Court of Appeal
Civil Appeal No. 2 of 2002
16th October, 2002 and 27th March 2003.

Mr. Sabido and Mr. D. Waithe for the Appellant.
Mr. E. Marshalleck for the Respondent.

Appeal against dismissal of claim against insurance company under policy of insurance for damage to property by fire - Clause in policy that claim must be made within 15 days - No claim made - Repudiation of liability - Circumstances of case not falling within meaning of phrase - No implied waiver of clause arising on facts - Doctrine of promissory estoppel not established - Whether judge erred in construing omission to deliver a claim as strictly as he did - No error on part of judge - Appeal dismissed - Costs to Respondent.

REASONS FOR JUDGMENT

SOSA JA

1. Oriental Store, a dry goods store situate at No. 15 Queen Street in Belize City and owned by Mr. Nasser Diab ('the Appellant'), was consumed by flames in the pre?dawn hours of Sunday 27 April 1997. As well the building housing the store as the store's stock?in?trade and furniture were at the time insured against fire, amongst other perils, by Regent Insurance Co Ltd ('the Respondent'), whose Belize City offices were then located, as they still are, a block away on North Front Street.

2. The Respondent found out about the fire on the following morning and had INS Investigations Bureau Inc ('INS') of Florida, USA investigating the cause and origin by 30 April 1997.

3. Under the relevant policy of insurance ('the policy' or 'the contract'), which was to expire in a few days' time on 1 May 1997, the Respondent had agreed with the Appellant, subject to certain conditions, that, if the insured property was destroyed by fire, it would pay or otherwise make good the loss to the Appellant up to a limit of $480,000.00, being the sum insured.

4. Amongst the conditions of the policy was condition 11, which, so far as germane to the present appeal, stated as follows:

   'On the happening of any loss or damage the insured shall forthwith give notice thereof to the Company, and shall within 15 days after the loss or damage, or such further time as the Company may in writing allow in that behalf, deliver to the Company

(a) a claim in writing for the loss and damage containing as particular an account as may be reasonably practicable of all the several articles or items of property damaged or destroyed, and of the amount of the loss or damage thereto respectively, having regard to their value at the time of the loss or damage, not including profit of any kind ...

No claims under this policy shall be payable unless the terms of this condition have been complied with.'

5. The Appellant was out of the country at the time of the fire but returned on 5 May 1997 and paid a visit on 7 May to the Belize City offices of the Respondent. He was received in those offices by Mr. Anthony Flynn, the managing director of the Respondent, with whom he had a meeting which was to prove of central importance in the litigation which has followed between the Appellant and the Respondent. It will be necessary to set out the evidence of the Appellant and Mr. Flynn as to what was said at this meeting when I come to direct attention to the trial itself. Suffice it to say for the moment that it was common ground between them at the trial that the Appellant never made a claim against the Respondent.

6. The Appellant may have lost his copy of the policy sometime prior to the meeting with Mr. Flynn. There was a suggestion that it was lost in the fire. At any rate, he received another copy of it, from an employee of the Respondent, on an unknown later date which may have been about a week after 7 May 1997 or in the first week of June 1997. The 15?day period for the delivery of a claim in writing expired on 12 May 1997.

7. This new copy of the policy was handed by the Appellant to Mr. Fred Lumor, an attorney?at?law of the firm of Musa & Balderamos ('Musa'), and Musa then wrote a letter dated 2 June, 1997 to the Respondent in which the policy was referred to by its particular reference number. Omitting formal parts, this letter stated:

   'Re: Policy No. F?11073

   We have the instructions of Mr. Nasser Diab to write you in connection with the claims made by him in connection with the 26th (sic) April, 1997 fire at his Oriental Store situate at No. 15 Queen Street, Belize City. As claimed our client suffered a total loss of the building, furniture and fittings and stock in trade. Our client is insured with your company in the total sum of $480,000.00 under the captioned policy.

   It is our further instruction that your Mr. Tony Flynn rejected the claim of our client in your offices on the grounds that:?

   1) The fire that gutted our client's business was deliberately set.

   2) The name of the person who deliberately set the fire is known to the company.

   3) The date and time when the fire was deliberately set are also known to the company.

   It is our view that if the aforesaid allegations had any substance, a report would have been made by your company to the Belize Police Force for the necessary investigations to be conducted.

   Please confirm to us on or before the 9th June, 1997 if our client's claim stand (sic) rejected, in which event our instructions are to issue Writ against you.'

8. Barrow & Co ('Barrow'), a law firm, replied on behalf of the Respondent by a letter dated 12 June, 1997 which, as material, read:

   'Our instructions are that Mr. Nasser Diab made no claim against our clients in connection with the 26th (sic) April fire at his premises at 415 Queen Street, Belize City, and neither has anyone done so on his behalf.

   In the premises our clients deny that they rejected your client's claim. Indeed, our clients proceeded on the basis that your client was deliberately not making a claim given the identity of the persons who confessed to setting the fire to Mr. Diab's premises.

   As a professional courtesy, please permit us to invite your attention to the conditions of the policy setting a strict time limit for the making of the claim.'

9. The pertinent part of the reply dated 26 June 1997 of Musa to this letter was as follows:

   'Our client gave notice of his claim to Regent Insurance Company Limited at its premises at No. 81 North Front Street, Belize City, sometime in the after noon of the 7th of May, 1997 in the presence of one Mr. Mike Rhaburn. As you (sic) stated in your (sic) letter the Company's Tony Flynn rejected the claim of our client outright alleging that the fire which occurred in our client's premises was an act of arson. Mr. Flynn stated that the Company knew the person who set the fire, how the fire was set and the time of the fire and said further that the company will not pay the claim. It is therefore reprehensible for the Company to deny the rejection of our client's claim on the basis that our "client was deliberately not making a claim given the identity of the persons who confessed to setting the fire ..."

   We have decided to ignore the last paragraph of your letter.'

10. On 26 June, 1997 Musa issued against the Respondent a writ of summons indorsed with a claim for the sum of $480,000.00 being loss under the policy.

11. Youngs Law Firm ('Youngs') were appointed as additional attorneys?at-law for the Appellant in October 1997 and, with Musa, they filed a statement of claim in which the sole relief specified was the sum of $480,000.00 under the policy, with interest. As subsequently amended, this pleading alleged that the Respondent's 'manager' by his words to the Appellant on 7 May 1997 repudiated the claim which, according to the Appellant, he (the Appellant) had gone to the Respondent's office to make. This allegation, together with another to the effect that the Respondent's 'manager' had told the Appellant that he would hear from the Respondent's attorneys?at?law, was denied in a defence later filed by Barrow for the Respondent. It was further alleged in the statement of claim, and denied in the defence, that the Appellant, either by himself or through his attorneys?at-law, had made a claim for payment under the policy.

12. In addition, however, the defence of the Respondent pleaded breaches of four conditions of the policy, three express and one implied. For a reason which will emerge when I come to the judgment of the court below, it is only one of those breaches that is the subject of concern in this appeal. That is the allegation that condition 11 was breached in that the Appellant failed to deliver a claim in writing or to make any claim. On the basis of that allegation, the Respondent went on to deny that it was liable to the Appellant for the sum claimed or any other sum.

13. Sabido & Co, having been appointed in October 2000 to act on behalf of the Appellant in substitution for Youngs, filed a reply for the Appellant on 14 March 2001, some two years and three months after the filing of the defence. As regards the Respondent's allegation of breach of condition 11, the reply went to the extreme of pleading that the policy did not contain any condition to the effect of the condition described in paragraph 5 of the defence. (Paragraph 5 had paraphrased condition 11 of the policy but not identified it by number.) On a more serious note, the reply stated that, if the policy contained such a condition, it had been waived, and could not therefore be relied upon, by the Respondent. It was alleged that the waiver was contained in, or to be inferred from, the conduct of the Respondent's 'manager' on 7 May 1997. Such conduct was, according to the reply, an 'outright repudiation and rejection' of the Appellant's claim (as distinct from repudiation of the policy or liability under the policy). Further or in the alternative, the Appellant pleaded by his reply that the Respondent was estopped from saying that the Appellant had made no claim in writing within 15 days after the loss of the property.

14. I turn now to the trial and in so doing return, in response to the need acknowledged above, to the meeting of 7 May 1997. Not surprisingly, at trial the respective accounts of the Appellant and Mr. Flynn as to what was said during that meeting differed despite the presence of a measure of common ground. According to the Appellant, he had never met or dealt with Mr. Flynn before and the purpose of his visit was 'to try to make a claim'. In his words:

    'When I entered Mr. Flynn was sitting around the desk and I told Mr. Flynn how are you, how you keeping. He say fine. I sit down I was waiting for him to give me a piece of paper to make a claim to discuss the problem. So he nuh tell me nothing. He stand up like that and he say Nasser, I know who set the fire, what time they set the fire and how they set the fire, Right away I feel terrible, bad when he told me that. I stand up, I told him Mr. Flynn I am a good person in this country you accuse me of setting the fire. I never could walk in Belize and the people point on me I am set fire. I tell him okay, I will see what I could do. He told me he will write me and his attorney will write me and my attorney also. I walk out and I gone back to the police to report him.' [Reproduced with punctuation and other errors.)

When asked in evidence?in?chief whether he had gone to Mr. Flynn's office to make a claim and had been rejected, the Appellant responded:

'Right. Before I tell he nothing, I nuh tell him I want no (sic) make a claim, before I say any word he told me he know who set the place fire, what time and how they set the place fire, that mean he reject me and I get out from his office.' [Reproduced with punctuation errors.]

15. Mr. Flynn, for his part, said that the Appellant's children and his attended the same school and that he knew the Appellant very well. According to him, the meeting proceeded, in the presence of a Mr. Michael Rhaburn, as follows:

    'He [the Appellant] came into the office, he asked how my family was, I asked how his family was the normal exchange of pleasantries that we would do as people who knew each other. And he looked at me and said 'Tony, the fire' and I put up my hands like this (indicating) and I said, 'Nasser I know who did it, I know how it was done, when it was done and what was used but no one has made a claim. Listen to me nobody has made a claim and therefore no fraud has been done against me." Until a claim has been made no one is attempting fraud against me.' [Reproduced with punctuation and other errors.)

Mr. Flynn maintained throughout that the Appellant had never made a claim against the Respondent.

16. In his reserved judgment dated 18 February 2002, Blackman J found, in the clear absence of any evidentiary conflict on the point, that the Appellant had indeed failed to deliver a claim in writing as required by condition 11 of the policy. Referring earlier to the issue of waiver, the trial judge had, at paragraph 11 of his judgment, stated:

    'Mr. Sabido for the Plaintiff has contended that there was an implied waiver by the Defendant's Company Manager of the requirement that a claim be made in writing for loss and damage within 15 days of the loss, in that there was no need for him to comply with condition 11, as the Plaintiff was put to the choice of making the claim and having members of his family go to jail, or not making the claim, and so avoid such an eventuality.'

17. At paragraph 15, the judge resolved the issue of waiver as follows:

    'I do not think that the circumstances as occurred in Webster (supra) are comparable with the instant case. On the contrary, Mr. Flynn made it pellucidly clear that a claim if made would be rejected whereas in Webster, the claims manager gave assurances that he would look into the matter.'

    Having so distinguished Webster v. General Accident Fire and Life Assurance Corporation Ltd [1953] 1 QB 520, the judge proceeded to dismiss the action on the ground that the Appellant had been in breach of condition 11. He did not deem it necessary to decide whether any other condition of the policy had been breached as alleged in the defence and, as this Court is not called upon to decide whether that approach was wrong, it is only with the alleged breach of condition 11 that we are concerned in this appeal.

18. As set out in the notice of appeal dated 7 March, 2002, the first ground of appeal was that the judge erred in law in that he failed to take into account that Mr. Flynn, by his conduct and words on 7 May, 1997 'rejected/repudiated the Plaintiffs claim' thereby repudiating the contract. As so worded, the first ground clearly had at its core the assertion that a claim had been made and repudiated. That, however, was not what counsel for the Appellant ('counsel') argued in this Court some seven months later. The argument of counsel here was predicated upon acceptance of the fact that there had been no claim for the Respondent to reject on 7 May 1997 as none had been made by that date, a fact in diametrical opposition to the stance so firmly adopted and vehemently defended in the pre-trial letters of Musa and forthrightly advanced in the statement of claim. Counsel's argument in this Court was that Mr. Flynn, and hence the Respondent, on 7 May and subsequent days leading up to and including 12 May 1997, the deadline for the delivery of a claim under condition 11, repudiated liability under the policy. Counsel, who had thus made a complete about?turn as regards the first ground, stressed that such repudiation was to be distinguished from repudiation of the claim itself as well as from repudiation of the contract.

19. The question arose in argument in this Court whether repudiation of liability per se had been made an issue in the court below. I agree that, in the court below, counsel's discursive assemblage of written submissions had covered not only repudiation of the claim and repudiation of the contract but also repudiation of liability under the contract. However, repudiation of liability had certainly not been held out as a major weapon in the Appellant's arsenal. The written submissions touching on it are to be found nestled among a host of 'additional submissions' seemingly completed and lodged on the very day, ie 21 November 2001, on which the trial judge, after having adjourned on 25 September 2001, was finally able to hear oral argument.

20. Whilst the trial judge did not in his judgment address the issue of repudiation of liability under the policy, I do not consider the omission to be of any consequence as I find no substance in the contention that there was such repudiation. According to the account given by the Appellant of the meeting with Mr. Flynn of 7 May, all that the latter said to him was (1) 'Nasser I know who set the fire, what time they set the fire and how they set the fire', (2) that he (Mr. Flynn) and his 'attorney', as well, would write him (the Appellant) and (3) that Mr. Flynn's 'attorney' would write the Appellant's 'attorney' as well. The Appellant also said (4) that Mr. Flynn asked him whether he had any enemies. On the account of Mr. Flynn himself, what he told the Appellant was, 'Nasser I know who did it, I know how it was done, when it was done and what was used but no one has made a claim. Listen to me nobody has made a claim and therefore no fraud has been done against me. Until a claim has been made no one is attempting fraud against me.' Mr. Flynn further said that, in reply to a request from the Appellant for a copy of the INS investigator's report, he stated that he would consult his 'attorney' on the matter. Whichever of these two accounts is accepted, I see no basis for any inference by this Court that Mr. Flynn and, through him, the Respondent were repudiating liability, whether intentionally or otherwise, as the former spoke to the Appellant on 7 May.

21. In my view, the phrase 'repudiation of liability under a contract' is correctly applied to the category of case described in the speech of Lord Wright in Heyman v. Darwins Ltd [1942] AC 356, at page 378, where his Lordship, having already alluded to two meanings of the term 'repudiation' (applicable in cases where a party to a contract either denies that it ever existed or claims that his/her consent was vitiated, eg by fraud), stated:

    'There is, however, a form of repudiation where the party who repudiates does not deny that a contract was intended between the parties, but claims that it is not binding because of the failure of some condition or the infringement of some duty fundamental to the enforceability of the contract, it being expressly provided by the contract that the failure of condition or the breach of duty should invalidate the contract.'

After pointing out other meanings of the word, Lord Wright said, at page 379:

'The difference between repudiating a contract and repudiating liability under it must not be overlooked.'

22. It is to this type of case that Shaw LJ had drawn attention in Toller v. Law Accident Insurance Society Ltd [1936] 2 All ER 952, at page 958, where he said that the word 'repudiation'

    '... may mean a mere contention that under the terms of the contract the defendant is completely free from liability by reason of some fact.'

Counsel submitted that it was just the type of situation described by Shaw LJ in the above quotation, and by Lord Wright in the first of the two above passages from Heyman, that had arisen in the instant case. In the words of counsel's written submission, 'Tony Flynn by his conduct and words made it known to the Appellant that he was entitled to treat his company as discharged from further liability under Clause 13 of the contract of insurance.' I find this submission unacceptable. The mere mention by Mr. Flynn of the perfectly non?magical word 'fraud', without any reference whatsoever to, or hint at, the implications of fraud within the context of the civil liability of the Respondent under the terms of the contract, cannot, in my opinion, amount to repudiation of liability as that phrase was used by Lord Wright in the passage in question. Looking only at the words said to have been spoken by Mr. Flynn under the two differing accounts of the meeting of 7 May 1997, without reference to Mr. Flynn's explanation of his meaning and intention offered in retrospect from the witness-box in 2001, I find it far from clear that he made any reference, as he spoke to the Appellant, to the implications of fraud in contract law, as opposed to those under the criminal law. Not only is there no evidence of reference by Mr. Flynn to condition 13 of the policy on 7 May: there is evidence from the Appellant that he did not have a copy of the policy on that date and knew very little about its provisions until he obtained a new copy sometime later. This, in my view, seriously undermines counsel's submission.

23. Regarding the remainder of counsel's argument, there was, on the evidence, no further contact between the two sides between 7 and 12 May, the latter date being the deadline for the delivery of a claim in writing. Nor was there any activity on the part of the Respondent with respect to the case of the Appellant between those two dates. I am therefore unable to agree with counsel that the Respondent during the period 7 to 12 May repudiated liability under the contract by, if I may paraphrase the words of Lord Wright quoted above, claiming that the policy was not binding because of the failure of some condition or the infringement of some duty fundamental to the enforceability of the policy. I see no basis in the evidence for any contention that, before the expiration of the 15?day period for the delivery of a claim in writing, Mr. Flynn even suggested that there was a condition of the policy, or a duty fundamental to its enforceability, which the Respondent would be invoking in the event that a fraudulent claim was made.

24. My clear conclusion being that this was not a case of repudiation of liability under a policy, I do not consider it necessary to address the portion of this ground (3 (1) (b) in the notice of appeal) in which counsel complained that the judge did not take into account that, as a result of the repudiation, the Respondent was precluded from relying on condition 11 of the policy with its requirement that the Appellant deliver a claim in writing within 15 days after the loss. It follows from the above conclusion that I found no merit in the first ground as argued.

25. As I understood the notice of appeal, the second ground appears at 3 (1) (c) where it is stated that the judge failed to consider that the following words of the Respondent's 'General Manager':

    'Nasser I know who set the fire, what time they set the fire, and how they set the fire.' 'I will write you and my attorney will write you.'

constituted an implied waiver which intentionally or otherwise indicated to the Appellant that performance of condition 11 was not required, at least until the 'General Manager or his 'attorney' informed the Appellant as to who set fire to the insured property.

26. As already seen, the trial judge rejected, albeit by implication, the submissions of counsel on the question of waiver, stating, in distinguishing Webster, that in the present case Mr. Flynn had made it clear that a claim, if made, would be rejected. The evidence of both the Appellant and Mr. Flynn as to the words spoken by the latter at the meeting of 7 May has been set out above. Nowhere in that evidence is there any allegation that Mr. Flynn expressly said on 7 May that a claim, if made, would be rejected. Therefore the judge's conclusion had to have been reached by way of an inference drawn by him. That inference was so drawn in circumstances where the Appellant was alleging, and Mr. Flynn categorically denying, that the remarkable threefold promise of letters mentioned above had been made.

27. The judge, in my view, chose not to deal with the credibility of the Appellant's claim that Mr. Flynn had made that promise. It appears to me that the judge, rather than deciding whose evidence to accept in this regard, proceeded to assume for the sake of argument that the Appellant's account was truthful. Even, however, if what Mr. Flynn said on 7 May is accurately reflected in the evidence of the Appellant, the words of the former cannot, in my view, justify an inference that he made it clear on that date that a claim, if made, would be rejected. As I have already stated in disposing of the first ground of appeal, whichever version of the meeting is accepted, it is impossible to say that the words spoken by Mr. Flynn on 7 May pointed to an intention to escape liability under a specific condition of the policy, that is to say, a recourse to civil law in the form of the law of contract, as opposed to an intention simply to go to the police alleging a fraudulent insurance claim, in other words, a recourse to the criminal law. In the circumstances, it is, in my respectful opinion, reading too much into Mr. Flynn's measured and somewhat cryptic words of 7 May to say that he made it clear that a claim, if made, would be rejected.

28. I have nevertheless formed the opinion that the Respondent did not waive the performance of the relevant obligation of the Appellant under condition 11 ?The trial judge obviously saw no basis in the evidence for finding that the Appellant was led by the Respondent to believe that he had to wait for the promised letters before delivering a claim in writing. Neither do I. Whether Mr. Flynn only said what he admitted at the trial or all that was imputed to him by the Appellant, I cannot see how his words could have induced the Appellant to believe that he, the Appellant, need not file a claim in writing as required by condition 11 of the policy unless and until he heard from Mr. Flynn and the Respondent's 'attorney'. The suggested causal connection between the words and the belief is non?existent, as a brief examination of the main submissions of counsel should reveal.

29. Counsel submitted that when, on 7 May, Mr. Flynn allegedly promised to send the Appellant a copy of the report of the INS investigator and also promised that the Appellant and his 'attorney' would be written to, that was an indication, upon which the Appellant acted, that the Respondent was not going to enforce the time limitation and that the Appellant should wait, as he in fact did.

30. It must be observed as a preliminary to the consideration of this submission, that despite the references by counsel, in his skeleton arguments as well as in oral argument in this Court, to the supposed promise to send a copy of the INS report to the Appellant, the record reveals no evidence of such a promise and no suggestion to Mr. Flynn in the course of cross-examination to the effect that he had ever made such a promise. What Mr. Flynn did say in evidence?in?chief was that the Appellant asked him for the report and he replied that he would consult his 'attorney' about the request. This reply, according to Mr. Flynn, was soon overtaken by events when a police officer, Sgt Smith, called to make a similar request.

31. As regards the alleged promise that both the Appellant and his attorney would be written to, the making of which promise was flatly denied by Mr. Flynn but is here assumed for purposes of argument, I am unable to understand how, without more, it could be said to have had the effect of inducing the Appellant to believe that the Respondent would not be enforcing the requirement for delivery of a claim in writing. A promise to write is quite a different thing from a request or direction to wait and do nothing, including things one has a duty to do, in the meantime. Neither expressly nor by implication did the alleged promise, in my view, convey a message that the Appellant was to consider himself no longer bound to fulfil his policy obligations in general, let alone those under a specific policy condition. Mr. Flynn had talked to the Appellant in such an unreceptive manner, on the evidence of the Appellant himself, that the latter's immediate impulse, on leaving the office, was to go and report him to the, police. One would have thought that, in those circumstances, the Appellant, rather than concluding that performance of condition 11 was being waived, would have been inclined to form the view that he ought scrupulously to comply with all requirements of the policy binding on him in order to avoid difficulties with an unreceptive managing director.

32. Counsel also sought to rely on the evidence of the Appellant that he did not receive a new copy of the policy promptly, complaining that the Appellant was made to wait for it. He went so far as to say that the copy policy was not received 'until after the period of time had expired'. But the evidence, as I understand it, was that, having merely asked Mr. Rhaburn, an employee of the Respondent, to 'prepare' a copy of the policy, the Appellant never returned to pick it up until specifically sent by his attorneys for it. There was, in any event, no clear evidence that the copy policy was received after the time for delivery of a claim had expired. The Appellant himself said only that he received it 'a little bit less or more' than a week after his meeting with Mr. Flynn, which does not eliminate the possibility that the Appellant had it in hand by 12 May, the deadline date. Even if the Appellant did not have it by then, however, the Respondent cannot, in my view, be saddled with blame for the delay in the absence of any indication, evidentially, that the copy was not prepared and ready to be picked up before 12 May. Accordingly, this evidence does not, in my view, advance the argument in favour of waiver.

33. Counsel further contended that the Musa letter of 2 June helpfully, from the Appellant's standpoint, showed that the latter had been led to wait for the promised letters from Mr. Flynn and the Respondent's 'attorney'. I do not agree. The letter is striking largely because of what it does not state. Its main thrust is that the Appellant had made a claim against the Respondent on 7 May and that such claim was rejected on grounds which, in the writer's view, the Respondent might not be able to substantiate. There is not the faintest suggestion in it that the Appellant had been waiting for Mr. Flynn and the Respondent's 'attorney' to write the Appellant and his 'attorney' and that, as a result, the Appellant had yet to submit his claim in writing. Indeed, having regard to what is its main thrust, any such suggestion would have been completely out of place and would have rendered the letter a pointless and absurd exercise in self-contradiction.

34. This letter, therefore, like that of 26 June also written by Musa, gives cause, in fact, for seriously questioning the Appellant's contention that he was led to wait for the letters allegedly promised. Indeed, in the case of the letter of 26 June there is added reason for the writer to mention and pray in aid the supposed promise, since this letter is a reply to the Barrow letter of 12 June which expressly directed Musa to the policy provisions respecting the time limit for delivery of a claim. Significantly, as it seems to me, the letter lists a number of things allegedly said by Mr. Flynn on 7 May but does not include amongst them the supposed promise to write. It is to be noted in this regard that the Appellant's evidence was that he told his 'attorney' of this alleged promise (see page 88 of the record).

35. No doubt because he recognised that the allegation, albeit long?since forsaken, of a written claim going back to 7 May 1997 stood in the way of success on the waiver argument, counsel appeared to suggest at one point in oral argument in this Court that the letter of 2 June was referring to an oral claim rather than to one in writing. To my mind, any such suggestion would be altogether devoid of force having regard to three salient considerations. First, the letter, as required, by the policy, takes the otherwise unnecessary step of quoting the policy's reference number, a strong indication that the writer had taken the wise, if elementary, precaution of reading such policy before 'putting pen to paper'. (It was stated on the first page of the policy that 'All communications to the Company regarding this policy ... must quote the Policy No. F?11073'.) Secondly, condition 11 of that selfsame policy No. F?11073 required the claim to be made in writing, not orally. Thirdly, the letter of 2 June was written not by the Appellant, or some other layman, but by his attorneys?at-law, to whom the distinction between a claim in writing and an oral claim could not possibly have been lost. They would have known that the case of the Appellant would be utterly hopeless if all that he was alleging was an oral claim. In any event, the Appellant himself at no time testified that he had made an oral claim.

36. Conceptual difficulties are also, in my view, posed by the argument that the Appellant, bearing in mind the abovementioned state of his relevant knowledge on 7 May, was led to believe that the time requirement of condition 11 would not be enforced. The state of that knowledge was revealed, tellingly to my mind, during the cross?examination of the Appellant when he admitted that, until he received the new copy of the policy, he did not know that he had to file a claim in writing, let alone that he had to do so in 15 days after the loss.

37. For those reasons, I was unable to find any substance in the second ground and respectfully agree with the trial judge that waiver was not established in this case.

38. Like all the other grounds of appeal, the third alleged an error of law by the trial judge, the specific complaint in this case being that he omitted to consider that the words and conduct of the Respondent's 'General Manager' prohibited the Respondent from placing reliance on condition 11 of the policy. It was the contention that such a prohibition arose under the 'principles of equitable estoppel'. The skeleton arguments made it clear that the true foundation of this ground was to be sought in the equitable doctrine of promissory estoppel.

39. Counsel referred this Court to Ennia General Insurance Co Ltd v. J Astaphan & Co (1970) Ltd, Civil Appeals Nos. 8/84 and 16/84, a decision of the Court of Appeal of the Commonwealth of Dominica, for the relevant guiding principles. In the leading judgment in that case, Bishop JA, having alluded to the law on waiver, turned to the subject of promissory estoppel and said, at page 21:

    'The Insurance Company could also by its conduct, induce the insured as a prudent person, upon reasonable grounds to suppose that it did not intend to insist on the fulfillment of the condition; in which case it would be estopped from setting up the breach of condition as an answer in an action on the policy (BURKE v. STANDARD FIRE & MARINE INSURANCE CO. OF NZ (1922) C.L.R. 440).'

Later, on the same page, Bishop JA quoted with approval the following passage from Snell, Principles of Equity, 28th ed., chapter 5, section 2:

'Where by his words or conduct one party to a transaction freely makes to the other an unambiguous promise or assurance which is intended to affect the legal relations between them (whether contractual or otherwise) and the other party acts upon it altering his position to his detriment, the party making the promise or assurance will not be permitted to act inconsistently with it. It is essential that the representor knows that the other party will act on his statement.'

40. In my view, even if the trial judge had found that Mr. Flynn used the words ascribed to him by the Appellant, the question whether the latter was induced to rely upon them, as he alleged, cannot be answered affirmatively for reasons already given in considering the second ground. The trial judge seems to have been of the view that the Appellant could not succeed on the issue of estoppel once he had failed on that of waiver. That, to my mind, is a sound view. If the Appellant had indeed been induced to suppose that the Respondent did not intend to insist on the fulfillment of condition 11, why were the two pre-trial letters of Musa preoccupied with the alleged making of a claim on 7 May rather than (1) with the urgent need to make one before more precious time elapsed and (2) with a statement of the facts explaining the delay in making one? At the end of the day, there is, in my opinion, no satisfactory answer to this question. The judge was clearly not persuaded to find that the Appellant had been induced as alleged and I, for my part, see no reason to rush in where he evidently feared to tread.

41. But I am also of the opinion that, even if the Appellant was in fact induced to rely on the assumed promise of Mr. Flynn, it could not fairly be said that, when so induced, he was acting as a prudent man and on reasonable grounds. If we begin, as I consider that we must, with the assumption that the Appellant is innocent of all wrongdoing in the matter of the fire, we must go on to pose the question why his decision to await the fulfillment of Mr. Flynn's alleged promise to write and have the Respondent's 'attorney' write should be considered a prudent one. The answer is hard to find. If, as he testified, he waited in order to find out who would be fingered as the culprit/culprits in the affair, his decision cannot be considered as prudent in the least having regard to his own innocence, which for all practical purposes presupposes innocence on the part of his son and nephew as well. The position would obviously be quite the reverse in the purely hypothetical case of an insured person implicated in the setting of the fire, and uncertain as to how much evidence was already stacked up against him in the insurer's office. In such a case it might justifiably be said that a decision to await the insurer's promised letter was a prudent, if unlaudable, one slnce it could result in the insured ascertaining how much the insurer really knew. The Appellant, assumed as stated above to be entirely innocent in this affair, would as a prudent person surely have had no hesitation in delivering his claim in writing in the calm assurance that, whatever the contents of the promised letter/letters might turn out to be, the same could not possibly defeat or otherwise adversely affect his claim. I consider that, in taking the position that he had to wait and see the promised letter/letters before deciding whether to make a claim, the Appellant did not act on reasonable grounds. Like the two before it, this ground fails.

42. The fourth and final ground of appeal imputed to the trial judge an error of law constituted by his supposed failure to consider it inequitable that the policy 'should be deemed forfeited' under condition 11. According to the notice of appeal, the forfeiture should have been deemed inequitable since business efficacy must be given to the entire transaction between the parties. I have, however, found nothing pertaining to this ground in the Appellant's skeleton arguments and the sole point urged in its support in oral argument in this Court was that the trial judge ought not to have 'construed' the omission to deliver a claim as strictly as he did. As I understood it, the complaint was that the judge wrongly focused too much attention on the question of breach of condition 11, at the expense of the other issues in the case. The pursuit of this ground was perfunctory on any view and left me unpersuaded that the judge erred as alleged.

43. It was for the reasons set out above that, on 16 October 2002, I reached the conclusion that the appeal should be dismissed with costs to the Respondent, to be taxed if not agreed.

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