Smith v Motor Insurers Fund 2000 Civil Jur. No. 236

• Jurisdiction: Bermuda
• Judgment Date: 12 July 2001
• Date: 12 July 2001
• Docket Number: Civil Jurisdiction 2000 No. 236
• Court: Supreme Court (Bermuda)

In the Supreme Court of Bermuda

Meerabux, J

Civil Jurisdiction 2000 No. 236

BETWEEN:

Albert Leroy Smith

Plaintiff

and

The Motor Insurers Fund

Defendant

Mr. K. Unwin for the Plaintiff

Mr. J. Elkinson for the Defendant

Hopewell International Insurance Ltd v Gold Medal Insurance 1995 Civil Jur. No. 206

IRC v RaphaelELR [1935] AC 96

Mannai Investments Co Ltd v Eagle Star Life Assurance Co LtdUNK [1997] 3 All ER 352

Antaios Cia Naviera SA v Salem Rederierna ABUNK [1984] 3 All ER 229

Equipco Insurance Co Ltd v United Dominion 1992 Civil Jur. No. 377

Motor Car Insurance (Third Party Risks) Act 1943

Taxation of costs — Whether defendant liable for entire bill of costs or only proportion

JUDGMENT

The Plaintiff by Originating Summons dated 25 July 2000 has applied to the Court seeking determination of the following question, namely, ‘whether the Plaintiff in his favour a final judgment has been entered in the Supreme Court of Bermuda in respect of liability required to be covered by a policy of insurance under the Motor Car Insurance (Third Party Risks) Act, 1943, is entitled, pursuant to clause 2 of the Memorandum of Agreement between the Minister of Transport and The Motor Insurers' Fund dated the 21^st day of June 1990, to the whole of its taxed costs of obtaining the judgment.’

FACTUAL BACKGROUND

The Plaintiffs attorney by letter dated 25 January 2000 wrote to the Defendant's attorney about a Judgment entered in a reduced sum and the taxed bill of costs in relation to the litigation. The relevant portions of the letter read as follows:

‘The Plaintiffs total claim, leaving aside the subrogation claim of your clients, was calculated by us to be as follows:-

1. General damages for pain and suffering and handicap in the marketplace	$80,000
2. Loss of earnings	$82,655.71
3. Interest upon both at 3 1/2; % for the relevant periods
4. Costs.

…………………………………………………………

Accordingly, we have received $50,000 from the Second Defendant and $30,000 from the First Defendant, but we have not released the First Defendant in any way and so it is open to the Motor Insurers Fund to pursue him. We enclose a copy of our letter of 21^st October, 1999 which we wrote to Appleby, Spurling & Kempe confirming this fact.

We therefore apply to the Fund for $45,000 together with interest 3 ¹/₂ % on $45,000 from the date of the writ, which was served on 6^th November, 1995. By our calculations, the interest is well in excess of the difference between $45,000 and the $50,000 limit as it stood at the time, but we accept we are limited to a maximum of $50,000.

Finally, we enclose our taxed Bill of Costs in the sum of $33,450.40. We also apply for this sum.

………………………………………’

The Defendant applied to the Fund for his entire bill of costs. The Fund's position is that it should only be liable for the taxed costs in the same proportion as it is liable under the Judgment, namely, 32%.

THE AGREEMENT

Pertinent to the determination of the question is the Agreement. The recital and Clauses 1 and 2 of the Agreement read thus:

‘MEMORANDUM OF AGREEMENT made and entered into

BETWEEN

The Hon. Ralph O. Marshall, J.P., M.P., in his capacity as THE MINISTER OF TRANSPORT of the Government of Bermuda (hereinafter called the ‘Minister’) of the one part, and THE MOTOR INSURERS' FUND, a company duly incorporated as a company limited by guarantee in and under the laws of Bermuda and having its registered office at Clarendon House, 2 Church Street, Hamilton, HM 11, Bermuda (hereinafter called the ‘Fund’) of the other part.

WHEREAS the Minister and those insurers authorised to undertake insurance business in Bermuda (hereinafter called the...