Hyde v Sara Assicurazioni SpA
| Jurisdiction | England & Wales |
| Judge | Judge Moloney QC |
| Judgment Date | 30 July 2014 |
| Neutral Citation | [2014] EWHC 2881 (QB) |
| Court | Queen's Bench Division |
| Docket Number | HQ13X01304 |
| Date | 30 July 2014 |
[2014] EWHC 2881 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
His Honour Judge Moloney QC
(Sitting as a Judge of the High Court)
HQ13X01304
Ms S Crowther appeared on behalf of the Claimant
Mr Chapman appeared on behalf of the Defendant
Words 6,842 / Folios 96 (97 in draft)
th July 2014
Introduction and chronology
This is my judgment on a preliminary issue in a personal injury road traffic accident case brought by a passenger, Mr Stephen Hyde against the insurer of his driver, Mr Larry Woghiren.
The accident occurred in Italy on 18 th July 2004. The claimant, Mr Hyde, is an English national and resident. He was being driven by Mr. Woghiren in an Italian car owned by a Signor Blasco and insured by the defendant company SARA. Through the driver Mr Woghiren's negligence, the car in which Mr Hyde was travelling drove on the wrong side of the road and there was a serious collision with an oncoming vehicle. Liability for the collision has now been admitted on behalf of the driver and of the insurance company that was, in effect, insuring the driver. There are live issues as to damages, on which the case is continuing. Other people besides Mr Hyde were injured including another passenger in Mr Hyde's car (Mr Pharaon Woghiren) and the driver of the other car (Signor Balli).
The Italian police prepared a report into the incident on 3 rd August 2004. That report identified the various victims of the collision including Mr Hyde, and the general state of their injuries as at that time. Though there is no specific evidence that SARA were sent this, the general evidence is that it would be normal practice for such an accident to be reported by the insured person to his insurer soon after its occurrence.
On 27 th June 2005, so somewhat less than a year after the accident, the claimant's then English solicitors wrote to SARA's agents in the United Kingdom, giving them the first notice that Mr Hyde intended to bring a claim. No effective replies were made at that stage. In May 2006 another English firm, Irwin Mitchell, took over. They appointed a firm of Italian lawyers, as agents to pursue the claim on their behalf. An agreement was reached that the limitation period should be suspended. At that time, it appeared likely that the claim would be pursued (and indeed would have to be pursued) in the courts of Italy if it were not settled.
However, on 13 th December 2007 the European Court of Justice gave its celebrated judgment in the case of Odenbreit which established the right of an EU resident involved in a cross-border claim to sue the defendant's insurer directly in the claimant's home court, even if that was not the country in which the accident had occurred.
Nevertheless, a considerable time continued to pass after that decision before the proceedings were reactivated. At some stage (the precise dates are not in evidence before me) it appears that SARA settled the claims of the other two victims for a total of €147,884.95. ( In an earlier ruling I disallowed a very late attempt by the defendant to put in a further witness statement containing evidence about the dates of these settlements. I refused that on the ground that it was not in compliance with the orders of the court and that the conditions for relief against sanction were not met. I should, however, add that in any event that statement which, of course, I read for the purpose of deciding whether to admit or to exclude it, contained no details about how the settlement figures had been arrived at; still less any disclosure of original documents or evidence bearing on the issues of how the damages paid to those other victims were arrived at or apportioned. The significance of this will become apparent later in this judgment.)
On 23 rd February 2012 Irwin Mitchell sent a formal letter of claim stating Mr Hyde's intention of suing SARA in the courts of England. On 13 th June 2012 the claimant's solicitors were notified of the defendant's intention to rely on an indemnity limit contained within Mr Blasco's policy of €774,685.35, a sum equal to 1.5 billion lire under the old currency of Italy. Further, on that date the claimant's solicitors were notified of the settlements with the other victims, to which I have referred, in the amount of €148,000 or thereabouts, and of the insurance company's intention to deduct that payment from the sum available to meet Mr Hyde's claim, thus reducing the sums available to Mr Hyde to just over €600,000.
The claim was commenced by the issue of the claim form on 19 th March 2013. On 3 rd July 2013 by its defence SARA admitted liability but stated its intention of relying on the considerations as to indemnity limits and other settlements that I have referred to above.
On 26 th March 2014 Master Yoxall ordered a preliminary issue, the one that is now before me. I can break it down into three questions.
(1) Whether the defendant's liability to the claimant is limited in the light of the insurance policy for vehicle MS 249 024?
(2) If so, to what amount;?
(3) Whether such limit includes the claimant's costs?
He then gave directions for the preliminary issue including exchanges of witness statements of fact and of the reports of experts on Italian law.
The narrowing of the issues
For a long time it was a live issue in this case whether the policy actually in force at the time of the accident in 2004 contained any, and if so what, limit. There had been disclosure of an earlier policy endorsement indicating that at the time of that much earlier endorsement there was a limit of 1.5 billion lire, but by 2004 the lira had been replaced by the euro and no disclosure had been given of a then current policy in order to indicate whether it contained any, and if so what, limit. However, very shortly before this hearing there was late disclosure on the insurer's behalf of payment receipts showing clearly that the policy had continued in the same terms. It had been renewed regularly up to and including the time of the accident, and at the time of the accident it contained an express limit of €774,685.35. As I have stated, this equals 1.5 billion lire. That in turn was, at all material times, the statutory minimum level of insurance required by Italian law in respect of motor vehicles, and that law in turn was made pursuant to and consistently with the applicable directives of the EU.
In the light of this disclosure, the claimant now concedes, as he must, that the policy through which he is suing the insurer direct did have such a limit at the material time.
In addition, the claimant accepts the proposition that the substantive issues in this case, as opposed to the procedural or remedial issues, fall to be decided by the English court in accordance with the law of Italy at the relevant time. The claimant further accepts that the insurer is in principle entitled to rely in the court of England on the limit in that policy as setting the maximum liability of the insurer. Issue (1) posed by Master Yoxall is therefore resolved as follows: that the defendant's liability to the claimant is limited in the light of the insurance policy for the vehicle.
Issue (2), the amount of the limit, is resolved in part. It is agreed what the maximum limit is, the sum to which I have referred, but the question remains: whether and to what extent that available limit ought to be reduced to take account of the payments that I have referred to made to the other claimants on the policy.
Issue (3): does the limit apply to the aggregate sum of damages and costs? remains alive. Indeed it has expanded slightly, because in the course of the experts' reports the related question has arisen whether the Italian damages limit or cap to which I have referred, the limit on the insurer's liability, extends to interest as well as to damages and costs. The parties have effectively conceded that that question ought to be resolved by me in the course of this preliminary issue as well.
What effect do the settlements with the other victims have on the maximum amount of the claimant's claim?
As I have said, it is accepted that this is a question of Italian law. The parties consulted experts on Italian law. The claimant's expert was Dr Bona and the defendant's expert was Signora Buresti. Dr Bona gave oral evidence before me. Signora Buresti's evidence was in written form only; the defendant did not call her to be cross-examined. Each expert wrote an initial report and then together they produced a substantial joint statement, all of which are in evidence before me.
Dr Bona explained in his original report that the applicable law is Article 27 of Law No.990 of 1969, subsequently replaced in similar terms by Article 140 of the Insurance Code, Law 209 of 2005. Under those provisions of Italian law the following rules apply.
(a) The limit applies per accident, not per victim, so that there is what I can colloquially refer to as a "pot" with a maximum size of 1.5 billion lira to be shared amongst all of the victims of the accident;
(b) If there are several victims of the accident, and the overall compensation due to them under the general law exceeds the insurance limit, then each of their claims should be proportionately reduced so as to exhaust the available fund fairly between them. This is known in Italian as the principle of par condicio", which can be translated as "proportional compensation".
(c) If the insurer has taken ordinary care to ascertain all of the victims, but despite doing so is not...
To continue reading
Request your trial
-
Accidents - Choice of Law and Jurisdiction
...149 Maher and Another v Groupama Grand Est [2009] EWCA Civ 1191, [2010] 1 WLR 1564 at [40]. 150 Hyde v Sara Assicurazioni SPA [2014] EWHC 2881 (QB), [2014] 7 WLUK 1060. 151 Hyde (above) at [5.2] per HHJ Moloney QC. 152 Scales v Motor Insurers’ Bureau [2020] EWHC 1747 (QB), [2020] 7 WLUK 17 ......
-
Table of Cases
...and Litigation Husain v Olympic Airways 316 F 3d 829 (9th Cir 2002); 116 F Supp 2d 1121 (2000) 10.56 Hyde v Sara Assicurazioni SPA [2014] EWHC 2881 (QB), [2014] 7 WLUK 1060 9.96, 9.114 IBS Technologies (PVT) Limited v APM Technologies SA and Another (No 1) [2003] All ER (D) 105 (Apr), ChD 9......