The High Court decision in Le Bonheur Wine Estate (Pty) Ltd v Stellenbosch Vineyards (Pty) Ltd has raised eyebrows for its misreading of both the common-law principles of subrogation and the express wording of the policy at issue as well as its support for parallel actions for a single claim.
After fully indemnifying its insured and launching recovery proceedings, the insurer suddenly found itself ousted when the insured appointed new attorneys with instructions to withdraw the action. The court endorsed that substitution, but joining the insurer as a co-plaintiff, thereby stripping it of the control traditionally recognised as the insurer’s subrogation right. In doing so, the judgment leant heavily on authorities that either do not support its reasoning or have been expressly overruled by later courts, while overlooking the policy clause granting the insurer “full discretion” in conducting recoveries.
For details see our recently published FA News article: https://www.fanews.co.za/article/legal-affairs/10/general/1120/getting-subrogation-wrong/42049