Michael Howe v Motor Insurers' Bureau

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMr Justice Stewart,Mr Justice Stewart:
Judgment Date20 April 2016
Neutral Citation[2016] EWHC 884 (QB)
Date20 April 2016
Docket NumberCase No: HQ14P05029

[2016] EWHC 884 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Stewart

Case No: HQ14P05029

Between:
Michael Howe
Claimant
and
Motor Insurers' Bureau
Defendant

Benjamin Williams QC (instructed by Stewarts Law LLP) for the Claimant

Howard Palmer QC (instructed by Weightmans LLP) for the Defendant

Hearing date: 13 April 2016

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.

Mr Justice Stewart Mr Justice Stewart:
1

On 22 March 2016 I handed down judgment in this case after a four day trial earlier that month. The judgment is reported at [2016] EWHC 640 (QB). The claim failed and the Claimant was ordered to pay 85% of the Defendant's costs of the claim.

2

The outstanding issue is as to whether the Claimant has the benefit of Qualified One-way Costs Shifting (QOCS). This has been argued by counsel who did not appear on the trial, namely Mr Benjamin Williams QC for the Claimant and Mr Howard Palmer QC for MIB.

3

There had been correspondence between the parties in which MIB questioned whether the Claimant had entered into a pre-commencement funding arrangement. If that had been the case, then he would not have had the benefit of the QOCS protection. However, MIB now accepts, in the light of the comprehensive assurances from the Claimant's solicitors that he entered into no such pre-commencement funding arrangement, that this exemption from QOCS protection does not arise.

4

The central point for my determination concerns the opening wording of CPR Rule 44.13(1) which sets out the scope of QOCS. The Rule states:

"44.13

(1) This Section applies to proceedings which include a claim for damages –

(a) for personal injuries;

…….."

5

The question for me is whether the proceedings included a claim for damages for personal injuries. In order to decide this I have to look at the substance of the claim brought.

6

The skeletal background to this case is:

(i) The Claimant was rendered paraplegic on 30 March 2007 when driving in France. A wheel came off a lorry and collided with his lorry. It has been impossible to identify the lorry from which came the wheel or its driver or its insurer.

(ii) The cause of action of the Claimant against MIB was based on regulation 13(1) of The Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Board) Regulations ( SI2003/37) ("the 2003 Regulations").

(iii) So far as relevant Regulation 13 provides:

"Entitlement to compensation where a vehicle or insurer is not identified

13(1) This regulation applies where –

(a) an accident, caused by or arising out of the use of a vehicle which is normally placed 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."

(iv) In the judgment in the main action I determined that the claim was barred by limitation under English law.

(v) The Claimant put his case under Regulation 13 on alternative bases, namely:

(a) that the effect of the 2003 Regulations is statutorily to modify the 2003 Untraced Drivers' Agreement so as to bring his claim within its scope and such that there is no limitation defence.

(b) The 2003 Regulations create a statutory cause of action, the argument being that, because the conditions in Regulation 13(1) were all satisfied only in November 2014, limitation had not expired when proceedings were commenced.

(vi) I rejected the argument that the effect of Regulation 13 is statutorily to amend the Untraced Drivers' Agreement. This is dealt with in paragraphs 73 – 80 of the judgment. I accepted that Regulation 13 creates a statutory cause of action but rejected the Claimant's argument as to the date of accrual of the cause of action. See the judgment at paragraphs 82 – 88.

(vii) The Amended Particulars of Claim claimed:

"(i) A Declaration that the MIB is liable to compensate the Claimant in accordance with the Untraced Drivers' Agreement, dated 7 February 2003 as modified by Regulation13(2)(b) of the (2003 Regulations).

(ii) Alternatively damages exceeding £300,000.

(iii) Provisional damages…."

7

MIB argues that a claim for compensation under the 2003 Regulations is not a claim for damages for personal injuries. MIB submits that this is self evident, but is in any event made clear by Regulation 16 of the 2003 Regulations which states:

"16 Civil Liability

Any sum due and owing pursuant to these Regulations shall be recoverable as a civil debt."

8

In Wagenaar v Weekend Travel Limited [2015] 1 WLR 1968; [2014] EWCA Civ. 105 the Claimant claimed damages for personal injury against the Defendant who joined the Third Party Defendant claiming indemnity/contribution. The judge dismissed the Claimant's claim and the Defendant's Part 20 claim. He ordered the Claimant to pay the Defendant's costs and the Defendant to pay the Third Party costs but, pursuant to QOCS, that neither order was to be enforced. The Court of Appeal allowed the Third Party's appeal on the basis that the QOCS provisions in CPR 44.13 to 44.17 did not apply to protect the Defendant from paying the Third Party's costs. At paragraph 36 Vos LJ said this:

"36. I should start by referring briefly to the Jackson Report, pursuant to which QOCS was introduced. I shall not repeat here the careful discussion in Chapters 9 and 19 of the Jackson Report. Suffice it to say that the rationale for QOCS that Jackson LJ expressed in those sections came through loud and clear. It was that QOCS was a way of protecting those who had suffered injuries from the risk of facing adverse costs orders obtained by insured or self-insured parties or well-funded defendants. It was, Jackson LJ thought, far preferable to the previous regime of recoverable success fees under CFAs and recoverable ATE premiums. There is nothing in the Jackson Report that supports the idea that QOCS might apply to the costs of disputes between those liable to the injured parties as to how those personal injury damages should be funded amongst themselves."

The Court of Appeal in the context of the case before it, considered the proper meaning of the word "proceedings" in Rule 44.13. Vos LJ said:

"38. …The whole thrust of CPR Rules 44.13 to 44.16 is that they concern claimants who are themselves making a claim for damages for personal injuries, whether in the claim itself or in a counterclaim or by an additional claim (as defined in CPR r20.2(2)). …"

9

From the 2003 Regulations and relying on Wagenaar, MIB submits:

(i) That a failure to provide compensation called for by the Regulations or other failure to fulfil the statutory duty under the Regulations does not give rise to a claim for damages for personal injuries. The fact that the compensation is calculated by reference to the amount of damages for personal injuries which would have been recoverable from the original tortfeasor does not make MIB's liability under the Regulations such as to give rise to a claim for damages for personal injuries.

(ii) It follows that MIB's liability under the Regulations, does not come within the QOCS provisions.

(iii) The Wagenaar case supports the Defendant's submission.

10

I start with Jacobs v MIB [2011] 1 All ER 844; [2010] EWCA Civ. 1208. A substantial part of the reasoning of this judgment is under challenge in the case of Moreno due to be heard by the Supreme Court this summer. However, it seems that the passages I am about to cite are not controversial:

"16. Regulation 13 gives a person resident in this country who has been injured in a road traffic accident abroad involving a vehicle which is normally based abroad a right to obtain compensation from the compensation body if it has proved impossible to identify the vehicle or an insurance undertaking which insures it.

THE SCHEME OF THE DIRECTIVE

21. The scheme of the compensation arrangements established by the Fourth Directive appears clearly from Arts 6 and 7, to which I have already referred. In essence, the compensation bodies are intended to provide a safety net which will be called upon only in rare cases where the tortfeasor is unidentified or uninsured or where for some reason the insurer fails to respond to a claim within the prescribed time. Even then, however, the compensation bodies do not ultimately bear the burden of the claim, because the body that has paid compensation to an injured party has the right to obtain reimbursement from the corresponding body in the state where the insurer is established… or has a claim against one of the guarantee funds: see Arts 6(2) and 7. The scheme appears to proceed on the assumption that the existence of the driver's liability and the determination of the amount of compensation payable to the injured party will be governed by the same...

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3 cases
  • Robert James Jeffreys v The Commissioner of Police for the Metropolis
    • United Kingdom
    • Queen's Bench Division
    • 4 May 2017
    ...the unreported ruling on costs of Foskett J in the case of LL v The Lord Chancellor (unreported) (9 December 2015) and the case of Howe v Motor Insurers Bureau [2016] EWHC 884 (QB). 28 Secondly and distinctly, the Appellant also submitted that the provisions relating to Qualified One-Way Co......
  • Mr Michael Howe v Motor Insurers' Bureau
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 6 July 2017
    ...that Mr Howe's claim was not a claim for damages for personal injury for the purposes of CPR Part 44.13. His second judgment is at [2016] EWHC 884 (QB), [2016] 1 WLR 2751. The judge himself gave permission to appeal and we have been assisted on this appeal by Senior Costs Judge Master Gor......
  • Jamie Whyatt and Others (Claimants/Appellants) v Anthony Powell and Another
    • United Kingdom
    • Queen's Bench Division
    • 17 March 2017
    ...costs order made by the judge. He found that the provisions of CPR 44. 13 did not apply in this case, relying on the decision in Howe v Motor Insurers' Bureau [2016] EWHC 884 (QB). CPR 44.13 provides for qualified one-way costs shifting in proceedings which include a claim for personal inju......

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