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Richardson v Watson & Anor, Court of Appeal, 6 December 2006

20 December 2006
The issues

MIB – Motor Insurers Bureau – failure of Claimant to give notice in time to MIB – whether Claimant able to discontinue and commence fresh action – limitation – Walkley v Precision Forgings Ltd – Horton v Sadler – whether abuse of process.

The facts

On 24th December 2000 the husband of the Claimant, Mr Richardson, was killed in a road traffic accident when his car collided with a Vauxhall car driven by the Defendant. The Defendant was uninsured. The Claimant brought a claim but failed to give notice in time to the MIB. The notice amounted to a conditional precedent to the MIB’s liability to meet any liability established against Ms Watson. The Claimant discontinued and commenced a fresh action against the Defendant giving notice in time on this occasion. That action was commenced outside of the 3 year limitation period. On the 16th January 2006 the Judge, in the Middlesbrough County Court struck the action out as an abuse of process and held that he had no power to grant an extension of time under Section 33 because he was bound by the decision of the House of Lords in Walkley v Precision Forgings but if he had such power he would not have exercised it. On the 14th June 2006 the House of Lords disapproved of the decision in Walkley and decided that it should depart from that previous decision.

The Claimant appealed to the Court of Appeal.

The decision

In Horton v Sadler the House of Lords had decided that the decision in Walkley was wrong. The House of Lords had held that the fact that the first action had been commenced within the 3 year time limit was no bar to the Application of the discretion in respect of the second action.

The House of Lords also dismissed the argument of the MIB in Horton that it was an abuse for the Claimant to commence a second action. Lord Bingham had remarked “the Judge accepted that in the ordinary way it is an abuse to pursue two actions against the same Defendants in respect of the same subject matter and indicated that if he were giving permission for the second action to continue he would require the first action to be discontinued. This was, I think, the correct response. ”

It was not objectionable or an abuse of process for a Claimant who had failed to comply with the notice requirement of the MIB agreement in one action to seek to escape the consequences by commencing a second action. The Judge was wrong to strike out the action on the ground of abuse of process.

Before the Judge the case had been approached on the basis that all the claims contained within the new proceedings were out of time and so stood or fell together. Counsel acting for the Claimant conceded before the Court of Appeal that he had overlooked the fact that the Claimant claims both on her own behalf and on behalf of her infant children. The claims for the infants were not out of time and would thus proceed in any event. This was a material difference and it was plainly necessary for the Court to exercise its discretion afresh.

The fact that the Claimant’s solicitors had not given a proper and timely notice to the MIB in respect of the first action had caused the MIB no prejudice. In January 2004 the MIB had taken the point that timely notice had not been given. This appeared a death blow to the Claimant’s claim at that time. It was not until the 14th June 2006 that the claim received a potential kiss of life with the decision of the House of Lords in Horton. 18 months elapsed in between. The Claimant had already commenced a second action which also seemed doomed to failure. The Claimant should not be blamed for the delay that had occurred between January 2004 and June 2006. It might be said that the MIB had brought this on its own head by bringing a technical point with the intention of killing the action.

The principal argument advanced by the MIB was that the overall passage of time had imperilled a fair Trial.

There was an arguable case that the collision and the death of Mr Richardson was attributable, in part, to the negligence of the Claimant. Whilst the evidence was not ideal it was possible for there to be a fair Trial on the available evidence and insofar as the passage of time may have made the evidence less reliable, this was likely to be true of the evidence of eye witnesses rather than of the calculations based on the impact. This situation was, if anything, likely to benefit the defence. In any event, the MIB would have to defend a Trial on the merits in respect of the infant children. This fact weighed in favour of the Claimant being able to join her claim to that of the children. In all the circumstances it was equitable not to apply the limitation provision of Section 12 of the 1980 Act but to allow the Claimant’s action to proceed.

Appeal allowed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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