In Jubilee Motor Policies (Lloyd's Syndicate 1231) v Volvo Truck & Bus (Southern) Ltd & Anor  EWHC 3641 (QB) the High Court was asked to strike out a claim brought by the claimant insurer, Jubilee, for a contribution under the Civil Liability (Contribution) Act 1978 (the Act).
Jubilee paid damages arising out of a settled claim between the party responsible for a road traffic accident and the victim. It was alleged that the accident that had been partly caused by the inadequate maintenance of a lorry by the first defendant, Volvo. As a result, Jubilee commenced contribution proceedings against Volvo under the Act alleging that it was entitled to a contribution by way of (1) subrogation; (2) section 1(1) of the Act (claiming that it was a "person liable in respect of the same damage" as its insured); (3) section 1(4) of the Act by reason of settlement. Volvo applied for the contribution proceedings to be struck out and/or for summary judgment to be entered on the basis that the Act did not apply because Jubilee was not a person liable "in respect of the same damage" suffered by the victim.
Mr J Bowers QC awarded summary judgment in favour of Volvo on the following grounds: (1) subrogation had not been properly pleaded in Jubilee's Particulars of Claim as any subrogation claim should have been brought in the name of Fortress (the employer of the party responsible for the accident); (2) having reviewed the relevant authorities, section 1(1) should be construed narrowly. The words "in respect of the same damage" required a common liability and a common liability did not exist between a person who caused the harm and a statutory indemnifier. Volvo's alleged liability arose as a wrongdoer at the time of the accident in 2003 as its breach of duty caused the victim's personal injury. Jubilee could not be said to have caused the victim personal injury and its liability to indemnify the victim did not arise until 2008, contingent on various other matters including whether it would deny liability under its insurance policy, whether the victim would obtain a judgment and whether the party responsible for the accident would fail to satisfy the judgment; (3) the provisions of section 1(4) of the Act had to be read alongside the other provisions of the Act. As the claim under section 1(1) had already failed, a claim to a contribution under this provision could not succeed.