Lambert v Mainland Market Deliveries Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MEGAW,LORD JUSTICE LAWTON |
| Judgment Date | 18 February 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J0218-9 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 February 1977 |
[1977] EWCA Civ J0218-9
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(From: His Honour Judge McLellan-Portsmouth County Court)
(Revised)
Lord Justice Megaw and
Lord Justice Lawton
Mr. O.B. POPPLEWELL, Q.C. and Mr. ROGER COX (instructed by Messrs. A.D. Vandamm & Co.) appeared on behalf of the Appellant (Plaintiff).
Mr. MICHAEL TURNER, Q.C. and Mr. TIMOTHY PRESTON (instructed by Messrs. Woodford & Ackroyd, Southampton) appeared on behalf of the Respondents (Defendants).
This is an appeal from an order made by Judge McLellan in the Portsmouth County Court on 18th November, 1976. On 19th January, 1975, a vehicle which was driven by a driver who was employed by the defendants, Mainland market Deliveries Ltd., collided with a car belonging to the plaintiff, who is Mr. Leonard Frederick Lambert. The plaintiff's car at the time was parked. The car was seriously damaged, and indeed was what is commonly known as a "write-off".
In brief outline, the issue raised in this appeal is whether the court has power to set aside, and if so ought it to set aside, a stay of proceedings in the County Court in the following circumstances, more fully set our hereafter. The plaintiff, Mr. Lamberts, was paid £982.97 by his insurers. He recovered the balance of his loss, £72.80, in a County Court action against the defendants. The manner of that recovery was that the defendants' insurers, as soon as they learned of the existence of the County Court action, paid into court the £72.80 - the full amount of the claim. The result under the County Court Rules is that that action automatically became stayed. The plaintiffs' insurers, so long as the stay remains, are debarred from seeking to recover from the defendants (and thus from the defendants' insurers) the whole or any part of the £982.97 which they have paid to the plaintiff. They wish to have the stay removed. The defendants - in reality the defendants' insurers - say that the stay cannot, or at least should not, be set aside.
The plaintiff was insured by the Co-operative Insurance Society Ltd. The defendants were insured by the Summit Policies at Lloyd's. The plaintiff notified his insurers (to whom I shall refer as "Co-operative"). Co-operative proceeded to take steps to estimate the amount of the loss in respect of which they were responsible under their policy; and before very long the amount of that loss hadbeen assessed. Their liability to the plaintiff under the policy of insurance was £982.97. However, over and above that the plaintiff, Mr. Lambert, claimed that he had suffered losses which were not covered by the policy of insurance but which had been caused by this selfsame accident. The claim was one which does not appear to be excessive. It was a total of £72.80, consisting of: 30 for what is known as "excess": that is to say, the amount which, under his contract of insurance with Co-operative, Mr. Lambert himself was to bear as being the first £30 of any loss otherwise covered by the policy; he claimed £10 out-of-pocket expenses; and £32 for the cost of a tow-bar which he said had been damaged and which was not covered by his policy with Co-operative.
Co-operative were in correspondence with the defendants' insurers (to whom I shall refer as "Summit"). That correspondence continued in a not very energetic manner, at any rate so far as Summit were concerned, over a period of months. They were, however, notified at a fairly early date, about March, 1975, of the amount of Co-operative's liability to the plaintiff under their policy, £982.97. So from that date on they knew the amount which Co-operative were saying they intended to recover, through the name of the plaintiff, if necessary by legal proceedings, from Mainland Market Deliveries Ltd.: and, of course, Summit would be responsible to Mainland Market Deliveries Ltd. for any amount for which they were liable, being covered by their policy with Summit. (It would appear that no "knock-for-knock" agreement existed between the two insurers).
Co-operative were seeking to obtain Summit's acceptance that there was liability, and that the liability was £982.97. Summit were not eager to agree that there was liability. In some of the correspondence they indicated that according to their researches there had been ice on the road at the time of the accident, and they indicated that there might be a defence here based on "inevitableaccident". (nobody suggested that Mr. Lambert was at fault in allowing his parked vehicle to be struck by another vehicle).
Mr. Lambert consulted solicitors, Messrs. Vandamm & Company, in respect of his potential claim, either before or shortly after he had been himself paid by Co-operative the £982.97 which was their liability under the policy. Mr. Lambert, as I have said, was concerned to recover the rest of his loss not covered by the policy. He was advised by Messrs. Vandamm, perfectly properly, that if there was not an admission of liability on the part of the defendants, Mainland Market Deliveries Ltd., he, Mr. Lambert, could bring his action against them; and Messrs. Vandamm advised that that action should be brought in the County Court because, the claim being less then £100, if it were to be brought elsewhere than in the County Court Mr. Lambert would be putting himself in peril of incurring substantial costs which might not be recoverable, even assuming that he established liability in full. Mr. Lambert apparently accepted that advice and decided to launch his own proceedings in the Country Court. It may well be that Messrs. Vandamm had, fairly and properly, advised him that in the circumstances that might be a way of saving himself expense. However that may be, Messrs. Vandamm were aware that the plaintiff was launching these proceedings in the County Court to recover his £72.80 from Mainland Market Deliveries Ltd. At a later stage Messrs. Vandamm became solicitors acting for Co-operative in respect of their interest in this matter. Let me say at once, without any qualification, that there is no suggestion of any kind of impropriety or improper conduct on the part of Messrs. Vandamm in respect of these matters. At the outset of this appeal, when the point was raised by the Court, it was recognized by Mr. Popplewell and Messrs. Vandamm that, having regard to the fact that the party who is really interested in the result of this appeal is Co-operative, and not Mr. Lambert personally, and explicit and unambiguousundertaking should be given to the plaintiff that he would suffer no financial loss whatsoever as a result of these proceedings or any consequence of them. Such undertaking has been given in writing. We were told, and I fully accept, that it was at all times the intention of the insurance company that Mr. Lambert should he thus held indemnified, although it had not been formally notified to Mr. Lambert, as would have been desirable.
Mr. Lambert, then, started his action in the Portsmouth County Court by particulars of claim, settled by himself, dated 27th June, 1975. That claim was expressed in simple and clear language claiming £72.80, made up in the way which I have indicated. It would seem from what we have been told as a result of researches made to-day, following questions asked by the Court, that the summons based upon that claim was issued by the Portsmouth County Court on 2nd July, 1975. It would seem, however, that because Mr. Lambert had described the defendant as "Mainland Market Deliveries", without adding the word "Limited" at the end, When the County Court officer attempted to serve that plaint upon the defendants at their correct address, Mainland Market Deliveries Ltd. thought it right to reject service of the plaint, on the basis that the word "Limited" had not been in- eluded after their name. Maybe they were entitled to do so. Anyway their conduct in this respect does not affect or reflect upon Summit, because we were told, and I would be fully prepared to accept, that Summit were not informed by Mainland Market Deliveries Ltd. that that step, the rejection of service on this technical ground - had been taken. The summons was re-served after amendment by adding the word "Limited". For some reason or other, it was not re-served on the defendants until 30th July, 1975. The defendants sent it to their insurance brokers, who in turn sent it on to Summit, under cover of a slip dated 6th August, 1975. The fact that that claim had been brought in the Portsmouth County Court by Mr. Lambertwas thus made known to Summit on 7th August, 1975. As I shall mention hereafter, they then acted with great promptness.
Meanwhile, certain correspondence had been taking place. On 3rd July, 1975, Co-operative had written to Summit: "If we do not receive your cheque within the next fourteen days, then we will pass the file of papers to our insured's solicitors whom we already understand are seeking instructions regarding issuing proceedings". In fact that is in some degree mistaken, because Mr. Lambert was acting without solicitors at that stage and he had already, apparently, lodged his plaint with the County Court, although it had not yet been served on the defendants. The letter went on: "We will then ask them to include our claim and as you will appreciate the matter will then become a High Court action" — the reason for that last sentence being, no doubt, that if the claim for £982.97 were to be added to Mr. Lambert's individual claim it would be above the limit of County Court jurisdiction, otherwise than by consent of the parties.
Following that letter, Summit wrote back to Co-operative on 29th July. In view of certain things that were said in the course of the submissions it is right that I should say that, in the light of information that we now have, this letter was written at a time...
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