Boston Life Annuity Company Ltd v Dijon Holdings Ltd (and 62 others)
| Jurisdiction | British Virgin Islands |
| Judge | HARIPRASHAD-CHARLES J,Indra Hariprashad-Charles |
| Judgment Date | 14 May 2007 |
| Docket Number | Claim No. BVIHCV2006/0070 |
| Court | High Court (British Virgin Islands) |
| Date | 14 May 2007 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE (CIVIL)
Before: Her Ladyship Justice Indra Hariprashad-Charles
Claim No. BVIHCV2006/0070
Mr. Philip Shepherd QC of XXIV Old Buildings, London with him Mr. Michael J. Fay and Ms. Clare-Louise Whiley of Ogier for the Claimant
Dr. Joseph S. Archibald QC with him Ms. Michelle Worrell of J.S. Archibald & Co. for the Defendants save the 33 rd Defendant.
(1) Swain v Hillman and another [2001] 1 All ER 91.
(2) Pentium (BVI) Limited and Landcleve Corporation v The Bank of Bermuda Limited.
(3) BVIHCV2002/0122—Judgment delivered on 30 April 2003 [unreported].
(4) Royal Bank of Canada v Helenair Caribbean Limited St. Lucia High Court Civil Claim No. 654 of 2001—Judgment delivered on 23 September 2002 [unreported]
(5) Lady Anne Tennant v Associated Newspapers Group [1979] FSR 298
(6) Last v London Assurance Corp (1884) 12 QBD 389
(7) Sun Fire Office v Hunt (1889) 4 App. Cas. 98 (PC)
(8) Thompson v Knickerbocker Life Ins. Co. 104 US 252
(9) Tyrie v Fletcher (1777) 2 Cowp. 666
(10) Investors Compensation Scheme Ltd. v West Bromwich Building Society and Investors Compensation Scheme Ltd. v Hopkin & Sons (a Firm) and Others [1998] 1 WLR 896
(11) Antaios Compania Naviera S.A. v Salen Rederiena A.B. [1985] A.C. 191
(12) Royal Brompton Hospital NHS v Hammond (2001) BAR 297
(13) The Bank of Bermuda Limited v Pentium (BVI) Limited and Landcleve Corporation, BVI Civil appeal No. 14 of 2003, Judgment delivered on 20 September 2004
Application for summary judgment — Defendants debarred from filing evidence in summary judgment application — No evidence filed on behalf of Defendants — Liability Insurance — Dispute as to the clauses in the Insurance Policy annexed to Statement of Claim and the one that Defendants were shown before entering into the contract of insurance — Construction of clauses in the Policies of Insurance — Whether a liability insurer would bind itself for a fixed period with no possibility of either cancelling or declining to renew when a different policy is issued each year
The Claimant, Boston Life applied for summary judgment, against all the Defendants except the 33 rd Defendant on its claim for certain declaratory relief. The 1 st (Dijon) 2 nd, (IABP) 28 th, 31 st and 52 nd Defendants have not defended the claim. The other Defendants, (conveniently called the ‘JSA Defendants’) were barred from filing evidence in the summary judgment application.
Boston Life acts as an insurer. The 3 rd Defendant (EI) obtained policies of insurance from Boston Life through a scheme involving Dijon and IABP where the Risks (the 4 th to 63 rd Defendants) paid a certain sum to EI who retained 6% and then paid the balance to IABP, then to Dijon and finally to Boston Life. Boston Life issued the policies. It alleged (i) new policies were issued each year from 2001 to October 2004 and that each policy was for a period of 1 year; (ii) each of the policies contained a provision whereby it is entitled to cancel the Policy by providing written notice to Dijon and in accordance with that provision, it gave notice to Dijon thereby terminated all the policies from 30 September 2005; (iii) it was entitled under the policy to decline to renew the policies; (4) no Risk had been continuously covered for a minimum period of 5 years so that it was not obliged to return any premium in accordance with clause 12F of the policy and (5) it is entitled to declarations that the policies have been lawfully terminated or alternately, that it was not obliged to renew the policies and that it is not liable to repay any of the Defendants any part of the premium.
The JSA Defendants allege that (1) the imposition of Dijon as the insured between them and Boston Life was not a part of the arrangements between the parties; (2) the agreement between the parties was contained in a policy which was agreed in 2001 and reviewed in 2002 and an important feature of this policy was the return of unused premium after 5 years or 3 years if the Certificate Holder was 62 years or older; (3) they were induced by the refund feature to enter into the contract for insurance and (4) the policy which was reviewed did not contain any provision whereby Boston Life could unilaterally cancel insurance coverage.
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1. There is no evidence at all, credible or otherwise, which has been put in to discharge the evidential burden on the JSA Defendants and there is overwhelming evidence that supports Boston Life. The JSA Defendants' case simply cannot stand in the face of clear and unassailable contemporaneous documents and independently corroborated witness testimony.
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2. It has never been the law that the court should give permission to defend where no evidence is put in to rebut the evidential burden and then allege that they will do better at trial or that the Court should speculate that they might.
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3. A key feature of the policy was the refund of premiums after 5 years or 3 years. This is exactly what the policy stated. Therefore, the issue of misrepresentation does not arise. There is also no evidence to support the alleged misrepresentation and no particulars have been provided even though they were requested.
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4. There is no triable issue as to whether a return of premium was a key feature because there was a return of premium clause in the policy and this is not disputed. The issue is whether the policies guarantee that they would be kept in existence for more than 5 years.
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5. It is implausible that any liability insurer would bind itself for a fixed period with no possibility of either cancelling the policy or declining to renew. The same is true for the Risks who are entitled to cancel the policy at any time. If the intention was to guarantee liability coverage for a continuous period of at least 5 years then each of the policies would have so said in simple and plain language.
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6. The policies bore separate policy number and each of them had to be renewed annually. As a matter of law and construction, each policy was a separate and discrete contract. After a year, it could be renewed or terminated. The insurer has an absolute right to refuse to renew the policy, whatever his motives for refusal.
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7. Clause 12J clearly allows Boston Life to unilaterally cancel the policy. The JSA Defendants have not filed evidence or produced the policy which they say, does not contain this clause.
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8. The fact that Dijon is named the ‘insured’ makes no difference as to whether Boston Life was or was not obliged to go on risk for a further year.
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9. Clause 12F expressly states that ‘if’ and not ‘when’ after being continuously covered for a minimum period of 5 years then the Risks would be entitled to a refund. The Risks were not covered for a continuous period of 5 years and there was no allegation that any of the JSA Defendants qualified for refund after 3 years.
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10. There are no issues, either factual or legal that will necessitate a trial. All that is before the Court from the JSA Defendants are bald assertions with no contemporaneous documents to support them. Therefore, to proceed to trial is to invite speculation and does not demonstrate a real prospect of successfully defending the claim.
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11. The issue of construction of certain clauses in the policy is a legal one which does not warrant a trial as it can and has been dealt with summarily.
On 3 April 2007, this application came before me for summary judgment pursuant to Part 15 of the Civil Procedure Rules (‘ CPR15’) against all the Defendants save the 33 rd Defendant, Jeffrey J. Walby. 1 The 1 st Defendant (‘Dijon’) and the 2 nd, 28 th, 31 st and 52 nd Defendants do not seek to defend the application for summary judgment that was filed on 24 November 2006 and served on 27 November 2006. The remaining Defendants (conveniently called ‘the JSA Defendants’) filed a Defence on 26
July 2006. They trenchantly opposed the application for summary judgment alleging that there are a number of factual as well as legal disputes between the parties which ought to be determined at a trial.The Claimant, Boston Life and Annuity Company...
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