Scottish Court of Session Decisions

Wilkie v. Direct Line Insurance Plc [2003] ScotCS 125 (30 April 2003)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Marnoch Lord Hamilton Lord Abernethy	A1595/01 OPINION OF THE COURT delivered by LORD MARNOCH in the cause STUART JEREMY PETER WILKIE (A.P.) Pursuer; against DIRECT LINE INSURANCE PLC Defenders: _______

 

Act: Party (Pursuer and Recalimer)

Alt: Lake; HBM Sayers (Defenders and Respondents)

30 April 2003

1. This is a reclaiming motion against a decision by the Lord Ordinary to conjoin the present action (A1595/01) with another action between the same parties (A1586/01). In the second of these the pursuer concludes for declarator that the defenders are obliged to indemnify him for losses sustained by him as a result of a fire that took place on 6 December 1992, and for payment of the sum of £179,340. That sum is averred to be due under a policy of insurance effected by the pursuer with the defenders in respect of a property known as Achanellan, Glen Loy, Fort William. The terms of the policy were originally agreed in July and August 1991. The sum sued for under that action represents the value of the buildings at Achanellan, which were destroyed by the fire on 6 December 1992. The first of these actions, being the action with which this reclaiming motion is immediately concerned, concludes for the declarator that the defenders are obliged to indemnify him for losses sustained as a result of the same fire, and for payment of the sum of £22,000. That sum is claimed to be due under what appears to have been a subsequent amendment to the same policy of insurance. In this case, however, the sum concluded for relates to the contents of the property which, on the pursuer's pleadings as they stood before the Lord Ordinary, were not so insured until at least November 1991, and were covered at the time of the fire by a Home Policy Schedule for the period from 24 November 1992 until 28 July 1993. However, insofar as it may be thought material, the pursuer was granted leave before us to amend these averments to make it clear that the contents were added to the policy in or about November 1992, rather than in or about November 1991.
2. In the same interlocutor which conjoined the two actions the Lord Ordinary allowed a proof before answer reflecting, inter alia, the defenders' second plea-in-law in the instant case. Leaving aside any questions of relevancy, however, the only substantive defence is that focused in the defenders' third plea-in-law, which reads as follows:-

"3. The said contract of insurance having been voided ab initio the defenders are entitled to decree of absolvitor."

In that connection the defenders allege that the policy proceeded on a material misrepresentation by the pursuer to the effect that the property was "in a good state of repair and will be kept so." The defenders aver that as matter of fact the property was to the knowledge of the pursuer not in a good state of repair at the date when the proposal was signed by him. As against that, the pursuer's position is that

"By about June 1991 all renovation works were complete save for minor cosmetic items."

3. In the course of the debate before us it became clear that there were potential differences between the parties regarding the law which should eventually be applied in this case. Mr Lake, Advocate, for the defenders, made it clear that, so far as the defenders were concerned, the punctum temporis regarding the state of the buildings was the same in both actions, namely the date when the initial contract of insurance was entered into. On this view the proof in both actions would be identical except as regards quantum. The pursuer, on the other hand, maintained that in what I shall describe as the "contents action" - that is the instant case - the punctum temporis regarding the state of the buildings was the date when the contents were added to the policy. On this view the proof on the merits in both actions would clearly not be identical - though, because in the contents action the parties rely on different times as relevant to the issue, it will be necessary at any proof in that action to address the state of the buildings at both times. In the event, the Lord Ordinary, for present purposes, appears to have proceeded on the basis of the contention advanced by the pursuer and, in so doing, he says this:-

"I considered that there was a very strong argument for conjoining the proofs. The two actions related to the same policy of insurance and to the same fire. The general nature of the defence was the same in both cases. In the circumstances it seems clear that the witnesses would be substantially, if not precisely, the same, and that much of the evidence would be relevant to both cases. In these circumstances there are obvious reasons of convenience for conjoining the two actions. It is true, as the pursuer pointed out, that the contents are averred to have been brought within the scope of the policy at a different date from the buildings, and that the condition of the property may have been different at that time. Nevertheless, the witnesses who speak to the condition of the property at the two dates, July or August 1991 for the buildings and November 1991 for the contents, are likely to be the same. The two dates are not particularly far apart, and consequently there is likely to be a considerable overlap in the evidence relating to each of the dates. The judge who hears the conjoined proofs will obviously require to give separate consideration to the state of the property at the two dates, but that will be just as easy in a conjoined proof as in separate proofs."

4. In our opinion, the Lord Ordinary's reasoning, as set out above, is not open to serious challenge and, bearing in mind that a matter of this sort is essentially one for the Lord Ordinary's discretion, we would require compelling reasons before interfering with his decision. Only one such reason was advanced, namely that, while the Lord Ordinary had exercised his discretion on the basis of the pleadings before him, these pleadings had now been significantly amended to make clear that the relevant date was, on the pursuer's contention, "November 1992" rather than "November 1991". In our opinion, however, this amendment is not so material as to invalidate the Lord Ordinary's reasoning and, even if it were, we would reach the same conclusion on the amended pleadings. Although some work was, according to the pursuer's averments, carried out to the property after July 1991, there is no suggestion that the property underwent any radical change between November 1991 and November 1992 or, for that matter, between July/August 1991 and the occurrence of the fire on 6 December 1992. Accordingly, even if the pursuer is right that the punctum temporis regarding the state of the buildings is November 1992, it seems to us that evidence as to their state in or before 1991 might very well remain relevant to what inference should be drawn as to their state or condition in November 1992. It follows that, contrary to the submission made to us by the pursuer, there is, on any view of the law, likely to be a considerable overlap in the evidence relating to the state of the buildings in each action. Moreover, as earlier mentioned, the nature of the defence inevitably means that the state of the buildings as at the summer of 1991 will require to be addressed at proof in each action.
5. Before closing, we should note that there was one practical consideration which the pursuer invited us to take into account and which, indeed, he at one stage described as being his real motivation in reclaiming the Lord Ordinary's decision. The pursuer said he was in acutely straightened financial circumstances. He was practically destitute and if he could not get to proof this year he would almost certainly be sequestrated and as a result lose the house he now lives in in Norfolk. When the matter was before the Lord Ordinary, he had been led to believe by the Keeper of the Rolls that, whereas a proof in the "contents" action alone lasting, say, three days could be accommodated in the court programme in September 2003, a lengthier proof in the conjoined actions could not be accommodated until January or February 2004. The pursuer considered that his prospects were even stronger in the "contents" action than in the other action and he was accordingly anxious that the earlier diet be obtained. We are far from convinced that these would be valid considerations in determining whether or not the two actions should be conjoined. However, in common with the Lord Ordinary, we are unable to accept that there is likely to be much difference in the length of the proofs. In that connection, Mr Lake was at a loss to know whence the three day estimate had been derived and assured us on his responsibility that four to five days would be required for the "contents" action alone, as against five days for the conjoined proofs. These estimates could not be over looked by the Keeper in fixing any future diet of proof and, in the result, the practical consideration which has so influenced the pursuer appears, most unfortunately, to have been misconceived. But that may not be the end of it. We were informed that the earliest likely date for a proof of five days was now June 2004. It transpired, however, that it might be possible to allocate an earlier date if there was a pressing need. It was not possible to vouch the pursuer's difficulties described above but we have no reason to believe that they are not correct. This case has already been subject to great delay and might have been expected to come to proof well before now. That it has not may or may not have been at least partly due to the pursuer himself. Nevertheless, the consequences of the case not coming to proof this year are apparently so dire that in our view those responsible for the administration of justice should do what they reasonably can to respond to the situation. We would therefore hope that, if reasonably possible, time should be allocated for the proof this year.
6. For all the foregoing reasons, we must refuse this reclaiming motion and adhere to the interlocutor of the Lord Ordinary.