Margaret Forrest Duncan v Insurance Company of The West Indies Ltd
| Jurisdiction | Jamaica |
| Judge | Mcdonald J |
| Judgment Date | 16 September 2013 |
| Neutral Citation | [2013] JMSC CIV 118 |
| Docket Number | CLAIM NO. 2006/HCV 02566 CLAIM NO. 2008 HCV01667 CONSOLIDATED WITH |
| Court | Supreme Court (Jamaica) |
| Date | 16 September 2013 |
[2013] JMSC CIV. 118
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
CLAIM NO. 2006/HCV 02566
CLAIM NO. 2008 HCV01667 CONSOLIDATED WITH
and
By way of Fixed Date Claim Form filed December 3, 2007 in Suit No. HCV 01667 the Insurance Company of the West Indies sought the following declarations:
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(i) That it is entitled to avoid the policy of Insurance No 34152032/1 and to refuse to indemnity the insured Margaret Forrest- Duncan in respect of loss, damage, expenses or claims from third parties incurred as a result of an accident (which took place on the 11th of June 2007) involving the insured's motor vehicle licensed No. 5850 EY on the grounds of misrepresentation and/or non-disclosure of material facts.
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(ii) That the said policy of insurance is void for breach of warranty of contract.
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(iii) That the insured is in breach of the conditions of the policy of insurance, thereby entitling ICWI to avoid and/or repudiate any liability under the policy.
ICWI sought these Declarations after the insured ‘admitted’ in writing to using her motor car, contrary to her policy of insurance viz, that the motor car was being used for hire and/or reward.
In response to ICWI's Fixed Date Claim Form, the insured filed a defence which is identical in material respects to a subsequent claim brought by her — Claim No 2008 HCV 01667. This Claim Form was filed on 3rd April 2008. In this Claim she has sought damages for breach of contract, damages for fraud, duress and undue influence against all the Defendants. She has also sought declarations from the Court:-
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(i) That the correspondence of the 23rd October 2007 ie. ‘the purported confession’ written and signed by her was fraudulently produced by the Defendants and is consequently null void for fraud.
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(ii) That the correspondence of 23rd October 2007 was produced by duress and is therefore null and void.
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(iii) That the said correspondence was procured by undue influence.
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(iv) A valid and legally enforceable contract of insurance still exists.
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(v) ICWI is obliged to honour the terms of the Agreement and to provide compensation for damages and losses suffered by her and provide indemnity for her in respect of loss, damage, expenses or claims made by third parties arising out of the accident on 11 July 2007.
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(vi) She is not in breach of her contract of Insurance Both claims were consolidated on the 23rd July, 2008.
On April 23, 2012 the Defendants filed Notice of Application to amend their Defence to plead and make reference to condition 8 of the Private Car Policy which set for hearing on November 12, 2012. This application was adjourned to 28th November 2012 and again adjourned to May 22nd 2013 and then to June 5, 2013. The grounds on which the applicant is seeking the order are: that the amendment is necessary to decide the real issues in controversy between theparties; the Claimants will not be prejudiced if permission is granted to amend as this matter is not scheduled to be tried until November 12, 2013 and it is fair in all the circumstances of the case.
The Notice of Application is supported by affidavit of Kamesha Graham filed on April 23, 2012 with draft amended defence of the 2nd and 4th Defendants attached.
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(1) On October 29, 2007 the Claimant was advised by the 2nd Defendant that it would not be granting indemnity under policy of insurance.
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(2) On the 3rd of December 2007 the 2nd Defendant served the Claimant with a Fixed Date Claim Form and Affidavit in support which included a copy of the Private Car Policy which forms a part of the policy of insurance.
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(3) Condition number 8 of the Private Car Policy among other things, provides that all differences arising out of this policy shall be referred to the decision of an Arbitrator and that if the 2nd Defendant disclaims liability to the Claimant for any claim and ‘such claim shall not within twelve calendar months from the date of such disclaimer have been referred to arbitration then the claim shall for all purposes be deemed to have been abandoned and shall not thereafter be recoverable.’
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(4) The Claimant, in breach of her contract/policy of insurance failed to refer her dispute with the 2nd Defendant to an Arbitrator within twelve calendar months of the letter dated October 29, 2007 referred to in paragraph 1.
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(5) Accordingly, the 2nd Defendant avers that the Claimant is deemed by her policy of insurance to have abandoned her claim with the 2nd Defendant.
There is no dispute that 29th October 2007 represents the date the dispute existed between the parties under the Insurance Policy and the twelve month period mentioned in Condition 8 would start to run from that date. The Claimant filed the Claim Form on 3rd April 2008 and the Defendants filed their Defence on 15th May 2008 all within the twelve month period.
Mr. Goffe submitted that part 20.4 of the Civil Procedure Rules provides that a statement of case may only be amended after a case management conference with the permission of the Court. The Court in exercising its discrection must have regard to the overriding objective (Part 1.1 of the Civil Procedure Rules) which includes dealing with cases justly. This takes into consideration the importance of the case as well as ensuring that cases are dealt with expeditiously and fairly.
He asserted that a case is dealt with justly when each party is allowed to put forward every relevant point of their case. A party that is prevented from advancing all arguments or evidence in support of their case will understandably feel that an injustice is perpetuated on him.
ICWI and BIWOC will face a grave injustice if the amended defence is not permitted, as the amendment includes a fundamental point which favours their case. This point, if determined by the Court in their favour, would bring these proceedings to an end.
The amended defence points to the fact that the Claimant must be deemed to have abandoned her claim by not referring the dispute to arbitration as required by Condition 8 of the Private Car Policy which forms a part of her insurance policy. The use of the word ‘shall’ in condition 8 makes mandatory the referral of all differences arising out of the policy of insurance to arbitration. If there was an intention for the arbitration clause to be a remedy available at the option of either party, as an alternative to the litigation, it would have clearly said so. By not referring the dispute to arbitration the Claimant is now barred from seeking payment under the policy in this court.
Mr. Goffe referred the court to the case ofWilliam McIlroy Swindon Ltd and another v Quinn Insurance Ltd 2010 EWHC 2448 (TCC) 2010 EWHC 2448 (TCC) where the court determined whether an arbitration clause of a similar nature was an exclusive remedy. The court accepted the position of the Attorney representing the Defendant, the Insurance Company. The Defendant's Attorney submitted that the use of the word “shall” in the arbitration clause indicated that the arbitration clause was a mandatory mode of dispute resolution, and not an optional mode. If it had been intended to be a remedy available at the option of either party, as an alternative to litigation, the clause would have said so. Further, in the presence of the time bar and the reference to the claim being deemed to have been abandoned if arbitration is not brought in time is a clear contra-indication of either party having the right to start court proceedings as opposed to arbitration under the terms of the clause. The court held that the arbitration clause was a mandatory mode of dispute resolution, with a time limit within which that mode of dispute resolution can be exercised, failing which a claim in respect of that dispute is no longer recoverable. The second sentence of the clause makes it abundantly clear that it is intended to provide an exclusive remedy.
Section 3 of the Arbitration Act gives the effect of a submission and states that a submission, unless contrary intention is expressed therein, shall be irrecoverable, except by leave of the court or a Judge, and shall have the same effect in all respects as if it had been made an order of court. The effect and importance of an arbitration clause in a contact is supported and recognised in case law as well as statute and should not be ignored by the court in the...
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