Moreno v Motor Insurers' Bureau

JurisdictionEngland & Wales
JudgeMr Justice Gilbart
Judgment Date17 April 2015
Neutral Citation[2015] EWHC 1002 (QB)
CourtQueen's Bench Division
Docket NumberCase No: HQ14X03591
Date17 April 2015

[2015] EWHC 1002 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Gilbart

Case No: HQ14X03591

Between:
Tiffany Moreno
Claimant
and
The Motor Insurers' Bureau
Defendant

Daniel Beard QC and Sarah Crowther (instructed by BL Claims, Eastleigh) for the Claimant

Hugh Mercer QC and Marie Louise Kinsler (instructed by Weightmans, Liverpool) for the Defendant

Hearing dates: 19–20 March 2015

Approved Judgment

Mr Justice Gilbart

Introduction

1

This is a trial of a preliminary issue:

"Whether the scope of (the Defendant's) liability to the Claimant is to be determined in accordance with the law of England or the law of Greece."

The order for a trial of that issue was made by consent by Master Yoxall on 10th November 2014.

2

On 17th May 2011 the Claimant, who was then aged 25, and who lives in England and Wales, was on holiday on the island of Zakynthos in Greece. She was on the verge of a road on that island when a car left the road and struck her. She suffered grievous injury to her legs. She has since received extensive surgical and other medical and therapeutic treatment. Her right leg has been amputated through the tibia, and her left leg required extensive surgery to repair the knee ligaments. She has had repeated surgery to her legs. She must wear a prosthesis, and also has to use a wheelchair. She continues to suffer from pain and disability. She has also endured a psychological reaction, and an exacerbation of pre-existing depression. She has suffered losses of earnings, and it is claimed that she will be at a disadvantage on the open labour market.

3

The car in question was registered in Greece. The Claimant's solicitors wrote to the Defendant Motor Insurers' Bureau ("MIB") to obtain insurer details for the vehicle. Upon enquiry, its Greek equivalent considered that the vehicle was uninsured, and that the driver (who was of Albanian extraction and perhaps nationality) was responsible for the accident.

4

The Claimant has made a claim against the MIB under Regulation 13(2) of the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body Regulations) 2003 ( SI 2003/37) ("The 2003 Regulations").

5

In the Defence, it is admitted that the driver was liable under the law of Greece for the accident. It is admitted that, under the law of Greece, the Greek Guarantee Fund for the purposes of the relevant EU Motor Insurance Directives (of which more below) would be liable to compensate the Claimant. Liability is therefore admitted under Regulation 13, but it is contended that the measure of compensation payable should be assessed in accordance with the law of Greece. This is a case where the level of damages available to a claimant for personal injuries would be higher if assessed according to the laws applying in England and Wales than in Greece. (Although as will become apparent it cannot be assumed that the level of provision is more generous in England and Wales than in all other EU jurisdictions.)

6

Judgment has been entered for the Claimant by consent on 9th July 2014, and an interim payment made under CPR 25. That was without prejudice to the Defendant's arguments on the applicable law.

7

The Court of Appeal in Jacobs v MIB [2010] EWCA Civ 1208 [2011] 1 WLR 2609 has held that in a Regulation 13 claim (i.e. the case of a person from England and Wales suffering injury in another EU state at the hands of a culpable but uninsured or unidentified driver, but claiming in England and Wales), the law by which the assessment of compensation is to be made is that of England and Wales. It held that the right to compensation arose under the Regulations. In the judgment of Moore-Bick LJ, he addressed the effect of the coming into force of Regulation (EC) No 864/200of the European Parliament and Council on the law applicable to non-contractual obligations (" Rome II") on this issue. Moore-Bick LJ there said that the law applying to the existence of tortious liability has, since Rome II, been the law of the country where the injury was caused, but that the law by which the court makes the assessment of compensation under the 2003 Regulations remains the law of England and Wales. That approach was endorsed in Bloy and Ireson v MIB [2013] EWCA 1543 [2014] PIQR P9. While the comments in the judgment of the Chancellor (Etherton LJ) in that case are obiter on the effect of Rome II, its ratio adopted the interpretation of Regulation 13(2) given in Jacobs.

8

European Union Directives are not shy of using the traditional Latin names for the concepts involved. Those tags also have the advantage of being succinct and precise, and I shall use one or two. By lex fori is meant the law of the state in which the court dealing with the claim is situated, whereas lex loci delicti is the law of the state where the injury occurred, and in this case refers to Greece. (There are questions that can arise about the location of the relevant damage, but they are addressed in Rome II, and need not detain us here). Rome II applies the lex loci delicti to the issues of both liability and quantum, save in exceptional cases. The Court of Appeal has thus held in Jacobs that the lex fori applies to the assessment of compensation in claims under Regulation 13. However the Court of Appeal has since applied Rome II to actions in tort against the tortfeasor's insurer, including the rule that the assessment of compensation is made according to the lex loci delicti (see Wall v Mutuelle de Poitiers Assurances [2014] EWCA Civ 13 per Longmore, Jackson and Christopher Clarke LJJ)). The Court of Appeal there applied the lex loci delicti to the two issues of liability and the assessment of damages, while matters of procedure — such as the way in which expert evidence would be adduced – was held to be a matter for the lex fori.

9

The MIB contended in Jacobs and before me that since Rome II, Regulation 13 of the 2003 Regulations cannot be applied so as to provide for a level of compensation different from that obtainable in the country where the accident occurred – i.e. the application of lex loci delicti. The MIB obtained permission to appeal from the Supreme Court in Jacobs v MIB but before the appeal could be made and heard, the Court of Justice of the European Union (CJEU) gave judgment in Homawoo v GF Assurances C-412/10 [2011] ECR 1–11603. That held that Rome II was not in force at the relevant date in Jacobs, so that the appeal would have served no purpose and was not proceeded with. Bloy, which was decided after Jacobs, related to an accident which occurred before Rome II came into effect.

10

In this case, the MIB argues that this is a case where there can be an appeal straight from the High Court to the United Kingdom Supreme Court. It does so without demur from the Claimant, whose consent to an appeal direct to the Supreme Court under section 12 of the Administration of Justice Act 1969 is recorded in the order of Master Yoxall already referred to. As I indicated to the parties at the hearing, I shall consider whether to make such an order having received submissions in the light of my judgment.

11

The issue before the Court is twofold:

(a) Does Regulation 13, on its true construction, state that the assessment of claims made under it must be assessed according to the law applying in England and Wales?

(b) Given that Rome II is an EU regulation and is part of the law of the United Kingdom without the need for any domestic legislative steps to bring it into effect, is the effect of Rome II such that in a case falling within the Motor Insurance Directives, and therefore the 2003 Regulations, the court must now assess compensation in accordance with the law where the accident happened ( lex loci delicti) and not that of England and Wales ( lex fori)?

12

Given the existence of what is agreed to be authority binding on me ( Jacobs) I can only find for the Claimant on the merits of these arguments. But given the fact that this matter may well be the subject of subsequent appeal, it is right that I should set out the respective arguments of the parties.

13

To do so, I shall approach the matter under the following heads:

A Levels of damages for personal injury in England and Wales compared to other EU states;

B The law of England and Wales on choice of law until Rome II;

C The relevant Motor Insurance Directives, and the roles of the national compensation bodies such as the MIB;

D Agreement Between Compensation Bodies and Guarantee Funds of 29th April 2002;

E The 2003 Regulations;

F Rome II: Regulation 864/2007 of the European Parliament and of the Council on the law applicable to non-contractual obligations;

G The approaches in Jacobs and Bloy;

H Submissions for the Defendant MIB;

I Submissions for the Claimant;

J Discussion and conclusions.

A Levels of damages for personal injury in England and Wales compared to other EU states

14

It was common ground before me that there may be situations where the level of damages awarded by a court under the applicable laws of states other than the United Kingdom may be higher. I was presented with a report prepared for the European Commission in 2009 which considered levels of compensation. It shows that in most respects the UK is one of the more generous systems, but not the most generous. Unfortunately, the example chosen for comparison in the report was a case where there is a claim after a death in a road accident. That raises potential problems, as the existence of a claim for wrongful death is undoubtedly a matter for the lex loci delicti— see Cox v Ergo Versicherung AG [2014] UKSC 22 [2014] AC 1379.

15

I was also provided with some details of the level of general damages for pain, suffering, and loss of amenity set out in the Book of Quantum used in the Republic of Ireland, first introduced in...

To continue reading

Request your trial
4 cases
  • Michael Howe v Motor Insurers' Bureau
    • United Kingdom
    • Queen's Bench Division
    • 22 March 2016
    ...The applicable law in relation to damages is not before this court. There is a leapfrog appeal on that issue in the case of Moreno v MIB2. Moreno is due to be heard by the Supreme Court in July 2016. The First Issue: Is the MIB liable only if the FDG is liable? The Motor Insurance Directive......
  • Moreno v Motor Insurers' Bureau
    • United Kingdom
    • Supreme Court
    • 3 August 2016
    ...UKSC 52 THE SUPREME COURT On appeal from: [2015] EWHC 1002 (QB) Lord Mance Lord Clarke Lord Sumption Lord Toulson Lord Hodge Moreno (Respondent) and The Motor Insurers' Bureau (Appellant) Appellant Hugh Mercer QC Marie Louise Kinsler Alistair Mackenzie (Instructed by Weightmans (Liverpool)......
  • Gillian Marshall (widow and Administratix of the estate of Paul Marshall, deceased) v The Motor Insurers' Bureau and Others
    • United Kingdom
    • Queen's Bench Division
    • 27 November 2015
    ...v Motor Insurers' Bureau [2013] EWCA Civ 1543; [2014] Lloyd's Rep IR 75. Those decisions were followed at first instance in Moreno v Motor Insurers' Bureau [2015] EWHC 1002 (QB); [2015] Lloyds' Rep 535 (QB), but a certificate for a leapfrog appeal to the Supreme Court was allowed and on ......
  • Tiffany Moreno v The Motor Insurers' Bureau
    • United Kingdom
    • Queen's Bench Division
    • 23 April 2015
    ...Kinsler (instructed by Weightmans, Liverpool) for the Defendant Mr Justice Gilbart 1 On 17 th April 2015, I handed down judgment ( [2015] EWHC 1002 (QB)) on the preliminary issue in this action: "Whether the scope of (the Defendant's) liability to the Claimant is to be determined in accord......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT