Silverton v Goodall [1997]
- Reported: [1997] P.I.Q.R. P451
- Year: 1997
- Court: Court of Appeal
FACTS:
The Claimant brought an action for personal injuries caused by the negligent driving of the first Defendant, who was uninsured. In October 1992 the Claimant’s solicitors gave notice to the Motor Insurers Bureau (“MIB” ) of their intention to commence proceedings. The Claimant’s solicitors sent a request for the issue of a summons to Basingstoke County Court by post in September 1994 and the summons was stamped and marked as issued by the court office on 13th October 1992. The Claimant’s solicitors sent copies of the proceedings to the MIB on 28th October 1994, apparently within seven days after they had received the summons from the court.
The MIB asserted that correct notice had not been given under clause 5(i)(a) of the MIB Agreement of December 1988 (“the Agreement” ) and reserved its position as to its liability, but was subsequently joined as a defendant with the Claimant’s consent. After the primary limitation period had expired there was a trial of a preliminary issue, as to whether the MIB would be liable to satisfy any judgment having regard to the alleged failure to give notice. The judge concluded that the MIB would not be liable to satisfy any judgment.
The Claimant appealed, contending, inter alia , that, on the proper construction of clause 5, time for giving notice runs from the date of receipt by the Claimant’s solicitors of the summons from the court, that if necessary, a term should be implied into the Agreement to that effect, that the MIB had waived its rights under or was estopped from relying on clause 5, and that English law should be interpreted in accordance with E.C. Directives 72/166/EEC , 84/5/EEC and 90/232/EEC , with the result that an exclusion of liability under clause 5 of the Agreement should be held to be invalid.
HELD:
Sir Ralph Gibson dismissed this appeal. Gibson LJ agreed and stated in his judgment that upon the information before the court, the delay in giving notice of the commencement of the proceedings caused no disadvantage to MIB. In the absence of any contractual provision which provides otherwise, it is of the nature of a contractual condition precedent, that the party claiming the benefit of it is not required to prove any loss or disadvantage as a result of the failure to comply with it or otherwise to justify reliance upon it. As to the construction of the rules of the County Court, Gibson agreed with the reasons given by the judge. The action was commenced on 13th October 1994 when the court prepared, issued and sealed the Summons for service.
(1) The words “the commencement of the proceedings” in clause 5(1)(a) meant the point in time at which, under the rules of the relevant court, the proceedings were commenced, as that was their ordinary meaning and the Agreement is to be construed by reference to ordinary principles of construction, having due regard to the language used and to the purpose of the Agreement derived from the Agreement as a whole.
(2) On the true construction of the rules of the County Court the action was commenced when the court, prepared, issued and sealed the Summons for service.
(3) No implied term to the effect that the time of commencement must be postponed until the Claimant knows of the issue of proceedings was pleaded and there was no evidence upon which such a term could be implied into the Agreement.
(4) There was no waiver by the MIB and no relevant estoppel could be raised. The MIB was entitled to apply to intervene in the action and to maintain the issue of failure to give due notice.
(5) It was impossible to hold, according to any principle of European law to be derived from the Directives, that exclusion of liability under clause 5 of the Agreement could be held to be invalid against the Claimant. The structure of domestic statute law, together with the terms of the MIB Agreements, provide laws, regulations and administrative provisions which satisfy the requirements of the Directives.
Phillips L.J. and Waite L.J. both agreed with the judgment and the appeal was dimissed.
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