The Judicial Committee of the Privy Council Decisions

 


Matadeen v. Caribbean Insurance Co Ltd (Trinidad and Tobago) [2002] UKPC 69 (19 December 2002)

ADVANCE COPY

Privy Council Appeal No. 46 of 1999

Shanti Matadeen (in substitution for Suresh

Matadeen, deceased) Appellant

v.

Caribbean Insurance Co Limited Respondent

FROM

THE COURT OF APPEAL OF

TRINIDAD AND TOBAGO

JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 19th December 2002

Present at the hearing:-

Lord Bingham of Cornhill

Lord Hobhouse of Woodborough

Lord Millett

Lord Scott of Foscote

Lord Rodger of Earlsferry

[Delivered by Lord Scott of Foscote]

1. This appeal is brought against a judgment of the Court of Appeal of Trinidad and Tobago delivered on 16 December 1998. It raises questions about the meaning and effect of sections 10 and 17 of the Motor Vehicles Insurance (Third Party Risks) Act (chap 48:51) ("the Act") of the Laws of Trinidad and Tobago. The questions arise out of attempts by the victim of a car accident to recover from the insurers of the vehicle responsible for the accident, the damages, interest and costs due to him.
2. The original appellant before the Board, Mr Suresh Matadeen, was the victim. He suffered severe personal injuries in the accident, which took place in 1982. The respondents, Caribbean Insurance Co Ltd, are the insurers. Mr Matadeen died while this appeal was pending. His widow, Mrs Shanti Matadeen, has been substituted for him. But, for convenience, references in this judgment to "the appellant" are references to Mr Matadeen.
3. On 25 February 1988, at the trial of the appellant's damages action against Industrial Sawmilling and Pallet Manufacturing Ltd, the employer of the negligent driver, the appellant was awarded damages of $1,596,669.94, together with interest and costs. The appellant had already been paid $200,000 by the respondent insurers under an interim damages order.
4. Industrial Sawmilling appealed the damages award that had been made against it but the appeal was not prosecuted and was dismissed with costs on 24 November 1988. The appellant's costs of that appeal were taxed at $16,351 under a certificate dated 25 October 1990.
5. In the meantime, on 11 April 1988, Industrial Sawmilling had gone into receivership and, on 29 May 1991, was ordered to be wound up.
6. It is now necessary to refer in more detail to some of the provisions of the Act and to the litigation pursuant to those provisions.
7. Section 3 of the Act prohibits the use of a motor vehicle on a public road unless there is in force in relation to the vehicle a policy of insurance in respect of third party risks that complies with the requirements of the Act. Section 4 sets out the statutory requirements. Subsection (1)(b) requires the policy to insure, inter alia, against any liabilities arising out of death or bodily injury caused by the use of the vehicle on a public road. But subsection (2) expresses a number of qualifications to that requirement. One of these is that the policy is not required to cover liability in excess of $200,000 arising out of any one claim by any one person (see subsection (2)(e)). $200,000 is the sum that was specified at the time the appellant's accident took place. It is now very considerably higher.
8. Under section 4(8) of the Act a policy cannot comply with the statutory requirements unless the insurer issues the insured with a certificate of insurance in a prescribed form and containing prescribed particulars. Section 10(1) of the Act provides as follows:-

"(1) If, after a certificate of insurance has been delivered under section 4(8) to the person by whom a policy has been effected, judgment in respect of any such liability as is required to be covered by a policy under section 4(1)(b) (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled, the policy, the insurer shall, subject to the provisions of this section, pay to the persons entitled to the benefit of the judgment any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any written law relating to interest on judgments."

9. So, in short, section 10(1) of the Act makes the insurer liable to meet any judgment obtained by an injured party "in respect of any such liability as is required to be covered by a policy under section 4(1)(b) ...". The only condition precedent to the right of the injured party to claim under section 10(1), apart from the obtaining of the judgment, is that the requisite certificate of insurance has been delivered to the insured.
10. The meaning and effect of a Bermudan statutory provision in exactly the same terms as section 10(1) was considered by the Privy Council in Suttle v Simmons [1989] 2 Lloyds Rep 227. In Bermuda the equivalent to the $200,000 specified in section 4(2)(e) was $24,000. The injured party had recovered judgment for $100,000. The question at issue was whether, where the amount covered by the policy exceeded the statutory minimum, an injured third party could recover from the insurers a sum above the statutory minimum but within the amount generally covered by the policy (see Lord Keith of Kinkel at pp 231-232). The Board held that the injured party's right of recovery under the statutory provision in question, the section 10(1) equivalent, was limited to the statutory minimum. Lord Keith said, at p 232:-

"... the words in section 6(1) -

'... such liability as is required to be covered by a policy under paragraph (b) of subsection (1) of section 4 ...'

do not include liability in respect of any sum in excess of $24,000 arising out of any one claim by any one person, since by virtue of proviso (iii) to section 4(1)(b) such a liability is not required to be covered. It is, in their Lordships' opinion nothing to the point ... that the insurers might under the terms of the policy be bound to indemnify the insured in respect of any excess over the statutory minimum for which an injured third party might have obtained judgment against the insured. The effect of section 6(1) is to limit the amount which the injured third party can recover directly from the insurers."

11. It is of some relevance to notice that the contrary view had been reached by the Bermudan Court of Appeal and that the Privy Council decision allowing the appeal was given in May 1989. The relevance of this is that there appears to have been a general view in the Caribbean courts that an injured party's right of recovery under a statutory provision in the terms of section 10(1) was not limited to the statutory minimum but extended to the whole amount of the damages award obtained by the injured party against the insured, provided the amount was within the cover provided by the policy.
12. It is not, therefore, a matter for surprise that in the section 10(1) action commenced by the appellant against the respondent insurers on 25 March 1988, recovery was sought of the full amount outstanding under the judgment he had obtained against Industrial Sawmilling. Nor is it surprising that in their defence dated 15 April 1988 the respondent insurers did not contend that their section 10(1) liability was limited to the statutory minimum of $200,000, a sum that they had already paid the appellant, but instead pleaded that their liability to him was limited to $250,000, which, they contended, was the contractual limit of their liability under the policy held by Industrial Sawmilling. The significance of Suttle v Simmons only emerged at trial.
13. A further point of construction arising under section 10(1) that needs to be mentioned relates to the words "including any amount payable in respect of costs and any sum payable in respect of interest ...". The words are inherently ambiguous. They might mean that the $200,000 statutory minimum is inclusive of any such costs and interest. Or they might mean that the injured party's right of recovery against the insurer is to include costs and interest as well as the statutory minimum. The latter construction seems to their Lordships to make much more sense than the former.
14. The appellant's section 10(1) action against the respondent was heard by Hosein J on 25 April 1990. There was an issue between the parties as to whether the policy under which the vehicle which had caused the accident was insured contained the $250,000 limit for which the respondent insurers contended. In his notes of evidence the judge observed, correctly in their Lordships' opinion, that:-

"... the factual issue would appear to have been made irrelevant by a 1989 decision of the Privy Council which held that the amount which the 3rd party can recover under the Act is limited to the amount in respect of which the Act required the owner to be insured in respect of 3rd Party claims" (see p. 334 of the record).

15. Nonetheless, despite its irrelevance, the judge did, in his judgment, address the factual issue. He referred to the considerable muddle in the respondent's evidence as to which policy the vehicle in question had been insured under and said that:–

"... the defendant had not discharged the onus of proving that there was a limitation under the relevant policy in force at the time."

16. He went on, however, to refer to Suttle v Simmons and, on the authority of the Privy Council decision in that case, held that:-

"the limit of the defendant's liability for damages would be the statutory amount which is required to be covered by a policy issued under section 4(2)(e) ..."

17. The judge then turned to the interest and costs point and held that:-

"... the word 'including' in section 10(1) of the Act is a word of extension and means 'as well as' or 'in addition to' or simply 'and'"

and that:-

"... costs and interest are additional to the liability limit imposed under the policy and the defendant must pay whatever those amounts are without any reference to any limit."

18. Accordingly, Hosein J made an order that the respondent insurer pay the appellant his taxed costs of the original action together with interest thereon at 6 per cent per annum. The respondent insurers appealed. It appears from their Notice of Appeal that their main concern was the judge's conclusion that their evidence had failed to identify the policy under which the offending vehicle was insured and, consequently, had failed to establish the $250,000 contractual limit of liability for which, in their pleading, they had contended. This was the irrelevant factual issue. They appealed also against the judge's conclusion that their section 10(1) liability included not only the statutory minimum but also costs and interest. The appeal was dismissed on 23 March 1993. In addition to dismissing the appeal, the Court of Appeal varied Hosein J's order so as to allow the appellant interest on the $200,000 from 2 May 1982, the date of the accident, to 24 October 1984, presumably the date of payment.
19. The $200,000 statutory minimum had been paid under the interim damages order made in the section 10(1) action. The additional $50,000 for which the respondent insurers accepted liability under the policy, still unidentified, that covered the offending vehicle was paid to the appellant while the section 10(1) action was pending. The taxed costs of the original action (but not of the appeal), and interest thereon, came to $380,630.70 and were paid by the respondent insurers on 15 April 1993. The respondent insurers were also liable to pay the interest that had been ordered to be paid by the Court of Appeal order of 23 March 1993. But the bulk of the appellant's damages award of $1,596,669.94, namely $1,346,669.94, and the $16,351 taxed costs of the abortive appeal against the judgment, together with judgment debt interest at 6 per cent on those sums, remained unpaid. And, in view of the receivership of Industrial Sawmilling and the subsequent winding-up order, recovery from that source must have seemed unpromising. So the appellant commenced a new action against the respondent insurers.
20. The new action was commenced on 22 March 1992 pursuant to section 17 of the Act. Section 17 comes into play when an insured has become insolvent. It provides (so far as relevant to this case) as follows:-

"(1) Where under any contract of insurance a person (hereinafter referred to as the insured) is insured against liabilities to third parties which he may incur, then -

(a) ...

(b) in the case of the insured being a company, in the event of a winding up order being made, ..., or of a receiver or manager of the company's business or undertaking being duly appointed ...;

if, either before or after that event, any such liability as aforesaid is incurred by the insured, his rights against the insurer under the contract in respect of the liability shall, notwithstanding anything in any Act or rule of law to the contrary, be transferred to and vest in the third party to whom the liability was so incurred.

...

(4) Upon a transfer under subsection (1) ..., the insurer shall ... be under the same liability to the third party as he would have been under to the insured, but -

(a) if the liability of the insurer to the insured exceeds the liability of the insured to the third party, nothing in this Act shall affect the rights of the insured against the insurer in respect of the excess; and

(b) if the liability of the insurer to the insured is less than the liability of the insured to the third party, nothing in this Act shall affect the rights of the third party against the insured in respect of the balance."

21. Sections 17 to 19 of the Act appear to follow, almost word for word, sections 1 to 3 of the Third Parties (Rights against Insurers) Act 1930, a United Kingdom statute. It is an oddity however, that the sections of the 1930 Act apply to any contracts of insurance whereas sections 17 to 19 of the Trinidad and Tobago Act have been placed in a statute dealing with motor vehicle insurance. Hamel-Smith JA, in the judgment now under appeal, commented that the words "... any contract of insurance ..." in section 17 "obviously have to be narrowly construed as being limited solely to third party liability motor policies issued in accordance with the Act" (p 21 of the record). The point does not arise in the present appeal but their Lordships respectfully agree.
22. The relief claimed by the appellant against the respondent insurers in the section 17 action included payment of the $1,346,669.94 balance of the 1988 damages award and payment of the $16,351 taxed costs of the appeal against that award, together with, in each case, interest until payment.
23. The pleadings in the new action raised the following issues:

(1.) Was the new action, which had been commenced on 22 March 1992, statute-barred? The respondent insurers contended that section 5 of the Limitation of Personal Actions Ordinance (Ch 5 No 6) ("the Limitation of Actions Ordinance") applied. Section 5 provides that "... all actions founded upon any simple contract without specialty ..." must be "commenced and sued within four years next after the cause of such actions and not after". Industrial Sawmilling's right to be indemnified by its insurers against the $1,596,669.94 damages award arose on 25 February 1988 when the award was made. 22 March 1992 was more than four years later. So, it was argued, the action was statute-barred. This limitation point could not be applied to the $16,351. The right to be indemnified against that liability would not have arisen until 25 October 1990, the date of the taxation certificate. It was contended on behalf of the appellant that section 3, not section 5, of the Limitation of Actions Ordinance was the applicable section. Section 3 applies, inter alia, to actions brought "... to recover any sum of money secured by any mortgage, judgment, or specialty ..." and prescribes a period of 12 years within which the action must be brought. The action for an indemnity under the applicable insurance policy was, it was said, an action on a specialty. So the issue for the court was whether the appellant's section 17 action was an action on a specialty.

(2.) Another issue was whether the appellant was barred by the "former recovery" principle from bringing the section 17 action. The respondent insurers contended that he was. In his section 10 action he had claimed to recover from them the whole of the unpaid balance of his damages award, the $1,346,669.94. He had failed. He could not, they argued, subsequently commence a new action claiming the same relief. The appellant's response was to emphasise the distinction between a section 10 cause of action, sui generis and limited to the specified statutory minimum, plus whatever might be due in respect of costs and interest, and a section 17 cause of action which would be no more and no less then the insured's contractual cause of action divested by statute from the insured and transferred to the injured party on the insured's insolvency.

(3.) The third issue was an issue estoppel point. The defences pleaded by the respondent insurers in the new action included the defence that their liability under the applicable policy was limited to $250,000 which sum had already been paid. The appellant pointed out that this issue had been pleaded and argued in the section 10 action and that Hosein J had expressed the conclusion that the respondent insurers had not succeeded in establishing that the applicable policy did contain this limitation. So, the appellant contended, the respondent insurers were barred by issue estoppel from litigating the issue again.

24. The parties very sensibly agreed to request the court to give a ruling on each of these three issues as preliminary issues. In his judgment given on 9 November 1995, Jones J found in favour of the appellant on each of these issues.
25. On 14 November 1995 the respondent insurers gave notice of appeal and on 4 December 1995 the appellant gave notice that on the hearing of the appeal he would ask the Court of Appeal to vary the order of Jones J by making orders for payment to him of the following:

(i) Interest upon the sum of $1,396,669.94 at 6 per cent per annum from 26 February 1988 to 20 October 1988;

(ii) the sum of $1,346,669.94 with interest at 6 per cent per annum from 21 October 1988 until payment;

(iii) the sum of $16,351 with interest at 6 per cent from 24 November 1988 until payment and

(iv) the costs of the section 17 action.

In effect, the appellant was inviting the Court of Appeal to treat the hearing before Jones J as the trial of the action and to make the appropriate consequential orders.

26. The Court of Appeal disagreed with Jones J on each of the three points. On the limitation of actions point, they held that the section 17 action was not an action on a specialty and that section 5 of the Limitations of Actions Ordinance was the applicable section. On the issue estoppel point, they held that the manner in which Hosein J had dealt with the factual issue did not create an issue estoppel. On the "former recovery" point they held that the doctrine did bar the section 17 action. On this appeal to the Privy Council all three points have been argued. In addition, no doubt in response to the appellant's 4 December 1995 notice, the Court of Appeal treated the hearing before Jones J as the trial of the action and dismissed the section 17 action with costs. The judgment of Hamel-Smith JA, with whom the other two members of the court agreed, contains no indication of why the claim for the $16,351 costs was dismissed. His judgment records, however, that the parties' respective counsel had agreed to settle between themselves some of the issues regarding interest (see p 27 of the record).

The Limitation of Actions Ordinance point

27. The issue is whether an action brought by an injured party pursuant to section 17 is an action on a "specialty" so as to come within section 3 of the Ordinance.
28. Franks Limitation of Actions (1959) at pp 464-465, describes "specialty" as –

"... an archaic word of somewhat imprecise meaning; it includes contracts and other obligations in documents under seal, and also, traditionally, obligations arising under statute ..."

29. In the courts below the appellant's case on this issue was based on the proposition that an action brought in reliance on section 17 was an action on an obligation arising under statute and, for that reason, an action on a specialty. Before the Board, however, while still maintaining that proposition, counsel for the appellant has argued also that, because the corporate seal of Industrial Sawmilling appears on the policy under which the offending vehicle was insured, an action on the policy was an action on a contract under seal and, for that reason too, was an action on a specialty.
30. This alternative argument is one on which their Lordships would have been much assisted by the views of the local courts but the stage at which the point was raised has made that impossible. In the circumstances their Lordships' views on the point are expressed with some diffidence.
31. It appears that in Trinidad and Tobago the common law on the sealing of documents in order to constitute them as deeds has undergone statutory amendment and that sealing is no longer necessary. The Limitation of Actions Ordinance, in section 3 of which the reference to "specialty" appears, was enacted in 1845. In 1885 the Registration of Deeds Ordinance (Chap 28 No 2) was enacted. Section 2(1) provides as follows:-

"2(1) In the application of any rule or principle of the Common or Statute Law of England, the expression 'deed' shall be substituted for any expression in such rule or principle importing a bond, obligation, contract, instrument, or writing under seal."

32. It seems to their Lordships, therefore, that the definition of "specialty" in Trinidad and Tobago would, post 1885, have to refer to "deeds" rather than "contracts and other obligations in documents under seal".
33. Section 3 of the Registration of Deeds Ordinance underlines the point. It provides that:-

"Every deed executed in the Colony or elsewhere, in the presence of and attested by one witness at least not being a party thereto, shall be held and taken in law to be a specialty ..."

34. It appears, also, that consistently with sections 2 and 3 of the Ordinance, an attestation clause in a Trinidad and Tobago deed would make no mention of the sealing of the document but would simply read "signed and delivered as and for his act and deed", or words to the same effect (see section 6 of the Registration of Deeds Ordinance).
35. So, in order to constitute a "specialty" the policy on which the appellant relies needs to have been a deed and to have been executed in the presence of and attested by at least one witness. And in order to be a deed, the policy needs to have been signed and delivered as a deed.
36. The papers before their Lordships include a copy of a policy, numbered GO/020064/82SF, on which appears an emblem. The emblem consists of two concentric circles with the words CARIBBEAN INSURANCE between the two circles at the top of the emblem and the words COMPANY LIMITED between the two circles at the bottom of the emblem. There was no evidence as to whether this emblem was the corporate seal of the respondent insurers nor as to the manner in which it was placed on the policy. A signature, purporting to be that of a director, appears across the emblem. There is no attestation clause. The emblem has been placed on top of typescript words which read:-

"For and on behalf of

CARIBBEAN INSURANCE CO LTD"

These typescript words are indicative of agency to conclude a contract, not of an intention that the document should constitute a deed. It may be, of course, that this is not the policy under which the offending vehicle was insured. But even if it is not, there is every reason to infer that the right policy was in a similar form.

37. Even on the assumption that the emblem was indeed the respondent insurers' corporate seal, their Lordships are unable to conclude that a document in this form is a deed or a contract under seal for the purposes of section 3 of the Limitation of Actions Ordinance. If it were otherwise, it is difficult to see why every contractual document to which a corporate seal was affixed would not constitute a deed and attract a 12 year limitation period.
38. The contention that the section 17 action was an action based on a statutory obligation and, for that reason, an action on a specialty was rejected by the Court of Appeal. In their Lordships' opinion, the Court of Appeal was correct. Section 17 effects a statutory transfer to the injured party of the insured's contractual rights against the insurer. It does not create a new cause of action. Let it be supposed that a comprehensive motor insurance policy is taken out, insuring against damage to the insured's vehicle as well as against the insured's liability to third parties. Suppose there is an accident, caused by the insured's negligence, in which a third party is injured and the insured's vehicle is damaged. Under such a policy the insured can look to the insurer to pay for the damage to his vehicle and to indemnify him against his liability to the third party. Suppose the insured has a bankruptcy order made against him while these claims are still outstanding. In England the insured's right to claim an indemnity against his liability to the third party would be transferred to the third party by section 1 of the 1930 Act. His right to claim the cost of repairing his car, or the pre-accident value of the car if it had become a write-off, would vest in his trustee in bankruptcy (section 306 of the Insolvency Act 1986). In both cases there would be a statutory transfer of contractual rights under the policy from the insured to the statutory assignee. What would be transferred would, in both cases, be the contractual rights, warts and all. In neither case would the statutory assignee acquire a new cause of action.
39. In Post Office v Norwich Union Fire Insurance Society Ltd [1967] 2 QB 363 Lord Denning MR said, at p 374:-

"Under [section 1 of the Third Parties (Rights Against Insurers) Act 1930] it is clear to me that the injured person cannot sue the insurance company except in such circumstances as the insured himself could have sued the insurance company."

Their Lordships respectfully agree. The cause of action sued on is the contractual cause of action which the statute has transferred to the injured party. By contrast, an action under section 10 of the Act is an action on a statutory cause of action created by the section. It is not subject to defences that the insurer might have been able to raise if sued by the insured.

40. An action brought to enforce a right of enfranchisement under the Leasehold Reform Act 1967 would be another good example of an action on a statutory cause of action. Collin v Duke of Westminster [1985] 1 QB 581 was a case in point. The plaintiff gave notice of his intention to acquire the freehold of his house pursuant to his rights under the Act but then did nothing to take the matter further. The question was whether his rights had become statute-barred. That depended on whether his right of action was a contractual right of action or an action on a specialty. The Court of Appeal concluded that his action was an action on a specialty. Oliver LJ said at p 602 that it was clear that:-

"... in the instant case any cause of action which the applicant has derived from the statute and from the statute alone."

41. In a section 17 case, per contra, the cause of action derives from the insurance policy. All that the section does is to transfer the contractual rights. That does not turn a contractual right of action into an action on a specialty.
42. In their Lordships' opinion, therefore, the appellant's action brought pursuant to section 17 is subject to the four year limitation period prescribed by section 5 of the Limitation Ordinance. Section 3 is not applicable.
43. Mr Crystal (counsel for the appellant) sought to argue, as a supplemental point, that a new limitation period commenced when the statutory assignment effected by section 17 took place. The Lordships reject this argument. The statutory assignment effected by section 17 is no more apt to cause a fresh limitation period to run than would be a legal assignment effected under section 136 of the Law of Property Act 1925, or brought about by the death of the proprietor of a chose in action and the grant of letters of administration to his personal representatives, or brought about by a bankruptcy.
44. The limitation defence pleaded by the respondent insurers to the claim for the $1,346,669.94 is, in their Lordships' opinion, in agreement with the Court of Appeal, a good one. It does not, however, as is common ground, apply to the claim for the $16,351 in respect of which the cause of action did not accrue until 25 October 1990.

The Former Recovery point

45. Their Lordships can deal quite shortly with this issue since nothing now turns on it.
46. The doctrine of "former recovery" holds that a person in whose favour a court of competent jurisdiction has pronounced a final judgment is precluded from afterwards recovering under a second judgment against the same party on the same cause of action. This is an aspect of the res judicata principle.
47. Jones J held that the section 10 cause of action under which the appellant made a limited recovery was separate and distinct from the cause of action sued on in the new action brought pursuant to section 17 and that the "former recovery" bar did not apply. However, the Court of Appeal disagreed. Hamel-Smith JA held that the situation or state of facts which would entitle a party to sustain an action and give him the right to seek a judicial remedy was the same in both the section 10 action and section 17 action. Their Lordships respectfully disagree. Jones J was, in their Lordships' view, correct in describing the causes of action in the two actions as separate and distinct. The section 10 cause of action is sui generis. It requires that a certificate of insurance has been delivered and that a judgment has been obtained by the injured party against a person covered by the policy. Subject to those conditions precedent (and to the let-outs in subsections (2) and (3), it allows recovery by the injured party against the insurer subject to a ceiling of the specified minimum. Contractual defences that would enable the insurer to resist claims by the insured are of no avail. The action is an action on the statute. By contrast the section 17 action is an action on the contract. It is not subject to the statutory minimum. It may be met by any defences that the insurer could raise against the insured. In their Lordships' view the appellant's claim, if it had not been statute-barred, could not have been barred by "former recovery". In any event, the "former recovery" point has no application to the appellant's claim to recover the $16,351 which was not claimed in the section 10 action, and did not become due and payable until after judgment in the section 10 action had been delivered.

The issue estoppel point

48. The short answer to the issue estoppel point in their Lordships' opinion is that in the section 10 action Hosein J did not decide that the policy under which the offending vehicle was insured did not incorporate a $250,000 limitation of liability. He did not need to do so for he had correctly characterised this factual issue as irrelevant. He simply declined to hold that the respondent insurers had established that the applicable policy did incorporate the $250,000 limitation. Hamel-Smith JA took the same view of Hosein J's judgment and rejected the appellant's contention that it had created an issue estoppel on the factual issue. In their Lordships' view, he was right.

The section 17 action and the statutory minimum

49. There is one further point that their Lordships think requires mention. Hamel-Smith JA, expressed the opinion that the section 4(2)(e) statutory minimum set a ceiling not only on recovery under section 10 (which had been established by Suttle v Simmons) but also on recovery under an action brought pursuant to section 17. He said (p. 26 of the Record) that:-

"... it is the compulsory indemnity that vests in the third party on insolvency and no added advantage (or lesser) is secured to a third party whether he proceeds by way of sections 10(1) or 17."

50. The point is immaterial in the present case, since, in agreement with Hamel-Smith JA, their Lordships have concluded that the claim to recover the $1,346,669.94 is statute-barred. But their Lordships feel bound to express their emphatic disagreement with the opinion of Hamel-Smith JA cited above. The statutory minimum is the ceiling, apart from costs and interest, to possible recovery under section 10. There is no such ceiling to recovery under an action pursuant to section 17. It is the insured's contractual rights under the policy on which the injured party is suing in a section 17 action. Recovery will, therefore, be limited by any contractual limitation expressed in the policy. But it will not be limited by the section 4(2)(e) statutory minimum. There is, in their Lordships' respectful opinion, no permissible construction of the Act that could produce that result.

Conclusion

51. On the three main issues their Lordships, for the reasons explained, agree with the Court of Appeal on the limitation of actions point and the issue estoppel point but disagree on the former recovery point.
52. It will be recalled that the appellant had, by his 4 December 1995 notice, asked the Court of Appeal to treat the hearing before Jones J as if it had been the trial of the action and that the Court of Appeal, accepting the invitation, had dismissed the action. The dismissal of the action was not, in their Lordships' view, correct. First, the appellant's right to recover the $16,351 was not statute-barred under section 5 and was not subject to the "former recovery" point even if the point had been a good one. Whether his right to recover is barred by contractual limitations under the policy, assuming that the respondent insurers wish to argue that it is, has never been decided. Somewhat different considerations apply to the appellant's interest claims. It seems to their Lordships quite likely that the claim to interest on $1,396,669.94 from 26 February 1988 to 20 October 1988 was sorted out by counsel following the Court of Appeal judgment. But that may not be so. And it is very unlikely that the claim to interest on the £1,346,669.94 from 21 October 1988 until payment was dealt with. The effect of the Court of Appeal judgment was that the claim to the $1,346,669.94 had become statute-barred. The four year limitation period would have expired on 29 February 1992. However, interest at the judgment rate of 6 per cent per annum would have been accruing from the date of judgment, 29 February 1988 and a claim for payment of the accrued interest over the period from 22 March 1988 (four years before the commencement of the section 17 action) to 29 February 1992 (when the right to recover the principal sum became statute-barred) would not have been statute-barred. It is possible that the respondent insurers would have had some other defence to a claim for this interest. It may be that the former recovery doctrine would come into play on the footing that the interest could and should have been claimed in the section 10 action. It may be that some contractual limitation in the policy could be set up as a defence. In the circumstances their Lordships think that the right course is to remit the case to the High Court of Trinidad and Tobago to enable the appellant to pursue these claims, if so advised, in the light of their Lordships' answers to the three preliminary issues. The order of the Court of Appeal dismissing the action will, therefore, be set aside.
53. The respondent insurers have been substantially successful in this appeal. The only point on which they were not successful was the former recovery point in relation to the claim to recover the $1,346,669.94. The time taken on that point before the Board and before the Court of Appeal (judging from the content of Hamel-Smith JA's judgment at pp 26-27 of the record) was trivial. In the circumstances their Lordships will leave the Court of Appeal's order for costs undisturbed and will order that the appellant pay the costs of the appeal to the Board.