Moreno v Motor Insurers' Bureau
| Jurisdiction | England & Wales |
| Judge | Lord Mance,Lord Sumption,Lord Toulson,Lord Hodge,Lord Clarke |
| Judgment Date | 03 August 2016 |
| Neutral Citation | [2016] UKSC 52 |
| Date | 03 August 2016 |
| Court | Supreme Court |
[2016] UKSC 52
THE SUPREME COURT
On appeal from: [2015] EWHC 1002 (QB)
Lord Mance
Lord Clarke
Lord Sumption
Lord Toulson
Lord Hodge
Appellant
Hugh Mercer QC Marie Louise Kinsler Alistair Mackenzie (Instructed by Weightmans (Liverpool))
Respondent
Daniel Beard QC Sarah Crowther (Instructed by BL Claims)
(with whom Lord Clarke, Lord Sumption, Lord Toulson and Lord Hodge agree)
On 17 May 2011, the respondent, Ms Tiffany Moreno, a United Kingdom resident, was on holiday in Greece. Walking along the verge of a road, she was struck from behind by a vehicle registered in Greece driven by a Ms Kristina Beqiri. Ms Beqiri had neither a valid driving licence nor it appears any insurance and is admitted to have been responsible for the accident. Sadly, Ms Moreno suffered very serious injuries, which included loss of her right leg requiring her to use a wheelchair, continuing pain and psychological reaction, as well as loss of earnings. The preliminary issue the subject of this appeal is whether the scope of her claim to damages is to be determined in accordance with English or Greek law.
Ms Moreno's claim is against the Motor Insurers' Bureau of the United Kingdom (the "UK MIB"). That it can be pursued against the UK MIB is the result of a series of Council Directives of the European Economic Community (now Union) dating back to 1972 and culminating in a codified Sixth Directive 2009/103/EC of 16 September 2009. These Directives are in part transposed into English law by The Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003 (SI 2003/37) ("the 2003 Regulations"). The 2003 Regulations were enacted prior to the codifying Sixth Directive and therefore refer to the earlier Directives. The expressed and obviously beneficial purpose of the arrangements introduced by the Directives and Regulations is to ensure that compensation is available for victims of motor accidents occurring anywhere in the Community (now the Union) and to facilitate their recovery of such compensation. With British exit from the Union, this will, no doubt, be one of the many current arrangements requiring thought.
In the present case, the effect of the arrangements is that Ms Moreno is entitled to pursue the UK MIB, rather than pursue Ms Beqiri or search for some (evidently non-existent) insurer of Ms Beqiri or pursue the Greek body responsible for providing compensation in respect of uninsured vehicles involved in Greek accidents. Under the Sixth Directive the UK MIB will, once it has compensated Ms Moreno, be able to claim reimbursement from the Greek compensation body, which will in turn be subrogated to Ms Moreno's rights against Ms Beqiri. The issue is, as stated, whether the scope of the UK MIB's liability to Ms Moreno is be measured according to English or Greek law. Ms Moreno's concern is that Greek law would yield a lesser measure of compensation than English law. It is accepted however that in other contexts the reverse might be the case. There is, for example, evidence that Irish personal injuries' damages can be significantly higher than English, and that Italian law can in fatal accident cases award significantly more (and, if relevant, to a broader range of persons) than English law.
Ms Moreno's case, advanced on her behalf by Mr Daniel Beard QC, is that the Regulations provide for English law to govern the measure of recovery, and that there is nothing in the Sixth Directive to the contrary or precluding this. Submissions to like effect were accepted in 2010 by the Court of Appeal (Laws, Moore-Bick and Rimer LJJ), overruling Owen J, in Jacobs v Motor Insurers' Bureau [2010] EWCA Civ 1208; [2011] 1 WLR 2609. The Court of Appeal's decision in Jacobs was followed in Bloy v Motor Insurers' Bureau [2013] EWCA Civ 1543; [2014] 1 Lloyd's Rep IR 75. In the present case, Gilbart J on 17 April 2015 rightly also held himself bound by the decision in Jacobs, but saw very considerable force in a contrary conclusion. On 23 April 2015 he granted the UK MIB's application for a "leap-frog" certificate under section 12 of the Administration of Justice Act 1969, and the appeal comes before the Supreme Court accordingly, with its permission granted 28 July 2015.
Prior to the Directives, there was already in existence the Green Card System established by Internal Regulations and an Inter-Bureaux Agreement covering states both within and outside the then European Economic Community. Under this System, still effective in the form of Internal Regulations (as adopted by the UN General Assembly in Crete on 30 May 2002 and revised in Lisbon on 29 May 2008 and in Istanbul on 23 May 2013) and in force in substance since 1 July 2008, the insurers of vehicles in participating states issue Green Cards guaranteeing compensation to victims of motor accidents caused by the driving of such vehicles abroad, and bureaux set up in each such state guarantee "that the foreign insurer will abide by the law applicable in that country and compensate injured parties within its limits". Article 3(4) headed "Handling of Claims" further provides:
"All claims shall be handled by the bureau with complete autonomy in conformity with legal and regulatory provisions applicable in the country of accident relating to liability, compensation of injured parties and compulsory insurance …"
Article 5(1) provides for the local bureau which has thus settled a claim arising out of an accident to be able to demand reimbursement of the sums paid as compensation, together with costs and a handling fee, from the member of the bureau (ie the relevant insurer) which issued the Green Card or policy of insurance or, if appropriate, from the foreign bureau itself, while under article 6(1) each bureau guarantees the reimbursement by its members (ie the insurers) of any amount so demanded.
The Directives start with the First Council Directive 72/166/EEC of 24 April 1972 requiring each member state under article 3(1) to ensure that civil liability in respect of the use of vehicles normally based in its territory is covered by insurance, which must also under article 3(2) cover any loss or injury caused in the territory of another member state. Equivalent provision is now made in article 3 of the codifying Sixth Directive. Articles 2(2) and 7 of the Directive (now, articles 2 and 4 of the Sixth Directive) contemplated that the requirement for a vehicle based in one member state to produce a Green Card on entry into another member state would cease from a date to be fixed by the Commission once it ascertained that an agreement had been concluded between the national insurance bureaux established under the Green Card System in member states whereby each such bureau (elsewhere sometimes described as a "guarantee fund"):
"guarantees the settlement, in accordance with the provisions of its own national law on compulsory insurance, of claims in respect of accidents occurring in its territory caused by vehicles normally based in the territory of another member state, whether or not such vehicles are insured."
The relevant Convention complementaire entre Bureaux nationaux was entered into on 12 December 1973. Article 3(a) provides that it modifies pro tanto the InterBureaux Agreement, the terms of which otherwise remain in force. Domestic effect is currently given to the requirement in article 1(4) of the Second Directive 84/5/EEC of 30 December 1983 for a guarantee by the Uninsured Drivers' Agreement dated 3 July 2015 made between the Secretary of State for the Environment, Transport and the Regions and the UK MIB.
The Second Directive specified in article 1(1) that the insurance referred to in article 3(1) of the First Directive should cover compulsorily both property damage and personal injuries, up to specified minimum amounts (article 1(2)). Equivalent provision is made in the Sixth Directive in articles 3 and 9. Further it was provided by article 1(4) of the Second Directive (or now article 10 of the Sixth Directive) that each member state should:
"set up or authorize a body with the task of providing compensation, at least up to the limits of the insurance obligation for damage to property or personal injuries caused by an unidentified vehicle or a vehicle for which the insurance obligation provided for in paragraph 1 [or article 3 of the Sixth Directive] has not been satisfied."
Article 1(4) of the Second Directive (now article 10(4) of the Sixth Directive) continued:
"… [E]ach member state shall apply its laws, regulations and administrative provisions to the payment of compensation by this body, without prejudice to any other practice which is more favourable to the victim."
The intention of the legislature in passing the Second Directive was "to entitle victims of damage or injury caused by unidentified or insufficiently insured vehicles to protection equivalent to, and as effective as, that available to persons injured by identified and insured vehicles": Evans v Secretary of State for the Environment, Transport and the Regions ( Case C-63/01) [2004] RTR 32, para 27.
The Fourth Directive 2000/26/EC of 16 May 2000 carried matters further, most notably by giving victims of foreign motor accidents various possibilities of recourse in their home states of residence. Article 1(1) stated that:
"The objective of this Directive is 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 which are caused by the use of vehicles insured and normally based in a member state."
"Injured party" was by article 2(d) defined as stated in article 1(2) of the First Directive, that is as "any person...
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