Society of Lloyd's v Noel
COURT OF APPEAL
(CIVIL DIVISION)
(Transcript: Smith
Bernal)
HEARING-DATES: 31
MARCH 2000
31 MARCH 2000
COUNSEL:
The Applicant appeared in person; C Smith for
the Respondent
PANEL: EVANS LJ, TURNER J
JUDGMENTBY-1: EVANS LJ
JUDGMENT-1:
EVANS LJ: 1. This is an application for
permission to appeal against a judgment given by Cresswell J in the Commercial
Court on 12 May 1999. The action was by the Society of Lloyd's as claimant
against Sally Noel as defendant in respect of the premium which it is alleged
she owes in respect of the Equitas reinsurance scheme. The sum claimed is £13,047
plus interest.
2. Cresswell J gave summary judgment in favour
of the claimants. The application for permission to appeal is based on a number
of grounds, which can be immediately divided into two. The first ground, which
I will call "the contractual ground", is that Mrs Noel submits the
judge was wrong to hold that she was bound by virtue of the contract which she
made with Lloyd's on 1 January 1979. The second and following grounds are
concerned with much more general matters, involving what I will call almost the
whole gamut of the issues that have arisen with regard to the Lloyd's Equitas
Scheme and which have already been before the courts on a number of occasions.
Suffice it to say that, so far as those other matters are concerned, there have
been two major judgments of this court which have held in favour of Lloyd's
that the Equitas premiums are recoverable.
3. Taking first the contractual issue, the claim
is made on the basis that by a contract dated 31 August 1978, Mrs Noel agreed
to be bound at all times by, quoting from Clause 1(c)(v):
The Insurance Companies Acts 1958-1967 and/or
all other statutory provisions for the time being in force affecting
underwriting members of Lloyd's and with all requirements and regulations
prescribed by Lloyd's."
4. The claim as pleaded, and as described by the
judge, was:
on the basis that she had expressly agreed that
she would be bound by the provisions of the Lloyd's Acts 1871 to 1982."
That is self-evidently a contradictory
proposition. She cannot have agreed in 1979 to be bound by the provisions of
the Lloyd's Act 1982, unless that result comes about by reason of the reference
in Clause 1(c)(v) to:
statutory provisions for the time being in
force,"
or unless, as Mr Smith submits, the membership
and constitution of Lloyd's was such that Mrs Noel was agreeing to be bound by
whatever statutory provisions might take effect with regard to Lloyd's
membership from time to time.
5. The position is that that particular issue
has never been decided by the courts. It may or may not have been encompassed
by the judgment of Tuckey J in the case of the Society of Lloyd's v Daly,
judgment unreported, 27 January 1998. The part of that judgment which is
expressly relevant is on the penultimate page, where a Mr MacBrien took the
point that he had signed only an earlier form of undertaking. The learned judge
held that his earlier contract was governed by English law, as were the later
contracts. That was not in terms a decision as to the scope of the earlier
contract in relation to the later statutory provisions.
6. It seems to me that Mrs Noel should have
permission to appeal on this issue, which has not been decided by the courts
and which was assumed in Lloyd's favour both in the Lloyd's claim in this
action and Cresswell J's judgment.
7. I should add by way of explanation that there
was a suggestion that Mrs Noel had signed a later agency agreement in July
1986. She disputed that, and Lloyd's accept that she never did sign that later
agreement. Their case therefore depends on her earlier contract.
8. It seems to me that Mrs Noel should have
permission to appeal from the judgment on that contractual issue. I, for my
part, would adjourn to the Full Court which hears that appeal the consideration
of her many remaining grounds of appeal which raise what I have called the
general Lloyd's issues. It will then be for that court, if so advised, to give
permission for some or all of those further points to be raised. I would not
encourage Mrs Noel to consider that there is any real likelihood that the court
will do so. It seems to me, however, that in fairness to her the matter should
be reserved. On the other hand, it should be made abundantly clear, not least
to those acting for Lloyd's, that the only issue raised on the projected appeal
will be the contract issue, and that it will only be necessary for costs to be
incurred in relation to that issue. Whether or not any further issue should
subsequently become the subject of an appeal will be entirely a matter for the
court which hears the appeal.
9. For those reasons, I would grant the application
to that extent and adjourn all other issues to the court which hears the
appeal.
JUDGMENTBY-2: TURNER J
JUDGMENT-2:
TURNER J: 10. I agree.
DISPOSITION:
Application granted.
SOLICITORS:
Financial Recovery Department, Society of
Lloyd's