Jamie Whyatt and Others (Claimants/Appellants) v Anthony Powell and Another
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Lewis |
| Judgment Date | 17 March 2017 |
| Neutral Citation | [2017] EWHC 484 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: B51YP82S |
| Date | 17 March 2017 |
[2017] EWHC 484 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand. London. WC2A 2LL
The Honourable Mr Justice Lewis
Case No: B51YP82S
Mikhael Puar (instructed by Ross Aldrige Solicitors) for the Claimants
Richard Livingston (instructed by BLM Solicitors) for the Second Defendant
Hearing dates: 03/03/2017
Judgment Approved
INTRODUCTION
This is an appeal against one part of an order made on 16 August 2016 by HHJ John, sitting in the County Court at Merthyr Tydfil, following the trial of certain preliminary issues concerning a claim for damages arising out a car accident. By that order, the judge determined, amongst other things, that each of the three Claimants ought to have known that the vehicle involved in the accident was being used without there being in force in relation to the use of the vehicle such a contract of insurance as would comply with the relevant statutory requirements. The Claimants contend that there was no material upon which the judge could properly make the finding that he did. They also appeal against the order that they pay the Second Defendant's costs, summarily assessed in the sum of £10,263.39.
THE FACTS
The Background and the Accident
The claim arose out of an accident that occurred on 15 April 2013. The First Defendant, Anthony Powell, and the three claimants had been at the house of another man on 15 April 2013. The First Claimant, Jamie Whyatt, was a 23 year old man. The Second Claimant, Gary Curtis Rees (whom I will refer to as Gary), was 16. The Third Claimant, Arron Rees (whom I will refer to as Arron), was celebrating his 15 th birthday on that day.
At about 10 p.m., Anthony Powell and the three Claimants left in a car driven by Mr Powell. There was an accident and the three Claimants suffered injuries. Mr Powell was subsequently convicted of a road traffic offence and disqualified from driving as a result of this accident.
The Pleadings
The three Claimants each brought a claim for personal injuries against Mr Powell contending that he had been negligent. Judgment has been entered against him. He has played no part in this appeal. It transpired that Mr Powell did not have insurance as required by the Road Traffic Act 1988 ("the Act"). The Claimants also brought proceedings against the Second Defendant ("the MIB") contending that the MIB would be liable to satisfy any unsatisfied judgment obtained against the First Defendant pursuant to clause 5 of an agreement reached between the MIB and the Secretary of State for the Environment, Transport and the Regions dated 13 th of August 1999 ("the Agreement"). Clause 6 of the Agreement provides that that obligation is subject to exceptions and the obligation does not apply to claims falling within the categories of claims defined in clause 6. MIB, in its defence, relied on an exception contained in clause 6(l)(e)(ii) of the Agreement. In summary, that provides that the MIB is not obliged to compensate a person in respect of an unsatisfied judgment where the claimant knew, or ought to have known, that the vehicle was being used without the relevant insurance. The precise words of the exception in clause 6(1)(e)(ii) of the Agreement, so far as material, are as follows:
"EXCEPTIONS TO AGREEMENT
"6. Clause 5 docs not apply in the case of an application made in respect of a claim of any of the following descriptions….
(e) a claim which is made in respect of a relevant liability … by a claimant who, at the time of the use giving rise to the relevant liability was voluntarily allowing himself to be carried in the vehicle and either before the commencement of the journey or after such commencement if he could reasonably be expected to have alighted from it, knew or ought to have known that –
….
(ii) the vehicle was being used without there being in force in relation to its use such a contract of insurance as would comply with Part VI of the 1988 Act"
The facts relied upon by the MIB in its defence in relation to the applicability of that exception were set out at paragraph 4 of the Defence in the following terms:
"4. The Second Defendant notes that the Claimants were all friends with the First Defendant. They had all been at the home of a mutual friend prior to the accident. The Claimants were informed by the First Defendant that he was not insured to drive the Citroen Saxo. Additionally the Claimants knew that the First Defendant had recently obtained the motor vehicle and that the First Defendant had previous driving disqualifications for driving offences. Alternatively, the Second Defendant will aver at trial that the Claimants (at the very least) "deliberately turned a blind eye" to the issue of whether the First Defendant was insured".
By order dated 25 April 2016, Deputy District Judge Ead ordered, amongst other things, that the question of whether the Claimants knew or ought to have known that the First Defendant was driving without insurance be tried as a preliminary issue.
The Trial
At the hearing, no case was advanced on the basis of any actual knowledge by any of the three Claimants that Mr Powell was not insured. As the judge noted at paragraph 7 of his judgment:
"The essence of the case of the MIB at trial today is that in the specific circumstances, these claimants ought to have known because of knowledge of Powell's past offending, the fact that he had owned so many cars over a relatively short period and at a time in his life when insurance would have been an expensive commodity anyway (even disregarding his history of offending), and he had no apparent means of funding the acquisitions of the vehicles and their insurance".
A significant part of the reasoning underlying the conclusion of the judge, as appears from the rest of his judgment, is that prior to the accident, Mr Anthony Powell had convictions for driving offences and that he had been sentenced to imprisonment for those offences.
In that regard, it is relevant to note that the MIB (on whom the burden of proof of establishing that the exception applied) did not adduce any evidence of Mr Powell's convictions and, in particular, the MIB did not adduce any evidence that Mr Powell had convictions relating to driving which had led to him being sentenced to a period of imprisonment prior to the accident that was the subject of this claim. Mr Powell did not give evidence.
The three Claimants gave evidence. The First Claimant, Mr Whyatt, confirmed in his evidence in chief that the responses that he had given to requests for further information made by the MIB were true. In those he said, in response to a question as to whether he knew if Mr Powell had previous convictions for dishonesty offences, that he knew that Mr Powell had been in trouble with the police before but did not know what for. He said that he did not know that Mr Powell had been previously disqualified from driving and that he believed that Mr Powell had some penalty points for speeding. Mr Whyatt said in cross-examination that he had heard that Mr Powell had been in trouble for burglaries and he said that Mr Powell had been in prison. He further said that it did not occur to him that Anthony Powell might not have insurance and he just thought that Mr Powell had insurance. Asked if he was surprised to learn that Mr Powell did not have insurance he said that Mr Powell had told him that the car was "legit". The judge did not accept that that was a truthful statement and did not accept that Mr Whyatt had been told the car was "legit".
The Third Claimant, Arron Rees, also gave evidence. In cross-examination, Arron said he did not ask Anthony Powell if he had insurance but just assumed that he had. He did not refer in his evidence in chief to him knowing that Anthony Powell had any convictions and, in his responses to requests for information, he said that he did not know that Anthony Powell had previous convictions for dishonesty offences nor that he had been previously disqualified from driving nor that he had convictions for driving offences. In cross-examination, Arron also said that he did not know that Anthony Powell had been to prison.
The Second Claimant, Gary Rees gave evidence. In his evidence in chief, he confirmed that the statement he gave to police (which did not refer to any criminal convictions of Anthony Powell) was true. He confirmed that his answers to the requests for information were true and in those he stated that he knew Anthony Powell had been in trouble with the police and he believed it was to do with robbery. There was another statement signed by the Second Claimant. It transpired that that was prepared by the MIB and signed by the Second Claimant but he has difficulties in reading and the statement was not read back to him before he signed. That statement included a sentence in these terms "I knew that he has been in gaol for a number of offences including driving offences". That statement, however, was not confirmed by him as being true and did not form part of his evidence in chief. In cross-examination, Gary confirmed that he knew that Anthony Powell had been in trouble with the police and he knew that he had been to prison. He thought it was for robbery and a driving offence but he did not know the details. In re-examination, Gary said that he learned about that matter after the accident. The judge, however, did not believe that last assertion. The position was, then, that Gary Rees had given evidence that he believed that Anthony Powell had been to prison for robbery and a driving offence and he knew that information at the time of the accident. In cross-examination, Gary also said that he "thought...
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