Annette Rosemarie McCarthy v Kennard Gardner

• Jurisdiction: Jamaica
• Judge: Master C. Thomas
• Judgment Date: 30 September 2022
• Year: 2022
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. SU 2019 CV 04052

Between

Annette Rosemarie McCarthy

Claimant

and

Kennard Gardner

1 ^st Defendant

and

Kevin Haughton

2 ^nd Defendant

[2022] JMSC Civ 167

CLAIM NO. SU 2019 CV 04052

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN CIVIL DIVISION

Civil Procedure — Rule 11.16 of the Civil Procedure Rules — application by insurance company to set aside service pursuant to order made under rule 5.14 of the Civil Procedure Rules — whether service on an insurer would allow the defendant to ascertain the contents of the documents — whether the insurer took reasonable steps to locate and effect service on the defendant.

Mr. Lance Lamey instructed by Bignall Law for the claimant

Ms. Faith Gordon instructed by Samuda & Johnson for the applicant, Guardian General Insurance Company

Master C. Thomas (AG)

Introduction

1 By way of a notice of application for court orders filed on 26 ^th August, 2021, the applicant, Guardian General Insurance Company Limited (“GGIC”) is seeking to have an order made by Master Orr (as she then was) set aside. 1 Specifically, GGIC is seeking to have order 3 set aside. Order 3 reads as follows:

• (3) Permission is granted to the Claimant to serve the First Defendant by way of Substituted Service, with service on his Insurer, Guardian General Insurance Company Limited (GGIC), of 19 Dominica Drive, Kingston 5, Saint Andrew.

2 To ground its application, GGIC has argued that it is unaware of the current location of the 1 ^st defendant. The grounds of its application also are that: it has been advised that the 1 ^st defendant had migrated over three (3) years; it had dealt directly with the 1 ^st defendant's agent, Covenant Insurance Brokers (“CIB”) and not with the 1 ^st defendant during the contract period of insurance; it has since been informed by CIB that CIB had been unsuccessful in making contact with the 1 ^st defendant to advise him of these proceedings against him. Consequently, GGIC maintain that the method of service ordered by Master Orr would be insufficient to enable the 1 ^st defendant to ascertain the contents of the claim form and particulars of claim filed in these proceedings.

Background

3 The genesis of the claim is a motor vehicle accident which occurred at the intersection of Hope Road and Richings Avenue in the parish of Saint Andrew. On 24 ^th December 2017, the claimant was a passenger aboard a Honda Civic motor car bearing license plate PH 3740. The 2 ^nd defendant was, at the material time, the driver, of the motor vehicle registered 7993 HQ that is owned by the 1 ^st defendant. It is alleged that the 2 ^nd defendant was travelling behind the Honda Civic motor car that the claimant was travelling in. The claimant pleaded that the 2 ^nd defendant drove carelessly, failed to stop and consequently collided into the

rear of the vehicle in which she was a passenger. This, she avers, caused her to suffer injury, loss and damage as well as incur expense

4 The procedural history of the matter is as follows:

• I. On 16 ^th October 2019, the claimant initiated the instant claim. On that same day, notice of proceedings had also been filed, addressed to GGIC.

• II. On 23 ^rd October 2019, GGIC sent a letter to CIB in relation to the claim. 2

• III. On 23 ^rd December 2019, ““Without Notice” Application for Extension of the Validity Claim Form and For Specified Method of Service” [ sic] was filed on the claimant's behalf. This was supported by two (2) affidavits, filed on the same day. One was sworn to by Mr. Vaughn O. Bignall, attorney-at-law and partner for the firm, Bignall Law. The other was sworn to by Mr. Howard Wilks, a process server for Bignall Law.

• IV. On 31 ^st July 2020, a second “Without Notice” Application for Extension of the Validity Claim Form and for Specified Method of Service” [ sic] was filed on Ms. McCarthy's behalf. This time, the application was supported by the Affidavit of Monique Thomas in Support of Application for Specified Method of Service.

• V. On 23 ^rd October 2020, Master Orr (Ag) (as she then was) made the orders dispensing with personal service and granted permission to the claimant to serve the 1 ^st defendant by way of specified service, with service on his insurer GGIC. She also granted permission to the

  claimant to serve the 2 ^nd defendant by way of specified service, by inserting a Notice of Proceedings in two (2) publications in the newspaper one (1) week apart.

• VI. On 26 ^th August 2021, GGIC filed the notice of application for court orders, with which this judgment is concerned. This application was supported by the Affidavit of Joseph Evering in Support of Application for Court Orders, also filed on the same day.

• VII. On 27 ^th August 2021, GGIC filed a second affidavit of Joseph Evering in support of its application, which in essence contained the same evidence as the previous affidavit, save and except that this affidavit exhibited the documents that had been mentioned in the previous one but had in error not been exhibited.

5 In his affidavit in support of the application, Mr. Joseph Evering deponed that GGIC had been served with the ex parte order of Master Orr (Ag) along with the claim documents on 23 February 2021.

6 Mr Evering deponed that in the year 2017, GGIC offered motor insurance coverage against third party risks to members of the public, and persons desirous of contracting with GGIC for insurance coverage would do so directly or through an insurance broker with whom GGIC was associated. He deponed that in circumstances where members of the public utilized the service of an insurance broker to contract with GGIC for insurance coverage, the broker would communicate directly with GGIC in respect of all matters pertaining to the proposal for the said policy of insurance as well as such matters involving the policy of insurance ultimately created between the parties. 3

7 Mr. Evering further deponed that this “broker business” arrangement meant that GGIC had no direct contact with the insured and would only be privy to such information concerning the insured which was included in the proposal form submitted by the broker to GGIC at the date of the proposal for insurance and any subsequent changes made on a renewal of the said policy which were included in the documentation submitted on such a renewal. 4

8 At paragraph 5 of his affidavit, Mr. Evering deponed the following:

“5. On January 9, 2018 Mrs. Stephine Brooks of Covenant Insurance Brokers Limited (Covenant) the broker and Agent for Kennard Burnett Gardner, submitted to the Applicant a Memorandum dated January 9, 2018 issued by Covenant's Underwriting Department and proposing new business for Third Party Public Commercial Insurance coverage on behalf of Mr. Gardner. Attached to the said Memorandum were the completed Proposal Form, proof of address for Mr. Gardner and Cover Note No. G065922 dated November 23, 2017 and issued by Covenant for a period of 30 days, while Mr. Gardner's said proposal was being considered by the Applicant.”

9 Then, at paragraph 6 of his affidavit, he averred that:

“6. The Applicant duly accepted the said proposal for insurance coverage submitted by Covenant as agents for Mr. Gardner and incepted Policy Number JJ AGT 0953081 which said Policy was subsequently renewed by Mr. Gardner through Covenant for the period December 5, 2018 to December 4, 2019. At the date of the said renewal no new/additional information concerning Mr. Gardner was provided by Covenant to the Applicant.”

Submissions

For GGIC

10 Ms. Faith Gordon, submitted that the rules of the Civil Procedure Rules, 2002 (“CPR”) provide that an application for an order to serve by a specified method must be supported by evidence on affidavit specifying the method of service proposed. Further, she submitted that this affidavit must show that the method of service is likely to enable the person to be served to ascertain the contents of the claim form and particulars of claim. Ms. Gordon relied on rule 5.14 of the CPR and the authority of Insurance Company of the West Indies Limited v Allen (Shelton) et al [2011] JMCA Civ 33.

11 Learned counsel contended that the claimant did not comply with the rules. Specifically, Ms. Gordon asserted that the affidavit of Vaughn O. Bignall filed on 23 ^rd December 2019 and /or the affidavit of Monique Thomas did not set out how serving the documents on GGIC would enable the 1 ^st defendant to ascertain the contents of the claim form and particulars of claim.

12 Ms. Gordon also submitted that the 1 ^st defendant had obtained his policy of insurance through GGIC from a broker, CIB. She argued that CIB negotiated the policy of insurance between the 1 ^st defendant and the GGIC. Further, she maintained that there was no contact between GGIC and the 1 ^st defendant in relation to the insurance policy as the correspondence that took place between GGIC and CIB. She also contended that the relationship between GGIC and CIB did not put GGIC in a position to bring the relevant documents to the attention of the 1 ^st defendant, because CIB is not an agent of GGIC, as it is an independent broker. To support this, Ms. Gordon relied on the authority of Anglo-African Merchants Limited & Another v Bayley and Others [1970] 1 Q.B. 311.

13 Learned counsel further submitted that it could not be inferred that knowledge of the broker is knowledge of the insurers, unless it is material to the risk being insured and shared with the insurers by the broker. Additionally, Ms. Gordon submitted that where there is a broker involved in the negotiation of the policy of insurance, the assumption should be that the insurers know nothing outside of what information is provided to it by the assured through its broker. On this point, she directed the court to the case of Newsholme Brothers v Road Transport and General Insurance Company Limited [1929] 2 K.B. 356.

14 Ms. Gordon indicated that in good faith, GGIC had contacted CIB...