The Society of Lloyd's v Noel
COURT OF APPEAL, CIVIL DIVISION
SIMON BROWN, BROOKE AND ROBERT WALKER LJJ
30 March 2001
[2001] All ER (D) 371 (Mar)
Practice
The appellant, N, was elected as an underwriting member of Lloyd's
in January 1979 and resigned in 1986. Although she ceased to be an underwriting
member in December 1986, the effective date of her resignation from Lloyd's was
postponed because not all of her accounts had been closed. N was one of the
names who declined to accept the settlement offer made to her as a part of
reconstruction and renewal of the Lloyds market. Although N did not accept
reconstruction and renewal, the majority of names did and it was brought into
effect. One effect was that N's remaining open year liabilities were
(compulsorily) reinsured by ERL. N failed to pay her ERL premium. The claim was
assigned to Lloyd's by ERL and Lloyds issued a writ against N in October 1996.
In 1997 and 1998 a number of test cases were heard by the Commercial Court and,
subsequently, the Court of Appeal, in order to determine, inter alia, the vires
of reconstruction and renewal. Lloyd's was in all relevant respects successful
and thereafter issued applications for summary judgment against the defendant
names including N. Summary judgment was obtained against N and, following some
re-argument, the judge refused to amend his judgment. N appealed. She argued
that, contrary to what was pleaded by Lloyd's, she had never signed any
agreement beyond her original agency agreement of 1979; in particular, she had
never signed the form of general undertaking, introduced in 1986 (the 1986
undertaking), which contained an express undertaking to comply with the
provisions of the Lloyd's Acts 1871-1982. She argued further that, since
reconstruction and renewal was implemented pursuant to bye-laws, all of which
were passed or amended pursuant to the powers conferred by the Lloyd's Act
1982, she was not bound by reconstruction and renewal and not, therefore,
liable to pay any ERL premium. Lloyd's conceded that it had wrongly pleaded
that N signed the 1986 undertaking, and it further accepted that there was no
document by which she had expressly agreed to be bound by the provisions of the
1982 Act, contrary to para 3 of its points of claim. It submitted however that
the 1982 Act would have effect in any event, and therefore N's submissions
ultimately were of no effect.
The appeal would be allowed.
There was no authority in any of the Lloyd's test cases dealing
precisely with the point raised by N concerning her not having signed the 1986
undertaking. Fairness required that N know precisely the case against her, and
Lloyd's case as pleaded had not set out its case correctly. Thus, in spite of
Lloyd's argument that the 1982 Act applied in any event, the court would not
uphold the award of summary judgment, which had been given on the wrong basis,
but would remit the case to the Commercial Court, so that Lloyd's, if it
wished, could bring a second application for summary judgment.
Society of Lloyd's v Fraser [1998] CLC 127 considered.
N appeared in person
Richard Jacobs QC and Christopher Smith (instructed by Lloyd's) for LloydÕs.
James Wilson Barrister (NZ).