Motor Insurers' Bureau v Michael Lewis (A protected party, by his litigation friend Janet Lewis)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Flaux,Sir Stephen Richards,Lord Justice Henderson |
| Judgment Date | 05 June 2019 |
| Neutral Citation | [2019] EWCA Civ 909 |
| Docket Number | Case No: B3/2018/2411 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 June 2019 |
Neutral Citation Number: [2019] EWCA Civ 909
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
SOOLE J
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Henderson
Lord Justice Flaux
and
Sir Stephen Richards
Case No: B3/2018/2411
Mr Hugh Mercer QC and Mr Richard Viney (instructed by Weightmans LLP) for the Appellant
Mr Philip Moser QC and Mr David Knifton QC (instructed by Thompsons Solicitors LLP) for the Respondent
Hearing date: 15 May 2019
Approved Judgment
Introduction and background
The appellant, the Motor Insurers' Bureau (to which I will refer as “the MIB”) appeals with the permission of the judge against the Order of Soole J dated 14 September 2018 on the trial of preliminary issues by which, so far as relevant to the appeal, the judge determined that EU Directive 2009/103/EC (“the 2009 Directive”) relating to compulsory motor insurance had direct effect against the MIB as an emanation of the state, so that the MIB was liable to indemnify the respondent claimant (to whom I will refer as “the claimant”) in respect of the injury he suffered in the incident described below.
On 9 June 2013 the claimant, then aged 67, was walking on private land in Lincolnshire. Dennis Tindale (who was the first defendant in the proceedings before Soole J, the MIB being the second defendant and the Secretary of State for Transport the third defendant) was a local farmer. He erroneously assumed that the claimant had been up to no good in the vicinity of his farm premises. He pursued the claimant and his friends, driving a 4x4 Nissan Terrano, which was not insured. He drove the vehicle along a public road before accessing a public footpath along which the claimant and his friends had walked, driving down an embankment on which one of the footpaths was situated, through a barbed wire fence, into a field. He drove across the field around a marshy area and then into collision with the claimant, causing him serious injury. At the appeal hearing, we were informed that Mr Tindale was subsequently prosecuted for causing grievous bodily harm with intent contrary to section 18 of the Offences against the Person Act 1861, but acquitted at trial.
By Order dated 9 June 2017, Mr Tindale was debarred from defending the claim. The MIB did not dispute that Mr Tindale was liable for the accident, but contended that it had no contingent liability to the claimant pursuant to the Uninsured Drivers Agreement (“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 under section 145 of the Road Traffic Act 1988 (hereafter “the RTA”).
Pursuant to an Order dated 12 February 2018, there were three preliminary issues before the judge:
(1) Whether any judgment the claimant obtains against Mr Tindale is a liability which is required to be insured against pursuant to Part VI of the 1988 Act;
(2) If any judgment the claimant 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 the 2009 Directive;
(3) Whether the provisions of the relevant Directives have direct effect against the MIB in the circumstances of this claim.
Before considering the judgment in relation to these issues, it is necessary to set out some of the domestic and European legislative background. Sections 143 and 145 in Part VI of the RTA, as amended by The Motor Vehicles (Compulsory Insurance) Regulations 2000, provide, so far as material, as follows:
“143 (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 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…
145 (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) [which contains exceptions not relevant for present purposes] below, the policy – (a) must insure 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 in Great Britain…”
Section 144 contains exceptions from the requirement of third party insurance in the case of vehicles owned by central or local government, police cars and ambulances and the like, where the relevant public bodies can self-insure, although in practice many such bodies do take out third party insurance with an authorised insurer.
Section 95 provides that an “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).” Thus, the combined effect of these statutory provisions is that the compulsory policy of motor insurance must be issued by an insurer which 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 Uninsured Drivers Agreements (“UDAs”) with the relevant Minister (now the Secretary of State) for Transport. There have been equivalent agreements in respect of untraced drivers since 1969.
The relevant UDA between the MIB and the Secretary of State is dated 13 August 1999. The terms relevant to the issues in the present case are set out by the judge at [13] to [15] of the judgment. At [16] the judge also notes that the first object of the MIB in the Objects Clause of its Articles of Association is: “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 [RTA] 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.”
As the judge noted at [17], the 2009 Directive consolidated a number of previous Motor Insurance Directives which related to compulsory insurance against civil liability in respect of motor vehicles dating back to Council Directive 72/166/EEC. The 2009 Directive provides so far as relevant as follows:
“CHAPTER 1
GENERAL PROVISIONS
Article 3
Compulsory insurance of vehicles
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.
…
CHAPTER 3
MINIMUM AMOUNTS COVERED BY COMPULSORY INSURANCE
Article 9
Minimum amounts
1. Without prejudice to any higher guarantees which Member States may prescribe, 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 EUR 5 000 000 per claim, whatever the number of victims…
CHAPTER 4
COMPENSATION FOR DAMAGE CAUSED BY AN UNIDENTIFIED VEHICLE OR A VEHICLE FOR WHICH THE INSURANCE OBLIGATION PROVIDED FOR IN ARTICLE 3 HAS NOT BEEN SATISFIED
Article 10
Body responsible for compensation
1. Each Member State shall set up or authorise 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 Article 3 has not been satisfied.
…
CHAPTER 5
SPECIAL CATEGORIES OF VICTIM, EXCLUSION
CLAUSES, SINGLE PREMIUM, VEHICLES
DISPATCHED FROM ONE MEMBER STATE TO ANOTHER
Article 12
Special categories of victim
1. Without prejudice to the second subparagraph of Article 13(1), the insurance referred to in Article 3 shall cover liability for personal injuries to all passengers, other than the driver, arising out of the use of a vehicle.
2. The members of the family of the policyholder, driver or any other person who is liable under civil law in the event of an accident, and whose liability is covered by the insurance referred to in Article 3, shall not be excluded from insurance in respect of their personal injuries by virtue of that relationship.
3. The insurance referred to in Article 3 shall cover personal injuries and damage to property suffered by pedestrians, cyclists and other non-motorised users of the roads who, as a consequence of an accident in which a motor vehicle is involved, are entitled to compensation in accordance with national civil law.
This Article shall be without prejudice either to civil liability or to the quantum of damages.”
Article 5 permits derogation by Member States from the obligation under Article 3 in respect of certain natural or legal persons and certain types of vehicle, but also provides for notification to the Commission.
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