Ramsook v Crossley
| Jurisdiction | UK Non-devolved |
| Judge | Lord Mance |
| Judgment Date | 30 April 2018 |
| Neutral Citation | [2018] UKPC 9 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0077 of 2015 |
| Date | 30 April 2018 |
[2018] UKPC 9
Lord Mance
Lord Sumption
Lord Carnwath
Lord Hodge
Lord Briggs
Privy Council Appeal No 0077 of 2015
Easter Term
Privy Council
From the Court of Appeal of the Republic of Trinidad and Tobago
Appellant
Asaf Hosein
Emile Pollard
Elvis O'Connor
Derick Sylvester
(Instructed by Banks Kelly)
Respondent
No appearance or representation
Amici Curiae
Thomas Roe QC
Emily Moore
Heard on 8 March 2018
This appeal is another sad illustration of problems that can arise from limits on the third party cover required by motor insurance legislation. The problems have in this case combined with an apparently deficient appreciation of insurers' duties towards their insureds. The first respondent, Mrs Carol Crossley, was insured against third party motor risks with Trinidad and Tobago Insurance Ltd (“TATIL”). The Motor Vehicles Insurance (Third-Party Risks) Act Chap 48:51 (“MVITPA”) required her to be insured up to but not in excess of $1m (section 4(2)(c)). In fact she was insured by TATIL up to $1.5m. But, as a result of the way in which a third party claim against her by the appellant, Mr Davidson Ramsook, was handled, judgment was in May 2011 given against her for damages to be assessed, damages were in February 2013 assessed at some $3.6m and she evidently only learned for the first time of both these facts when in July 2013 those acting for Mr Ramsook sought to enforce the judgment, and shortly afterwards threatened to bankrupt her.
Mr Ramsook was a police officer travelling as a passenger in a police car PCJ 9154, with which vehicle PBW 8543 driven by Mrs Crossley collided after crossing the central line on 24 May 2009. Mr Ramsook was very grievously injured, being paralysed from the chest down. On 21 September 2010 he commenced proceedings against Mrs Crossley and the Attorney General (representing the interests of the police). On 16 May 2011 des Vignes J entered judgment against Mrs Crossley for damages to be assessed, based on a defence admitting liability entered purportedly on Mrs Crossley's behalf by an attorney, Mr Rennie Gosine, instructed by TATIL. On 17 May 2011 TATIL paid into court $1m. This equates with the amount “required to be covered” that Mr Ramsook could, following a judgment against Mrs Crossley, recover directly from TATIL under section 10(1) of the MVITPA. Any additional sum awarded by the judgment and covered by insurance could only be recovered either (a) from Mrs Crossley, leaving her to recover it from her insurers, or (b), if she did not pay, then, after bankrupting her, by taking advantage of the statutory assignment of her insurance rights under section 17 of MVITPA.
On 4 February 2013 Master Sobion-Awai assessed damages in a total of $3,614,197.70 and awarded costs of $127,112.96. She also ordered payment out of the $1m in court. On or about 12 July 2013, as the judge found, Mrs Crossley learned of this decision from a letter dated 28 June 2013 delivered to her home by an attorney for Mr Ramsook. On or about 30 July 2013 those representing Mr Ramsook took steps to bankrupt Mrs Crossley. In response, Mrs Crossley on 19 November 2013 issued an application supported by affidavit, in which she maintained that she had not been served in the proceedings and had known nothing of them. She sought an order setting aside the judgment entered on 16 May 2011, and granting her leave to enter an appearance within eight days and to file a defence within 28 days. On 19 January 2015 des Vignes J, after hearing oral evidence, accepted Mrs Crossley's case on the facts. She had not been served and Mr Gosine had acted without authority. On that basis, des Vignes J set aside the judgment she had entered on 16 May 2011 together with all subsequent proceedings. An appeal by Mr Ramsook was dismissed by the Court of Appeal on 11 May 2015.
Mr Ramsook now appeals to the Judicial Committee which granted leave to pursue four grounds: (1) whether TATIL had authority under the insurance policy issued to Mrs Crossley to enter an appearance on her behalf; (2) whether des Vignes J had jurisdiction to set aside his prior judgment; (3) whether des Vignes J was wrong in his findings on “the balance of prejudice”; and (4) whether his findings of fact could be supported. A curiosity which the Board need not in the event further examine is that des Vignes J was not asked to and did not actually set aside the appearance as being without authority, although that was the logical consequence of his conclusions of law and findings of fact.
Before the Board, Mr Hosein made oral submissions on behalf of Mr Ramsook. Mrs Crossley had notified the Board that she was for financial reasons unable to afford representation. The Board expresses its gratitude in these circumstances for the careful assistance rendered it by Mr Thomas Roe QC, who appeared as amicus curiae.
On the hearing to set aside before des Vignes J, the primary issue was treated on both sides as being whether Mrs Crossley had been served with the proceedings begun by Mr Ramsook. The judge identified as a second issue whether it was Mrs Crossley who submitted these documents to TATIL. He identified as a third issue whether Mrs Crossley instructed and authorised TATIL to act on her behalf, to file a defence admitting liability and to represent her at the assessment of damages. In reality, the first, second and first part of the third issues are all closely inter-related. The judge found in favour of Mrs Crossley on all aspects of all three issues. He held that it was open to Mrs Crossley to apply to him to set aside the prior judgment which had been entered in proceedings to which Mrs Crossley was not in reality a party but which were conducted in her name without authority. He concluded that, in so far as it was material to consider the prejudice to each side that might be involved in any such decision, the likely prejudice to Mrs Crossley in allowing the judgment to stand exceeded the likely prejudice to Mr Ramsook in setting it aside. On that basis, he made the order already described.
Before the Court of Appeal, the case changed shape. The matter came first before that court on Monday 9 March 2015, when Mr Sanguinette, by now instructed for Mr Ramsook, sought to develop a new point, which he had only very briefly foreshadowed in written submissions dated the previous Friday 6 March. The point, based on a general statement of practice in MacGillivray on Insurance Law 9th ed (1997), p 791 was that TATIL “would have acted and taken over conduct of the proceedings by virtue of a condition of the policy of insurance”. It seems from the language that the insurance policy had not at this stage even been inspected, and not perhaps surprisingly the Court of Appeal stood the appeal over for hearing on another occasion. When it came back (before Archie CJ, Bereaux and Smith LJJ, only the last of whom had sat on 9 March), the policy had been obtained and Mr Sanguinette read out its terms. However, in a short ex tempore judgment delivered by the Chief Justice, the point received short shrift in the light of the judge's findings that Mrs Crossley had never been served. The court distinguished Groom v Crocker [1939] 1 KB 194 as a case where the proceedings had been served on the defendant.
Clause 15 of the insurance policy reads:
“ REPRESENTATION
No admission offer promise or payment shall be made by or on behalf of the Insured without the consent of the Company which shall be entitled if it so desires to take over and conduct in the Insured's name the defence or settlement of any claim for indemnity or damages or otherwise and shall have full discretion in the conduct of any proceedings and in the settlement of any claim and the Insured shall give all such information and assistance as the Company may require.”
Before considering the effect of this clause, it is appropriate to examine in a little more detail the circumstances in which TATIL instructed Mr Gosine and he came to enter an appearance and a defence on Mrs Crossley's behalf. In March and April 2010 Mr Ramsook's attorneys wrote a letter before action first to TATIL and then to Mrs Crossley direct. The letter to Mrs Crossley advanced a substantial claim, asked her to confirm her and TATIL's involvement, and said that, in the absence of a response within 21 days, legal proceedings would be begun. Mrs Crossley's evidence was that she took her letter to TATIL, who said that they would deal with the matter. As to service of proceedings, there is no doubt that TATIL had the relevant claim documents (including the claim form and statement of case dated 21 September 2010) by Tuesday 9 November 2010. On that date it faxed them to Mr Gosine to act on Mrs Crossley's behalf.
The factual dispute before des Vignes J was as to how and from whom these documents reached TATIL. On this Mr Ramsook called two witnesses, Mr Hardath, managing director of Hardath General Insurance Consultants Ltd, who in the course of his business was occasionally engaged by clients to serve process, and Ms Sue Ann Bailey of TATIL, who gave evidence for Mr Ramsook under subpoena. The former, in a witness statement which he attested was made “from my records and recollection”, said that he had on 22 September 2010 been engaged by Mr Ramsook's attorneys to effect service on Mrs Crossley of the claim documents, that he had visited her address with these documents at about 2.30 pm on Thursday 4 November 2010 and been told that she was out, but usually back by 5.00 pm. He then returned “on the evening of the 8 November 2010”, and, on his calling out her name, a woman who said that she was Mrs Crossley emerged, and invited him in. In her living room, he gave her his company's card, explained about the legal...
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