Scottish High Court of Justiciary Decisons

DAVID JOHN KIRK v. PROCURATOR FISCAL, DUNFERMLINE [2000] ScotHC 40 (29th March, 2000)

In this appeal by Stated Case the appellant is David John Kirk who was convicted at Dunfermline Sheriff Court of a charge that on 12 July 1998 in High Street, Cowdenbeath he contravened section 143(1) and (2) of the Road Traffic Act 1988. He was fined £150 and disqualified from driving for two years. He has appealed against conviction.

In terms of a Joint Minute of Agreement it was admitted that on 12 July 1998 the appellant was driving a Ford Escort motor car in High Street, Cowdenbeath and that on being issued with a HORTI form he failed to produce a valid certificate of insurance.

The charge is against David John Kirk of 25 Page Street, Lochgelly. On 6 February 1998 a Motor Traders Combined Insurance proposal form was completed by David Kirk, 209 Baldridgeburn, Dunfermline. Photocopies of three cover notes were produced, two of which were in the name of David Kirk trading as AIG Motors, and dated 22 January and 25 March 1998 respectively. A photocopy of a third cover note, which was expressed to be valid for sixty days, was dated 8 June 1998 and was issued in the name of AIG Motors, 209 Baldridgeburn , Dunfermline. All three cover notes related to "any motor vehicle belonging to the insured or in their custody or control". It was not disputed that, although the premiums under the policy were to be paid by monthly instalments by direct debit, no premium had ever been paid. In the proposal form the question was put: "Has anyone who may drive (a) been convicted... of any motoring offence in the last 5 years or (b) been disqualified from driving in the last 10 years?" The answer to both of these questions was "Yes" and in response to a request to give details the answer was "David Kirk, disqualified for IN10" which we understand to be a reference to the offence of driving without insurance. The insurers subsequently ascertained that David Kirk had been convicted four times in five years of contraventions of section 143 of the 1988 Act. They received this information on 6 July and on 12 July 1998 a letter was sent to the insured repudiating the policy. The letter stated that as no premiums had been paid the insurers had no alternative but to treat the policy as null and void. Further, in view of alleged material non-disclosure relating to the insured's previous convictions, the insurers were treating the policy as void ab initio.

Condition 2 of the General Conditions applicable to the policy was in the following terms: "This policy shall be voidable in the event of misrepresentation, misdescription or non-disclosure in any material particular". The appellant did not give evidence. The defence led one witness, Mr Brighouse of the CGU Insurance Company, the company dealing with the claim under the policy. He confirmed that no premiums had ever been paid and that if the insurers had known of the previous convictions for driving without insurance they would not have insured David Kirk. By reason of the material non-disclosure the company was holding the contract of insurance to be void ab initio. It was common ground that it was for the appellant to establish that he had been insured at the material time.

Counsel for the appellant submitted that there was a sufficient link between the cover note in favour of AIG Motors and the appellant. The appellant had had no separate legal personality and he was entitled to drive any vehicle of which he had custody and control. So far as the issue of non-disclosure was concerned the test to be applied was not in dispute. It had to be regarded from the point of view of the insured. The question was whether the policy was valid until the letter arrived from the insurance company or was void ab initio. The sheriff had erred in his approach to this matter and he had not been entitled to find that the insurance contract had been void ab initio. He had not properly addressed his mind to the question of whether there had been material non-disclosure.

The advocate-depute submitted that it was for the appellant to establish that at the time in question he had an enforceable policy of insurance which complied with the requirements of the Act. We were referred to Milne v Whaley 1975 S.L.T. (Notes) 75 and Taylor v Allon [1966] 1 Q.B. 304. In this case there had been no evidence before the sheriff to link the cover note of 8 June to the present appellant.

In our opinion the sheriff was clearly entitled to find that the appellant had failed to establish that he was insured on 12 July when he was driving the Ford Escort motor car. The proposal form specified certain vehicles, but a Ford Escort was not one of those vehicles. Only photocopies of cover notes were produced and each photocopy, including the photocopy of the cover note bearing to be issued on 8 June, stated that the cover related to any motor vehicle belonging to the insured or in their custody or control. The policy itself in section H defined insured vehicles as any vehicles owned by, or in the custody or control of, the policy holder in connection with the business. However, the appellant did not give evidence. There was no evidence before the sheriff, and no finding, that he was the David Kirk who had signed the proposal form and was trading as AIG Motors. There are no findings or evidence relating to the Ford Escort motor car which he was driving at the material time. This was a Motor Traders Insurance Policy and there was no evidence as to who owned the car, whether it belonged to the appellant or AIG Motors or whether it was in fact in their custody or control. We do not accept that the person trading as AIG Motors would be entitled under the terms of this policy to drive any vehicle at all. On these short grounds the appeal falls to be refused. In these circumstances we do not require to deal with the issue of whether the policy was valid until the letter arrived from the insurance company. We shall therefore answer the question in the Stated Case in the affirmative and refuse the appeal.

DL