EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
Claim Numbers: SLUHCV2016/0332
ST LUCIA MOTOR AND GENERAL INSURANCE COMPANY LIMITED
Micoud Street, Castries
Mr. Alvin St. Clair of Counsel for the Claimant
Mr. Callistus Vern Gill of Counsel for the Defendant
2020: June 10th
2020: October 2nd
 SANDCROFT, M. [Ag.]: This is an
application by the claimant for summary judgment against the Insurance
Company for failure to settle the judgment debt that was granted against
the insured who was the defendant in other proceedings brought by the
 The claimant corresponded by letter dated the 17th day of
May 2016 to the defendant giving the defendant notice of the claimant’s
intention to institute legal proceedings against “Steven Augustin” owner of
vehicle number PJ 3487 regarding an accident which occurred on the 5 th day of June 2015.
 The claimant filed a claim against (1) STEVEN AUGUSTIN, and (2) LYNDELL JACOB, which was
given the number SLUHCV2016/0331, indicating that it was
filed in 2016.
 On the 12lh April 2017 a Judgment following a mediation
agreement was filed and entered on the 3rd day of May,2017, inSLUHCV2016/0331 against the defendants (I) STEVEN AUGUSTIN and (2) LYNDELL JACOB.
 The aforesaid information was extracted from the police report prepared
in relation to the said accident, which gave information to the effect that
Steven Augustin was insured with the defendant Insurance Company with a
policy certificate number STLMGA 15257 which was a policy
that covered a Mazda vehicle.
 The Defendant wrote back, acknowledging the receipt of the letter and
stating that neither the name “Steven Augustin” nor “PJ 3487” appear on
 The certificate issued by the defendant is with respect to the name
“Stephen Augustin” number STLMGA15257 covering the date of the accident, as
does the police report which has been noted.
 The certificate of insurance was given to the claimant by Stephen
Augustin after the claimant began to pursue him under the judgment in suit SLUHCV 2016/0331.
 The claimant posited that it was the defendant who had the duty to show
that they were not notified. That the onus of proving that the defendant
did not have notice regarding notices under the policy of insurance and
under the Act is on the defendant. In the Trinidadian case of CV 2015-01892
RICO MOHAMMED vs MARITIME GENERAL INSURANCE COMPANY LIMITED
Honorable Madam Justice Donaldson-Honeywell said at paragraph 25:
“The onus of proving that they had no notice lies on the Defendant, as
Insurers, was established in the Judgment of des Iles JA in Civ Appeal
No 18 of 1982 Motor and General Insurance Company Ltd. V Koongie. The
Defendant will have a duty in fulfilling disclosure requirements for
this matter to reveal all correspondence from the insured that are
likely to have made them aware of the underlying matter even before the
proceedings were commenced”
 The claimant also posited that according to Lord Justice Kennedy in
the English Court of Appeal in Case No: A2/2000/0394
Derek Wylie on behalf of SMP Motor Policies at Lloyds and Terence
at paragraph 29 of his judgment made these conclusions regarding notice
under a similar provision as our section 9 thus:
Pausing there, it seems to me that certain conclusions can be drawn
from the authorities.
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).
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
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).
Whether in any given case it is shown that the insurer had notice of
the bringing of the proceedings (as opposed to the making of a claim)
is a matter of fact and degree (Desouza).
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 judgement was obtained (Desouza)
 The claimant further posited that the defendant had stated that the
notice to them was with respect to a person named “Steven Augustin” and not
their insured whose name is “Stephen Augustin.”
 The claimant also submitted that Lord Justice Kennedy in Wyle and Wake stated part of the
judgment in Desouza v Waterlow  RTR 71 thus:
“The insurers, through their counsel Mr. Astor, argued 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 sub-section
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 that
has to be given to the insurers is information that the third party
intends to commence an action against the insurers insured. Once the
insurers have had that knowledge there is an onus on them to inform
themselves of the precise details of the proceedings.”
 The claimant further submitted that the reasonable inference to be
drawn from the above was, and indeed, that equity dictated that for a
reasonable, level-headed insurance company, one not tending to avoid its
contractual and statutory obligations, that the letter of the claimant of
17th May 2016 did put the defendant on notice, whereby the
defendant was duty bound to check their records for both“Stephen Augustin” and“Steven Augustin”, the defendant in suit SLUHCV 2016/0331 and call their insured and make
inquiries and so give themselves the opportunity to participate in the
 The claimant also submitted that the defendant did not inform
themselves that their insured “Stephen Augustin” may well be “Steven
Augustin” referred to in the letter of the claimant dated 17th
 The claimant posited that by the interpretation and clear words of
section 9(2) of the Motor Vehicle Insurance (Third-Party Risks) Act it can
be extrapolated that notice can be given prior to filing,one, secondly,
notice can be given 7 days after filing and thirdly the court has a
discretion to apply equitable principles given the circumstances and deem,
notwithstanding non-compliance with the first or the second, that notice is
proper and sufficient.
 The claimant further submitted that this matter was not only concerned
with a statutory duty and breach of the same, but principally with a
contract of insurance, a contract which is premised on the principle uberrimae fidei, utmost good faith; that the actions of the
defendant may well be defined as action which offends that principle.
 The claimant also posited that should the court find that the letter
of the claimant does not fall within the parameters of the first limb, then
the court, in the interest of justice and indeed to ensure that the
defendant meets its statutory duty under the Act, in accordance with
equitable principles must find that there was indeed notice given to the
defendant under section 9, in all the circumstances.
 The claimant finally posited that this case is a case where summary
judgment ought to be granted in favour of the claimant and that the
defendant do pay to the claimant the full sum claimed, interest and costs
to be assessed if not agreed.
 The defendant submitted that having received the notice of intended
proceedings in relation to a specific person “Steven Augustin” and the
specific vehicle registration number PJ3487, that they provided a clear and
unambiguous response to the claimant’s legal practitioner which should have
placed them on “notice”.
 The defendant also submitted that in relation to one “Steven Augustin”
and motor vehicle registration number PJ3487 it had no notice of
proceedings as this information did not refer to any of its insured.
 The defendant further submitted that reference to a judgment and to
certain amounts in a letter of 5th of April 2018, almost a year
after the date of the said judgment of April 12, 2017, did not qualify as
notice of proceedings as contemplated by the Motor Vehicle Insurance
(Third-Party Risks) Act Cap 8.02.
 The defendant posited that the claimant failed to act within a
reasonable time thereafter to bring the notice of proceedings to the
attention of the defendant.
 The defendant also posited that according to the Trinidad case of Capital Insurance Ltd. v. Fraser 71 WIR 382, in a decision
of the Court of Appeal of Trinidad & Tobago, the Court held that
section 10(2) (a) Trinidad & Tobago Motor Vehicles Insurance (Third
Party Risks) Act, which is similarly worded to section 9(2) of the Saint
Lucia Act, that it had to be ‘pretty strictly fulfilled’.
 The defendant further posited that the notice was insufficient or
inadequate when one considered that the incorrectly spelt name did appear
to have affected, contaminated or prejudiced the claimant’s notice of
making the defendant aware of the fact that a person whose name which could
be Stephen Augustin may well be the person referred to in the letter
against whom legal proceedings was being initiated.
 The defendant finally purported that it did not have notice of the
proceedings in Claim number SLUHCV2016/0331 as
contemplated by section 9 of the Motor Vehicle Insurance (Third-Party
Risks) Act Cap 8.02 and as such was under no obligation to the claimant
with regard to the judgment awarded in the said claim.
(i) Whether the defendant in respect of the judgment, was given notice
before or within seven (7) days after the commencement of the proceedings
in which the judgment was given; and
(ii) Whether summary judgment should be granted to the claimant if the
Court finds that the defendant had notice of the proceedings.
Analysis & Findings of the Court
THE STATUTE – SECTION 9 OF THE MOTOR VEHICLE INSURANCE (THIRD-PARTY
DUTY OF INSURERS TO SATISFY JUDGEMENT AGAINST PERSONS INSURED AGAINST
(1) If, after a certificate of insurance has been duly delivered under
this Act to the person by whom a policy has been effected, judgement in
respect of any such liability as is required to be covered by a policy
of insurance under section 4(1)(b) (being a liability covered by the
terms of the policy to which the certificate relates) is obtained
against any person who is insured by the policy then, although the
insurer may be entitled to avoid or cancel, or may have avoided or
cancelled, the policy, he or she shall, subject to the provisions of
this section, pay to the persons entitled to the benefit of the
judgement any sum payable thereunder in respect of the liability,
including any amount payable in respect of costs and any sum payable in
respect of interest on that sum by virtue of any enactment relating to
interest on judgements.
(2) No sum shall be payable by an insurer under subsection (1) – (a) in
respect of any judgement, unless before or within 7 days after the
commencement of the proceedings in which the judgement was given (or
within such other period as the court may in its absolute discretion
consider equitable) the insurer had notice of the bringing of the
 The Act provides that no sum shall be paid on a
judgment unless before or within 7 days after commencement of the
proceedings or within such other period as the Court may consider
equitable the insurer had notice of the bringing of the proceedings
 The objective of these provisions is to create a
scheme of compulsory motor vehicle insurance. As Walker JA observed in
Globe Insurance Company of the West Indies Limited v Johnson and
Stewart (Globe Insurance)
SCCA No 70/1999, judgment delivered 14 April 2000, page 22, “the scheme of
the Act is to protect innocent third parties who suffer injury as a result
of the negligent conduct of motor vehicle operators on the public roads”.
Kelly and Ball Principles of Insurance Law in Australia and New Zealand
(Butterworths, Loose leaf) state at 7.2 what they term the “First
Words and phrases used in an insurance contract are normally to be
given their ordinary meaning…As Lord Greene MR said in Hutton v
Watling [ Ch 398, 403]: The true construction of a document means
no more than that the court puts upon it …the meaning which the
other party…would put upon it as an ordinary intelligent person
construing the words in a proper way in the light of the relevant
 Having considered the submissions herein, I am of the view that the
claimant is correct in saying that on a literal interpretation there is no
need for the claimant to have given a formal notice to the defendant. It
remains. however, a question of fact whether the defendant did have notice
of the proceedings, by whatever means the information may have come to its
attention, and whether the correct name of the insured would have any
bearing on the matter.
 The Court noted the correspondences of May 17, 2016
and June 8, 2016 which stated as follow:
By letter dated May 17th 2016 the Claimant’s Solicitor wrote
to the Defendant
We act hereon on behalf of NOEL JOSEPH. Police Officer, who has
instructed us as follows:
On the 5th June 2015 your insured Steven Augustin was
involved in a
vehicular accident with our client Noel Joseph while our client stood
on the side of the road as a pedestrian.
In fact your insured was a passenger in the vehicle which he gave and
allowed Lyndell Jacob to drive at the material time.
The letter serves to inform you and notify you that it is our intention
to file a claim in the High Court against your insured should you or
your insured fail to state that you and your insured will take full and
unconditional responsibility’ for the injuries, pain and suffering and
losses of our client as a result of being run down as aforesaid.
Please indicate whether you are minded to settle this matter so as to
avert the filing of the matter in the High Court by the 25lh
day of May 2016 failing which legal proceedings will be filed.
We await your most favourable response and action.
By letter dated June 8. 2016 the Defendant responded as follows:-
RE: STEPHEN AUGUSTIN
VEH. REG. NO: PJ3487
YOUR CLIENT: NOEL JOSEPH
Please refer to the caption matter.
We acknowledge receipt of your letter on the above and advise that the
name “Steven Augustin” nor vehicle registration number “PJ3487” appears
on our records and as such cannot entertain your claim.
Please be guided accordingly.
 That the onus of proving that they had no notice lies on the
defendant, as Insurer, was established in the judgment of des Iles JA in Motor and General Insurance Company Ltd. V Koongie Civ
Appeal No 18 of 1982. The defendant will have a duty in fulfilling
disclosure requirements for this matter to reveal all correspondence from
the insured that are likely to have made them aware of the underlying
matter even before the proceedings were commenced.
 On the face of it, even if the defendant only got notice when the
claimant sent it after some time there is precedent for a finding that the
said time was equitable. This is so because as Mc Millan J explained in Blizzard and Others v Motor and General Insurance Company
HCA No 2292 of 1981 the 29 days was within the three month period under
Section 10(3) of that Act when the defendant as insurer can either:
a. Avoid the policy;
b. Take steps to defend the action; or
c. Take steps to settle the action.
It will be difficult, in the circumstances, for the defendant to prove any
prejudice from an erroneous name, if any, in receiving notice of the
 In all the circumstances although there may not be a strong
probability that the defendant can establish both that they had no notice
of the proceedings within the prescribed period and that the name that they
received notice for from the claimant was erroneous, these remain issues to
be tried. Accordingly, paragraphs 1 and 6 of the Defence are noted by this
Court. In order to further determine the matter, however, the Defendant
will be directed to file an affidavit in support of the contention at
paragraphs 1 and 6.
 Having determined that only one aspect of the
defendant’s case, in relation to paragraphs 1 and 6, is of note, it remains
to be determined whether there should be Summary Judgment for the claimant
as it relates to that limb – paragraphs 1 and 6 of the Defence. Part 15.2
of the CPR authorises the Court to “give summary judgment on the whole or
part of a claim or on a particular issue if it considers that-
(a) On an application by the Claimant, the defendant has no realistic
prospect of success on his defence to the claim, part of the claim or
issue.” Blackstone Civil Practice 2005 explains at page 355 that “An
application for summary judgment is decided applying the test of
whether the respondent had a case with a real prospect of success,
which is considered having regard to the overriding objective of
dealing with the case justly.”
 The remaining issue to be determined, if the matter
is to proceed, is whether the defendant had the required 7 days’ notice of
the underlying matter and if not, whether the notice it had was erroneous
because it was said to have the wrong name. In addressing whether
paragraphs 1 and 6 of the defence has any real prospects of success, the
hurdles that may be faced by the defendant in succeeding on this limb of
the defence were hereinabove underscored. However, I have decided that the
said paragraphs did raise an issue as it was not entirely clear on the face
of the pleadings that no grounds for defending the matter were disclosed
 For the same reasons it is not my finding at this stage that the
defendant has no realistic prospect of success on the aforesaid limb of its
defence. Accordingly, my determination is that summary judgment will not be
granted on any part of the Defence. Instead the defendant will be required
to submit supplemental affidavit evidence in support of the said limb to be
considered during case management.
 There is in this case direct evidence or information from which it can
be inferred that the Insurer was informed and given notice of the legal
proceedings to be brought in the High Court touching and concerning the
claim by way of correspondence on May 17, 2016. There is also evidence or
information that would lead the Court to conclude that the Insurer had
written back to the legal practitioner for the claimant, which would have
been outside of the period of May 25, 2016 stipulated in the claimant’s
correspondence when issued on the June 8, 2016, some one week after the
notice of legal proceedings was brought to the attention of the Insurer or
was sent to them, so that they were aware of the legal proceedings for the
claim in the High Court and would have therefore been in a position to
either accept or reject liability.
 Therefore, in resolving the present ‘Issue’ I find then that the
application for summary judgment against the defendant for not defending
the claim when it would have received notice of the proceedings of the
claim could not properly be said to be in respect of the current claim form
that is before the court for determination.
 There is no question then that the claimant gave notice under first
limb, in that he wrote to the Defendant before or prior to the filing of
proceedings. The question however, which is brought into focus by the
defendant’s Defence and submissions is one as to the sufficiency of the
notice. Was the notice proper, notwithstanding that it incorrectly spelt
the name of the defendant’s insured.
(i) The claimant’s application for summary judgment is refused at this time
on the basis of the foregoing reasons.
(ii) No order as to costs.
(iii) The defendant is granted leave to file its amended defence and
supplemental affidavit with respect to the claimant’s particulars of claim,
if necessary, within 28 days of this judgment. Unless the defendant files
and serves its amended defence and supplemental affidavit by October 30,
2020, the Defence shall stand struck out.
(iv) The claimant shall file a Reply to the amended Defence and
supplemental affidavit, if necessary, within 28 days of service of the
amended Defence and supplemental affidavit.
(v) The matter is to be referred to mediation.
(vi) The matter is to be set for further case management on December 17th,
2020, at a further sitting of the Master’s Court in Saint Lucia.
(vii) The claimant shall file and serve this order.
By the Court