Royal Caribbean Hotels Ltd v Barbados Fire and General Insurance Company et Al

• Jurisdiction: Barbados
• Court: High Court (Barbados)
• Judge: Williams, C.J.
• Judgment Date: 01 February 1988
• Neutral Citation: BB 1988 HC 14
• Docket Number: No. 1057 of 1985
• Date: 01 February 1988

Royal Caribbean Hotels Ltd.

and

Barbados Fire and General Insurance Co. et al

Williams, C.J.

No. 1057 of 1985

High Court (Civil Jurisdiction)

Insurance law - Loss and damage to plaintiff's property by Hurricane David — Whether assured too late in bringing the action

Mr. E. Niles for the plaintiff in association with Mr. R. Hinds.

Mr. J.S.B. Dear, Q.C. in association with Miss C. Chase for the first defendant.

Williams, C.J.

1 The matter before the court arises out of a policy of insurance dated July 1, 1980 in which certain buildings at Hastings, Christ Church, known as Regency Cove Hotel and their contents were insured with the first defendant, Barbados Fire and General Insurance Company Limited. Royal Caribbean Hotels Limited, the plaintiff, claims that on or about August 3, 1980 during the subsistence of the policy, it suffered loss and damage to the property by reason of hurricane David, an insured peril, and the associated gales, cyclones, seawaves, flood and/or malicious damage that followed and it seeks relief from the first defendant and the Bank of Nova Scotia, the second defendant, a debenture holder and the assignee of the policy of insurance.

2 Various issues of law and fact are raised on the pleadings including the following issue raised at paragraph 21 of the Amended Defence and Further Amended Defence of the first defendant:–

“Clause 19 of the policy of insurance provides:

“In no case whatever shall the Company be liable for any loss or damage after the expiration of twelve months from the happenings of the loss or damage unless the claim is the subject of pending action or arbitration.

The loss and damage alleged is said to have taken place on the 3rd day of August 1980. This action was started on the 10th day of October 1985 and the defendant will rely upon the above clause.”

3 The plaintiff in its Reply to Amended Defence and Further Amended Defence of the first defendant pleaded at paragraphs 2 and 3 as follows:

“As to paragraph 21 of the Further Amended Defence, the plaintiff says that the substantial issue between the 1st defendant raises a question of law of general importance and the 1st defendant is thereby precluded from relying on the said clause 21.

Further or in the alternative, the plaintiff says that the 1st defendant in relying on the said clause 21 is seeking to oust the jurisdiction of the Court. The plaintiff therefore says that this clause is repugnant.”

4 The first defendant applied for an order pursuant to Order 33, rules 3 and 4(2) that the points of law raised by the plaintiff in paragraphs 2 and 3 of its Reply be set down for hearing and disposed of forthwith and before the trial of the issues of fact and other issues in the action. When this application was heard, counsel for the second defendant objected to this course but the application succeeded and Husbands, J. ordered that those points of law be set down and disposed of before the trial of the issues of fact and other issues in the action.

5 When the matter came on before me counsel for the second defendant again voiced his objection to the course being pursued, relying on Tilling and Another v. Whiteman [1979] 1 All E.R. 737 in support of his argument. In that case Lord Scarman referred to preliminary points of law as being too often treacherous short cuts, their price being potentially delay, anxiety and expense. Lord Wilberforce said (at p. 738):–

“I, with others of your Lordships, have often protested against the practice of allowing preliminary points to be taken, since this course frequently adds to the difficulties of courts of appeal and tends to increase the cost and time of legal proceedings. If this practice cannot be confined to cases where the facts are complicated and the legal issue short and easily decided, cases outside this guiding principle should at least be exceptional.”

6 The first defendant and the plaintiff were not minded to depart from the procedure ordered by my brother Husbands and I took the view that I could not sit on appeal from his order. Consequently, I heard argument on the points of law ordered to be disposed of.

7 Colinvaux's Law of Insurance, 4th Edition, states at p. 155 that the time laid down by the Limitation Act in which an action or arbitration on a policy may...