Damages - personal injury claim against estate of deceased driver.
Before : |
H. W. B. Page, Q.C., Commissioner, and Jurats Fisher and Nicolle |
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Between |
X |
Plaintiff |
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And |
The Estate of Y (Deceased) |
First Defendant |
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And |
Axa Insurance UK plc |
Second Defendant |
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Advocate D. J. Benest for the Plaintiff.
Advocate L. A. Ingram for the First and Second Defendants.
Advocate D. A. Corbel for the Motor Insurers' Bureau (intervening at the invitation of the Court).
judgment
the commissioner:
1. On 23rd October last year this Court, by consent of the parties to the action, made an order providing for periodical payments to be made by the second defendant ("AXA UK") to the plaintiff by way of damages for catastrophic personal injuries caused by the negligence of the first defendant while driving a motor car on 17th April, 2010. However, operation of the order (described as "the Conditional PPO") was suspended for a period of time in order to give the Motor Insurers' Bureau ("the MIB"), of which AXA UK is a member, an opportunity to intervene.
2. The background to that order and the reason for permitting the MIB an opportunity to intervene are set out in the judgment of this Court handed down on 23rd October, 2014, (X-v-Estate of Y (Deceased) and Axa Insurance UK plc [2014] JRC 203). In short, the Court's conclusion that continuity of payment under the proposed PPO was "reasonably secure" (a necessary requisite of its approval) was dependent not only on the evidence of the financial and reputational standing of AXA UK but also on AXA UK's membership of the MIB and the role of the MIB as provider of long-stop cover in the event of default by AXA UK.
3. The MIB having availed itself of the opportunity to intervene and the Court having heard submissions on its behalf and further submissions on behalf of the plaintiff and AXA UK on 10th February this year, we made a final order substantially in the same terms as the Conditional PPO but with revised wording of the recitals in one or two respects designed, among other things, to meet certain concerns on the part of the MIB. We now give our reasons for so doing.
4. The key passage in our earlier judgment (for present purposes) is paragraph 32:-
"(i) [Review of evidence concerning AXA UK].
(ii) These figures plainly afford a substantial degree of comfort as to the probability of AXA UK being able to meet its obligations under the proposed periodic payments order in the foreseeable future; but Mackay J.'s words of caution in Bennett are as apposite as ever today and we would not feel able, on the basis of information about AXA UK's current standing and prospects alone, to say that we are satisfied for present purposes that continuity of payment under the proposed order is "reasonably secure", given the extended period of time contemplated by that order.
(iii) As in Bennett, however, it appears to us that the requisite level of comfort may properly be regarded as supplied by AXA UK's membership of the MIB and, in the case of Jersey, the provisions of an agreement executed on 20th September, 2000, between the Home Affairs Committee of The States of Jersey and the MIB which applies to accidents occurring on or after 7th September, 2000. Clause 5 of that agreement appears to be to substantially the same effect as the corresponding clause examined by Mackay J. in Bennett; we were assured by Advocate Ingram that to the best of AXA UK's knowledge and belief none of the exceptions contemplated by Clause 6 applies; the requisite notice under Clause 9 appears to have been duly given; and there is no other obvious reason why recovery from MIB should not be possible in the event of a default by AXA UK.
(iv) On this basis, we are satisfied, that continuity of payment under the proposed order is reasonably secure.
(v) However, at the time of the hearing, the MIB had still to respond to enquiries from the parties concerning its stance in the present matter and a Harpin-type order appeared to be the appropriate course to take. It was agreed by the parties that the window of opportunity for intervention by the MIB should extend to 7th November, 2014; but, as will by now have been made known to those representing the MIB, the Court expressed the hope that a response by the MIB would be forthcoming at the earliest possible opportunity, either in the form of confirmation that no objection is taken to the Court's conclusion concerning the MIB's obligations or, if objection is taken, notice of such objection and the reasons therefore, so that steps can be taken to fix a date for any further hearing that may be necessary."
5. In the event, objections were formally voiced by the MIB: initially in a document headed "Position Statement and Reasoned Objections" dated 3rd November, 2014, signed by English Leading Counsel and subsequently in a further "Position Statement" dated 4th February, 2015, signed by Advocate Debbie Corbel, who appeared at the hearing before us on 10th February. The two statements are not easy to reconcile in all respects. But the essence of the MIB's concern was that the wording of the Conditional PPO could be read as incorporating a conclusive statement on the part of the Court that, in the event of a default by AXA UK, the MIB would automatically be liable to fulfil AXA UK's obligations towards the plaintiff when - it was submitted - there could be no guarantee that that would necessarily be the case. In the first place, the MIB had not - and could not reasonably be expected to have - investigated every matter that might be of relevance to its potential liability in relation to a claim which might or might not be made against it at some point in the future. In the second place, it was not inconceivable - it was said - that the Home Affairs Committee of the States of Jersey and the MIB might, at some future time, effect a retrospective amendment to the terms of the current agreement of 20th September, 2000, ("the Current Agreement").
6. The furthest that the MIB was prepared to go, as offered in Advocate Corbel's Position Statement, was to say that it would be prepared to include the following recital in a revised PPO:-"AND UPON MIB having accepted that it is not presently aware of any matters that would have the effect pursuant to Clauses 6 or 9 of the current MIB Agreement dated 20th September 2000 of preventing them being liable to make payment to the Plaintiff under that Agreement if [AXA UK] were to fail to make payments pursuant to this Order at a time when that Agreement remained in force." The key words were, of course, "it is presently not aware".
7. Advocate David Benest, who represented the plaintiff both at the February hearing and at the previous one in October, while accepting that the theoretical possibility that the current agreement might one day be amended in a way that could have a bearing on the MIB's liability to make good any default by AXA UK, took strong exception to the MIB's attempt to reserve its position as regards potentially relevant matters that could perfectly well be inquired into now: matters that could best be the subject of inquiry while the facts were still fresh rather than being left over for investigation at some later stage - quite possibly in several decades' time when relevant evidence might no longer be available. The appropriate course for the Court to take, he suggested, was to order the MIB to carry out such investigations and provide details of the results with a view - it was to be expected - to being able to give, at least, an unqualified assurance that there was no ground under any of Clauses 6, 9, 10 or 11 of the Current Agreement for the MIB to disclaim liability in the event of AXA UK defaulting.
8. There followed a somewhat circular and fruitless debate between counsel as to what in practice any inquiry by the MIB would be able to add to what was already known to those representing the plaintiff and to AXA UK itself, the details of which it is unnecessary to recount. But it was made plain by Advocate Corbel that the MIB was not prepared to go beyond the offer to agree to a recital based on present knowledge and Advocate Benest indicated that, if the court were not minded to direct the MIB to make and disclose the results of an investigation of the kind proposed by him, a recital in the terms offered by the MIB enlarged so as to include reference to Clauses 10 and 11 as well as 6 and 9 would be the next best thing. Advocate Lee Ingram, representing the defendants, adopted a substantially neutral stance in relation to these matters.
9. The upshot of the hearing was as follows. First and foremost, nothing that we read or heard on this further hearing caused us to depart from the conclusion expressed in paragraph 32(iv) of our previous judgment. The essential elements of the method by which it was (and is) contemplated that payments to the plaintiff will be made are (i) that the primary obligation to make such payments is that of a major insurance company of considerable financial standing and repute and (ii) the assumption that to the extent that such payments are not made by AXA UK they would fall due to be paid by the MIB. Moreover, the assumption of such continuing availability of long-stop cover by the MIB appears to us to be more than reasonable. The theoretical possibility of some future amendment or repeal of the current agreement cannot, of course, be ruled out altogether. But the MIB's statement of present knowledge ("presently not aware of any matters.....[etc.]" , which, with the encouragement of the Court, Advocate Corbel accepted need not be limited to any particular clauses of Current Agreement) taken together with the other factors to which we previously made reference in paragraph 32(iii) of our 23rd October, 2014, judgment, suggests that it is most unlikely that there would in practice be any ground on which recovery from the MIB (in the event of default by AXA UK) would fail as long as the Current Agreement is in force. Accordingly, we remained, as before, satisfied that continuity of the payment under the proposed order was reasonably secure.
10. Secondly, even if there were jurisdiction in the Court to make an order of the kind proposed by Advocate Benest - which we doubt - it was, for the reason given in the preceding paragraph, unnecessary to do so: also potentially unhelpful, in that such an order would almost certainly prolong debate and postpone the point at which the PPO could receive the final blessing of the Court.
11. Thirdly, with the encouragement of the Court, in the course of a short adjournment counsel for the plaintiff and the defendants were able to agree a modest number of changes to the terms of the recitals to the Conditional PPO designed (i) to meet the concerns expressed by the MIB while preserving other passages of fundamental importance to the plaintiff and the defendants, (ii) to record the MIB's statement of present knowledge, and (iii) to reflect the fact that in the intervening period since the making of the Conditional PPO further payments had been made to the plaintiff in the expectation that sooner or later the terms of that order would be finalised. The revised text having been approved by the Court, a final PPO was made in those terms at the conclusion of the hearing on 10th February.
12. Four points merit particular emphasis:-
(i) The final form of the PPO remains an order made by consent of the parties to the substantive action, that is, the plaintiff and the defendants. The MIB did not participate directly in the process of agreeing the precise changes to the previous wording of the PPO but did not express any continuing unhappiness with the revised terms.
(ii) While the recitals to the final PPO have been amended and amplified in certain respects, the terms of the substantive orders remain the same as before except for the deletion of a reference in the first paragraph to the date by which the capital sum specified there was to be paid.
(iii) For the avoidance of all possible doubt, nothing in the final PPO or in either judgment of this Court is to be taken as a finding that the MIB would inevitably be liable to fulfil AXA UK's obligations to the plaintiff were AXA UK itself to fail to do so.
(iv) The Final PPO preserves two key provisions of the arrangements contemplated by the Conditional PPO, namely that " the parties acknowledge that the continuing availability of long-stop recovery against MIB is no more than a component of the method for payment specified by the Court and that if the second defendant were to become unable (for example because of a material change in the terms of the Current Agreement) at any time to procure payment by the MIB in the event of any future non-payment of periodical payments the second defendant, not the MIB, will be in default under this Order" (the ninth recital), and "In the event that an alteration of the method by which the payments are to be made provokes a breach of this Order, the action shall, upon the application of either party, be restored so as to permit the Royal Court to rule, by consent if appropriate, upon the mechanism by which the Plaintiff's continued entitlement to damages shall be discharged" (paragraph 5 of the substantive order).
Authorities
X-v-Estate of Y (Deceased) and Axa Insurance UK plc [2014] JRC 203.