National General Insurance Company N.v v. Cove Castles Ltd

• Jurisdiction: Anguilla
• Judge: Saunders, J.
• Judgment Date: 12 March 1997
• Neutral Citation: AI 1997 HC 1
• Docket Number: No. 12 of 1997
• Date: 12 March 1997
• Court: High Court (Saint Christopher, Nevis And Anguilla)

High Court

Saunders, J.

No. 12 of 1997

National General Insurance Co. N.V.

and

Cove Castles Limited

Appearances:

Mr. T. Astaphan for the plaintiff

Ms. J. Kentish for the defendant

Injunction - Arbitration proceedings — Whether the arbitrator appointed should be the sole arbitration — Plaintiffs do not agree that this should be so while the defendants so agree — Exparte arbitrator restraining the application proceedings pending the determination of the originating summons — Injunction granted sought to be set aside — Court found no urgency in the matter and discharged the injunction.

Saunders, J.

1 In September of 1995 Hurricane Luis ravaged Anguilla. Many persons lost property or suffered severe damage. Not surprisingly, serious differences have since arisen between property owners and insurance companies. Several of these disputes are now either wending their way through the courts or are before arbitrators. This suit is one of such disputes.

2 Cove Castles Limited, the defendants, were insured with the plaintiff Insurers when the hurricane struck. Their policy of insurance, Clause 18, provided for arbitration in the event of differences between the parties as to the amount of any loss or damage suffered by the insured. Both parties are disposed to arbitrate these differences but they cannot agree on who should constitute the arbitration panel. Specifically, there is a considerable dispute as to whether a Mr. Danny Rowland should be the sole arbitrator. Cove Castles contend that, by operation of law, he is. The Insurers do not agree.

3 Mr. Rowland is very clear in his own mind that he is indeed the sole arbitrator. Undeterred by the vehement protests of the Insurers, Mr. Rowland has been doggedly going about his business. He has been issuing directions here and there. Among the letters written by him was one dated 7 ^th February, 1997 addressed to Counsel for the Insurers. In that letter he enclosed an “Order for Directions for a preliminary hearing” on Friday 21 ^st February, 1997. He expressed his anxiety to get on with the arbitration and threatened to proceed ex parte if necessary.

4 The Insurers became alarmed at what they conceived to be Mr. Rowland's boldness. On the 10th February, 1997, through their Counsel, Mr. T. Astaphan, they responded to Mr. Rowland's missive. They again took issue with his “purported appointment as Sole Arbitrator”. They told him that such appointment was “null and void and of no effect”. They rejected his offer to meet. Two days later, they wrote to the solicitors for Cove Castles. They informed the solicitors that “we shall be filing a Summons at the High court within the next two days to determine this issue”. In fact, an Originating Summons and an ex parte application were filed by them on the said 12th February, 1997.

5 The Originating Summons sought orders and declarations in relation to Mr. Rowland's “purported appointment as Sole Arbitrator”. The ex parte application sought an Order that Cove Castles be restrained from convening any arbitration proceedings with Mr. Rowland as sole arbitrator pending the determination of the originating Summons. A further Order was sought that the Originating Summons be set down for hearing as a matter of urgency.

6 I digress here to state that I have hitherto given only the barest outline of the respective contentions in this matter. In truth I have, by doing so, done a disservice to both parties. The factual allegations are quite numerous. The Insurers' affidavit grounding the Originating Summons runs to 34 paragraphs. No fewer than 24 exhibits, mostly correspondence between the parties, are appended thereto.

7 I have however deliberately skirted the facts for two reasons. Firstly, I do not wish to prejudice the full argument which is likely to take place on the hearing of the Originating Summons. Secondly, for the purposes of this decision it is not necessary for me to delve too deeply into the respective factual contentions.

8 On 13th February, 1997 the Insurers' ex parte application was granted by me as prayed. The Order made thereon does not bear a return date. At the time the idea was that in lieu of a return date (which Counsel for Cove Castles may not have been able to keep she being off island at the time), the Order made should permit the defendant to approach the court at any time. There is therefore a specific reference in the order to liberty to apply. This was a mistake. The Order should have contained a return date. It is doubtful whether Liberty to apply conferred on the defendant any greater right to have the injunction dissolved.

9 At any rate, Cove Castles may not have been unduly prejudiced by this because on the 24th February, 1997 they filed a summons seeking, inter alia, a discharge of the restraining order obtained ex parte. Alternatively, they sought an abridgement of time within which to hear the Originating Summons filed by the Insurers. They wished to have that Originating Summons heard the following day i.e. the 25th February.

10 Cove Castles' summons of 24th February came before me on the very day on which it was filed. It is pertinent to mention here that Anguilla has one resident Judge which it shares with Montserrat. I was scheduled to leave Anguilla on the afternoon of 25th February and was not likely to return until mid April.

11 When Cove...