Commissioner of Police v Meade et Al

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Georges, J.
• Judgment Date: 05 October 1992
• Neutral Citation: MS 1992 HC 14
• Docket Number: 59 of 1992
• Date: 05 October 1992

High Court

Georges, J.

59 of 1992

Commissioner of Police

and

Meade et al

Appearances:

Ms. Gertel Thom, Principal Crown Counsel for Plaintiff.

Ms. Esco Henry for First Defendant.

Mr. Alfred McKelly for second defendant.

Personal property — Determination of ownership of vehicle — Defendant claim that the vehicle was at all times his property — Vehicle found to be stolen property — Second defendant exercising his right of subrogation as a result of loss incurred by theft of insured vehicle — Second defendant had locus standi to sue in the interpleader proceedings — S. 23(1) Sale of Goods Act the defendant would acquire no better title to the vehicle than his agents.

Georges, J.

1 By an originating summons filed on 3rd July, 1992 the applicant herein applied under Order 17, rule 1 of the Rules of the Supreme Court (Revised) 1970 for the following relief namely:

• 1. An order that the issue as to the ownership of motor vehicle Registration No. M 4398 be decided between the first and second defendants (the claimants).

• 2. An order that the defendants pay the costs and expenses of the plaintiff to this summons.

2 In paragraphs 1 to 7 of his supporting affidavit sworn on the 2nd day of July, 1992 and filed on 3rd July, 1992, the applicant set out the circumstances giving rise to these proceedings and to the issue which fell to determined.

3 In the said affidavit the applicant deposed at paragraphs 1 to 7 as follows:-

• 1. I am the Commissioner of Police of the Royal Montserrat Police Force.

• 2. On the 12th day of July 1991 I wrote to the 1st Defendant asking him to take Motor Vehicle registration No. M4398 to Police Headquarters Plymouth Montserrat for examination.

• 3. Upon examination of the said Motor Vehicle registration No. M4398 on the 13th day of July 1991 it was found that the said Motor Vehicle was the vehicle that was reported stolen in England on 29th day of November 1990 from J. Tedder of 4 The Gables Glovers Lane, Harlow England.

• 4. That the said Motor Vehicle 114398 was detained by me on the said 13th day of July 1992 in connection with enquiries with a charge of theft of the said Motor Vehicle and in connection with a charge of handling stolen goods relating to the said vehicle.

• 5. I have been advised by letter dated 20th day of May 1992 and signed by J. Coles, Branch Crown Prosecutor and I verily believe that a criminal charge is pending against one Samuel Ryan at the Snaresbrook Crown Court in England in relation to the theft of Motor Vehicle registration No. M4395. A copy of the said letter is annexed to this my affidavit marked “A”.

• 6. The second named Defendant Group have made a claim to me asserting that they are the true owners of Motor Vehicle No. M4396 and that they are also entitled to possession of the said vehicle.

• 7. The first named defendant has made claim to the said vehicle upon the ground that he is a bona fide purchaser for value in good faith of the said vehicle.

4 In paragraphs 6, 9 and 10 the applicant stated that he had no interest in the said motor vehicle Registration No. M4398, that he was not acting in collusion with either claimant and that lie was willing to deliver possession of it or otherwise dispose of it as the Court directed.

5 A counter-affidavit (captioned ‘Affidavit in Support of First Defendant's Claim’) by the Solicitor for the first defendant sworn and filed on the 30th July, 1992 opposed the application and requested that the said vehicle be delivered to him on the ground that the vehicle at all material times was and is his property.

6 The second defendant's claim is supported by two affidavits filed on 29th July, 1992 and sworn on the 7th day of flay, 1992 by L. B. Carter, Claims Technical Manager of the second defendant company and by Robert K. Kadwell an Insurance Adjuster practising in St. John's, Antigua.

7 On 1.3th July, 1992 ‘issue was joined’ between the respective claimants and trial as to the ownership of the said vehicle was duly fixed on the basis of the affidavits filed by the parties. The Court also ordered that the first defendant be constituted as ‘defendant’ for the purpose of the trial of the issue and the second defendant as ‘plaintiff’.

8 At the hearing, Solicitor for the plaintiff insurer relied on the contents of the affidavit of L. B. Carter which averred at paragraphs 2, 3, 4, and 5 that:

• 2. By a Policy of Insurance No. RKB 852436 made by my Insurance Company, Royal Insurance Company, in consideration of premiums paid by John C. Tedder of 4 The Gables, Glovers Lane, Hastingwood, Harlow, England, Royal Insurance Company insured the said John C. Tedder inter alia against loss by theft of a Grey BMW Registration mark G35 NEW with chassis No. WBAHD 220XOBF52335 and Engine No. 40454645 copy of Insurance Policy is exhibited herewith and marked “L. B. C 1.”

• 3. During the currency of the said policy the said vehicle was stolen in the United Kingdom on or about the 15th day of March 1990 and was subsequently located in Montserrat. Royal Insurance Company in pursuance of the said policy of insurance made a theft payment of #29,000 to the insured John C. Tedder in full settlement of all and any claims which the said insured had or might have under the policy of insurance.

• 4. The said motor car with local Registration No. M4398 was inspected and positively identified by Robert Kadwell, General Manager of Adjusters Caribbean Insurance Adjusters, practising at 36A St. Mary's Street, St. John's, Antigua. An affidavit has been sworn by the said Mr. Kadwell. Also attached to this affidavit is a copy of the Registration certificate for the said vehicle marked ‘L.B.C. 2”.

• 5. Royal Insurance Company are therefore on subrogation the owners and entitled to possession of the said vehicle. I am therefore requesting on behalf of Royal Insurance Company that this Honourable Court Order that the said motor car be delivered to Royal Insurance Company.

9 A supporting affidavit by Robert K. Kadwell deposed to the inspection and identification by him in Montserrat on 10th April, 1992 of the vehicle referred to by Carter in paragraph 3 of his affidavit as having been stolen in the United Kingdom on or about 15th march, 1990.

10 The plaintiff insurer in effect claims the vehicle Registration No. M4398 in exercise of its rights of subrogation having fully indemnified the owner/insured in respect of his loss by theft of the insured vehicle.

11 Further support for the plaintiff's claim could clearly be derived from paragraphs 2, 3, 4, and 5 of the applicant's own affidavit dated 2nd July, 1992 (which are set out earlier in this judgment) Mr. James submitted, who then went on to refer to the judgment of Brett, L.J. in Castellain v. Preston (1803) 11 Q.D.B. 300. the locus classicus of the doctrine of subrogation in insurance law where at page 388 the width of the doctrine is described thus:

“……as between the underwriter and the assured, the underwriter is entitled to the advantage of every right of the assured, whether such right consists of contract, fulfilled or unfulfilled, or in remedy for tort capable of being insisted on or already insisted on, or in any other right whether by way of condition or otherwise, legal or equitable, which can be, or has been exercised or has accured, and whether such a right could or could not be enforced by the insurer in the name of the assured, by the exercise or acquiring of which right or condition the loss against which the assured is insured, can be, or has been diminished.”

12 Reference was then made to the doctrine of abandonment as illustrated at paragraphs 1157 and 1158 of the 8th Edition of MacGillivray Parkington on Insurance Law where (at paragraph 1157) the term is stated to denote ‘the voluntary cession by the assured to the insurer of his rights over the subject-matter of the insurance in the case of a total loss.’ Ownership of the res, it was submitted, then vested in the insurer who thereby acquired all proprietary rights to it.

13 The doctrine in this sense which originated in the field of marine insurance and is governed by Sections 61 to 63 of the Marine Insurance Act, 1906 has been given a secondary meaning applicable to all indemnity insurance, namely, a rule that, on being paid for an actual total loss of the res, the assured is required to abandon his interest in the res to the insurer: Rankin v. Potter [1873] L.R. 6 H.L. 83. 118 per Blackburn, J. later approved by Brett, L.J. in Kaltenbach v. Mackenzie (1878) 3C P.D. 467. 471. ‘Thus, it is said at paragraph 1158 of MacGillivray that if a chattel is lost and then is found after the assured has been paid for a total loss, the insurer is entitled to it.’

14 I pause to observe that the plaintiff insurer's claim was based not on the doctrine of abandonment as canvassed by Mr. James but on the Company's exercise of its rights of subrogation. That does not however detract from the merits of the argument for in proceedings of this kind, a claimant would not in the nature of things be strictly bound by his ‘pleadings’ as in a normal action. Further, in its secondary sense, ‘abandonment’ is closely related to subrogation in that the insurer's rights arise upon payment and not on a voluntary cession of interest prior to payment.

15 Reference was also made to Randal v. Cockran 0078 1 Ves Sen. 99 Chitty on Contracts 26th Edition paragraphs 4271–2, and VOLUME 25 OF HALSBURYS LAWS 4TH EDITION paragraph 330 as exemplifying the principles enunciated. With respect no useful purpose would in my view be served by further analysis of these authorities.

16 In sum, the main thrust of the plaintiff's case is that the insurer after payment of the insured, stands in his shoes. Having paid for the total actual loss of the vehicle, the insurer was entitled as of right to the subject-matter of the insurance viz the car. It was further argued (referring specially to paragraphs 3 and 4 of the...