (Civil Division)
Frederick Curtner
Plaintiff
Respondent
and
John Christopher Circuit
First Defendant
and
Moter Insurers' Bureau
Second Defendants
Appellants

[1967] EWCA Civ J1214-1

Before

The Master of The Rolls

(Lord Denning)

Lord Justice Diplock And

Lord Justice Salmon

In The Supreme Court of Judicature

Court of Appeal

Civil Division

From Mr Justice Chapman

Mr Ralph Gibson (instructed by Messrs L. Bingham & Co.) appeared as Counsel for the Appellants (Second Defendants).

The Respondent (Mr Frederick Gurtner) appeared in person.

THE MASTER OF THE ROLLS
1

On the 29th June, 1961, Frederick Gurtner was walking across Robin Hood Way on the Kingston By-pass. He was run down by a motor cycle and severely injured. His skull was fractured and he lost his memory. police officer came up after the accident and took down particulars. The motor cyclist gave his name and address as John Christopher Circuit of 45 Alpine Avenue, Tolworth, Surrey. His machine was a 350 cc. "Royal Enfield" Bullet, VPG 816. The police officer took also the names and addresses of three witnesses and noted down the statements made by then. Within five days the motor cyclist, Mr Circuit, gave to the police the details of his insurance. It was Certificate No. 381512 issued by Lloyds Motor Policies. But the police did not take down the name of the syndicate which had issued the certificate.

2

Some tine later the injured man, Mr Gurtner, instructed solicitors, Messrs Beer & Co., to act for him. They got particulars from the police, but they do not appear to have communicated with the motor cyclist at all. They seen to have waited till the three years' period of limitation had nearly expired. Then on the 26th June, 1964, they issued a writ against John Christopher Circuit of 45 Alpine Avenue, Tolworth, which was the address given in the police report. It was endorsed with a claim for "damages for personal injuries caused to him by the defendant's negligent driving on the 29th June, 1961".

3

It does not appear that Beer & Co. at that time made any attempt to serve the writ. If they had tried to serve it in 1964 and called at the address in Tolworth, they would have discovered that the Circuit family left that address in 1962. The son, John Christopher Circuit, went to Canada and married out there. Efforts have been made to trace him but without success.

4

The writ was only valid for the first twelve months from the 26th June, 1964, to the 26th June, 1965. But Beer & Co. did not try to effect service of the writ till the twelvemonths had nearly expired. Then on the 24th June, 1965, a process server called at 45, Alpine Avenue, Tolworth, and got no answer. The people next door said that the defendant had gone to Canada about three years ago. Thereupon on the 25th June, Beer & Co. applied for the renewal of the writ ex parte. It was renewed for a second twelve months until the 25th June, 1966.

5

Scon afterwards Mr Gurtner instructed other solicitors, Messrs Nye & Donne. They obtained a legal aid certificate, and not being able to find Mr Circuit, they wrote on the 8th November, 1965, to the Motor Insurers' Bureau: because that Bureau does in some circumstances pay the damages awarded to injured persons. Mr Gurtner's solicitors gave the Bureau the particulars taken by the police of the insurance of Mr Circuit (Certificate No. 381512 issued by Lloyds Motor policies) and asked the Bureau if they could trace the insurers involved. The Bureau asked the Royal Insurance Co. to investigate the matter, but without success. No-one has been able to trace the insurers or Mr Circuit. These investigations took some time. So much so that the second twelve months was near to expiring on the 25th June, 1966. To safeguard the position, Nye & Donne on the 23rd June, 1966, applied for the writ to be renewed. It was renewed for a third twelve months until the 24th June, 1967. But during the third twelve months Mr Gurtner's legal aid certificate was discharged, and he acted thenceforward in person. The third twelve months was near to expiring when on the 15th June, 1967, he applied for it to be renewed. it was renewed for three months until the 14th September, 1967.

6

Now comes an important step. On the 22nd June, 1967, Mr Gurtner applied for substituted service by serving the writ on the Royal Insurance Co. He made in support this affidavit: "(1) Affidavit in support of an application for substituted service. (2) I, Frederick Gurtner, medical research scientist of 157, Marine Parade, Brighton, Sussex, make oath and say asfollows: (3) As already mentioned in my application for renewal of the aforesaid writ, Mr Circuit went to Canada still in 1961, and in spite of repeated endeavours, his present whereabouts cannot be ascertained. (4) With letter of the 3/12/1965, Messrs Nye & Donne, Brighton, who dealt with this matter, informed me that the Motor Insurers' Bureau have passed the matter to the Royal Insurance Co. who would negotiate on their behalf. (5) I ask, therefore, for leave to serve this writ to the Royal Insurance Co. so that the letter nay deal with the matter on behalf of the Motor Insurers' Bureau".

7

On reading that affidavit, Master Ritchie on the 22nd June, 1967, ordered that service could be effected by sending the writ by ordinary prepaid post addressed to John Christopher Circuit, c/o Royal Insurance Co. Ltd., 24/28 Lombard Street, E.C.3. In pursuance of that order, Mr Gurtner sent the writ in a letter to Mr Circuit at that address. It, of course, never reached him. The Royal Insurance Co. did not know his whereabouts any more than anyone else. They had no authority to enter an appearance on his behalf. Nor did the Motor Insurers' Bureau. No-one had any authority to enter an appearance on his behalf. It looked if judgment would go against Mr Circuit by default unless something was done.

8

You may ask: Why should anyone worry if judgment did go against the defendant Circuit by default? The answer is that the Motor Insurers' Bureau had every reason to worry. They had entered into an agreement with the Minister of Transport by which they promised to pay any judgment against a motorist if it was not satisfied by his insurers within seven days. Faced with this obligation, the Bureau were desirous of coning into the proceedings. They wanted to investigate Mr Gurtner's claim. They had got the statements of one or two witnesses who said that Mr Gurtner was himself to blame because he ran across the road. So contributory negligence night arise. The Bureau also wanted to enquire into the amount of damages in case heclaimed too ouch. He is said to have asked for £20,000 or £30,000. They also wanted to enquire into the order for substituted service so as to see if it was rightly made; and also to investigate the renewals of the writ.

9

In order to be able to take these points, the Motor Insurers' Bureau on the 3rd July, 1967, applied to be added as defendants to the action. Master Ritchie granted the application upon their giving an undertaking to satisfy any damages awarded to Mr Gurtner. But Mr Justice Chapnan reversed that decision. He thought that on the authorities, the Motor Insurers' Bureau could not be added as defendants.

10

The relevabt rule is the new Order 15, rule 6, which says that the Court may order any person to be added as a party "whose presence before the Courtis necessary to ensure that all matters in dispute in the cruse or matter nay be completely and effectively determined and adjudicated upon". That rule is in substantially the sane terns as the old Order 16, rule 11, and nothing turns on the difference in wording. There were many cases decided on it. But I need not analyse them today. That was done by Mr Justice Devlin in Anon v. Raphael Tuck & Sons Ltd, 1956, 1 Queen's Bench, p. 357. He thought that the rule should be given a narrower construction, and his views were followed by Mr Justice John Stephenson in Fire Auto and Marine. Insurance Ltd. v. Greene, 1964, 2 Queen's Bench, p. 687. I an afraid that I do not agree with then. I prefer to give a wide interpretation to the rule, as Lord Esher, Master of the Rolls, did in Byrne v. Brown (1889) 22 Queen's Bench Division, p. 657. It seems to me that when two parties are in dispute in an action at law, and the determination of that dispute will directly affect a third person in his legal rights or in his pocket, in that he will be bound to foot the bill, then the Court in its discretion nay allow him to be added as a party on such terns as it thinks fit. By so doing, the Court achieves the object of the rule. It enables all matters in dispute "to be completely and effectivelydetermined and adjudicated upon" between all those directly concerned in the outcome.

11

I would apply this proposition to the present case. If the Motor Insurers' Bureau are not allowed to come in as a defendant, what will happen? The order for substituted service will go unchallenged. The service on the defendant Circuit will be good, even though he knows nothing of the proceedings. He will not enter an appearance. The plaintiff will sign judgment in default of appearance. The judgment will be for damages to be assessed. The master will assess the damages with no-one to oppose. The judgment will be completed for the ascertained sum. The defendant will not pry it. Then the plaintiff will be able to come down on the Motor insurers' Bureau and call upon them to pay because they have made a solemn agreement that they will pay. They made an agreement with the Minister of Transport on the 12th June, 1946, by Clause 1 of which they agreed that if a judgment for an injured person against a motorist is not satisfied in full within seven days the Motor Insurers' Bureau will pay the amount of the judgment to the injured person. The agreement is well known. It is set out in full in a note to Hardy v. Motor Insurers' Bureau, 1964, 2 Queen's Bench, p. 745. It is true that the injured person...

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    ...be just and convenient to determine between him and that party as well as between the parties to the action. See Gurtner v. Circuit (1968) 1 All E.R. 328.” – Per Sulu-Gambari, J.C.A. in Re: Yinka Folawiyo & Sons Ltd. Suit No. CA/ I/M.218/90; (1991) 7 N.W.L.R. (Pt. 202) 237 at 245. (2) “In h......
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