A summary of recent developments in insurance, reinsurance and litigation law.
Ward Solicitors v Hendawi: Case on service of claim form at "last known address"
Where an individual defendant does not give an address for service of the claim form, and personal service cannot be carried out, CPR r6.9 provides that service can be made at his/her "usual or last known residence". CPR r6.9(3) provides that where a claimant has "reason to believe" that that address is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence.
In this case, the claimant had sent a letter by post to the address which it had for the defendant. The letter was not returned undelivered, but the defendant had told the claimant that he had not received the letter. The letter had also been sent by email to the defendant. About a year later, the claimant served its claim form at the same address, on the basis that it was the defendant's "last known residence". The claimant was unaware that the defendant had left that address a year earlier. The defendant argued that the claimant had had "reason to believe" that he no longer resided at this address.
On the facts, the prior version of CPR r6 applied, and hence the "reason to believe" argument did not arise. However, the judge said that, had the new rules applied, he would have held that there had been no "reason to believe": "The claimant knew that the letter had not been returned undelivered. The defendant could have explained, but did not, that the reason he did not receive it was that he had moved away. In my judgment, this would not amount to "reason to believe" on the part of the claimant that the last known residence is an address at which the defendant no longer resides. What had happened was potentially explicable on that basis, but was also explicable on the simpler basis that the letter of 16 January had been mis-delivered by the post office. At best, it amounted to a matter which might be further investigated. Unfortunately, the claimant did not do so".
COMMENT: This case follows a line of cases which have been reluctant to find that "reason to believe" exists. For example, in Key Homes Bradford v Patel (see Weekly Update 02/14) it was held that a "relatively high knowledge threshold" would have to be shown on the part of the claimant to prevent the claimant relying on the last known provision. Similarly, in Broadside Colours & Chemicals Ltd, Re (see Weekly Update 07/12), the claimant had been able to rely on an address supplied to Companies House by the defendant more than 6 years before service was effected and the judge did not believe that any further steps needed to be taken by the applicant to ascertain whether the director still lived at the address. However, in American Leisure Group v Garrard (see Weekly Update 25/14), "reason to believe" was found to exist where the claimant had put an alternative address in the claim form and it was also held that it could have easily discovered that the defendant was no longer at the address by running a search at Companies House (but it was unclear whether each of those grounds on its own would have amounted to a "reason to believe").
Lewis v Tindale: Judge holds that the MIB is liable for accidents by uninsured drivers on private land
A driver of an uninsured caused serious injuries to the claimant whilst he was walking on private land. Two issues arose:
(1) Was the Motor Insurers' Bureau ("the MIB") required to meet any judgment in the claimant's favour under the Road Traffic Act 1988? Soole J held not. Under the Uninsured Drivers Agreement 1999, once the victim of a driver has obtained a judgment against the driver in respect of a liability to which compulsory insurance attaches under the Road Traffic Act 1988, and that judgment has not been satisfied within seven days, then the MIB is under a duty itself to satisfy the judgment. However, section 145 of the 1988 Act only requires a policy to cover liability which may be incurred in respect of the death of or bodily injury to any person or damage to property caused by, or arising out of, "the use of the vehicle on a road or other public place".
(2) Was the MIB otherwise required to satisfy any judgment in the claimant's favour? The judge held that it was (at least to the extent of the minimum requisite cover of EUR 1 million per victim), because of the 2009 EU Motor Directive, which had a direct effect on the MIB (because it was held to be an "emanation of the state"). The Directive imposes an obligation on all member states to take appropriate measures to ensure compulsory insurance "in respect of the use of vehicles normally based in its territory". The judge found that, since the ECJ decision in Vnuk (see Weekly Update 34/14) (which implicitly held that the obligation of compulsory insurance extends to the use of vehicles on private land – and later cases have held that explicitly), the UK has not completely implemented the obligation imposed by the Directive.