Kelway v Guardian Insurance Ltd

Where a notice of appeal is unclear or incomplete, the court may adjourn a permission application for an inter partes hearing if the applicant’s developed submissions identify arguable grounds which could make the appeal viable after amendment. The applicant must obtain permission to amend the notice and grounds. The court may then consider permission to appeal and any amendment together. A defective notice should not automatically lead to summary rejection where the proposed appeal is not plainly hopeless, but the applicant must clearly identify the issues relied upon.

The claimant sought permission to appeal after failing overall in an insurance claim concerning the casualty of his yacht. The Central London County Court held that the insurer was entitled to avoid the policy for misrepresentation concerning the claimant’s previous insurance claims. It also held that the claimant was bound by the policy’s lay-up terms, even if he had not received the full policy wording. The judge concluded that the policy was not valued and considered, obiter, a partial-loss claim of £15,000.

Before the Court of Appeal, the claimant relied principally on misrepresentation and inducement, construction of the site and place of lay-up clause, and issues concerning valuation and partial loss. The central question was whether permission should be determined despite defects and omissions in the notice and grounds of appeal.

Application adjourned. The application for permission to appeal was adjourned to be heard inter partes. The Court of Appeal made no final determination on permission, amendment, liability or quantum.

1. The claimant’s notice of appeal was materially incomplete. It raised the lay-up issue but said little about the claims-record issue and addressed quantum only in relation to partial loss. His skeleton argument clarified the proposed arguments on the first two issues but did not address the valuation issue. On a strict view, the appeal would fail unless the claims-record issue could also be pursued, because the claimant had to succeed on every necessary liability issue.
2. The Court nevertheless considered that the proposed appeal was not hopeless if the claimant could obtain permission to amend his notice and grounds. The proper course was therefore to adjourn the application to an inter partes hearing, where the proposed amendments and the renewed application for permission could be considered together.
3. The first proposed ground concerned whether the claimant’s previous experience and claims history as proprietor of a sailing school were material to insurance of the yacht as a private owner. The claimant also wished to raise inducement, although the judge below did not appear to have addressed that issue. The fourth ground concerned construction of clause 1(a)(ii), read with the policy schedule, and whether the claimant had received the relevant policy documents. The judge found it probable that the schedule had been received and held that the policy wording would bind the claimant in any event.
4. On quantum, the judge held that the policy was not valued. He then considered, obiter and with hesitation, whether there was a partial-loss claim and assessed it at £15,000. The Court of Appeal left those matters open. If amendment and permission were granted, the appeal was to be listed immediately thereafter. The claimant was also directed to investigate whether a trial transcript could be obtained, and the adjourned hearing was to be before an appropriately constituted court including a Lord Justice experienced in commercial law.

• Court of Appeal (Civil Division): The claimant applied for permission to appeal. The application was adjourned to an inter partes hearing so that proposed amendments to the notice and grounds, and permission to appeal, could be considered.
• Central London County Court: His Honour Judge Hallgarten QC determined several liability and quantum issues. The claimant failed overall because he needed to succeed on every necessary issue.