England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM OXFORD CROWN COURT
HIS HONOUR JUDGE CHARLES HARRIS QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		18 June 2004

Lord Justice Pill:

1. This is an appeal from a decision of His Honour Judge Charles Harris QC, sitting at Oxford as a Deputy High Court Judge, whereby on 19 September 2003 he dismissed an appeal by Mr Charles Moore ("the Appellant") against a judgment of District Judge Matthews. On 30 April 2003, the District Judge gave summary judgment in favour of National Insurance Guarantee Corporation plc ("the Respondents") against the Appellant for £189,295 and costs.
2. The Respondents' claim arose out of a claim brought by Mr Lloyd-Wolper against the Appellant's son, Robert, for personal injuries caused in a road traffic collision on 26 March 1997. A Toyota Carina motor car owned by the Appellant and driven by his son Robert Moore was involved in a collision with a vehicle driven by Mr Lloyd-Wolper. The vehicle was insured with the Respondents under a motor trader's policy, the Appellant being a dealer in second-hand cars.
3. The policy did not cover Robert Moore for two reasons, first, he did not possess a valid driving licence and, secondly, there was a 1600 cc restriction upon the type of car Robert Moore could drive under the policy when driving for social, domestic or pleasure purposes. The vehicle's capacity was 1760 cc and it was being used for purposes of pleasure at the material time.
4. Mr Lloyd-Wolper had brought proceedings against Robert Moore and, by virtue of the provisions of the Road Traffic Act 1988 ("the 1988 Act"), against the Respondents who had declined cover under the Appellant's policy. Part 20 proceedings were brought by the Respondents against both the Appellant and Robert Moore. On 14 November 2002, Mr Lloyd-Wolper obtained judgment by consent against the Respondents and Robert Moore in the sum of £180,000. A further sum of £9,295 was paid by the Respondents to a passenger in the vehicle. In the Part 20 proceedings, the Respondents obtained judgment against Charles Moore and Robert Moore plays no part in the proceedings.
5. While it does not affect the outcome of the present appeal, it should be added that, in separate proceedings, the Appellant sought damages from his insurance broker on the ground that the broker had represented to the Appellant that Robert Moore was insured to drive a car such as the 1760 cc Toyota Carina 1760. The claim was settled in the sum of £100,000.
6. In seeking relief against the Appellant, the Respondents relied on the provisions of Section 151(8) of the 1988 Act. Section 151 imposes a duty on insurers to satisfy judgments against persons insured against third party risks. It is common ground that the section applies to the judgment obtained by Mr Lloyd-Wolper and that the sums were payable by the Respondents to third parties "notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled, the policy" (Section 151(5)). Sub-section 8 provides:

"Where an insurer becomes liable under this section to pay an amount in respect of a liability of a person who is not insured by a policy or whose liability is not covered by a security, he is entitled to recover the amount from that person or from any person who –

a) is insured by the policy, or whose liability is covered by the security, by the terms of which the liability would be covered if the policy insured all persons or, as the case may be, the security covered the liability of all persons, and

b) caused or permitted the use of the vehicle which gave rise to the liability."

It is not disputed that the requirements of sub-paragraph (a) are satisfied. The main issue below and in this appeal is whether the appellant "caused or permitted the use of the vehicle" within the meaning of the section. That he knew that Robert Moore was driving the vehicle and that he allowed such use is not in issue. A second issue raised at the hearing was as to the effect of Robert Moore not having been insured under the policy because of the engine capacity of the vehicle driven.

7. In his proposal form dated 11 December 1996 the Appellant, giving details of persons who would drive vehicles, stated that Robert Moore was 17 years of age, had a full licence and that pleasure use was required for him restricted to vehicles of 1600cc. That restriction was reflected in the cover note issued. In fact he was not 17 until 18 January 1997. Moreover, while he held what purported to be a driving licence, it was not a valid licence because it was based on a driving test taken when he was 16 years of age, the minimum age for a test being 17 years. Robert Moore was not insured by the policy, first, because he did not have a valid driving licence and, secondly, because the vehicle being driven for pleasure purposes exceeded 1600cc in capacity.
8. The Appellant's defence was that, while in ordinary language he had given his son Robert Moore permission to drive the vehicle, there was no permission within the meaning of the word "permitted" in Section 151(8)(b) of the 1988 Act. In answer to the claim that the Appellant represented that Robert Moore was aged 17 and held a full driving licence, the Appellant pleaded in his Defence that, when he completed the proposal form, "he honestly and genuinely believed that the said Robert Moore was aged 17" and that he "honestly and reasonably believed that Robert Moore held a full driving licence". That amounts, it is submitted, against the background of a driving test taken at age 16, to a claim that Robert Moore misrepresented the position to his father. It was also pleaded that "at all material times [the Appellant] was dyslexic and had difficulty in reading and writing; he had four children and did not and cannot remember any of their dates of birth so that at no time did it occur to him that Robert Moore was only 16 and not 17. [When reporting the accident to the Respondents he put his son's age at 18 years when in fact he was 17.] It was only recently that [the Appellant] was made aware of the fact that Robert Moore applied for, sat and passed the driving test when only 16 years old". It is submitted that the Appellant did not have the requisite knowledge to have caused or permitted the use of the vehicle by Robert Moore.
9. On the application for summary judgment, the District Judge referred to the pleaded case and stated: "the contention is that had [the Appellant] known the truth and realised the reality of his son's age and driving licence, he would not have granted permission although it is acknowledged that he did give his permission". It was argued on his behalf that the Appellant should have the opportunity to provide oral evidence and have the issues tried. Oral evidence was required to test his contentions. However, provided the decision was taken, as it was, on the assumption that the Appellant's pleaded case was true, no mischief arises. It was for the Respondents to establish that, on the pleaded case, there was no realistic prospect of defeating their claim. Judge Harris, on appeal, refused an application to admit further evidence and there is no appeal against that ruling.
10. Having referred to authority, Judge Harris found that the Appellant "on his own evidence had taken no step to check how or whether his son could have had a licence, nor told him not to drive without a valid licence". The judge continued:

"It is clear on the basis of the authority discussed, the terminology of the section itself and the state of affairs disclosed in Mr Moore's statement that the insurers are indeed entitled to the judgment which the District Judge gave."

The judge also held that, irrespective of the issue about the licence, the Appellant was liable because he permitted Robert Moore to drive for pleasure purposes a vehicle with a capacity in excess of 1600cc.

11. For the Appellant, Mr Strutt submits that the judge was in error in holding that the Appellant could not bring himself within the doctrine of "conditional permission". The effect of the judge's construction of Section 151(8)(b) of the 1988 Act was to impose liability on the Appellant irrespective of his true culpability. It should not be construed on the basis of strict liability.
12. The strict liability contemplated in Section 143 is not appropriate to the civil liability contemplated in Section 151(8), it is submitted. Mr Strutt submits that the permission given was founded upon and conditional upon a belief, induced by Robert Moore, that Robert Moore had passed his driving test, had obtained a valid licence and was entitled to drive. Since the underlying assumption upon which the permission was given was not fulfilled, there was no permission within the meaning of Section 151 (8)(b). It was also argued at the hearing of the appeal that the Appellant was also not liable on the basis of permitting an over-capacity vehicle to be driven, because that consent would not have arisen but for the misrepresentation as to the licence.
13. Reference was made to cases decided under Section 143 of the 1988 Act which provides, in sub-section 2(2), that a person acting in contravention of sub-section 1(1) is guilty of an offence. Section 143(1) provides:

"Subject to the provisions of this Part of this Act:-

(a) …..

(b) a person must not cause or permit any other person to use a motor vehicle on a road or other public place unless there is in force in relation to the use of the vehicle by that other person such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Part of this Act."

14. In Newbury v Davis [1974] RTR 367, an appeal was allowed against a conviction under the equivalent section to Section 143 of the 1988 Act in the Road Traffic Act 1972 ("the 1972 Act"), also section 143. The owner of a vehicle agreed to lend it to someone else on condition that that person insured against third party risks. In the owner's absence, that person drove the car on a road without insurance. Giving the leading judgment of a Divisional Court presided over by Lord Widgery CJ, MacKenna J stated, at page 370:

"In my judgment the defendant did not permit Mr Jarvis to use the car. The defendant gave no permission to use it unless Mr Jarvis had a policy of insurance to cover its use, and he had none. Having no policy of insurance, he took the vehicle without the defendant's permission. In other words, permission given subject to a condition which is unfulfilled is no permission at all.

It may be that the difference is a small one between a case where the owner gives unconditional permission in the mistaken belief that the use is covered by insurance, or in the disappointed hope that it will be covered, and the case where the permission is given subject to a condition and that condition is not fulfilled. But to my mind there is a difference and it is one of legal substance. On this view of the case the defendant committed no offence."

15. In Baugh v Crago [1975] RTR 453, the prosecutor's appeal against an acquittal of a vehicle owner of an offence under Section 143 of the 1972 Act was allowed in the Divisional Court. The defendant believed that a driver was the holder of a driving licence and permitted him to use the vehicle, when the driver was not a holder. Lord Widgery CJ stated, at page 455E:

"It is not necessary to go into the detail of Newbury v Davis save to say that MacKenna J, giving the leading judgment, had to consider the different situation which can arise where the owner of the car granted permission to another to drive believing that the other is covered by insurance when in fact he is not and the case where a person allows another to drive making it a condition that he shall not drive unless and until he is covered by insurance. A case falling within the second group is a case in which permission has not been granted unless and until the appropriate insurance is effected. A case in the former group is one where permission has been granted, albeit in a mistaken belief that insurance cover did exist.

Of those two situations the one which prevailed in the present case, so far as the defendant is concerned, was one in which he had given permission for the use of the vehicle honestly believing, as the justices find, that there would be insurance cover but at a time when the absence of a driving licence prevented the insurance cover from being effective.

Into which category does he fall? Does he fall into the category in which guilt is established because permission to drive was given, or could it be said that his granting of permission was conditional?

On the justices' finding I feel driven to conclude that they did not find that he imposed a condition on the use of the van. They find that he permitted the van to be used in the honest and mistaken belief that all would be well. That is not enough on authority to excuse him and the justices were wrong here in deciding that they could acquit."

16. In Ferrymasters Ltd v Adams [1980] RTR 139, a Divisional Court dismissed an appeal against a conviction under section 84(2) of the 1972 Act, as amended, where employers were alleged to have caused or permitted an employee to drive a vehicle on the road while not holding a driving licence authorising him to do so. When the employee had entered the employment, the employers had ensured that he held a valid driving licence but it was not their practice to check thereafter that employees renewed their driving licences. Having cited Newbury v Davis and Baugh v Crago, Waller LJ, with whom Park J agreed, stated that the employers "had failed to adopt any system with a view to ensuring that reasonable checks were made" and held that the case was indistinguishable from Baugh v Crago.
17. The point was again considered by the Divisional Court in DPP v Fisher [1992] RTR 93, Watkins LJ presiding. Justices had dismissed an information under section 143(2) of the 1988 Act. The Court considered Newbury v Davies, which was the only case cited to it.
18. Having considered the facts in Newbury v Davis, Watkins LJ, with whom Owen J agreed, stated, at p 97:

"Newbury v Davis, if it is to be regarded as capable of application on different facts from those in that case, has in my view to be regarded with extreme caution.

In my judgment the ratio of it is capable of application only in exceptional circumstances, otherwise the danger is that the strictness of the absolute liability created by section 143(1) will be seriously undermined. It cannot be right in law that a person who lends his car to another can avoid liability merely by saying something to the other to the effect, 'please see to it that you are insured before using the car'. That is especially so if he knows little or nothing about the other's licence, if any, to drive and nothing about whether or not a reason exists that would disable that person from obtaining insurance cover."

In DPP v Fisher, the defendant was asked by L to lend him a car for a journey. The defendant, who knew that L was disqualified from driving, agreed to lend his car provided that L could find a driver who was insured for the journey and held a full valid driving licence. The defendant did not know who L would ask or that he in fact asked R to drive; R was employed as delivery driver and the defendant neither knew or met him. L did not ask R if he was insured to drive the defendant's car, both L and R assuming without discussion that R would be insured by virtue of his employment as a delivery driver. R drove the defendant's car, was uninsured to drive it and was involved in a road traffic accident with another car as a result of which a passenger in the other car lost a leg.

19. Dealing with the facts, Watkins LJ stated, at p 98B:

"In any event in the present case the decision in Newbury v Davis is in my view clearly inapplicable. There was no communication of any kind between the owner and the driver. The defendant was unaware who [L] was going to ask to drive the vehicle and the defendant simply could not and did not know whether his so-called conditional permission would be passed on to that person. Thus it may be that [R] was wholly unaware of the qualified permission. Moreover he personally had not been made subject by the defendant. So far as the defendant knew, [R] could have been disqualified from driving and was uninsurable. It is quite ludicrous, I think, therefore to suppose that a so-called conditional permission was granted to him. To begin to establish such an unusual permission, a conditional one that is, the owner would have at least to have been found to have given it directly to the would-be driver of his vehicle, regardless as to whether he has also given it to some other person, a would-be passenger in the vehicle, for instance.

For those reasons I would allow this appeal and send the case back to the justices with a direction to convict."

20. In relation to the authorities, Mr Strutt submits:

(a) The approach adopted in a criminal context, where the harshness of a conviction can be mitigated when imposing sentence, is not appropriate to civil liability.

(b) None of the cases deals with a misrepresentation by the driver such as occurred in this case.

(c) The decision in Ferrymasters was based on the absence of a system under which reasonable checks were made as to whether drivers held licences. That suggests that the correct test is to consider the reasonableness of the owner's conduct.

21. For the Respondents, Mr Evans-Tovey submits that the word "permit" in Section 151 appears in the same Part of the 1988 Act and deals with the same subject matter as the same word in Section 143(1)(b). Part VI is headed "Third-Party Liabilities" and "Compulsory Insurance or Security Against Third-Party Risks". The word in Section 151(8)(b) should be construed in the same way as it has been construed by the Divisional Court in Section 143(1)(b). Authorities of longstanding in that context should be followed.
22. Taking a strict view of a vehicle owner's potential liability to injured third parties is not a new feature of the law. In Monk v Warbey, [1935] 1 KB 75, the Court of Appeal construed Section 35 of the Road Traffic Act 1930, which provided in sub-section 1(1):

"Subject to the provisions of this Part of this Act, it shall not be lawful for any person to use, or to cause or permit any other person to use, a motor vehicle on a road unless there is in force in relation to the user of the vehicle by that person or that other person, as the case maybe, such a policy of insurance or such a security in respect of third-party risks as complies with the requirements of this Part of this Act."

By virtue of Section 35(2) of the Act a person contravening the section was liable to a fine and imprisonment.

23. Greer LJ stated, at page 79:

"The Road Traffic Act, 1930, under which the question arises, was passed in these circumstances: it had become apparent that people who were injured by the negligent driving of motor cars were in a parlous situation if the negligent person was unable to pay damages. Accordingly two statutes were passed, one for the purpose of enabling persons who were thus injured to recover, in the case of the bankruptcy of an insured defendant the money which would be payable to him by the insurance company. Parliament enacted that in such circumstances the insurance money should go not to the general creditors of the bankrupt defendant but to the injured person; in other words the injured person, although not a party to the insurance could make the insurance company liable. That Act–the Third Parties (Rights against Insurers) Act, 1930, did not meet the whole difficulty that had arisen because motor car owners sometimes lent their cars to uninsured persons, and if a person who borrowed a car and in driving it caused injury to a third person the remedy provided by that Act did not avail the injured person. Consequently the Road Traffic Act, 1930, was passed for the very purpose of making provision for third parties who suffered injury by the negligent driving of motor vehicles by uninsured persons to whom the insured owner had lent such vehicles. How could Parliament make provision for their protection from such risks if it did not enable an injured third person to recover for a breach of s.35? That section which is in Part II of the Act headed "Provision against third-party risks arising out of the use of motor vehicles," would indeed be no protection to a person injured by the negligence of an uninsured person to whom a car had been lent by the insured owner, if no civil remedy were available for a breach of the section."

It was held that a person who suffered injury by reason of a breach of Section 35 could maintain an action in damages for that breach.

24. In Lyons v May [1948] 2 All ER 1062, a prosecution under Section 35(1) of the 1930 Act, it was held that a person who is ignorant of the fact that there is no policy of insurance covering a vehicle may be guilty of an offence if he permits the use of the vehicles while uninsured.
25. In my judgment, the issue turns upon the meaning of the word "permits" (and "permitted") in Part VI of the 1988 Act. Notwithstanding the use, for example by Watkins LJ in Fisher, of the expression "absolute liability" the cases under Section 143(1) are based on a construction of the word "permits". A permission which would arise only subject to and upon the fulfilment of a condition is not a permission until that condition is fulfilled. However, a permission is given for the purposes of the section when there is an honest, although mistaken, belief as to the circumstances of the person to whom permission is given. A permission does not cease to be a permission for the purposes of the statute because, in good faith, the person giving it believes that the person to whom it is given is covered by the policy when in fact that person is not.
26. I can see no justification for adopting a different approach to the word "permitted" in Section 151(8) from that taken in relation to "permits" in Section 143(1)(b). I accept the submissions of Mr Evans-Tovey on that point. Ferrymasters could be and was decided on the basis of the absence of system but does not in my judgment detract from the principles established in Newbury v Davis and Baugh v Crago which were cited without disapproval. Moreover, in this context I see no basis for distinguishing between a mistaken belief induced by a misrepresentation and such a belief formed for any other reason. Remedies in contract may be available to a person induced by a misrepresentation to enter into a contract but the principles there relevant should not in my judgment be imported into a statute which regulates and apportions responsibility for third-party liabilities arising from the use of motor vehicles.
27. The financial effect upon an insured person of an application of Section 151(8) may be extremely severe. It will not arise if the driver to whom permission is given is covered by the policy. Moreover, as recognised in Newbury v Davis, the insured may protect himself by making the permission subject to the performance or fulfilment of a condition. Whether a particular permission is subject to the fulfilment of a condition will depend on the evidence. Circumstances will differ widely and I do not see advantage in acceding to Mr Evans-Tovey's invitation to catalogue circumstances in which the permission is subject to a condition. That will be a matter of evidence. The prudent insured will ensure that the person he or she permits to drive does come within the terms of the policy. Failing that, the insured will need to make it very plain that the permission is subject to fulfilment of the condition that the driver meets the requirements of the particular policy. I would not exclude the possibility that the existence of such a condition may be inferred from the circumstances in which permission is given but the permission of the insured evidentially is likely to be improved if the condition is expressed. In their own interests, as well as in the public interest, drivers should be conscious of the requirements in this respect.
28. In the present case, the permission was given and in my judgment the Appellant does not begin to establish that it was subject to the fulfilment of a condition. His mistaken belief that Robert Moore held a valid driving licence does not make the permission any less a permission. Even if he reasonably believed that Robert Moore held a valid driving licence, and even if that belief resulted from a misrepresentation by Robert Moore, a permission was given for the purposes of section 151(8)(b). A permission is none the less a permission because it is induced by a misrepresentation by the proposed driver. As to a conditional permission, the pleaded case does not allege the existence of such a condition; at most, and even this is disputed, it alleges a misrepresentation by Robert Moore. (I am prepared to assume that there was a misrepresentation in order that the legal point raised by the appeal can be considered.) Neither the misrepresentation, nor the mistaken assumption or belief of the Appellant, can negative the permission. Assuming the facts entirely favourably to the Appellant, he had no arguable case and the District Judge correctly gave summary judgment.
29. Robert Moore was also uninsured because the insurance policy did not cover him while driving a vehicle with an engine capacity in excess of 1600cc. It follows from my earlier conclusion that the appellant's mistaken belief that his son was covered to drive the 1760cc vehicle is no defence to the claim under Section 151(8). The point is, however, taken that but for Robert Moore's misrepresentations, permission to drive would not have been given, Robert Moore would not have driven and the accident which gave rise to his liability would not have occurred.
30. Even if a misrepresentation had provided a defence to the claim based on the absence of a valid licence, the Respondent would in my judgment have been liable for permitting the use of an over-capacity vehicle. This separate and distinct permission would not be deprived of causative effect either because the permission to drive was based upon a misrepresentation as to the licence or because a situation might have existed, but did not exist, in which permission would have been refused on licence grounds. The judge reached the correct conclusion on the capacity ground.
31. Having had the opportunity to consider the judgment of Rix LJ in draft, I add that the scenario he postulates at paragraph 41 is in my view different from that in the present case. In the present case, the permission consisted of a general permission to drive (following an assumed misrepresentation as to a valid licence) and a permission to drive an over-capacity vehicle. As to the over-capacity vehicle, no question of misrepresentation or condition arose in relation to the permission. The use of the vehicle was uninsured. If, contrary to the view Rix LJ and I have expressed, and with which Sir William Aldous agrees, a part of the permission is taken not to be a permission within the meaning of the Statute because it was induced by a misrepresentation, the permission to drive the over-capacity vehicle nevertheless remains a permission within the meaning of the Statute and the use of the uninsured vehicle was within Section 151(8). That part of the permission not defeated by the misrepresentation survives as a permission and the Appellant would not be better off in relation to what is plainly a permission by reason of a misrepresentation unconnected with it.
32. I would dismiss this appeal.

Lord Justice Rix:

33. I agree that the appeal should be dismissed, and, subject to one diffident reservation, with the reasons given in the judgment of Lord Justice Pill. The reservation only concerns the subsidiary point dealt with at the very end of his judgment, which he has called the capacity ground.
34. The capacity ground point only arises on the hypothesis that, contrary of course to the principal holding of HH Judge Charles Harris QC and of this court, a misrepresentation is to be regarded as though it were like an unfulfilled condition, so that it prevents a permission otherwise granted from ever taking effect.
35. On that hypothesis, we are asked to assume that the father (here the appellant) must be regarded as not having permitted his son to drive the car since his consent was obtained by misrepresentation.
36. No misrepresentation was in fact even pleaded by the father in his defence, for nothing there goes beyond the mere allegation that he honestly and reasonably believed that at the time of completing the proposal form on 11 December 1996 his son was 17 and held a full driving licence. Judged therefore by his defence, the father's reliance on misrepresentation does not even get off the ground. It is only in the father's first witness statement (dated 18 July 2002) that he says that his misapprehension was induced by his son. The case made there was that there had been a rift between father and son in late 1996/early 1997 and that it was not until early 1997 that they began talking again: the son then told the father that he had passed his driving test. The statement goes on that because of his dyslexia the father could not remember his children's ages and "It therefore did not occur to me that at the time Robert was speaking to me he in fact was only 16 and not 17." Even on the basis that the father's resistance to the insurers' application for summary judgment should be judged in the light of that witness statement as well as the pleaded defence, there was still no case of misrepresentation: for the conversation with the son was placed in a time-scale after the making of the proposal form, and in any event it was not said to be untrue that the son had passed a driving test (nor was it untrue). It was not until the father's supplementary witness statement (dated 9 June 2003) that he revised his evidence and said that it had been in or around November 1996 that the son had produced a document indicating that he had passed his test. He then said that he believed that his son had validly passed a driving test and had no idea that he had improperly obtained a provisional licence and taken a driving test at 16, when he was under age. Even that can hardly be said to amount to any case of misrepresentation on the part of the son, but in any event the judge below did not admit that supplementary statement into the argument on the application for summary judgment.
37. In truth therefore there never was a case in misrepresentation. Nevertheless, the matter has been argued as though there was. But on that basis, what is the assumed misrepresentation? It is, I think, that the son was 17 and/or that he had a valid driving licence. It is not, however, suggested that there is any separate misrepresentation covering the additional fact that (apart from not having a valid driving licence) the son was on the occasion of the accident driving a car with a capacity of more than 1600cc. The insurers therefore rely on that fact as an entirely separate ground for saying that the father permitted the son to drive the car on the occasion in question (the capacity ground).
38. In my judgment, this is all a rather far-fetched scenario, and that perhaps has helped to make the point rather obscure. Nevertheless, I would wish to suggest that the response to it made by Mr Strutt on behalf of the father, namely that if the misrepresentation ground is a good one for present purposes, then the son would never have been driving the car in the first place, is a good one.
39. The forensic place of the capacity ground as relied on by the insurers is that it is an attempt to side-step completely the misrepresentation ground. It is said: here is another ground on which the son was uninsured and yet permitted by the father to drive the car while uninsured; this ground avoids a defence based on misrepresentation and can therefore be made good whatever the authorities discussed in Lord Justice Pill's judgment amount to. The judge below agreed, and thus decided the case against the father on the capacity ground as an independent point.
40. In my judgment, however, the capacity ground is not an independent point. It may be an entirely separate reason for the son being uninsured, but in terms of the father's liability for permitting the use of the vehicle which gave rise to the insurers' liability, it is at this stage still caught up by the misrepresentation ground (were that to be a good one). For, if once the far-fetched nature of the father's misrepresentation defence is swallowed for summary judgment purposes, as appears to have been common ground if once the misrepresentation defence were to be made good in law, then the point can be well made, at any rate for present purposes, that but for the misrepresentation the father would never have allowed the son to drive at all. And if but for misrepresentation the father would never have allowed the son to drive at all, then, on the present hypothesis that the misrepresentation point is a good point, analogous to the unfulfilled condition defence, the capacity ground has no independent force: for the son would never have been permitted to drive. It may be perfectly true that, if the misrepresentation point fails, then the fact that the father permits the son to drive a car of too great capacity is an additional reason why the son was uninsured, but that does not mean that it operates as an independent basis of permission to use if the misrepresentation ground has to be regarded as a good one.
41. There are so many other reasons for holding this appeal to fail that it hardly seems important to make this point in this case. But the point is perhaps important, and its underlying merit can perhaps be better understood, if one transposes the facts of this case into a scenario where an insured car-owner stipulates a condition for permission to drive his car, namely that the third party has a valid driving licence, but forgets or overlooks to introduce a second condition, namely that the third party's use must be only for personal and not business purposes (where his insurance contains a condition against business use). Suppose now that the third party has no valid licence, but, ignoring the condition imposed on him, nevertheless takes the car and uses it for a business trip. His use of the car was not permitted by the insured owner at all, irrespective of the fact that, if it had been permitted because the third party did have a valid driving licence, the car would have been uninsured for the different reason based on business use. I may permit something to be done subject to two separate conditions. If one or other of them is not fulfilled, the thing is not permitted. If I forget to stipulate the second condition, but the first condition is not met, I have still not permitted the thing to be done.
42. Were a misrepresentation to be analogous to a condition so that it could be relied on as voiding what would otherwise be the insured owner's permission, by parity of reasoning, where the misrepresentation bites so as to allow the insured owner to say that he would not have permitted the car's use if he had not been misled, the terms of the statute would not be fulfilled, and that would remain the same even though, if the misrepresentation point failed, either in law or in fact, there would be an additional reason why the permitted use was an uninsured one.
43. In any event, however, I agree that this appeal should be dismissed.

Sir William Aldous:

44. I agree with the judgment of Pill LJ.
Order: Appeal dismissed; Appellant do pay Respondents costs of the appeal, such costs to be subject to assessment if not agreed. (Order does not form part of the approved judgment)