Jonathan Charles Bell (Plaintiff) v Donnelly and Another
| Jurisdiction | England & Wales |
| Judge | THE JUDGE |
| Judgment Date | 13 January 1998 |
| Neutral Citation | [1998] EWHC J0113-3 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: 1996 B l4 |
| Date | 13 January 1998 |
[1998] EWHC J0113-3
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Stephen Tomlinson QC
(Sitting as a Deputy Judge of the High Court)
Case No: 1996 B l4
MR DERMOD O'BRIEN QC (instructed by Messrs Taylor Joynson Garrett, London EC4) appeared on behalf of the Plaintiff.
MR COLIN MACKAY QC and MR ROBERT JAY (instructed by The Treasury Solicitor) appeared on behalf of the Defendant.
On the night of 23rd September 1993 several platoons of infantrymen from the Green Howards were taking part in a night exercise on Salisbury Plain. The exercise was in the nature of a race between the platoons. It seems to have been the intention, expectation or hope of those who planned the exercise that the men should go across the plain. But, perhaps unsurprisingly, the men, or some of them, from time to time made use of the public roads.
At all events, at about 233O hours whilst the squad in which the plaintiff was a corporal was moving south on the A338, the first defendant (Donnelly) drove his car into the platoon, injuring l5 men, of whom I am concerned directly or indirectly with l4. The plaintiff (Corporal Bell) was, as I understand it, the most seriously injured in this tragic accident, sadly being left paraplegic.
Donnelly was a learner driver driving without a qualified supervisor. He was driving with a blood alcohol level nearly twice the legal limit. He was uninsured, contrary to the provisions of Part VI of the Road Traffic Act 1988.
The plaintiff brought proceedings against both Donnelly and the Ministry of Defence, to which I shall refer hereafter as either "the Ministry" or " MOD", alleging that each was liable for the accident. Against Donnelly the claim was in respect of negligent driving. Against the MOD it was claimed that it was negligent in the planning and execution of the exercise and that it was in breach of its own regulations, both general and particular, which related to the movement of troops on public roads at night. I need not for present purposes go into those allegations in any detail.
The MOD sought from Donnelly an indemnity or contribution pursuant to the provisions of the Civil Liability (Contribution) Act 1978. No doubt had the matter gone to trial Donnelly would have sought like or similar relief from the MOD, although no formal notice to that effect was served. Donnelly, although not the MOD, made an allegation of contributory negligence against the plaintiff.
On 22nd December 1997 the MOD gave notice to Donnelly that it would at trial make an application for the Motor Insurers' Bureau (to which I shall refer hereafter as "MIB") to be joined as a third party in the action. A draft third party notice was served on both Donnelly and the MIB.
On 3Oth December 1997 Donnelly and the MOD agreed (i) that the apportionment of liability as between themselves should be Donnelly two-thirds liable to the plaintiff and the MOD one-third liable; (ii) that Donnelly would abandon his allegation of contributory negligence against the plaintiff; (iii) that the plaintiff should be at liberty to enter judgment against both defendants for damages to be assessed.
Pursuant to that agreement a consent judgment was drawn up and signed by the solicitors to all three parties, which judgment was in the following terms:
"Upon the parties agreeing terms by consent it is ordered that:
l. Judgment be entered for the plaintiff against the defendants and each of them on the issue of liability with damages to be assessed with the issue of damages to be adjourned to a date to be fixed.
2. The first and second defendants do pay forthwith the plaintiff's costs of the action to date on the issue of liability, such costs to be taxed on the standard basis if not agreed.
3. As between the first defendant and the second defendant the liability for the said damages and costs shall be apportioned as to two-thirds against the first defendant and one-third against the second defendant.
4. The first defendant and the second defendant shall each bear their own costs of the liability issue herein."
The effect of that judgment is of course, as it was intended to be, that Donnelly and the MOD are jointly and severally liable for the full amount of damages ultimately awarded on the basis that each independently was a separate tortfeasor whose torts have caused the same damage. The reality is that it is inevitable that the plaintiff will look to the MOD to recover lOO% of the damages awarded.
The trial on liability alone, a split trial having been ordered, was due to start yesterday, l2th January, the estimate being seven days. A trial on liability being unnecessary the parties very sensibly agreed that the first two of the days reserved should be used to determine the question whether the MOD should be granted leave pursuant to R.S.C. Order l6, rule l to join MIB as a third party so as to seek an order that the MIB should pay to MOD pursuant to the provisions of the Civil Liability (Contribution) Act 1978 the contribution payable by Donnelly to the MOD. There is no dispute but that, following satisfaction by MOD of the plaintiff's judgment, Donnelly will be liable to contribute to the extent of the agreed proportion of his liability. Although the MOD could satisfy the judgment and seek the relief now claimed at any time up to two years thereafter, the parties are naturally anxious to resolve this preliminary question sooner rather than later, particularly since it is to be anticipated that the plaintiff may seek an interim payment. In order to ensure that the point could be dealt with effectively, Mr O'Brien QC, counsel for the first defendant (Donnelly) was instructed to represent also the interests of the MIB. Mr Mackay QC, counsel for the second defendant ( MOD) undertook to issue an inter partes summons seeking leave for the joinder of MIB.
The draft third party notice seeks declaratory relief contingent upon the first defendant failing to satisfy the judgment. In some ways the application could be said to be premature but it is obviously eminently sensible that this point should be resolved now. The point turns entirely upon the proper construction to be given to the uninsured drivers agreement between the MIB and the Secretary of State for Transport, to which I shall refer hereafter, and to the provisions of the 1978 Contribution Act and the arguments will be the same in 24 months' time as they are now. Having said that it is sensible for the point to be resolved now, I should perhaps also observe that there is no suggestion that the plaintiff himself will be affected one way or another, whatever is the outcome of the application, with the possible caveat that the MOD might for technical reasons find it necessary to defer meeting a monetary judgment for seven days for which delay the plaintiff would be appropriately compensated with interest at the judgment rate. The court is in any event entirely confident that neither the MOD nor, so far as concerned, the MIB, would tolerate any prejudice accruing to the plaintiff as a result of their own dispute concerning the right to contribution.
So far I have mentioned only the action in which Corporal Bell is the plaintiff. There are, I believe, listed before me also the cases of O'Rourke and Moscrop and others. I am not sure that these three actions between them comprise the actions brought by all l4 of the soldiers injured on this occasion but in any event it is clear that Corporal Bell's case is being regarded as the lead action and, whether formally or informally, my decision in his case will determine how the other cases are dealt with. Subject to any observations of counsel at the end of my judgment I propose to say nothing more about the cases other than Bell's case.
The current relevant agreement between the MIB and the Secretary of State for Transport is dated 2lst December 1988 and is headed "Compensation of Victims of Uninsured Drivers". The history of the agreements which preceded this version is by now well-known and has been discussed in various decisions of the Court of Appeal, notably Hardy v. MIB [1964] 2 Q.B. 745 and Gurtner v. Circuit [1968] 2 Q.B. 587. Those decisions also contain valuable analysis of the earlier agreements by judges of high authority.
The relevant provisions of the current agreement are as follows. There is a preamble which provides:
"In accordance with the Agreement made on 3l December 1945 between the Minister of War Transport and insurers transacting compulsory motor vehicle insurance business in Great Britain (published by HMSO under the title 'Motor Vehicle Insurance Fund') a corporation called the 'Motor Insurers' Bureau' entered into an Agreement on l7 June 1946 with the Minister of Transport to give effect from l July 1946 to the principle recommended in July 1937 by the Departmental Committee under Sir Felix Cassel (Cmnd 5528), to secure compensation to third party victims of road accidents in cases where, notwithstanding the provisions of the Road Traffic Acts relating to compulsory insurance, the victim is deprived of compensation by the absence of insurance, or of effective insurance. That Agreement was replaced by an Agreement which operated in respect of accidents occurring on or after l March 197l which in turn was replaced by a new Agreement which operated in respect of accidents occurring on or after l December 1972. The Agreement of 1972 has now been replaced by a new Agreement which operates in respect of accidents occurring on or after 3l December 1988."
The preamble then recites...
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