Mr Daniel James Colley v Mr. Dylan Shuker
| Jurisdiction | England & Wales |
| Judge | Mr Justice Freedman |
| Judgment Date | 14 December 2020 |
| Neutral Citation | [2020] EWHC 3433 (QB) |
| Date | 14 December 2020 |
| Docket Number | Claim No: E90MA082 |
| Court | Queen's Bench Division |
[2020] EWHC 3433 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Freedman
Claim No: E90MA082
Mr. Philip Moser QC and Mr. Philip Mead (instructed by Irwin Mitchell LLP) for the CLAIMANT
Ms. Marie Louise Kinsler QC and Mr. Richard Viney (instructed by Weightmans) for the THIRD DEFENDANT
Hearing dates: 3 rd and 4 th November 2020
Approved Judgment
I Contents
| SECTION NUMBER | SUBJECT | PARAGRAPH NUMBER |
| I | Contents | |
| II | Introduction | 1–2 |
| III | The facts | 3–14 |
| IV | Application of EU law and the provisions of the 2009 Directive | 15–18 |
| V | Articles 3, 10 and 12 of the 2009 Directive | 19–30 |
| VI | The UK legislative framework for compulsory third-party motor insurance | 31–35 |
| VII | Failure to implement the Motor Insurance Directive | 36–38 |
| VIII | Claim against Insurer | 39–44 |
| IX | The preliminary issue | 45 |
| X | Issue 1: Can the Claimant rely upon Articles 3(1) and 12 of Directive 2009/103/EC to require the MIB, an emanation of the state and compensation body for the purposes of Article 10, to pay compensation in the circumstances of the present case? | 46 |
| XI | The nature and history of the MIB | 47–49 |
| XII | Claimant's case of a direct claim against the MIB. | 50–63 |
| XIII | MIB's case that there is no direct claim because the Article 3 obligation has been satisfied | 64–69 |
| XIV | MIB's case as to the effect of the travaux préparatoires | 70–78 |
| XV | Claimant's response as regards travaux préparatoires | 79–83 |
| XVI | Further consideration of Delaney | 84–92 |
| XVII | The consideration of the Csonka case by the MIB | 93–95 |
| XVIII | The consideration of the Csonka case by the Claimant | 96–105 |
| XIX | Other European decisions and especially Fidelidade: submission of the MIB | 106 – 111 |
| XX | Other European decisions and especially Fidelidade: submission of the Claimant | 112–113 |
| XXI | Discussion | 115–128 |
| XXII | Issue 2: whether the Third Defendant is entitled to rely on the exclusion permitted by Article 10(2) second sub-paragraph of Directive 2009/103/EC in respect of the Claimant, in the circumstances of the present case. | 129–130 |
| XXIII | Submission of the Claimant | 131–139 |
| XXIV | Submission of the MIB | 140–146 |
| XXV | Discussion | 147–157 |
| XXVI | Conclusion | 158–160 |
II Introduction
This is a claim arising out of a road traffic accident in which Mr Daniel James Colley (“the Claimant”) suffered catastrophic life changing injuries. A Vauxhall Corsa vehicle registered number BJ51 AUE (“the Vehicle”) was being driven by its registered owner, Mr Dylan Shuker (“the First Defendant”). The Vehicle was insured by the father of the First Defendant with an insurer, the Second Defendant (“the Insurer”). It was not disclosed that the First Defendant was the registered keeper, and he was not a named driver and was an uninsured driver. The Insurer has avoided liability for material misrepresentation. On a strike out application, the Claimant's claim against the Insurer was dismissed by an order of 5 March 2019 by Mrs Justice O'Farrell whose judgment was reported at [2020] RTR 13.
The Court has heard a trial of preliminary issues against the Third Defendant, the Motor Insurers' Bureau (“the MIB”). The preliminary issues raise questions of EU law, which turn on the proper construction of the EU Motor Insurance Directives. At issue are two points: firstly, whether the MIB is liable to indemnify the Claimant in the circumstances of this case ( Issue 1); secondly, whether the MIB has a defence under Article 10(2) of Directive 2009/103/EC (“ the Motor Insurance Directive” or “ the 2009 Directive”) ( Issue 2).
III The facts
The preliminary issues proceed on the basis of agreed facts contained in an agreed Statement of Facts. This has rendered unnecessary the calling of any evidence. The Claimant was a passenger in the Vehicle and was the victim of an accident caused by the Vehicle which was being driven by the First Defendant. On 27 March 2015 at about 2.20am, the Vehicle was being driven by the First Defendant on a public road known as Jiggers Bank, near Telford in Shropshire.
The Claimant was aged 19 at the time of the accident. As a result of the accident, which was caused by the negligence of the First Defendant, the Claimant suffered very serious injuries including an incomplete spinal-cord injury at level C4 and he is an incomplete tetraplegic.
At Shrewsbury Crown Court, on 22 March 2016, the First Defendant was convicted of causing serious injury by dangerous driving.
The insurance position was described at para. 5 of the agreed Statement of Facts as follows:
“On 20 May 2014, the father of the First Defendant, Mr Nicholas Shuker, applied to UK Insurance Limited (the Second Defendant) [“the Insurer”] for motor insurance in respect of the Vehicle, which application was accepted and a policy was issued and incepted on 21 May 2014 under policy number 19862770 (“the Policy”). The Policy named Mr N Shuker as the Policyholder and Main Driver, and A Hutchinson (Partner) as the Other Driver. The Policy did not provide cover for the use of the Vehicle by the First Defendant, who was an uninsured driver”.
The knowledge of the Claimant about the insurance position was described at para. 6 of the agreed Statement of Facts:
“At all material times the Claimant knew that the First Defendant did not have a valid driving licence and was not insured to drive the Vehicle”.
By proceedings commenced on 3 May 2016 in the High Court, Queen's Bench Division, Birmingham District Registry, under Claim No: C90BM129, the Insurer sought a declaration pursuant to section 152(2) of the Road Traffic Act 1988 (“the RTA”), as against the Policyholder, Mr Nicholas Shuker, that the Insurer was entitled to avoid the Policy on the grounds of material misrepresentation. The particulars of misrepresentation were that Mr Nicholas Shuker had stated wrongly that he was the registered keeper of the Vehicle, and that the only drivers of the Vehicle would be himself and his partner.
On 27 June 2016, the Court made an Order in the Birmingham District Registry granting the Insurer the declaration of avoidance in the terms sought, pursuant to section 152(2) of the 1988 Act, as amended by section 11 of the Consumer Insurance (Disclosure and Representations Act 2012). The effect of that declaration was to exempt the Insurer from the obligation under section 151 to make payment to the Claimant in respect of the judgment he obtained against the First Defendant.
By a claim form dated 23 March 2018, the Claimant sought compensation against the First Defendant. On 10 June 2020, judgment was entered against the First Defendant, subject to issues of contributory negligence.
In addition to this, the Claimant sought compensation from the Insurer, who had provided the insurance policy in respect of the Vehicle. As above noted, this claim was struck out on by an order of 5 March 2019. The judgment of Mrs Justice O'Farrell will be considered in greater detail below.
For the moment, it suffices to say this. Despite the making of the declaration under section 152(2) of the Road Traffic Act 1988, it was submitted that this section was incompatible with the EU law Directive 2009/103 which required Member States to make provision for compensation to third party victims of motor vehicle accidents. The words of section 152(2) of the Road Traffic Act 1988 were clear and provided the Insurer with a complete defence and did not admit the exercise of any discretion. The consequence was that the UK Government had been rendered unable to fulfil its duty to make provision for compensation to third party victims of motor vehicle accident where a declaration was obtained under section 152(2). Any incompatibility between the section and the EU Directive could not be resolved by a purposive interpretation, giving rise to a direct claim to damages of the Claimant against it. The claim against the Insurer was not a direct claim, but a derivative claim under section 151 to satisfy any judgment obtained against the First Defendant. However, the Claimant did not have a directly enforceable right to claim damages against the Insurer, a private entity and not a direct emanation of a Member State. There was therefore no power of the Court to disapply section 152(2).
The claim against the MIB can be summarised at this stage as follows. By contrast with the position with his claim against the Insurer, it was submitted on behalf of the Claimant that the MIB is an emanation of the State. Further, it was submitted that the UK government had conferred on the MIB the task under the EU Directive to remedy its failure to implement its obligation under the EU Directive consequent upon the above incompatibility. Unlike in the case of the Insurer where there could be no direct claim, there was no impediment to the Claimant having directly effective rights against the MIB in the circumstances of this case. The precise nature of the claim against the MIB and of MIB's defence to the claim will be set out in more detail below after setting out the nature of the structure of the EU Directive and the UK legislative position.
On 28 March 2010, the claim was amended to add as Fourth Defendant, the Secretary of State for Transport (‘the Secretary of State’). The...
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Daniel James Colley v Motor Insurers' Bureau
...gives rise to a direct right of action by a victim against the MIB, which he held to be an emanation of the state for these purposes: [2020] EWHC 3433 (QB), [2021] 1 WLR 1889. He therefore held the MIB liable to the Claimant, Mr Colley, in respect of the injuries he suffered when travelli......