COUNSEL: Humfrey Edmunds, for the respondent bureau

 

SOLICITORS: A. E. Wyeth & Co. for Ernest Brown & Co., Wednesbury; Stanley & Co.

 

JUDGES: Singleton, Denning and Romer L.JJ.

 

DATE: 1953 Mar. 30.

 

 

Application by the appellant for an order that her appeal from Lord Goddard C.J. should be dismissed.

 

By an agreement of June 17, 1946, made between the Minister of Transport and the Motor Insurers’ Bureau, the latter undertook to satisfy any judgment

 

“in respect of any liability … required to be covered by a policy of insurance … under Part II of the Road Traffic Act, 1930”

 

if such judgment had not been satisfied within seven days.

 

A firm of employers held a policy of insurance in respect of a motor-lorry owned by them, which covered liability for the death of, or bodily injury to, any person caused by or arising out of the use of the lorry, but excluded

 

“liability in respect of death arising out of and in the course of his employment of a person in the employment of the insured.”

 

An employee of the firm drove the lorry negligently and was responsible for an accident which resulted in the death of a fellow employee, whose widow brought an action in February, 1949, against the driver, and obtained judgment in default of defence for £1,200 and taxed costs of £79 13s. 6d. That judgment remained wholly unsatisfied. The widow then claimed that [*621] by virtue of the agreement of June, 1946, she was entitled to recover the sum for which judgment had been given from the Motor Insurers’ Bureau. The dispute was referred to arbitration, and the arbitrator held that the judgment in favour of the widow was a liability which required to be covered by a policy of insurance under Part II of the Road Traffic Act, 1930, and he made an award in her favour. Both parties requested the arbitrator to state his award in the form of a special case.

 

On appeal by the bureau by special case stated, Lord Goddard C.J., on July 16, 1952 (Lees v. Motor Insurers Bureau1, held that the judgment in the action by the widow against the driver was not a judgment in respect of a liability to be covered by the policy of insurance within the meaning of the agreement of June 17, 1946, and gave judgment for the bureau.

 

The widow gave notice of appeal. On January 20, 1953 (before SINGLETON and HODSON L.JJ. and LLOYD-JACOB J.), Michael Lee, for the widow, made an application for an order that the appeal be dismissed, stating that the bureau had agreed voluntarily to pay the whole of the widow’s claim together with her costs.

 

SINGLETON L.J.said that the widow had been kept out of her money since 1949. It seemed unusual that the respondent bureau, having obtained judgment, which had been reported,1 should agree that the unsuccessful party should have the full amount of her claim and the costs, and that at the same time her appeal should be dismissed.

 

THE COURT adjourned the application to consider the proper form of order to be made in the circumstances.

 

On March 30, 1953 (at a hearing before SINGLETON, DENNING and ROMER L.JJ.), SINGLETON L.J. said that when the original application had been made, it had seemed to the court to be a contradiction in terms that where the successful respondent had agreed to pay the whole of the appellant’s claim and all the costs, an order should be made that the appeal be dismissed.

 

DENNING L.J. said that an appeal could not be allowed by consent, for that would be reversing the judgment of Lord Goddard C.J. without hearing the appeal.

 

Humfrey Edmunds, for the respondent bureau, said that the real dispute here was between motor insurers and employers’ liability insurers. What the bureau wanted was a ruling to the effect that motor insurers were not obliged to insert in their policies an extension clause which would charge them solely with the financial responsibility for motor accidents to an employee when he was being carried in a motor-vehicle by his employer’s servant. That they had obtained.

 

1 [1952] 2 T.L.R. 356; [1952] 2 All E.R. 511; [1952] W.N. 409. [*622]

 

THE COURT then made the following order, which had been proposed by the court and agreed between the parties:

 

“And the appellant and the respondents by their counsel stating that they have agreed to the terms of the settlement of this action set out in the schedule hereto and consenting to this order this court doth order that all further proceedings in the said matter and on the appeal be stayed except for the purpose of enforcing the said terms for which purpose the parties are to be at liberty to apply to a judge in chambers, and that the costs of the appellant be taxed if they are not agreed between the parties as between party and party, being her costs (a) of the arbitration and (b) of the special case before the Lord Chief Justice, (c) of this appeal to this court; and that the costs of the appellant in this appeal to this court be taxed as between solicitor and client in accordance with the provisions of the third schedule to the Legal Aid and Advice Act, 1949.”