Jacobs v Motor Insurers' Bureau

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Moore-Bick,Lord Justice Rimer,Lord Justice Laws
Judgment Date27 October 2010
Neutral Citation[2010] EWCA Civ 1208
Docket NumberCase No: B3/2010/0635
Date27 October 2010

[2010] EWCA Civ 1208

[2010] EWHC 231 (QB)

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

Royal Courts of Justice

Strand, London, WC2A 2LL

(Mr. Justice Owen)

Before: Lord Justice Laws

Lord Justice Moore-Bick

and

Lord Justice Rimer

Case No: B3/2010/0635

Between
Clinton David Jacobs
Claimant/Appellant
and
Motor Insurers Bureau
Defendant/Respondent

Mr. Alexander Layton Q.C. and Mr. Philip Mead (instructed by Russell Jones & Walker) for the appellant

Mr. Dermod O'Brien Q.C. and Miss Marie Louise Kinsler (instructed by Weightmans LLP) for the respondent

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Hearing dates: 7 th and 8 th July 2010

Lord Justice Moore-Bick
2

Lord Justice Moore-Bick:

3

1. In December 2007 the appellant, Mr. Jacobs, was injured when he was struck by a car driven by a German national, Herr Bartsch, in a car park in Fuengirola, Spain. Mr. Jacobs was and still is a resident of the United Kingdom. At the time of the accident Herr Bartsch lived in an EEA State, possibly Spain or Germany; the car itself was ordinarily based in Spain.

4

2. The dispute in this case has arisen out of the fact that it has not been possible to identify any insurance undertaking which insured Mr Bartsch or anyone else to drive the vehicle. It is common ground that in those circumstances Mr. Jacobs is entitled to recover compensation for his injuries from the respondent, the Motor Insurers Bureau (“the MIB”), but there is a dispute about whether the amount of that compensation is to be determined by reference to the law of England (where Mr. Jacobs lives) or the law of Spain (where the accident occurred).

5

3. On 16 th December 2008 Mr. Jacobs started proceedings against the MIB to recover compensation under the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003 (“the Regulations”). The MIB said that, by reason of the application of the principles of Regulation EEC No. 864/2007 on the law applicable to non-contractual obligations, generally known as “ Rome II”, compensation was to be assessed in accordance with Spanish law. The material parts of Rome II for present purposes are those contained in Articles 4(1) and (2), which provide as follows:

“Article 4

General Rule

(1) Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.

(2) However, where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply.”

4. On 19 th June 2009 Irwin J. made an order by consent for the trial of the following preliminary issues:

1. Whether [the MIB] … is required to pay compensation to the claimant … assessed in accordance with the law in Spain or in accordance with the law of England:

(i) because [Rome II] applies to determine the applicable law in this case; and/or

(ii) because the defendant's obligation to pay compensation is limited to the amount for which the tortfeasor against whom proceedings could not have been brought in England, would have been liable.

2. If Rome II does not apply and the defendant's obligation to compensate is not limited to the amount for which the tortfeasor would have been liable, [whether] the Private International Law (Miscellaneous Provisions) Act 1995 applies to determine the applicable law in this case.

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5. The formulation of the preliminary issues no doubt reflected the manner in which the case had been pleaded, but the development of the argument, particularly before this court, leads me to think that it would have been better simply to ask whether the MIB is obliged to pay compensation to the claimant assessed in accordance with the law of England or the law of Spain. That, after all, is the only question of any consequence to which the proceedings give rise.

7

6. In order to explain how the issue arises it is necessary to describe briefly the position of the MIB and the steps that have been taken both in this country and in the European Union to ensure that compensation is available to persons injured in road traffic accidents.

The Motor Insurers Bureau

8

7. Since the passing of the Road Traffic Act 1930 it has been obligatory for the user of a motor vehicle on a road in Great Britain to be insured against liability for personal injury caused by or arising out of that use. (The legislation currently in force is that contained in sections 143–145 of the Road Traffic Act 1988.) Most users of motor vehicles could be expected to obtain insurance in compliance with the requirements of the Act, but the possibility remained that a person injured in a road accident might fail to obtain compensation because the driver was uninsured, or could not be traced or because the insurer had become insolvent. In order to avoid that consequence on 17 th June 1946 the Minister of War Transport entered into an agreement with the MIB, a company limited by guarantee whose members came to include all insurers authorised to issue policies of motor insurance in the United Kingdom, under which it agreed to satisfy judgments obtained against motorists who had themselves failed to satisfy them as a result of their being uninsured or because their insurers had failed. This became known as the Uninsured Drivers Agreement. The MIB also paid compensation on an ex gratia basis to persons injured in motor accidents in cases where the driver could not be traced, a practice that was placed on a formal footing by the first Untraced Drivers Agreement dated 21 st April 1969. Since that date both agreements have been modified and replaced from time to time. The agreements in force at the time of the accident in this case were the Uninsured Drivers Agreement 1999 and the Untraced Drivers Agreement 2003. The scope of the Uninsured Drivers Agreement 1999 is directly related to the obligation to obtain insurance contained in Part VI of the Road Traffic Act 1988. It therefore extends to accidents occurring in Great Britain and Member States of the European Economic Area (“EEA”). The Untraced Drivers Agreement 2003 applies only to accidents occurring in Great Britain.

EU legislation

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8. Since 1949 motor insurers in a number of countries have operated what is known as the ‘Green Card’ scheme, under which the representatives of an insurer in one state handle claims on behalf of an insurer established in another state. The MIB was, and remains, the representative responsible for operating the ‘Green Card’ system in the United Kingdom. This system provided part of the foundation for legislation put in place by the European Union to ensure that compensation was available for those injured in road accidents regardless of the Member State in which the victim resided or in which the accident occurred.

(a) The First Motor Insurance Directive

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9. The first step was taken in April 1972 with the issue of Directive 72/166/EEC, known as the ‘ First Motor Insurance Directive’, the material parts of which for present purposes provided as follows:

Article 3

1. Each Member State shall, subject to Article 4, 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 these measures.

2. Each Member State shall take all appropriate measures to ensure that the contract of insurance also covers:

—according to the law in force in other Member States, any loss or injury which is caused in the territory of those States;

…”

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I shall refer to this as “the First Directive”.

(b) The Second Motor Insurance Directive

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10. On 30 th December 1983 the Council of Ministers issued Directive 84/5/EEC, known as the ‘ Second Motor Insurance Directive’, which, among other things, provided for the establishment of guarantee bodies to provide compensation in cases where the vehicle responsible for the injury was uninsured or unidentified. The material parts of the Directive (in the form in which it existed at the date of the accident) provided as follows:

Article 1

1. The insurance referred to in Article 3 (1) of [the First Motor Insurance Directive] shall cover compulsorily both damage to property and personal injuries.

4. Each Member State shall set up or authorize a body with the task of providing compensation, at least up to the limits of the insurance obligation for damage to property or personal injuries caused by an unidentified vehicle or a vehicle for which the insurance obligation provided for in paragraph 1 has not been satisfied.

The first subparagraph shall be without prejudice to the right of the Member States to regard compensation by that body as subsidiary or non-subsidiary and the right to make provision for the settlement of claims between that body and the person or persons responsible for the accident and other insurers or social security bodies required to compensate the victim in respect of the same accident….

5. The victim may in any event apply directly to the body which, on the basis of information provided at its request by the victim, shall be obliged to give him a reasoned reply regarding the payment of any compensation.

7. Each Member State shall apply its laws, regulations and administrative provisions to the payment of compensation by this...

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13 cases
  • Moreno v Motor Insurers' Bureau
    • United Kingdom
    • Supreme Court
    • 3 Agosto 2016
    ...Submissions to like effect were accepted in 2010 by the Court of Appeal (Laws, Moore-Bick and Rimer LJJ), overruling Owen J, in Jacobs v Motor Insurers' Bureau [2010] EWCA Civ 1208; [2011] 1 WLR 2609. The Court of Appeal's decision in Jacobs was followed in Bloy v Motor Insurers' Bureau ......
  • Georgina Bloy and Another v Motor Insurers' Bureau
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 29 Noviembre 2013
    ...Insurance Directives of the European Union was set out in detail in the judgment of Moore-Bick LJ in Jacobs v Motor Insurers' Bureau [2010] EWCA Civ. 1208, [2011] 1 WLR 2609. He referred in paragraph [8] to the 'Green Card' scheme which motor insurers in a number of countries have operate......
  • Gaynor Winrow v Mrs J Hemphill and Another
    • United Kingdom
    • Queen's Bench Division
    • 6 Octubre 2014
    ...of Article 4(2) is the First Defendant not the Second Defendant, the insurer. This is clear from the judgment of Owen J in Jacobs v Motor Insurers Bureau [2010] EWHC 231. Owen J held at paragraph 42: "…I do not consider that 'the person claimed to be liable' can sensibly be said to be the M......
  • Law Society of Ireland v Motor Insurers' Bureau of Ireland
    • Ireland
    • Court of Appeal (Ireland)
    • 2 Marzo 2016
    ...were all but identical at their inception. The judge referred to the cases of Gurtner v. Circuit [1968] 2 Q.B. 587, and Jacobs v. MIB [2010] EWCA Civ. 1208 as well as a comment appearing in the Modern Law Review pp. 275-292 that he said made it clear that in the United Kingdom, the MIB was ......
  • Request a trial to view additional results
1 books & journal articles
  • The EU Civil Justice Framework and Private Law
    • United Kingdom
    • Maastricht Journal of European and Comparative Law Nbr. 22-5, October 2015
    • 1 Octubre 2015
    ...also, Clinton Dav id Jacobs v. Motor Insurers Bure au [2010] EWHC 231 (QB) rev erse d Clinton David Jacobs v. Motor Ins urers Bureau [2010] EWCA Civ 1208.103 Stev en John K ilfoy Wa ll v. Mutu elle D e Poitie rs Ass urance [2013] EWH C 53 (QB); [2014] E WCA Civ 13 8.104 Article15(c) of Rom......

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