Jeroen Van Klaveren V. Servisair (uk) Limited
| Jurisdiction | Scotland |
| Judge | Lady Clark Of Calton |
| Neutral Citation | [2008] CSOH 136 |
| Court | Court of Session |
| Docket Number | PD1519/07 |
| Published date | 12 September 2008 |
| Date | 12 September 2008 |
| Year | 2008 |
| OUTER HOUSE, COURT OF SESSION [2008] CSOH 136 | |
| PD1519/07 | OPINION OF LADY CLARK OF CALTON in the cause JEROEN VAN KLAVEREN Pursuer; against SERVISAIR (UK) LIMITED Defenders: ________________ |
Pursuer: Di Rollo, Q.C.; Lefevre Litigation
Defenders: Comiskey; Simpson & Marwick
12 September 2008
Summary
[1] In this case the pursuer sues the defenders for the sum of two hundred thousand pounds (£200,000) in respect of an accident on 12 August 2004 when the pursuer was working in the course of his employment as a baggage handler with the defenders at Aberdeen Airport. Founding on correspondence between the agents and insurers of the parties in relation to an averred acceptance of liability, counsel for the pursuer sought summary decree in terms of Rule of Court 21.2 and a restriction of the proof to quantum.
Pleadings
[2] The parties averments about acceptance of liability are to be found in statement and answer 5. In statement 5 the pursuer avers:
"By letter dated 23rd March 2006 addressed to the pursuer's representatives Quantum Claims, Aberdeen, Zurich Insurance Company, the Insurers acting on behalf of the defenders in connection with the pursuer's claim, admitted liability for the pursuer's accident in the following terms:
'We accept that our Insured is liable for the purposes of this claim and will pay damages, to be assessed when we receive details of the claim. We will also be paying costs in accordance with the Civil Procedure Rules.'
The said letter is produced and its terms held as incorporated herein brevitatis causa. The said letter constituted a binding obligation on behalf of the defenders. The defenders are liable to the pursuer for the consequences of the accident. He is entitled to damage for his loss, injury and damage. Further and in any event, in reliance of the said letter to the pursuer's representatives did not undertake any further investigation into the circumstances of the pursuer's accident. Prior to lodging of Defences in this action in which liability for the pursuer's accident is denied, the pursuer and his representatives were given no notice and had no reason to anticipate that the defenders were seeking to deny liability for the pursuer's accident. The pursuer and his representatives are now likely to be prejudiced in investigating the circumstances of the accident."
[3] In Answer 5, the defenders aver:
"The letter of 23 March 2006 is referred to for its whole terms. Quoad ultra denied. Explained and averred that the letter was for the purposes of extra judicial discussions only and was provided to the Pursuer's representatives at a stage before detailed investigation had been carried out. That detailed investigation has now taken place and liability is denied for the reasons explained in detail in Answer 4. In any event, the letter was written by reference to the Civil Procedures rules applicable to England. Those Rules would in any event allow a subsequent withdrawal of any acceptance of liability now the Defenders' position."
Procedure
[4] The case first came before me for hearing of the motion for summary decree on 1 February 2008. I allowed a continuation to enable the defenders' counsel to make more detailed submissions. The defenders' counsel produced a written outline of submissions at the continued hearing on 20 March 2008. At that hearing, after further consideration of the submissions and discussion about the possible assistance of affidavit evidence, I pronounced an interlocutor ordaining both parties to provide affidavits from all individuals party to the correspondence from which the disputed point arises by 5 May 2008. The continued hearing took place on 21 May 2008. At that hearing the defenders' counsel was not in a position to lodge any affidavits. A copy affidavit of Dawn Kitchingham was available and had been made available to the pursuer's counsel on 20 May 2008. The defenders were given an opportunity to explain the failure to comply with the terms of the interlocutor after a short continuation to provide further information. I was not satisfied with the explanation given for the delay and for the failure to comply. Nevertheless, with the consent of the pursuer's counsel, I decided to proceed with the hearing on the basis of the one late copy affidavit provided by the defenders on the basis. I advised that the failure to comply with the interlocutor of 20 March 2008 would be further considered when I dealt with expenses. An affidavit from George Alexander Clark had been lodged at an earlier date on behalf of the pursuer. The submissions were concluded at a further continued hearing on 22 May 2008.
Submissions on behalf of the Pursuer
[5] In making his submissions, counsel for the pursuer made reference to correspondence, 6/6-6/20 of process. The initial letter (6/6 of process) from the pursuer's solicitors, Quantum Claims was sent to the defenders setting out a brief account of the circumstances as described to them and asking the defenders to pass the matter to their insurer. The insurer, Zurich, replied in a letter dated 11 August 2005 (6/7 of process) giving thanks for the letter of claim and advising "that we are currently completing our enquiries and will endeavour to convey our decision on liability at the earliest opportunity". The letter also requested certain formal information which was provided by letter dated 17 August 2005 (6/8 of process). Zurich in a letter dated 14 November 2005 (6/9 of process) stated inter alia "Our enquiries into the circumstances of this accident have been completed. However, in order that we can detail our views and liability response, we should appreciate full allegations of negligence alleged against our insured, not supplied previously". Quantum Claims responded by letter 6/10 of process dated 22 November 2005 (6/10 of process) setting out the circumstances of events as described to them. The letter concluded "No doubt you will wish to investigate matters further with your insured and look forward to hearing from you in due course". A reminder letter, (6/11 of process) was sent from Quantum Claims to Zurich on 12 January 2006. A similar letter (6/12 of process) was sent on 21 February 2006. This prompted a response by letter from Zurich (6/13 of process) dated 23 February 2006 stating inter alia that "our enquiries into the circumstances of this accident are continuing". Quantum Claims responded in a letter dated 7 March 2006 (6/14 of process). This letter stated:
"At this point in time, we are prepared to bear with you a little longer, however if we cannot make progress within the next four weeks, then we really cannot see any alternative but to raise proceedings in order to progress our client's claim"
Counsel for the pursuer submitted that the next part of the correspondence is critical. This is a letter (6/15 of process) from Zurich to Quantum Claims dated 23 March 2006. It states inter alia:
"We accept that our Insured is liable for the purposes of this claim, and will pay damages, to be assessed when we received details of the claim. We will also be paying your costs in accordance with the Civil Procedure Rules."
The letter gives details of Zurich's preferred suppliers of medical evidence. It states
"In the event that either a report is not disclosed, or we do not accept the conclusions we reserve the right to obtain our own"
The letter records that Zurich requested details of the pursuer's earnings. The letter concludes "Please do not simply acknowledge receipt of this letter, as we will not consider your costs". By letter dated 5 April 2006 (6/16 of process) Quantum Claims acknowledge the letter dated 23 March 2006 and confirm that the letter will not be considered in costs. Quantum Claims set out information about further problems with the symptoms suffered by the pursuer and explain that further reports from a GP and a psychiatrist are being requested. In a letter from Zurich to Quantum Claims dated 6 April 2006 (6/17 of process) there is further correspondence about expert reports. That correspondence is continued in a letter from Quantum Claims to Zurich dated 13 April 2006 (6/18 of process). The last of this correspondence are letters 6/19 and 6/20 of process. These are concerned only with reports and medical evidence. These letters are dated respectively 15 January 2007 and 25 January 2007.
[6] Counsel for the pursuer explained that in order to protect the pursuer's position in relation to the limitation period, a summons was signetted on 7 August 2007 and an action was raised against the defenders. The defenders in their pleadings in Answer 4 dispute liability. The position of the defenders was confirmed in a letter from Simpson & Marwick to Lefevre Litigation acting on behalf of the pursuer by letter dated 2 November 2007 (6/21 of process). That letter stated:
"We have your letter of 31 October with the copy letter of 23 March from Zurich. That letter was written under the mistaken belief that early compliance with Woolf protocol procedures was needed and without the benefit of the fuller investigation we have now carried out. The defence on liability is to be maintained."
[7] Counsel for the pursuer submitted that the defenders' insurers entered into a binding obligation with the pursuer's agent which binds both the pursuer and the defenders. Liability has been accepted, with an obligation to pay damages assessed and an obligation to pay costs. The obligation having been created, the defenders cannot now withdraw from it. There was consideration. Counsel for the pursuer sought to distinguish the case of Gordon v East Kilbride Development Corporation 1995 SLT62. He submitted that the circumstances considered by Lord Caplan in that case included negotiations between the parties expressed in terms "without prejudice". That was the background and the parties envisaged continuing inquiry into the merits as possible in the future. In contrast in the present case, it was...
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