“152(1) No sum is payable by an insurer under section 151 of this Act -- (a) in respect of any judgment unless, before or within seven days after the commencement of the proceedings in which the judgment was given, the insurer had notice of the bringing of the proceedings, or (b) in respect of any judgment so long as execution on the judgment is stayed pending an appeal, or (c) in connection with any liability if, before the happening of the event which was the cause of the death or bodily injury or damage to property giving rise to the liability, the policy or security was cancelled by mutual consent or by virtue of any provision contained in it, and also -- (i)before the happening of that event the certificate was surrendered to the insurer, or the person to whom the certificate was delivered made a statutory declaration stating that the certificate had been lost or destroyed, or (ii)after the happening of that event, but before the expiration of a period of fourteen days from the taking effect of the cancellation of the policy or security, the certificate was surrendered to the insurer, or the person to whom it was delivered made a statutory declaration stating that the certificate had been lost or destroyed, or (iii)either before or after the happening of that event, but within that period of fourteen days, the insurer has commenced proceedings under this Act in respect of the failure to surrender the certificate. (2) Subject to subsection (3) below, no sum is payable by an insurer under section 151 of this Act if, in an action commenced before or within three months after, the commencement of the proceedings in which the judgment was given, he has obtained a declaration -- (a) that, apart from any provision contained in the policy of security, he is entitled to avoid it on the ground that it was obtained -- (i)by the non-disclosure of a material fact, or (ii)by a representation of fact which was false in some material particular, or (b) if he has avoided the policy or security on that ground, that he was entitled so to do apart from any provision contained in it. (3) An insurer who has obtained such a declaration as is mentioned in subsection (2) above in an action does not by reason of that become entitled to the benefit of that subsection as respects any judgment obtained in proceedings commenced before the commencement of that action unless before, or within seven days after, the commencement of that action he has given notice of it to the person who is the plaintiff (or in Scotland pursuer) in those proceedings specifying the non-disclosure or false representation on which he proposes to rely. (4) A person to whom notice of such an action is so given is entitled, if he thinks fit, to be made a party to it.”
“In my view, notice in any particular case is a matter of fact and degree and will turn on the extent to which the insurer has been made aware of the background circumstances and of the position of the claimant in regard to the taking of proceedings. Such notice can be given orally or in writing. The essential purpose of the requirement of notice is that the insurer is not met with information, out of the blue, that his insured has had a judgment obtained against him..... .... it seems to me that by stating his position as he did in those communications the plaintiff made wholly clear the course which he was proposing to take.”
“The insurers, through their counsel Mr Astor, argue that the interpretation of section 152(1)(a) turns on the use of the word 'the' in front of the word 'proceedings', and therefore what has to be given by way of notice to the insurers is notice of the particular proceedings brought by the third party. In my judgment, the subsection is not to be interpreted in that way. As notice of the bringing of proceedings can be given before those proceedings are commenced, that is to say at a time when the proceedings do not exist, the notice intends to commence an action against the insurers' insured. Once the insurers have that knowledge there is an onus on them to inform themselves of the precise details of the proceedings.”
“(1) To show that the insured had notice of the bringing of the proceedings there must be more than evidence of a casual comment to someone who at times acted as an agent for the insurers (see Herbert v RPA Company). (2) Any notification relied upon must not be subject to a condition which may or may not be fulfilled (see Weldrick and Harrington) but if the only condition is one which requires action from the recipients which they choose not to take then by making that choice they render the notice unconditional and thus effective (see Ceylon Motor Insurance Association Ltd). (3) The notice can be oral, and it need not even emanate from the claimant (see Harrington and Desouza). It can be given before proceedings have commenced, and it need not be specific as to the nature of the proceedings, (Desouza) or the court (see Ceylon and Harrington). (4) Whether in any given case it is shown that the insurer had notice of the beginning of the proceedings (as opposed to the making of a claim) is a matter of fact and degree (Desouza). (5) The essential purpose of the requirement of notice is to ensure that the insurer is not suddenly faced with a judgment which he has to satisfy without having any opportunity to take part in the proceedings in which that judgment was obtained (Desouza).”
“But even if that is right, I think that for that purpose it must really be a notice in the sense that it is given formally as a notice, it must not be some mere piece of casual conversation. Here, I can see no reason why Mr Ackery should regard Mr Wilkinson's statement as a matter which he ought to pass on to the insurance company, or as a matter which he should remember at all. In the course of casual conversation, Mr Wilkinson, who had come up to see his former companions, mentioned that an action had been brought against him -- in a friendly casual conversation. To my mind, that can in no sense be regarded as being a notice as required by the Act. It must be something much more formal than that, something which would indicate to the company's agent, if agent he was for that purpose, that a notice was being given.”
“There may well be other cases in which contact, even an informal contact, shortly before the commencement of proceedings would put the insurer in the position of having notice of the bringing of the proceedings -- everything would depend on the facts of the case, but a prudent solicitor would be well advised to ensure that the insurer received written notice within 7 days after the commencement of proceedings. There can then be no room for argument.”
“19. So then we come to the third element which is the allegation that there was a discussion on 16 May between Mrs Idriss [the trainee solicitor] and Mrs Berry [the legal secretary]. In fact, what one has to look at is what happened on the two days: 16 and 17 May of last year. 20. Both of them gave evidence that it was their employers' standard practice for all conversations to be subject to a file note. That, of course, is good practice and I am sure that firms such as these would have such a practice and I am sure that the employees do their utmost to comply with that practice but we all know that errors are made. We all know, in practice, if you are having a conversation you put the phone down and the thing rings again. In fact, in passing, that was one of the great delights of being appointed District Judge: one has a phone on one's desk which never rings; it is one's servant, not one's master.”
“21. We all know that, on occasion, calls are made but notes are not made. So dealing, firstly, with Mrs Idriss's notes of the conversation. She put in her note of 16 May that she rang and spoke to Mr Ward's secretary. She specifically wanted to obtain the address of the third party. According to that note the secretary said that she would check the file and come back to her. In any event, the secretary did not come back to her but she rang on the following day and she was then given the forename of the third party and the address, which she had already got when she and Mr Ward had previously discussed this, confirmed and, indeed, she got a phone number. 22. The evidence of Mrs Berry in relation to the second conversation (that is 17 May) is set out at page 242. That is very similar, in fact, to the content of Mrs Idriss's note of the 17th May conversation. If that was the only telephone conversation which took place between Mrs Idriss and Mrs Berry, it is quite clear that the note dated 17 May made by Mrs Berry is incomplete. She says that she would not release information as to the address of a client without specific authorisation. That is instilled into legal secretaries from the point that they join a firm: they know full well that it is privileged information. She was quite clear that she would have sought authorisation and, of course, that note does not say that so it must be incomplete in that regard. It is difficult indeed to believe that Mrs Berry had asked Mrs Idriss to hang on while she obtained confirmation. Had Mr Ward been there it might have been a different matter. She would simply have called through to him and said, 'Is it all right if I give them the third party's details', and Mr Ward would have said, 'Yes'. But, of course, Mr Ward was not there. She would have to take the file off to somebody else and somebody else is not going to approve the release of that information without checking the file carefully to make sure that it could be done and, again, there is no reference to that. 23. Mrs Berry accepted there may have been another telephone call and that is entirely consistent with what Mrs Idriss said. I am quite satisfied that the conversation on 16 May referred to by Mrs Idriss, and detailed by Mrs Idriss in her note at page 222 of the bundle, did take place. There is no suggestion that that is in any way fabricated. That note was clearly there on 30 August when the issue of failure to serve pursuant to section 152 first reared its ugly head and Mrs Idriss, very sensibly, went along to see Mr Bancroft and, no doubt, he checked the file, saw the May 16th note, heaved something of a sigh of relief and wrote to Keoghs [the insurers' solicitors] immediately in the letter which is at page 178/179 referring to that conversation. So I am entirely satisfied that the conversation did take place. The note is quite clear: 'Telephone call to Keoghs'; Damien Ward not in until Thursday; told secretary we are now issuing and therefore need third party's address; she will check their file and come back to us; Keoghs not got initial or name of third party; they will need to get permission to contact the insured today and find out who the insurers are in this case'. I am satisfied that is an accurate record of the conversation and Mrs Idriss gave evidence and I accept that she made that note immediately after the conversation. It really was not a very long conversation; it did not need to be; it was not even separately timed; it would be a routine telephone attendance but the note was quite clear: 'We are now issuing'.”
“24. That conversation is quite clear notice that proceedings are to be commenced and, indeed, proceedings were subsequently brought within a matter of three weeks or so, so it was clearly those proceedings which were referred to. I do not believe that when Mrs Idriss rang to speak to Mrs Berry she was intending to give a section 152 notice. She indeed accepted that, at the time she made that call, she did not appreciate the import of giving notice under section 152 and, of course, she did not have to have made that call with the intention of giving that notice. What she has to have done is to have communicated that she was intending to bring those proceedings and I am satisfied that that call did take place.”
“You should have said to the solicitors on the other side: 'I am not authorised to receive that notice'.”