Anthony Morrow v Emelia Burns

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 25 February 2022
• Neutral Citation: [2022] IEHC 69
• Court: High Court
• Docket Number: 2015 No. 6404 P

Between

Anthony Morrow

Plaintiff

and

Emelia Burns

Charles Morrow

The Motor Insurers Bureau of Ireland

Defendants

[2022] IEHC 69

2015 No. 6404 P

THE HIGH COURT

Personal injuries – Amendment – Prejudice – Plaintiff seeking leave to amend pleadings – Whether allowing the amendments to be made would result in a manifest injustice to the third defendant

Facts: The plaintiff, Mr A Morrow, applied to the High Court for leave to amend the pleadings in a personal injuries action. The proposed amendment involved the addition of a reference to “the second named defendant” at a particular point in the pleadings. If allowed, the proposed amendment would change the complexion of the case made against the third defendant, the Motor Insurers Bureau of Ireland (MIBI), by making it potentially liable for a different driver than the driver identified in the original pleadings. The MIBI sought to resist the application to amend on three broad grounds. First, it was said that there had been extraordinary delay on the part of the plaintiff in articulating a claim for compensation against the MIBI in respect of the second defendant, Mr C Morrow. Secondly, it was said that to allow the amendments to be made some nine years’ post-accident would result in a “manifest injustice” to the MIBI. Thirdly, the underlying merits of any claim against the MIBI were challenged. In particular, it was said that the plaintiff did not give the requisite notice of an intention to seek compensation from the MIBI within time, and had failed to produce any material which demonstrated that the second defendant was an “uninsured driver” for the purposes of the MIBI Agreement. More generally, it was said that the claim was not one which involved an uninsured driver per se, but was instead predicated on the proposition that the policy of insurance had been avoided because of the plaintiff’s own non-disclosure and misrepresentation.

Held by Simons J that, having had regard to the unusual circumstances of the case, leave to amend would be allowed. Simons J held that the fact that the MIBI had been joined in the proceedings from the outset – albeit in a narrower role than that envisaged – had had the consequence that steps were taken timeously on its behalf to investigate the mechanics of the accident; this had reduced the risk of the MIBI being prejudiced in its ability to defend the enlarged case made against it, notwithstanding the inordinate delay on the part of the plaintiff in seeking to amend his pleadings.

Simons J held that the grant of leave to amend was contingent upon the fulfilment of the following two conditions. The first was that copies of the contemporaneous documentation in respect of (i) the application for, and the issuance of, the policy of insurance in June 2012; and (ii) the registration of the ownership of the truck subsequent to its importation from Scotland in May/June 2012, were still in existence and were made available to the MIBI. The second condition was that the plaintiff’s solicitor submit a revised draft of the proposed amendments, setting out the precise basis upon which it was alleged that the MIBI was liable to meet any unsatisfied judgment entered against the second defendant. Simons J held that this revised draft should include particulars as to ownership of the truck, and the issuance and subsequent invalidation of the policy of insurance. Simons J held that the revised draft was to be circulated to the other parties to the proceedings by Monday, 21 March 2022.

Application granted.

Appearances

Richard Lyons, SC and Patricia McCallum for the plaintiff instructed by McGinley Solicitors LLP

Paul Fogarty for the first and third named defendants instructed by AXA Legal Services

No appearance by the second named defendant

JUDGMENT of Mr. Justice Garrett Simons delivered on 25 February 2022

INTRODUCTION

1 This matter comes before the High Court by way of an application for leave to amend the pleadings in a personal injuries action. The proposed amendment, on its face, appears to be minor. In essence, it involves the addition of a reference to “ the second named defendant” at a particular point in the pleadings. In truth, the implications of the proposed amendment for the proceedings are profound. If allowed, it would radically change the complexion of the case made against the Motor Insurers Bureau of Ireland by making it potentially liable for a different driver than the driver identified in the original pleadings.

CHRONOLOGY

2 The chronology of the proceedings is summarised in tabular form below:

15 June 2012	Accident
21 May 2014	Application to PIAB
26 February 2015	PIAB authorisation
6 August 2015	Personal Injuries Summons
12 May 2016	First defendant's notice for particulars
17 May 2016	Appearance entered for first defendant
14 November 2016	Order directing replies to particulars
3 August 2017	Appearance entered for third defendant
21 December 2018	First and third defendant's notice for particulars
10 May 2019	Replies to particulars
9 October 2020	Defence of first and third defendants
3 December 2020	Liberty Insurance notified by second defendant
18 November 2020	Notice of indemnity and contribution
3 March 2021	Motion issued seeking to amend pleadings
19 July 2021	Liberty Insurance void policy (ten day notice)
20 December 2021 & 7 February 2022	Hearing of motion to amend

PROCEDURAL HISTORY

3 These proceedings arise out of an accident which occurred on 15 June 2012. The case as pleaded is that the plaintiff had been on the back of a trailer attached to a stationary truck at a business premises owned by his father, the second named defendant. It is pleaded that the driver of another vehicle, the first named defendant, caused her vehicle to collide with the truck and trailer. It is further pleaded that the collision caused the plaintiff to fall to the ground, and that a tractor tyre, which had previously been loaded on top of the trailer, then landed upon him. As a result of the accident, the plaintiff has sustained very severe injuries.

4 The case as pleaded is that the first and second named defendants were jointly responsible for the accident. The particulars of negligence alleged against each differ. The case pleaded against the first named defendant is that she had driven her vehicle in a negligent manner by reversing it into the parked truck and trailer. The case pleaded against the second defendant relates to the manner in which the truck and trailer had been loaded and parked up, and more generally, to the management of the business premises. In particular, it is alleged that the second named defendant had driven the truck and trailer into position, and that he had been responsible for the loading of the trailer including, relevantly, the placing of a tractor tyre as part of the load.

5 The proposed amendment is in respect of the case pleaded against the third named defendant, the Motor Insurers Bureau of Ireland (“ MIBI”). It should be explained that the MIBI has an obligation, under an agreement with the Minister for Transport, to satisfy judgments entered against an uninsured driver in certain circumstances. The version of the agreement which had been in force at the time of the accident is dated 29 January 2009 and has been exhibited as part of the application to amend (“ the MIBI Agreement”).

6 The MIBI is only liable to meet an unsatisfied judgment against an uninsured driver in the circumstances outlined in the MIBI Agreement. Relevantly, liability is excluded where the person injured voluntarily entered the vehicle and the MIBI can prove that that person knew that the vehicle was not insured. See §5.2 of the MIBI Agreement as follows:

“Where at the time of the accident the person injured or killed or who sustained damage to property voluntarily entered the vehicle which caused the damage or injury and MIBI can prove that they knew that there was not in force an approved policy of insurance in respect of the use of the vehicle, the liability of MIBI shall not extend to any judgement or claim either in respect of injury or death of such person while the person injured or killed was by his consent in or on such vehicle or in respect of damage to property while the owner of the property was by his consent in or on the vehicle.”

7 The case as originally pleaded had been that the MIBI is obliged to satisfy any judgment entered against the first named defendant. In fact, there had been a valid policy of insurance in place in respect of the first named defendant's vehicle as of the date of the accident and her insurers have responded to the claim. There would not appear, therefore, to be any basis upon which a claim for compensation could be made as against the MIBI in respect of the first named defendant.

8 Certainly, this seems to have been how the MIBI understood the case against it. As explained on affidavit, the MIBI took the view that, in circumstances where the first named defendant is fully indemnified by her own insurers (AXA Insurance), there would be no question of any judgment against her going unsatisfied. There was thus no conflict between the respective interests of the MIBI and AXA Insurance. On this basis, the solicitors acting on behalf of AXA Insurance subsequently came on record for the MIBI as well as for the first named defendant.

9 The solicitors acting on behalf of the MIBI, in a letter to the plaintiff's solicitor, had expressly drawn attention to the fact that no order over was being sought as against the second named defendant. See letter of 21 September 2016 as follows:

“It also appears that notwithstanding this ( sic) there are two motor vehicles involved in this incident the Plaintiff is not seeking any court order over against the MIBI in respect of any judgment he might obtain against the second named...