Daniel James Colley v Dylan Shuker
| Jurisdiction | England & Wales |
| Judge | Mrs Justice O'Farrell |
| Judgment Date | 28 March 2019 |
| Neutral Citation | [2019] EWHC 781 (QB) |
| Docket Number | Case No: E90MA082 |
| Court | Queen's Bench Division |
| Date | 28 March 2019 |
[2019] EWHC 781 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice O'Farrell
Case No: E90MA082
Gerard McDermott QC & Philip Mead (instructed by Irwin Mitchell) for the Claimant
Patrick Vincent (instructed by Keoghs LLP) for the Second Defendant
Richard Viney (instructed by Weightmans) for the Third Defendant
Hearing dates: 5 th March 2019
Further submissions and material by email: 11 th March 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
There are three applications before the Court:
i) the Second Defendant's application dated 7 September 2018 to strike out the claims against it;
ii) the Third Defendant's application dated 10 September 2018 to set aside the order extending time for service of the claim form on the First Defendant;
iii) the Claimant's application dated 20 February 2019 for permission to join the Secretary of State for Transport as a fourth defendant and to amend the Particulars of Claim.
The material facts can be summarised shortly. On 27 March 2015 the Claimant, a young man now aged 23, was a passenger in a motor vehicle driven by the First Defendant. The Claimant was aware that the First Defendant did not have a valid driving licence and was not insured to drive the vehicle. The First Defendant lost control and the vehicle overturned on an embankment. The Claimant suffered very serious injuries, including an incomplete spinal-cord injury at level C4, and is an incomplete tetraplegic.
On 22 March 2016 the First Defendant was convicted of causing serious injury by dangerous driving.
The Second Defendant is an insurer. In May 2014 the Second Defendant issued a policy of insurance in relation to the vehicle, naming the First Defendant's father, Mr N Shuker, as the policyholder and main driver. The policy was not issued to, and did not cover, the First Defendant.
On 3 May 2016 the Second Defendant issued proceedings against Mr N Shuker, seeking a declaration that the Second Defendant was entitled to avoid the policy on the grounds of material misrepresentations, namely:
i) Mr N Shuker stated wrongly that he was the registered keeper of the vehicle; and
ii) Mr N Shuker stated wrongly that the only drivers of the vehicle would be himself and his partner.
On 27 June 2016 the court granted a declaration that the Second Defendant was entitled to avoid the policy pursuant to the Consumer Insurance (Disclosure and Representations) Act 2012 (“the Declaration”).
On 23 March 2018 the Claimant issued proceedings against the First Defendant driver of the vehicle, the Second Defendant insurer and the Third Defendant, the Motor Insurance Bureau, seeking damages and any other necessary relief, including setting aside of the Declaration.
Second Defendant's application to strike out claim
The pleaded case against the Second Defendant in the proposed amended Particulars of Claim is as follows:
“[8] By proceedings commenced on or about 3 May 2016 in the High Court … the Second Defendant sought a declaration under section 152 of the Road Traffic Act 1988 as amended, as against the Policyholder, Mr N Shuker, that the Claimant was entitled to avoid the Policy.
[9] On or about 27 June 2016, the court made an Order granting the Second Defendant the declaration of avoidance in the terms sought.
[10] The Claimant will aver that the Second Defendant is liable to compensate the Claimant in respect of any judgment and damages found due as a result of the negligence of the First Defendant, whether by way of a purposive interpretation of domestic law in accordance with European law, in particular Directive 2009/103/EC, and/or by setting aside the declaration under section 152 of the Road Traffic Act 1988.
[11] Section 151 of the Road Traffic Act 1988 applies to judgments relating to a liability with respect to any matter where liability with respect to that matter is required to be covered by a policy of insurance under section 145 of the 1988 Act and it is a liability, other than an excluded liability, which would be so covered if the policy insured all persons (including the First Defendant) and the judgment is obtained against any person other than the one who is insured by the policy (see section 15(2)).
[12] The Claimant avers that upon judgment being obtained against the First Defendant in the proceedings herein, absent any declaration under section 152, such liability of the First Defendant would constitute a liability under section 151(2)(b) to which section 151 would otherwise apply.
[13] Accordingly, the effect of section 151 is to impose on the Second Defendant a liability to compensate the Claimant in respect of a judgment obtained against the First Defendant for so long as [the declaration was not obtained].
[14] The Claimant avers that, in so far as that policy has in fact been avoided as against the policyholder, by virtue of the Order set out above at paragraph 9, any such declaration is not capable of being raised as against the Claimant, alternatively the Claimant is entitled to set aside such a declaration in so far as the declaration conflicts with the Claimant's directly effective rights under EU law, alternatively, the Courts of the UK are under a duty in exercise of the discretion inherent under section 152 to set aside such a declaration, where that declaration breaches the rights granted to the Claimant under EU law.”
The relief claimed is (1) a declaration setting aside the Declaration obtained by the Second Defendant; and (2) damages.
The Second Defendant seeks to strike out the claim for a declaration and/or damages on the grounds that:
i) the claim for a declaration is an abuse of the court's process; and/or
ii) the Particulars of Claim disclose no reasonable grounds for bringing the claim pursuant to CPR 3.4(2)(b).
Alternatively, the Second Defendant seeks summary judgement against the Claimant pursuant to CPR 24.2(a)(i) on the ground that the claim has no real prospect of success.
CPR 3.4(2) provides that:
“The court may strike out a statement of case if it appears to the court:
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;
(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings …”
CPR 24.2 provides that:
“The court may give summary judgment against a claimant … on the whole of the claim or on a particular issue if:
(a) it considers that
(i) the claimant has no real prospect of succeeding on the claim or issue … and
(b) there is no other compelling reason why the case or issue should be disposed of at a trial.”
In determining this application, the following principles are applicable:
i) The court must consider whether the claim (or proposed claim) against the Second Defendant has a realistic as opposed to fanciful prospect of success; a realistic claim is one that carries some degree of conviction and is more than merely arguable.
ii) The court must not conduct a mini trial.
iii) If the application gives rise to a short point of law or construction then, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it.
iv) The court should be cautious in striking out a claim in areas of developing jurisprudence or on novel points of law without the benefit of full argument: Barrett v Enfield [2001] 2 AC 557 per Lord Browne-Wilkinson.
Mr Vincent, counsel for the Second Defendant, submits that it obtained a declaration that it was entitled to avoid the policy and therefore has no liability to compensate the Claimant in respect of any judgment obtained against the First Defendant. Section 151 of the RTA imposes an obligation on an insurer to satisfy a judgment against persons insured or against third party risks. However, that obligation is subject to section 152(2) of the RTA which provides expressly that the insurer has no liability where it has obtained a declaration that it is entitled to avoid the policy on grounds including that it was obtained by a material misrepresentation. Even if there is any incompatibility between section 152 of the RTA and EU law, the incompatibility cannot be resolved by a purposive interpretation and the court is not empowered to disapply the statute. Domestic law does not create a direct cause of action between the Claimant and the Insurer and the Claimant has not alleged that any EU provision creates a direct legal right. Therefore, the claim has no real prospect of success.
Mr McDermott QC, leading counsel for the Claimant, submits that the application is premature and the Court should order this matter to be tried as preliminary issue. His position on the application is that the effect of section 151 of the RTA is to impose on the Second Defendant a liability to compensate the Claimant in respect of a judgment obtained against the First Defendant tortfeasor for so long as a declaration has not been obtained by the Second Defendant under section 152 of the RTA. Section 152 RTA is incompatible with EU Directive 2009/103/EC. In so far as the policy has been avoided by the Declaration obtained by the Second Defendant, section 152 conflicts with the Claimant's directly effective rights under EU law. The Court should adopt a purposive interpretation of section 152 RTA to ensure that...
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Colley v Shuker: Considering Service At Last Known Address
...[2019] EWHC 781 (QB) Judge refuses to set aside declaration in favour of motor insurer/decides service at last known address The claimant was injured when he was a passenger in a car which overturned. The car was being driven by the first defendant, and the claimant was aware that the first......