Michael Lewis (a protected party by his Litigation Friend, Janet Lewis) v Dennis Tindale
| Jurisdiction | England & Wales |
| Judge | Mr Justice Soole |
| Judgment Date | 14 September 2018 |
| Neutral Citation | [2018] EWHC 2376 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Claim No: C90BM134 |
| Date | 14 September 2018 |
[2018] EWHC 2376 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
The Priory Courts
33 Bull Street
Birmingham B4 6DS
Mr Justice Soole
Claim No: C90BM134
Mr Philip Moser QC and Mr David Knifton QC (instructed by Thompsons Solicitors LLP) for the Claimant
Mr Hugh Mercer QC and Mr Richard Viney (instructed by Weightmans LLP) for the Second Defendant
Hearing dates: 6–8 June 2018
Judgment Approved
On 9 June 2013 the Claimant Mr Lewis suffered grievous injuries when walking on private land in Lincolnshire as a result of a collision with an uninsured Nissan Terrano 4 x 4 motor vehicle driven by the First Defendant Mr Tindale. By Order dated 9 June 2017 Mr Tindale has been debarred from defending the claim. The Second Defendant (the MIB) does not dispute Mr Tindale's full liability for the accident but contends that it has no contingent liability to Mr Lewis pursuant to the Uninsured Drivers Agreement 1999 (UDA 1999), because the accident and injuries were not caused by or arising out of the use of the vehicle on a road or other public place: s.145 Road Traffic Act 1988 (the 1988 Act).
Further to the Order dated 12 February 2018 for the trial of preliminary issues three outstanding questions fall for decision:
(i) Whether any judgment Mr Lewis may obtain against Mr Tindale is a liability which is required to be insured against pursuant to Part VI of the 1988 Act;
(ii) If any judgment Mr Lewis may obtain against Mr Tindale is a liability which is not required to be insured against pursuant to Part VI of the 1988 Act, whether the MIB is otherwise obliged to satisfy such judgment pursuant to Directive 2009/103/EC (the 2009 Directive);
(iii) Whether the provisions of the relevant Directives have direct effect against the MIB, as set out in paragraph 15 of the Re-Amended Particulars of Claim in the circumstances of this claim.
On behalf of Mr Lewis, Mr Philip Moser QC puts his case on the first issue on two alternative bases. First, that Mr Tindale's liability fell within the insurance obligation of s.145 of the 1988 Act, because the injuries were caused by or arose out of his use of the vehicle on a road/public place before he entered the private land/field. Secondly, that in order to comply with the 2009 Directive it is necessary to ‘read down’ s.145 in such a way that the compulsory insurance obligation extends to private land. I shall call these bases of claim ‘Causation’ and ‘Reading down’.
The parties agree that the second and third issues concern the same point, namely whether Articles 3 and/or 10 of the 2009 Directive are directly effective against the State through its emanation the MIB. This raises two questions which I shall call ‘Direct effect’ and ‘Emanation of the State’.
All these questions require a particular focus on two recent decisions of the CJEU 1, Vnuk v. Zavarovalnica Triglav dd (Case C-162/13) [2016] RTR 10 and Farrell v. Whitty (No.2) (Case C-413/15) [2018] 3 WLR 285 (hereafter Farrell (No.2)).
If unsuccessful against the MIB, Mr Lewis claims ‘Francovich’ damages ( Francovich v. Italian Republic (Joined cases C-6/90 and C-9/90) [1995] ICR 722) against the Third Defendant, the Secretary of State, alleging failure to implement the Directive. That claim is stayed pending resolution of the claim against the MIB.
The relevant facts are contained in an agreed statement and can be further abbreviated. On the date in question Mr Tindale drove the uninsured Nissan vehicle on a road or other public places, driving from his home at Village Farm, Marton along the Trent Port Road, then along a footpath at the top of a flood bank, before deliberately driving through a barbed wire fence onto a field. He then drove across the field and around a marshy area into collision with Mr Lewis in the field, causing him serious injury. The field was private land.
I have also received the evidence of Mr Paul Ryman-Tubb, the Chief Technical Officer of MIB who has been with the Bureau since July 2000. In his witness statement and oral evidence he elaborated in particular the history, constitution and funding of the
MIB and the negotiation and terms of successive Agreements with the Secretary of State.The 1988 Act, Part VI
Section 143 provides as material: (1) Subject to the provisions of this Part of this Act – (a) a person must not use a motor vehicle on a road [ or other public place] 2 unless there is in force in relation to the use of the vehicle by that person such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Part of this Act…'
Section 145 provides as material: (1) In order to comply with the requirements of this Part of this Act, a policy of insurance must satisfy the following conditions. (2) The policy must be issued by an authorised insurer. (3) Subject to subsection (4) below 3, the policy – (a) must ensure such person, persons or classes of persons as may be specified in the policy in respect of any liability which may be incurred by him or them in respect of the death of or bodily injury to any person or damage to property caused by, or arising out of, the use of the vehicle on a road [ or other public place] 4 in Great Britain…'
By section 95, ‘authorised insurer’ means ‘an insurer who is a member of the Motor Insurers Bureau (a company limited by guarantee and incorporated under the Companies Act 1929 on 14 th June 1946).’
MIB
By the combined effect of these provisions of the 1988 Act the compulsory policy of motor insurance must be issued by an insurer who is a member of the MIB. The insurers' obligation to fund the MIB is provided by the MIB Articles of Association, which include that an insurer ceases to be a member if it fails to pay the requisite annual levy. The MIB has since 1946 compensated the victims of uninsured drivers under successive agreements (UDA) with the relevant Minister (now the Secretary of State). Since 1969 there have been comparable agreements in respect of untraced drivers (UtDA).
The UDA 1999 5 is made between the Secretary of State and the MIB. By its preamble it is expressed to be supplemental to the Principal Agreement made 31 December 1945 between the Minister of War Transport and the insurers transacting compulsory motor insurance business in Great Britain. It came into force on 1 October 1999 in relation to accidents occurring on or after that date and may be determined by either party giving to the other not less than 12 months' notice in writing, but without prejudice to its continued operation in respect of accidents occurring before the date of termination: clause 4.
By clause 5, subject to identified exceptions, if a claimant has obtained against any person in a court in Great Britain a judgment which is an unsatisfied judgment then
By the definition section (clause 1), ‘unsatisfied judgment’ means ‘a judgment or order…in respect of a relevant liability which has not been satisfied in full within seven days from the date upon which the claimant became entitled to enforce it’. ‘Relevant liability’ means a liability in respect of which a contract of insurance must be in force to comply with Part VI of the 1988 Act. Thus the MIB's contractual obligation under the UDA 1999 is linked to the prevailing terms of Part VI (and their proper interpretation).
By the Objects clause of the MIB's Articles of Association, the first is ‘(1)(a) To provide a safety net for innocent victims of identified and uninsured drivers to satisfy…any liability required to be covered by contracts of insurance or security under Part VI of the [1988 Act] or by any other statute, statutory instrument, rule, regulation, order, directive or similar measure introduced by any competent authority or at common law or by custom.’
The 2009 Directive
Directive 2009/103/EC consolidates a number of Motor Insurance Directives (MID) relating to compulsory insurance against civil liability in respect of the use of motor vehicles and which date back to Council Directive 72/166/EEC of 24 April 1972. By Article 8 thereof, the latter required Member States to ‘…bring into force the measures necessary to comply with this Directive…’ by no later than 31 December 1973. Unless otherwise stated, all references are to the Articles of the 2009 Directive.
Article 3 headed ‘Compulsory insurance of vehicles’ provides as material: ‘Each Member State shall, subject to Article 5, 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 the measures referred to in the first paragraph.
…
The insurance referred to in the first paragraph shall cover compulsorily both damage to property and personal injuries.’
Article 5 allows for derogation by Member States from the Article 3 obligation in respect of certain natural or legal persons and certain types of vehicles.
Article 9 provides that ‘… each Member State shall require the insurance referred to in Article 3 to be compulsory at least in respect of the following amounts: (a) in the case of personal injury, a minimum amount of cover of EUR 1 000 000 per victim or 5 000 000 per claim, whatever the number of victims…’ By Part VI of the 1988 Act the identified compulsory cover for personal injury is unlimited in amount.
By Article 10, under the heading ‘Body responsible for...
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