The Gazette 1976

GAZETTE

J UNE /J U LY

1976

Millstreet, Co. Cork. (3) A policy of insurance with the Norwich Union Fire Insurance Society Ltd. (hereinafter called the "Norwich Union") whereby that de- fendant agreed, subject to the terms and conditions of the policy, to in- demnify the insured Company, and any person driving with their con- sent against claims shall become liable to pay to any person by way of damages or costs in respect of injury to person or property in con- nection with the vehicle described in the Schedule. Claims were instituted in the High Court on 2nd May, 1968, by Noreen Bourke and Kathleen Cronin against Patrick Buckley, and each of the 3 separate defendant insurance com- panies were notified of the claim. After the statement of claim had been delivered on 8th January, 1969, the question arose as to which of the three defendants was liable to indemnify Patrick Buckley in re- spect of the claim. As a result of a lengthy corres- pondence during 1969, the Norwich Union were prepared to pay 50% of the claim, provided that the Nat- ional Employers and the Federated Employers would each contribute 25% of the loss. As a result of cor- respondence, on 26th February, 1970, the National Employers agreed to pay 25% of the damages subject to the aforementioned con- ditions. However, on 14th April, 1970, the Federated Employers in- formed Mr. Buckley's solicitor that they were quite satisfied that their policy did not provide any indem- nity. Subsequently the National Employers heard of this, and in- formed the solicitor that they were not prepared to make any contri- bution. On 31st July, 1970, the Nor- wich Union informed the solicitor that, in their opinion, the accident arose out of the course of employ- ment of the injured women, and in those circumstances they were not prepared to contribute more than 50% of the total cost. On 5 August. 1970, Patrick Buckley's solicitor wrote to the three Insurance Companies concern- ed that he proposed to seek arbi- tration in accordance with the terms of their policies, and suggested the late Mr. John A. Costello as arbi- trator. Both the Federated Employ- ers and the Norwich Union agreed that the dispute would be referred to arbitration. But the National Em- ployers refused to submit it to arbi- tration on the ground that their liab- ility was not at stake. On 19th Octo- ber. 1970, Mr. Buckley's solicitor

informed the National Employers that both the Norwich Union and the Federated Employers had agreed to the appointment of Mr. Costello as arbitrator. As a result of further correspondence, the National Em- ployers still refused to take part in the arbitration. The arbitration proceedings start- ed on 31st July, 1971, and the arbitrator subsequently adjourned the proceedings. On 1st September, 1971, Mr. Buckley's solicitor wrote to the National Employers inform- ing them of the situation, and stat- ing that, if they declined to submit the matter to arbitration his in- structions were to institute proceed- ings claiming indemnity. The Nat- ional Employers however continued to reiterate their previous position that, as the proceedings had been instituted by Patrick Buckley and not by Buckley's Stores Ltd., they had never declined to indemnify Buckley's Stores. By letter of 20th October, 1971, Mr. Buckley's solic- itor informed the National Em- ployers that the arbitration would be resumed in the Four Courts on 27th October, 1971, but they did not attend. On 28th October, Buckley's Stores, wrote to invoke cover under the policy covering their employees in the Cork City branch. The Solicitor invited them to submit to arbitration, but on 8th November 1971, they declined to do so. On 12th November. 1971, the solicitor for the injured women wrote to Mr. Buckley's solicitor stating that they wished to sue him personally, and as agent for Messrs. Buckley's Stores of Cork and of Millstreet On 16th November, Mr. Buckley's solicitor forwarded a copy of this letter to National Employ- ers, stating that it was now obvious that Messrs Buckley's Stores Ltd. were involved in the proceedings. The case of the injured women against Buckley's Stores Ltd. and Patrick Buckley was listed for the High Court sitting in Cork in July, 1972. On 27th July, 1972, Mr. Buckley's solicitor informed National Employers that Miss Cronin's action had been settled for £1,870 and costs, and that Miss Bourke's action had been settled for £4,000 and costs. On 8th August, 1972, the solicitor forwarded copies of the orders of the High Court to National Employers, and again ask- ed them to consider their former decision. National Employers then referred the matter to their own solicitors, who wrote to Mr. Buck- ley's solicitor on 11th September, 1972, that they would advise their 33

RECENT IRISH CASES

INSURANCE Insurance Company who refuses to arbitrate is in breach of a condition and cannot repudiate liability for an accident in which their company client is fully liable. The first plaintiff, Buckley's Stores Ltd., is a company incorpor- ated in February, 1958. The second plaintiff, Patrick Buckley was at all material times a director of that company. They owned a business in Millstreet, Co. Cork, and in 1967, bought premises in Academy Street Cork, to convert into a departmental store. These premises were opened for business on 5th October, 1967, and many employees of the Mill- street premises were temporarily employed in the Cork premises pending the employment of the re- quired additional staff. Two girls, Noreen Bourke and Kathleen Cronin were driven by Patrick Buckley from Millstreet to Cork each morn- ing, and driven home each evening. On 9th October, 1967, there was a collision in which the car, belonging to the first plaintiff, but driven by Patrick Buckley, was involved; as a result Noreen Bourke and Kath- leen Cronin sustained injuries and loss. Liability for the accident was fully admitted by the plaintiffs. At the time of the accident, the first plaintiffs had the following pol- icies of insurance: (1) A policy of insurance with the National Employers Mutual Guard- ian Insurance Association Ltd. (here- inafter called "National Employ- ers"), by which the said Association agreed to indemnify the insured against liability at law for damages and claimant's costs and expenses in respect of injury sustained by any person under a contract of service or apprenticeship with the insured, if the bodily injury is sustained in the course of employment at their business in Cork city. (2) A policy of insurance with the Federated Employers Insurance Association Ltd. (hereinafter called the "Federated Employers") where- by that defendant agreed to insure the first plaintiff against lia- bility for damages at law and claim- ant's costs in respect of bodily in- jury sustained by any person under a contract of service or apprentice- ship with the plaintiff, if such in- jury is sustained in the course of employment at their business in