Jacobs v Motor Insurers Bureau
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Owen |
| Judgment Date | 16 February 2010 |
| Neutral Citation | [2010] EWHC 231 (QB) |
| Court | Queen's Bench Division |
| Date | 16 February 2010 |
| Docket Number | Case No: HQ08X04994 |
[2010] EWHC 231 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Before: The Honourable Mr Justice Owen
Case No: HQ08X04994
Alexander Layton QC and Philip Mead (instructed by Russell Jones & Walker) for the Claimant
Dermod O'Brien QC and Marie Louise Kinsler (instructed by Weightmans LLP) for the Defendant
Hearing dates: 30 November 2009 and 1 December 2009
The Honourable Mr Justice Owen:
The claimant, Clinton David Jacobs, who at all material times has been resident in the United Kingdom, sustained a serious injury in a road traffic accident in Fuengirola, Spain on 19 December 2007. He was standing at the rear of his stationary vehicle in the car park of a shopping complex when struck by a car driven by Winfred Rudolph Willem Bartsch, a German National then resident in Spain.
Mr Bartsch's car carried what appeared to be a UK registration plate number G447 XPL. But the registration plate did not correspond to the vehicle; and the vehicle that originally bore the plate had been scrapped in the UK in January 2004.
It has not proved possible to identify any insurance undertaking which insured Mr Bartsch or anyone else to drive the vehicle.
On 16 December 2008 the claimant issued proceedings against the defendant, the Motor Insurers Bureau (MIB), in its capacity as compensation body under regulation 13 of the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation body) Regulations 2003 (the 2003 Regulations), seeking:
i) a declaration that the MIB is liable to pay compensation pursuant to the 2003 regulations and
ii) compensation or damages.
On 19 June 2009 Irwin J made an order by consent for the trial of the following preliminary issues:
“1. Whether the defendant, acting as compensation body for the purposes of the Motor Vehicles (Compulsory Insurance)(Information Centre and Compensation Body)Regulations 2003, is required to pay compensation to the claimant pursuant to regulation 13 (2)(b) assessed in accordance with the law in Spain or in accordance with the law of England:
i) because Regulation EEC (No 864/2007) on the law applicable to non-contractual obligations ( 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 tort feasor 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 tort feasor would have been liable, the Private International Law (Miscellaneous Provisions) Act 1995 applies to determine the applicable law in this case”.
In short the parties seek a determination of the basis upon which the defendant is obliged to compensate the claimant under the 2003 Regulations, and in particular whether compensation has to be assessed on the basis of English law only, Spanish law only, or in part English law and in part Spanish law.
The legal framework
The MIB has been in existence since 1946, when it was established by a private law agreement between the Minister of War Transport and insurers authorised by the legislation covering insurance companies to issue third party motor insurance. It currently operates under the terms of two agreements with the relevant Secretary of State, the Uninsured Drivers Agreement of 13 August 1999, and the Untraced Drivers Agreement of 14 February 2003.
Where an accident has occurred in one country caused by a vehicle insured in another, there has since 1949 been a system (the Green Card system) agreed and operated by the bureaux representing motor insurers in various countries, whereby the bureaux member in one state agrees to handle claims on behalf of the insurer in another. The MIB was and is the Green Card bureaux operating the system in the UK.
The EEC/EU Directives
In 1972 the EEC issued the first of a series of motor insurance directives. The first Directive 72/166/EEC (the 1 st Directive), made on 24 April 1972, was intended to encourage free movement by reducing border insurance checks, and imposed an obligation on the member states, then six in number, to require that the use of motor vehicles based in their territories should be covered by insurance, and that such insurance should cover accidents in each of the other member states. On joining the EEC on 1 January 1973, the UK became subject to the 1 st Directive.
The second motor insurance directive 84/5/EEC (2 nd Directive) dated 30 December 1983 required each member state to set up or authorise a body to guarantee that a victim would not remain without compensation where the vehicle which caused the accident was uninsured or unidentified. The body required to be set up or authorised by the 2 nd Directive is currently referred to as the “guarantee body” or “guarantee fund”. The MIB performs the functions of the guarantee body in the UK insofar as its private law obligations under the uninsured and untraced drivers agreements require it to do so.
The fourth motor insurance directive 2000/26/EC (4 th Directive) dated 16.05.00 further addressed the position of the victim of a motor accident occurring in a member state other than his state of residence. Much of the directive deals with the establishment by motor insurers in one Member State of claims representatives in other member states, so that the victim can negotiate his claim in his country of residence. It also deals with the establishment of information centres through which the insurer of a vehicle involved in an accident can be ascertained. But a number of its Articles are of direct relevance to the preliminary issue before me. The 4 th Directive has been superseded by 2009/103/EC directive (referred to during the trial as the sixth motor insurance directive), of 16 September 2009, which consolidates the earlier directives, in the case of the 4 th Directive in a slightly amended form. But such amendments do not affect the preliminary issue before me, and it is convenient for present purposes to work to the 4 th Directive which was in force at the material time, and was implemented by the 2003 regulations.
The objective of the 4 th Directive was to “lay down special provisions applicable to injured parties entitled to compensation in respect of any loss or injury resulting from accidents occurring in a Member State other than the Member State of residence of the injured party caused by the use of vehicles insured and normally based in a Member State” per Article 1. The relevant parts of Articles 6 and 7 are in the following terms –
“Article 6
Compensation bodies
1.…
2. the compensation body which has compensated the injured party in his Member State of residence shall be entitled to claim reimbursement of the sum paid by way of compensation from the compensation body in the Member State of the insurance undertaking's establishment which issued the policy.
The latter body shall then be subrogated to the injured party in his rights against the person who caused the accident or his insurance undertaking in so far as the compensation body in the Member State of residence of the injured party has provided compensation for the loss or injury suffered. Each Member State is obliged to acknowledge this subrogation as provided for by any other Member State.
“Article 7
If it is impossible to identify the vehicle or if, within two months following the accident, it is impossible to identify the insurance undertaking, the injured party may apply for compensation from the compensation body in the Member State where he resides. The compensation shall be provided in accordance with the provisions of Article 1 of Directive 84/5/EEC (the 2nd Directive). The compensation body shall then have a claim, on the conditions laid down in Article 6(2) of this Directive:
1. where the insurance undertaking cannot be identified; against the guarantee fund provided for in Article 1(4) of Directive 84/5/EEC in the Member State where the vehicle is normally based;
2. in the case of an unidentified vehicle; against the guarantee fund in the Member State in which the accident took place;
3. in the case of third-country vehicles: against the guarantee fund of the Member State in which the accident took place.”
The following recitals in the preamble to the 4 th Directive are also of relevance:
(25) It is necessary to make provision for a compensation body to which the injured party may apply where the insurance undertaking has failed to appoint a representative or is manifestly dilatory in settling a claim or where the insurance undertaking cannot be identified to guarantee that the injured party will not remain without the compensation to which he is entitled; the intervention of the compensation body should be limited to rare individual cases where the insurance undertaking has failed to comply with its duties in spite of the dissuasive effect of the potential imposition of penalties.
(26) The role played by the compensation body is that of settling the claim in respect of any loss or injury suffered by the injured party only in cases which are capable of objective determination and therefore the compensation body must limit its activity to verifying that an offer of compensation has been made in accordance with the time-limits and procedures laid down, without any assessment of the merits.
(28) The compensation body should have a right of subrogation in so far as it has compensated the injured party; in order to facilitate enforcing the compensation body's claim against the insurance undertaking where it has failed to appoint a claims representative or is manifestly dilatory in settling a claim, the body providing...
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