BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
High Court of Ireland Decisions |
||
|
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Ulster Bank Commercial Services Ltd v. Trade Credit Brokers Ltd. & Ors [2003] IEHC 42 (4 July 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/42.html Cite as: [2003] 3 IR 140, [2003] IEHC 42 |
||
[New search] [Printable RTF version] [Help]
[1998 No. 2955 P.]
PLAINTIFF
DEFENDANTS
JUDGMENT of Quirke J. delivered the 4th day of July 2003.
There are two interlinked motions before the Court;
1. By notice dated the 14th May, 2002 the second named defendant (NCM) seeks orders pursuant to O. 19, r. 28 of the Rules of the Superior Courts, 1986 or pursuant to the inherent jurisdiction of the Court dismissing (a) the plaintiff s claim against NCM and (b) the first named defendant's claim for contribution and indemnity against NCM on the grounds that both claims disclose no reasonable cause of action against NCM and are bound to fail.
In the alternative NCM seeks an order directing the trial of certain issues of law as issues preliminary to the trial of the substantive proceedings herein.
2. By notice dated the 26th day of February, 2003 the plaintiff seeks an order pursuant to O. 28 r. 1 of the Rules of the Superior Courts, 1986 giving the plaintiff liberty to amend its pleadings so as to include a claim against NCM for monies or damages allegedly due and owing to the plaintiff by NCM on foot either of an agreement entered into between NCM and the third defendant (Nakosta) as the
authorised agent of the plaintiff or alternatively on foot of a constructive trust in favour and for the benefit of the plaintiff.
FACTS
By an agreement in writing dated the 29th day of February, 1996, the plaintiff entered into a factoring agreement with Nakosta whereby the latter agreed to sell and the plaintiff agreed to purchase certain debts (called "receivables") on particular terms and subject to particular conditions including a condition which required Nakosta to take out a credit insurance policy which would enable Nakosta to recover 85% of any loss which it might sustain arising out of the insolvency of any of the debtors who were the subject of the factoring agreement. It provided further that such insurance policy was to be "endorsed to" the plaintiff.
Pursuant to its obligations under the factoring agreement Nakosta entered into a contract of insurance (No. IST/832901) whereby NCM agreed to provide Nakosta with insurance cover in the terms of its "Commercial Risks Policy" for the period from the 1st March, 1996 to the 28th February, 1997. The first defendant (TCB) was the insurance broker appointed by Nakosta to procure the insurance policy on its behalf.
The following terms of the policy are relevant and have been relied upon by NCM in support of its contentions:
1. Article 4.E which provided that "[W]e have shall have no liability where you sustain a loss but have not complied with the terms and conditions of the credit limit or where you have not established a credit limit before the insolvency occurs."2. Article 5.A which provided that "[Y]ou must declare to us the value of all goods delivered or services invoiced under the contracts to which the policy-3-
It is agreed and acknowledged by all of the parties to these proceedings that the relationship between NCM and Nakosta is and remains for the purposes of these proceedings regulated by English law and that the transactions between them
will, pursuant to the terms of the policy be governed by the principles and tenets of English Law.
On the 16th of April 1996 the plaintiff was appointed by Nakosta as a "loss payee" under the policy of insurance This authorised and requested NCM to pay any moneys which were payable to Nakosta under the policy to the plaintiff. The nomination of the plaintiff as a loss payee was effected by means of Nakosta completing and executing a form entitled "Nomination of Loss Company Payee" which provided inter alia that Nakosta authorised and requested NCM to pay to the plaintiff "the whole of the moneys payable to us under any capital or relevant Section of the above Numbered Policy"
At Note l the nomination provided that
"these instructions....(a) do not constitute an assignment, nor are they intended to confer on the payee any of the benefits of an assignee. "
The plaintiff's substantive claim in these proceedings arises out of moneys allegedly owed to Nakosta by three trade debtors whom Nakosta did not pursue and will not pursue for those debts because Nakosta and the three debtors concerned have all become part of a large company group ( LSPC) which has taken a policy decision that intra-group debts will not be pursued and have apparently been written off.
The plaintiff, which has made the payments to Nakosta pursuant to the terms of the factoring agreement seeks to recover damages from TCB for loss and damage allegedly sustained by the plaintiff arising out of alleged misrepresentation, negligence, breach of duty and breach of contract on the part of TCB its servants and agents in and about the procurement and management by TCB of appropriate credit insurance for the plaintiff.
agents, in and about the procurement and management by TCB of appropriate credit insurance for the plaintiff.
Alternatively the plaintiff seeks to recover the said monies from NCM by way of damages for loss and damage sustained by the plaintiff arising out of negligence, breach of duty and breach of contract on the part of NCM.
The substantive proceedings were commenced by way of plenary summons on the 6th March, 1998 and a statement of claim was delivered on the 22nd May, 1998.
TCB delivered a defence on 15th June, 1998 and NCM delivered its Defence on the 10th June, 1999 whereupon a reply was delivered on behalf of the plaintiff on the 20th September, 1999 and a notice of trial was issued and served on the 19th
February, 2002.
NCM seeks orders dismissing the proceedings brought against it by both the plaintiff and by TCB on the grounds that neither disclose any reasonable cause of action against NCM and that both are bound to fail.
The plaintiff seeks to amend its proceedings so as to widen the extent of its claim against NCM which resists the application to amend, claiming, inter alia, that, even if amended in the manner sought, the plaintiff's proceedings will still disclose no reasonable cause of action and will be bound to fail (together with the consequential claim for indemnity and contribution by TCB).
The inherent jurisdiction of this Court to strike out or dismiss proceedings which disclose no reasonable cause of action and are bound to fail is well established and has been repeatedly recognised - see Barry v. Buckley [1981] I.R. 306 and Sun Fat Chan v. Osseous Limited [1992] I.R. 425.
In the latter case McCarthy J. was careful to explain at 428 that:
"By way of qualification of the jurisdiction to dismiss an action at the statement of claim stage, I incline to the view that if the statement of claim admits of an amendment which might, so to speak, save it and the action founded on it, then the action should not be dismissed."
Although in the instant case the pleadings have been closed I am satisfied that I should deal with NCM's motions to dismiss on the basis of the new amended claim now sought to be advanced by the plaintiff - that is to say on the assumption that the plaintiff will be successful in its application to amend.
In dealing with this application I am conscious (and have repeatedly been reminded by counsel for all parties) of the well established principles which apply to applications of this kind.
In dealing with this application it is not the function of this Court to determine whether or not the plaintiff will be successful in sustaining its claim. Before granting the relief sought this Court must be entirely satisfied on undisputed facts that if the proceedings are allowed to proceed to a conclusion it will be impossible for the plaintiff to succeed and inevitable that its claim will fail.
Dealing with applications of this kind Hardiman J. in Supermacs Ireland Limited v. Katesan (Naas) Limited [2000] 4 I.R. 273 adopted with approval the following test identified by Murphy J. in Lac Minerals v. Chevron Mineral Corporation of lreland [1995] 1 I.L.R.M. 161:
"The judge acceding to an application to dismiss must be confident that no matter what may arise on discovery or at the trial of the action the course of the action will be resolved in a manner fatal to the plaintiff s contention."
The burden of proving that the claim advanced by the plaintiff in these proceedings must inevitably fail is extremely onerous and must be discharged on facts which are undisputed. In this case the burden rests squarely upon NCM in respect of the claims against it by both the plaintiff and TCB.
The plaintiff's (amended) claim against NCM.
The claim made initially by the plaintiff against NCM was confined to allegations of negligence and breach of contract.
It was pleaded that NCM owed a duty of care to the plaintiff and was in breach of that duty and in breach of contract in:
(a) unlawfully purporting to repudiate an insurance policy in which the plaintiff claimed to have a material interest,(b) failing to make payments to the plaintiff on foot of the policy,(c) failing to advise the plaintiff as to the manner in which the policy was being implemented between NCM and Nakosta and failing to advise the plaintiff of the acquisition of Nakosta by LSPC,(d) failing to advise the plaintiff as to the ongoing financial standing of Nakosta and the alleged breaches by Nakosta of the terms of the policy.
The plaintiff's claim, as amended, is widened to contend that Nakosta either (a) entered into the contract of insurance as trustee for and for the benefit of the plaintiff or alternatively (b) became a trustee to hold the benefits and rights due on foot of the policy for the benefit of the plaintiff.
Furthermore the plaintiff's amended claim contends that Nakosta entered into the contract of insurance with NCM on behalf of the plaintiff as the duly authorised agent of the plaintiff who was and is and remains entitled to all of the benefits of the policy.
The defence advanced by NCM to the plaintiff's (amended) claim.
It is acknowledged by all of the parties to these proceedings that the principles of English law apply to the relationship between Nakosta and NCM on foot of the contract of insurance and to any of the benefits which flow from that contract.
NCM, having adduced evidence on the part of a member of the English Bar, contends that when the plaintiff's claim is considered in the light of applicable principles of English law (and indeed applicable principles of the law of this jurisdiction) then the plaintiff's claim, on its own undisputed facts, must fail and should accordingly be dismissed. It relies upon four separate grounds that is to say:
1. It claims that the plaintiff has no title to sue NCM because, as a nominated "loss payee" it enjoys no privity of contract with NCM and therefore does not enjoy the right to enforce any contractual right on foot of the contract of insurance.2. It claims that the plaintiff has no title to sue because on the undisputed facts adduced in evidence no principle of English law (or principle of the law within this jurisdiction) could countenance the existence of a trust (either of a constructive nature or otherwise) of the kind contended for by the plaintiff or of any agency between Nakosta and the plaintiff which could conceivably give rise to a contractual relationship between the plaintiff and NCM.3. It claims that the plaintiff has no title to sue NCM because the law of England (and indeed of this jurisdiction) recognises no duty of care of the kind which, on the undisputed facts adduced in evidence, is contended for on behalf of the plaintiff.-9- 4. It claims that notwithstanding 1, 2 and 3 above the plaintiff could not have acquired rights greater than those vested in Nakosta itself and, since Nakosta was in breach of several provisions of the contract of insurance including provisions which were deemed to be conditions precedent to any liability on the part of NCM to make payments on foot of the policy Nakosta had forfeited all rights to recover any sums due on foot of the contract which was lawfully terminated by NCM on the 14th February, 1997.
Grounds No. 1 and 2 above can conveniently be taken together.
Grounds 1 and 2
Evidence of English Law has been adduced on behalf of NCM by John Russell Esq. Barrister at Law who is a member of the Bar of England and Wales.
Mr. Russell cited the following passage from the judgment of Donaldson J. in The "The Angel Bell " [1979] 2 Lloyd's Rep. 491 (at p. 497):
"...a loss payable clause gives no rights to the loss payee unless it also constitutes or evidences an assignment of the assured's rights under the policy or evidences the fact that the designated person is an original assured. But it may not be without its value, for it authorises and requires underwriters to pay losses to the loss payee on behalf of the assured and, in the circumstances of a transaction such as this, this authority is probably irrevocable...."
Noting the refusal of NCM to allow for an assignment of the assured's right under the policy he went on to refer to further recognition of the principle that a loss payee does not in general have a cause of action against an insurer by the House of Lords in Ackman Scher v the Policy Holders Protection Board [1994] 1 Lloyd's Rep. 121 at p. 132.
He concluded by stating:
"My opinion is that the English courts would hold that the contractual claim fails on this ground".
The plaintiff acknowledges that, prima facie, it is not a party to the contract between Nakosta and NCM but it claims that it enjoys and can enforce contractual rights against NCM either (a) as the undisclosed principal on whose behalf Nakosta, acting as its agent, entered into the contract with NCM or, (b) on foot of a constructive trust created by Nakosta for the benefit of the plaintiff.
(a) Agency
The Plaintiff seeks leave to amend its pleadings to include a claim that it is to be inferred from the documents which evidenced the contract between
Nakosta and NCM and from the undisputed facts which gave rise to the contract that Nakosta entered into the contract of insurance as the "duly authorised" agent of the plaintiff. It is claimed that the effect of that agency was the creation of a contract of insurance between the plaintiff and NCM.
NCM claims that this claim, on its own undisputed facts must, when considered in the light of applicable principles of English law, fail and that accordingly the amendment should not be permitted.
The effect of the plaintiffs contention as to agency would be to make the Plaintiff liable on foot of the terms of the policy for the payment of premia and for the due performance and observance of the conditions of the policy without any notice to NCM. Similarly it would confer upon the plaintiff the right to any benefits payable on foot of the policy notwithstanding the plaintiff's status as a "nominated loss payee" pursuant to the terms of the policy.
Of greater importance however is the fact that the contract of insurance between Nakosta and NCM expressly provided that the nomination of a "loss payee" under the terms of the policy did not constitute an assignment of the policy and did not confer upon the "loss payee" any of the benefits of an assignee.
Furthermore the nomination of the plaintiff as a "loss payee" under the policy was effected by way of a written document which expressly provided that:
"These instructions ... do not constitute an assignment nor are they intended to confer on the payee any of the benefits of an assignee."
No evidence has been adduced or will be adduced on behalf of the plaintiff of any transaction or communication between the plaintiff and Nakosta or between the plaintiff and NCM or between Nakosta and NCM which would in any way advance the plaintiff's contention that an agency was created between the plaintiff and Nakosta of the kind contended for which would be enforced by the application of any principles or tenets of English law.
In the circumstances I am satisfied that on the undisputed facts of this case the plaintiff's claim that Nakosta entered into a contractual relationship with NCM as the agent of the plaintiff is a claim which is unstateable and is bound to fail. In the circumstances the application to amend the proceedings to provide for a claim of agency is declined.
(b) Trust
The plaintiff seeks leave to amend its pleadings to include a claim that Nakosta entered into the contract of insurance with NCM "...as trustee for the benefit and/or on behalf of the plaintiff, or constituted itself, at the time of entering the said policy or subsequently, or was in the circumstances constituted, trustee to hold all
benefits and rights under the said policy for the benefit and/or on behalf of the plaintiff."
The statement of claim was delivered on the 22nd May, 1998 and the application for leave to amend in this manner is grounded upon the affidavit of Robert Browne sworn on the 26th February, 2003.
The entire of the evidence adduced in support of the application to amend is confined to the following averment:
"The plaintiff sought appropriate English advice in order properly to respond to NCM's strike out motion and was advised by English Counsel that there exist circumstances where a nominated loss payee may sue on foot of the policy, namely where the principal assured has constituted himself trustee of the rights of suit under the policy or alternatively where he entered into the policy both on his own behalf and that of the loss payee ....The plaintiff believes that one or other of those circumstances applies to it ..."
The application to amend on these grounds therefore is rooted in an averment by the solicitor on behalf of the plaintiff indicating that he has been advised by English Counsel of the existence of "circumstances" where "the principle assured has constituted himself trustee of the rights of suit under the policy" and that these "circumstances" can give rise to an apparent right on the part of a nominated loss payee to sue "on foot of the policy."
No "circumstances " has been described or outlined either in evidence or argument which would assist this Court in identifying the nature of the trust which is contended for. No authority of any kind within any jurisdiction has been cited in support of the contention.
It is acknowledged by all the parties to these proceedings that the "principal assured" on foot of the contract of insurance is Nakosta. It is further acknowledged that Nakosta did not at any time execute any document or make any representation which would have had the effect of expressly constituting Nakosta as trustee of the rights of suit under the contract of insurance in favour of any other party.
The plaintiff appears to argue that any benefits due on foot of the contract of insurance have become the subject of a trust in favour of the plaintiff and that the "principal assured" (Nakosta) holds the trust property (the benefits) as trustee for the benefit of the plaintiff.
Since it is acknowledged by the parties that there is in existence no express trust of the kind just outlined it follows that the plaintiff is advancing a claim for the existence of a constructive trust in those terms.
The undisputed facts adduced in evidence disclose that Nakosta entered into a contract of insurance with NCM which expressly provided that:
"You cannot assign or transfer this policy or any of its benefits without our prior written consent. You may however require claims payments to be made to a named loss payee, using the form you will provide, your obligations under the policy remaining unaffected." (See art.10 of the contract of insurance).
The form which was executed in compliance with the above provided, inter alia, that:
"These instructions ... do not constitute an assignment, nor are they intended to confer on the payee any of the benefits of an assignee."
It is has not been indicated either by way of evidence or in argument how, in such circumstances the "principal assured" (Nakosta) has, or could have;
"... constituted (itself) ... trustee of the rights of suit under the policy ..."
No decision of the courts of England or Wales (or elsewhere) was cited in support of the plaintiff s contention. Mr. Murray, counsel for NCM referred me to the case of McManus v. Cable Management (Ireland) Limited, a decision of the High Court within this jurisdiction (Unreported, High Court, Morris J., 8th July, 1994) where an analogous contention was rejected by Morris J. without hesitation and the action dismissed on the basis that on the admitted facts of that case the claim advanced could not succeed.
The absence of precedent or other form of legal authority is not of course a bar to the plaintiff's contention. However no evidence or argument has been advanced on behalf of the plaintiff which would support the existence of a constructive trust or of a right vested in the plaintiff (such as a right of subrogation) which would enable the plaintiff to enforce any of the terms of the contract of insurance on its own behalf or otherwise or to seek any redress whatsoever on foot of a contract of insurance to which it was not a party.
It is true that a constructive trust can attach to property which is held by a person who occupies a fiduciary position towards some other person and the trust can come into existence by virtue of the fiduciary nature of the relationship between the parties.
However in this case Nakosta does not hold any property which is relevant to these proceedings other than disputed rights or benefits on foot of a contract of insurance. What the plaintiff seeks is to stand in the shoes of Nakosta and to seek to enforce whatever rights Nakosta may have arising out of the contract of insurance between Nakosta and NCM.
It is difficult to see how such a right of subrogation could be deemed to exist, in light of the documentary and other evidence adduced in this case. Accordingly (and quite properly), such a right of subrogation has not been claimed on behalf of the plaintiff.
In the circumstances outlined above and in the absence of evidence or argument as to the nature of any trust which could have been created by virtue of the transactions between the parties in this case and in particular having regard to the precise terms of the written contracts between the parties I am satisfied that on the undisputed facts the plaintiff claimed that it has constituted itself a trustee of the rights of suit under the policy is unstateable and is bound to fail and accordingly the plaintiff's application to amend the proceedings to provide for such a claim is declined.
GROUND THREE
Negligence
The plaintiff's claim in negligence is made at para. 10 of the statement of claim and in summary alleges the following breaches of a "duty of care" owed by NCM to the plaintiff
(a) purporting to repudiate the contract of insurance,(b) failing to pay to the plaintiff sums allegedly due under the policy,(c) failing to advise the Plaintiff as to the manner in which the policy was being implemented between NCM and Nakosta,(d) failing to advise the plaintiff as to the acquisition by LSPC of 70% of Nakosta,(e) failing to advise the plaintiff as to the ongoing financial standing of Nakosta and of alleged breaches by Nakosta of the terms of the policy.
The plaintiff claims that NCM owed a duty of care to the plaintiff which arose out of alleged proximity between NCM, Nakosta and the plaintiff having regard to the transactions between those three parties.
Insofar as the allegations of negligence at (a) and (b) above are concerned it cannot be rationally contended that either by (a) repudiating the contract of insurance or by (b) refusing to pay sums claimed by the plaintiff NCM were negligent or in breach of any duty of care owed by NCM to the plaintiff.
Both of those two actions taken by NCM were deliberate in character and each comprised a bona fide assertion of a legal right. The portrayal of such assertions as particulars of negligence is unsustainable.
Insofar as the allegation of negligence at (d) above is concerned it is worth recording that on the agreed facts the information as to the acquisition of 70% of Nakosta by LSPC was in fact provided concurrently to the plaintiff and to NCM so that the allegation at (d) above cannot be sustained. I am accordingly satisfied that the breaches identified at (a) (b) and (d) are unsustainable on the agreed evidence.
The allegations of negligence made at (c), (d) and (e) above are premised upon the contention that the proximity of the relationship between NCM and the plaintiff was such as to impose upon NCM a duty to provide the Plaintiff with regular and often confidential information concerning and affecting Nakosta. The nature and extent of this alleged duty has not been defined nor has its genesis being explored or identified.
For the purposes of these proceedings the only connection which existed between NCM and the plaintiff resulted from the nomination by Nakosta of the plaintiff as a "loss payee " on foot of the contract of insurance between Nakosta and NCM. The contract which gave rise to whatever relationship can be said to exist between NCM
and the plaintiff contained no express terms which would give rise to the obligation claimed by the plaintiff. Rather the contrary was the case since NCM went to considerable lengths to confer no benefits upon the plaintiff arising out of the relationship.
In Banque Keyser Ullmann SA Skandia (U.K.) Insurance Co. Ltd. [1990] 1 Q.B. 665 the Court of Appeal in England considered the nature of the duty of care owed by a bank to certain insurance companies in respect of credit insurance policies.
The Court held, inter alia, (a) that a person can be liable in negligence for pure economic loss caused to another by omission to disclose information known to that person provided that the person concerned had voluntarily assumed responsibility to make such disclosure to another person who had relied upon that assumption, even where the omission had occurred in the course of pre-contractual negotiations; (b) that in some rare cases the special circumstances and the relationship between the parties might be such that the law would deem such an assumption to be have been made even though it had not been proved as a matter of fact, but no such deemed assumption would arise from an established business relationship in respect of pre- contractual negotiations, even where the contract was one which was based on the utmost good faith.
Of particular relevance to the instant case were the following observations of Slade L.J. at p. 799
"By the same token we would hold that no legal obligation on the part of Mr. Dungate to inform the banks of Mr. Lee's dishonesty arose, either in contract or in tort, merely because there was an "established business relationship" between the parties, and because the insurers continued to transact further business with the bank. That factor does-18- not turn a pure omission into a misrepresentation, in tort any more than in contract. It would not justify the courts treating Mr. Dungate as having assumed a duty or responsibility to speak, in tort, which was not imposed on him by the law of contract. In this context the following observations of Lord Scarman in Tai Hing Cotton Mill Ltd v. Liu Chong Hing Bank Ltd. [1986] AC 80, 107, are apposite:'Their Lordships do not believe that there is anything to the advantage of the law's development in searching for a liability in tort where the parties are in a contractual relationship. This is particularly so in a commercial relationship. Though it is possible as a matter of legal semantics to conduct an analysis of the rights and duties inherent in some contractual relationships including that of bank and customer either as a matter of contract law ... or as a matter of tort law ... their Lordships believe it to be correct in principle and necessary of the avoidance of confusion in the law to adhere to the contractual analysis: on principle because it is a relationship in which the parties have, subject to a few exceptions, the right to determine their obligations to each other, and for the avoidance of confusion because different consequences do follow according to whether liability arises from contract or tort ...'The judge was, if we may say so, somewhat dismissive of this passage in Lord Scarman's opinion. He said that the views expressed were tentative in character, and not intended to be of general application. We do not share that view. Lord Scarman's opinion contains a valuable warning as to the consequences of an ever-19- expanding field of tort. It should be no part of the general function of the law of tort to fill in contractual gaps."
In the instant case it is not suggested that at any stage NCM undertook to provide any information to the plaintiff either on a regular basis or in any other manner and it is not suggested that NCM, either expressly or impliedly represented to the plaintiff that it would offer any advices to the plaintiff at any time as to the manner in which the contract of insurance was being implemented between NCM and Nakosta or in relation to the financial standing of Nakosta from time to time. Furthermore it is not and has never been suggested in these proceedings that the plaintiff ever relied upon express or implied representations by NCM as to the furnishing of information or advice relative to Nakosta.
Insofar as (c) and (e) above are concerned I am satisfied that no duty of care of the kind which, on the undisputed facts adduced in evidence is contended for on behalf of the plaintiff is recognised by English law and that, in fact the existence of such a duty has been expressly denied by the courts within that jurisdiction.
The existence of a duty of this kind has been discussed in this jurisdiction. In Sweeney v. Duggan [1997] 2 I.R. 531 at 539-540, the Supreme Court (Murphy J.), considering whether a term could be implied independently of the intentions of the parties observed:
"Whether a term is implied pursuant to the presumed intention of the parties or as a legal incident of a definable category of contract it must be not merely reasonable but also necessary. Clearly it cannot be implied it is being inconsistent with the express wording of the-20- contract and furthermore it may be difficult to infer a term where it cannot be formulated with reasonable precision."
In Pat O'Donnell & Co. Ltd. v. Truck and Machinery Sales Ltd. [1998] 4 I.R. 191 the Supreme Court (O'Flaherty J.) clarified the position further by indicating at pp. 199-200:
"However, it should be emphasised that the "general duty of care in tort cannot be manipulated so as to override the contractual allocation of responsibility between the parties. Thus if, for instance, a contract provides, whether expressly or by necessary implication, that the defendant is not liable for a particular risk, then the law of tort should not be allowed to contradict that."
It is acknowledged by the parties that the contract of insurance between Nakosta and NCM is and remains subject to and regulated by the principles of English law. Applying the applicable principles of English law as adduced in evidence and argued by Counsel I am satisfied that the plaintiff as a nominated "loss payee" enjoys no privity of contract with NCM arising out of the contract of insurance between the plaintiff and Nakosta and does not enjoy the right to enforce any contractual right on foot of that contract.
I am further satisfied that no principle of English law (or the law of this jurisdiction) could countenance the existence of either a trust or an agency of the type contended for on behalf of the plaintiff. Furthermore neither English law nor the law within this jurisdiction recognises the existence of a duty of care of the kind contended for on behalf of the plaintiff.
It follows from the foregoing that the plaintiff has no title to sue NCM and that accordingly its claim against NCM discloses no reasonable cause of action and is bound to fail.
Consideration of Ground 4 (above) is accordingly, unnecessary.
It follows further that the first named defendant's claim for contribution and indemnity against NCM also discloses no reasonable cause of action and is bound to fail.
Both claims are accordingly dismissed.
