B2/00/3564

Neutral Citation Number: [2001] EWCA Civ 193
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(His Honour Judge Hallgarten QC)

                                    Royal Courts of Justice
                                    Strand
                                    London WC2
 
                          Friday, 9th February 2001 
B e f o r e :

LORD JUSTICE RIX
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JONATHAN KELWAY
Applicant

‑ v ‑

GUARDIAN INSURANCE LIMITED

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(Computer Aided Transcript of the Stenograph Notes
of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 0171‑421 4040
Fax No: 0171‑831 8838
Official Shorthand Writers to the Court)
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THE APPLICANT appeared in Person.

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J U D G M E N T
1.	LORD JUSTICE RIX: This is an application for permission to appeal by Jonathan Kelway, the claimant, in his claim against the Guardian Insurance Limited, arising out of the insurance of his yacht, Inheritance, which suffered a casualty on about 3rd January 1998 when insured by the Guardian. A number of issues were raised at the hearing before His Honour Judge Hallgarten QC, some of which Mr. Kelway succeeded on but on some of which he failed. Since he essentially had to win on every point in order to make good his claim under the policy, he failed overall. He now seeks permission to appeal and, as explained to me in court and with the help of his useful skeleton argument, he desires permission to appeal on essentially three issues.
2.	The first issue can be described as issue 1. That goes essentially to the issue dealt with by the judge under the heading “(1) The Claims Record”, beginning at page 13 of the transcript of his judgment. That was essentially the issue as to whether there had been a misrepresentation of Mr. Kelway's previous insurance history as the owner of yachts by reference to question 8 of the proposal form. The essential question, as discussed by the judge in his judgment under this issue, was as to the materiality of Mr. Kelway's previous experience, as the proprietor of a sailing school, to his seeking insurance for his yacht Inheritance as a private owner. On that issue the judge heard evidence on materiality and held that, although the point was “not in every respect altogether clear‑cut, I think that on balance the defendants were justified in avoiding the insurance for misrepresentation in relation to the claimant's previous claims record.” In connection with this issue Mr Kelway also seeks to raise a point of inducement, which he submits was taken at the hearing below but which is not referred to at all, as far as I can see, in discussion of this issue by the judge. That is essentially the point or points under issue 1.
3.	Mr. Kelway also seeks permission to appeal in respect of the other issue on which he lost on liability, namely issue (4). That is the issue dealt with by the judge under the heading “(4) Site and Place of Lay‑up” at page 22 and following of the transcript of his judgment. That issue is essentially a question of construction of clause 1(a)(ii) of the terms of the policy as read together with the schedule to the policy. That question of construction is tied up with an issue raised below as to whether Mr. Kelway received the schedule or policy wording. The judge found that it was probable that he did at any rate receive the schedule. He makes no finding as to the full policy. But he goes on to hold that, in any event, even if Mr. Kelway had not received the policy wording, he would have been bound by its terms. That is what is covered by issue 4.
4.	Mr. Kelway also seeks permission to appeal in respect of the question of quantum should he succeed on liability. Two issues appear to arise under that heading in the light of Mr. Kelway's submissions to me this morning. One is the question of construction as to whether this was a valued policy or not. On that question of construction the judge held that it was not a valued policy. He then went on to consider, obiter, whether Mr. Kelway had a claim for partial loss and, with some hesitation, he found a figure of £15,000 in favour of Mr. Kelway on that question. In that connection Mr. Kelway submits that the judge ought to have found, as a matter of construction, that the policy was a valued policy, but that if it was not, he ought to have been given the opportunity of proving his partial loss in a situation where he had come to court on an understanding that the policy would be treated as a valued policy. He therefore complains that he was not given the opportunity of proving his partial loss if that was the basis upon which his claim had to be dealt with.
5.	I have taken a little trouble to set out the points upon which Mr. Kelway seeks permission to appeal, both because he is a litigant in person and also because his notice of appeal is in some disarray if those are the points that he wishes to gain permission for. Whereas the helpful skeleton argument which he has produced for this hearing makes clear the submissions that he would seek to make in respect of issues 1 and 4, it says nothing about the question of quantum. So far as his notice of appeal and grounds of appeal are concerned, although that raises the question of issue 4, it seems to me to say little or nothing about issue 1, and on the question of quantum appears to be concerned only with the question of partial loss and not with the question of construction as to whether the policy was a valued policy. In those circumstances, a strict and possibly harsh view of Mr. Kelway's notice of appeal is that it is hopeless, on the grounds that, whatever be its merits under issue 4, unless he can also get issue 1 off the ground, his appeal would be doomed to failure. On the other hand, having considered the submissions made under both issues 1 and 4 by reference to his skeleton argument, I would not think that his appeal was hopeless if he is able to get permission to amend his notice of appeal appropriately. In all these circumstances, it seems to me that the proper course for me to take is to adjourn this application to a hearing on notice to Guardian Insurance Limited. At that adjourned hearing Mr. Kelway can renew his application for permission to appeal. In the meantime, he ought to consider whether, in the light of this judgment, he needs to amend his notice of appeal and grounds of appeal. He would need permission to do so and that is a question which would have to be considered at the adjourned hearing. At the adjourned hearing, were permission to amend and permission to appeal to be granted, the appeal would come on immediately thereafter. Mr. Kelway may need, if it is possible, to obtain a transcript of relevant parts of the evidence, and for those purposes he can make inquiries of the Central London County Court at Park Crescent as to whether a tape of the trial was taken. At the adjourned hearing of this application a court should consist of three Lords Justices or two Lords Justices and one Puisne judge, and one of the Lords Justices should be a Lord Justice experienced in commercial law.
Order: Application adjourned to be heard inter partes as per judgment.
(Order not part of the judgment of the court)