Privy Council dismisses case …”WASTE OF TIME”

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The British Privy Council, in dismissing a case from Trinidad and Tobago on Monday, said the matter should never have reached London because there was no case to answer.

Added to that, it would have saved the appellants a lot of money by not appealing to the Privy Council.

A seven-page judgment was delivered by the Board comprising Lords Mance, Kerr, Wilson, Sumption, and Lady Black.

On 17 September 2013, Rampersad Maharaj and Radesh Maharaj brought a claim in the High Court against Motor One Insurance Company Ltd. On 13 April 2016, the Court of Appeal, comprising Justices Rajendra Narine, Prakash Moosai, and Judith Jones,  in the course of reversing a judgment given in the High Court by Justice Nadia Kangaloo on 29 July 2015, held that their claim was barred by section 3(1)(c) of the Limitation of Certain Actions Act (“the Limitation Act”).

The appellants’ appealed as of right to the Board under section 109(1)(a) of the Constitution of the Republic.

On 1 August 1988,  Maharaj was driving a motorcycle in the town of Penal. Radesh was his pillion passenger. Their motorcycle collided with a motor car, registration number PT 6676, driven by a Mr Parmashwar. They suffered serious injuries.

On 13 February 1990, they sued Mr Parmashwar for having negligently caused their injuries. Ever since then, the history has been one of astonishing forensic delay, perhaps testament to the past difficulties of progressing litigation in the courts of the Republic.

It was only on 28 April 1998 that judgment was given for the Maharajs against Mr Parmashwar, with damages to be assessed. It was only on 11 August 2005, that the damages were duly assessed – in substantial sums for each appellant. Mr Parmashwar has not paid the damages or any part of them.

The Maharajs’ claim against the insurer is founded on section 10(1) of the Motor Vehicles Insurance (Third-Party Risks) Act (“the Insurance Act”).

It provides: “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 there under in respect of the liability …”

Were the present claim to proceed to trial, there might be an issue as to whether Mr Parmashwar was a “person insured by the policy”. It was clear that he was not the policy-holder; and the insurer (which has assumed the obligations of a different company which issued the policy) does not appear to have assisted the appellants or the court to learn whether he was a permitted driver under the policy and was thus insured by it.

Were the claim to proceed, the terms of the policy in that respect would need to be disclosed. But the issue before the Board was whether the Court of Appeal was wrong to hold that the claim was time-barred under section 3(1) of the Limitation Act, which provides: “The following actions shall not be brought after the expiry of four years from the date on which the cause of action accrued, that is to say: … (c) actions to recover any sum recoverable by virtue of any enactment.”

The insurer contended, at any rate before the Board, that the alleged cause of action against it under section 10(1) of the Insurance Act accrued on 28 April 1998, when judgment on the liability of Mr Parmashwar to the appellants was given.

The appelants disputed that their alleged cause of action under section 10(1) accrued prior to 11 August 2005, when, in the action against Mr Parmashwar, their damages were assessed; and such was the date of its accrual accepted by the Court of Appeal. But, were the Board to agree with the Court of Appeal that the time for bringing the action which the Maharajs brought against the insurer on 17 September 2013 was only four years from accrual of the cause of action, it would be barred irrespective of whether the cause of it accrued on 28 April 1998 or 11 August 2005.

The main issue therefore was whether, as the Court of Appeal concluded, the action of the claimants under section 10(1) of the Insurance Act is an action “to recover any sum recoverable by virtue of any enactment” within the meaning of section 3(1)(c) of the Limitation Act and is therefore on any view time-barred.

So the Board dismissed Maharajs’ appeal, the hearing of which was conducted, with a reasonable measure of ultimate success, by video-link between San Fernando and London. The Board ordered the Maharajs to pay the insurer’s costs of the appeal.

In its judgment, the Board said, “the constitutional right of litigants in the Republic to appeal without permission to the Board in prescribed circumstances is no doubt regarded as precious. But a few of the recent appeals as of right to the Board from various jurisdictions has led it to regret on behalf of the litigants that permission to bring them had not been required.

“Had the Court of Appeal and the Board been able to rule that the appeal of the present claimants to the Board was unarguable and so should not be submitted to the Board, the burden of costs upon them as a result of this appeal would have been greatly reduced.”

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