Anna Richards v Secretary of State for Transport
| Jurisdiction | England & Wales |
| Judge | Mr Justice Foskett |
| Judgment Date | 02 November 2018 |
| Neutral Citation | [2018] EWHC 2944 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: TLQ17/0913 |
| Date | 02 November 2018 |
[2018] EWHC 2944 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Foskett
Case No: TLQ17/0913
Robert Weir QC (instructed by Irwin Mitchell LLP) for the Claimant
Jemima Stratford QC and Isabel Hitching (instructed by Government Legal Department) for the Defendant
Hearing date 18 October 2018
Judgment Approved
The trial of a preliminary issue in this case is floating in a 3-day window commencing on 10 December 2018 with a time estimate of 4–5 days. The current issue before the court is whether it should take place or be stayed to await the outcome of the appeal in the case of Lewis v Tindale and MIB and Secretary of State for Transport [2018] EWHC 2376 (QB), a decision of Soole J given in a judgment handed down on 14 September 2018. Soole J gave permission to appeal. The Defendant submits that the stay should be imposed. The Claimant disagrees.
The claim in the present case is a “ Francovich claim” or a “claim for Francovich damages”. Such a claim involves the assertion that the national government of an EU country is liable to pay compensation to an individual who has suffered a loss by reason of the State's failure to transpose an EU Directive into national law. The claim in this case is one brought by the Claimant against the Defendant in respect of an accident on private land caused (on the Claimant's case) by her mother's negligent use of a vehicle. The vehicle was insured against third party risks, but not (on the Claimant's case) if the insured was negligent. Since the accident occurred on private land, Part VI of the Road Traffic Act 1988 did not cover the circumstances of this accident. The Claimant was crushed by the rear ramp of a horse lorry causing her serious injuries.
The preliminary issue ordered by Master McCloud on 8 June 2017 is as follows:
“Whether the defendant's admitted breach of duty is sufficiently serious to merit an award of damages.”
The foregoing is the second of the three constituent elements of a Francovich claim which (following the CJEU decision in Brasserie du Pêcheur v Germany and R v SoST, ex p. Factortame (No. 4) Joined Cases C-46/93 and C-48/93 [1996] QB 404) are –
(a) The EU rule of law in question was intended to confer rights on individuals.
(b) That the breach of EU law is sufficiently serious to merit an award of damages; and
(c) That the breach of EU law has directly caused loss to the claimant.
Of those three elements, (a) is admitted in this case. (b) and (c) are in issue.
The relevant Directive is Directive 2009/103/EC. Soole J described it in this way:
“17. Directive 2009/103/EC consolidates a number of Motor Insurance Directives (MID) relating to compulsory insurance against civil liability in respect of the use of motor vehicles and which date back to Council Directive 72/166/EEC of 24 April 1972. By Article 8 thereof, the latter required Member States to ‘…bring into force the measures necessary to comply with this Directive…’ by no later than 31 December 1973. Unless otherwise stated, all references are to the Articles of the 2009 Directive.
18. Article 3 headed ‘Compulsory insurance of vehicles’ provides as material: ‘Each Member State shall, subject to Article 5, take all appropriate measures to ensure that civil liability in respect of the use of vehicles normally based in its territory is covered by insurance.
The extent of the liability covered and the terms and conditions of the cover shall be determined on the basis of the measures referred to in the first paragraph.
…
The insurance referred to in the first paragraph shall cover compulsorily both damage to property and personal injuries.’
It will be apparent that Article 3 does not on its face restrict the requirement of insurance to liability in respect of the use of a vehicle purely on a “road or other public place”.
In Lewis, the claimant brought a claim against the person responsible for the accident (D1), the Motor Insurers' Bureau (‘MIB’) (D2) and the Secretary of State for Transport (D3). It was not in issue that D1 was responsible for the accident and was uninsured. The MIB denied contingent liability under the Uninsured Drivers Agreement 1999 (‘the UDA’) because the accident and injuries did not arise out of the use of the vehicle “on a road or other public place”, the limit of the statutory obligation to insure the use of a vehicle under section 145 of the Road Traffic Act 1988. The claim against D3 was a claim for Francovich damages (the allegation being that D3 had failed to implement the foregoing Directive) and was stayed pending resolution of the claim against the MIB.
It is to be noted that in R (RoadPeace) Ltd v. Secretary of State for Transport [2018] 1 WLR 1293, the Secretary of State and the MIB acknowledged that Article 3 of the 2009 Directive had direct effect between an individual and the State or its emanation, but disputed that the MIB was an emanation of the State. That latter issue did not fall for determination in that case.
In Lewis, one of the arguments advanced on the claimant's behalf to support the case against the MIB was that, if the liability of the person responsible for the accident was not required to be insured by virtue of the 1988 Act, the MIB was obliged to satisfy any judgment against that person pursuant to the Directive and that the Directive had “a direct effect” against the MIB. It was recognised by the parties that each aspect of that argument depended upon whether the MIB was an “emanation of the State”. That issue was thus directly relevant in that case.
Hitherto the English authorities were to the effect that the MIB was not an emanation of the State: see Byrne v. MIB [2009] QB 66 (Flaux J, as he then was) and Mighell v. Reading [1999] Lloyds Rep IR 30, 42, per Hobhouse LJ, as he then was. That was the general understanding of the position in English law at the time the limitation period in relation to any claim that the Claimant had against the MIB expired in July 2014. However, two decisions of the Court of Justice of the European Union (‘CJEU’) reported in 2016 changed the landscape. In Vnuk v. Zavarovalnica Triglav dd (Case C-162/13) [2016] RTR 10, it was decided that Article 3 of the Directive must be interpreted as meaning that the concept of “use of vehicles” in that Article covered any use of a vehicle that is consistent with the “normal function of that vehicle” even if the use was on private land. In Roadpeace (see paragraph 9 above), Ouseley J commented at [45] that for “some Member States, this was a surprising outcome” and that “[the UK] and others have had to consider what the full effect of the judgment was, and how to meet it through legislation”. Then in Farrell v. Whitty (No. 2) (Case C-413/15) [2018] 3 WLR 285, a decision of the CJEU given on 10 October 2017, it held that the Motor Insurers Bureau of Ireland (‘MIBI’) was an “emanation of the State” with the result that since the Directive was...
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