Howe (Claimant/Appellant) v Motor Insurers Bureau
| Jurisdiction | England & Wales |
| Judge | Lord Justice Christopher Clarke,Lord Justice Lloyd Jones |
| Judgment Date | 07 February 2017 |
| Neutral Citation | [2017] EWCA Civ 302 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 February 2017 |
| Docket Number | B3/2016/1575(A), (C), (D), (E) |
[2017] EWCA Civ 302
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MR JUSTICE STEWART)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Lloyd Jones
Lord Justice Christopher Clarke
B3/2016/1575(A), (C), (D), (E)
GA Gumbel QC (instructed by Fieldfisher LLP) appeared on behalf of the Appellant
Mr Howard Palmer QC and Ms Marie Kinsler (instructed by Weightmans LLP) appeared on behalf of the Respondent
We have before us applications for permission to amend the grounds of appeal, to amend the particulars of claim and for permission to appeal in relation to the amended material.
The history leading up to today has involved a sequence of applications made at different times and in different terms. For reasons which will become apparent, much of those applications has become moot.
The sad history of this case is this. On 30 March 2007, Mr Michael Howe was driving in France when a wheel detached itself from the lorry in front of him. He was in no way at fault. As a result of the accident that occurred he became paraplegic. The offending lorry and the driver thereof have never been traced.
On 10 September 2007 Mr Howe, through his then solicitors, notified the Motor Insurers' Bureau ("MIB") of the accident. He has received some compensation from the Fonds de Garantie des Assurances Obligatoires ("FDG"), the French equivalent of the MIB, but as of now, nearly nine years later, he has received nothing like the full compensation to which he would appear to be entitled.
Mr Howe's claim in these proceedings is against the MIB for compensation for his injuries. That claim appears originally to have been advanced under, or by reference to, the MIB Untraced Drivers' Agreement 2003. However, that agreement only applies to drivers in Great Britain.
The arrangements for compensating claimants in respect of injury suffered by the acts or omissions of uninsured or untraced drivers are the subject of extensive Community provisions. They are now embodied in the sixth Motor Insurance Directive, but the relevant provisions for the purposes of this case were formerly in the first, second and fourth of such Directives. The regulations which seek to give effect to these Directives are the Motor Vehicle (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003, SI 2003/37. Those Regulations include the following provisions:
"9(1) This regulation applies where —
(a) an accident, caused by or arising out of the use of a vehicle which is normally based in an EEA State, occurs in the United Kingdom;
(b) an accident, caused by or arising out of the use of a vehicle, occurs on the territory of —
(i) an EEA State other than the United Kingdom, or
(ii) a subscribing state
and that vehicle is normally based in the United Kingdom;
(c) an accident, caused by or arising out of the use of a vehicle which is normally based in an EEA State, occurs on the territory of —
(i) an EEA State other than the United Kingdom, or
(ii) a subscribing state
and an injured party resides in the United Kingdom.
(2) Where this regulation applies, an injured party may request the information centre to provide to him the information described in paragraph (4) in respect of every vehicle involved in the accident which is normally based in an EEA State.
[…]
(4) The information which may be requested in respect of a vehicle is —
(a) the name and address of any insurer who has issued a UK insurance policy or European insurance policy covering the use of that vehicle at the time the accident occurred;
(b) the number of that policy;
(c) the name and address of that insurer's claims representative in the state of residence of the injured party; and
(d) where the information centre is satisfied that the injured party has a legitimate interest in obtaining that information, the name and address of the registered keeper of the vehicle or, where the territory in which the vehicle is normally based is an EEA State other than the United Kingdom, the person having custody of the vehicle.
[…]
13(1) This regulation applies where —
(a) an accident, caused by or arising out of the use of a vehicle which is normally based in an EEA State, occurs on the territory of —
(i) an EEA State other than the United Kingdom, or
(ii) a subscribing State, and an injured party resides in the United Kingdom
(b) that injured party has made a request for information under regulation 9(2), and
(c) it has proved impossible —
(i) to identify the vehicle the use of which is alleged to have been responsible for the accident, or.
(ii) within a period of two months after the date of the request, to identify an insurance undertaking which insures the use of the vehicle.
(2) Where this regulation applies —
(a) the injured party may make a claim for compensation from the compensation body, and
(b) the compensation body shall compensate the injured party in accordance with the provisions of Article 1 of the second motor insurance directive as if it were the body authorised under paragraph 4 of that Article and the accident had occurred in Great Britain."
On 20 November 2014 Mr Howe made a request to the MIB for information under Regulation 9(2). On 2 December 2014 Mr Howe began proceedings against the MIB. In the action he seeks payment of compensation or damages from the MIB.
In March of last year Stewart J determined four preliminary issues. By his judgment of 22 March 2016 he first decided that any liability of the MIB to pay compensation was not dependent on FMG being liable to do so, and that MIB's liability was to be determined under English law. He regarded himself as bound in this respect by two decisions of the Court of Appeal, Jacobs v MIB [2010] EWCA Civ 1208, and Bloy v MIB [2013] EWCA Civ 1543.
Secondly, he determined that the time for bringing an action in France was five years, and that certain possible defences to the application of that limitation period were likely to be rejected in France.
Thirdly, he decided that the action was statute-barred in English law since more than six years had expired from the date of the accident. He held, first, that the cause of action was a statutory cause of action which arose under Regulation 13 of the 2003 Regulations; secondly, that the limitation period was six years from the date when the cause of action accrued, i.e. the date of the accident, under section 9 of the Limitation Act 1980; and, thirdly, that in untraced motorists claims the requirement in Regulation 13(1)(b) was not a necessary ingredient of the cause of action. He rejected a submission that Regulation 13 effected a statutory modification of the MIB Untraced Drivers' Agreement 2003. That agreement simply required an application in writing to be made within three years of the accident, which application had taken place. Fourthly, he rejected the submission that MIB was estopped from relying on the English law limitation period.
The judge granted Mr Howe permission to appeal in respect of the argument that by virtue of Regulation 13(1)(b) his cause of action did not accrue until a request had been made for information under Regulation 9(2. He also gave the MIB permission to cross-appeal on the question as to whether it was necessary to show that there was liability under French law. That cross-appeal has not yet been launched, but an extension of time for doing so is in place.
On 12 April 2016 Mr Howe applied for permission to amend the amended Particulars of Claim and the grounds of appeal and for permission to appeal, in order to be able to argue that the applicable section of the Limitation Act 1980 was section 11. He claimed that the action was an action in respect of personal injuries which attracted the operation of section 33. The court would therefore have the power to allow the action to proceed, as the court would be urged to do, if it appeared to the court that it would be equitable to allow...
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Mr Michael Howe v Motor Insurers' Bureau
... [2016] UKSC 52, [2016] 1 WLR 3194 this court struck out the appeal on 7 February 2017 on the ground that it was bound to fail: see [2017] EWCA Civ 302. It is thus now accepted that his substantive claim against the MIB is at an end. The remaining issues relate to the costs of that claim ......