Phillips v Rafiq
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ward,Lord Justice Latham,Mr Justice Charles |
| Judgment Date | 14 February 2007 |
| Neutral Citation | [2007] EWCA Civ 74 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2006/1386 |
| Date | 14 February 2007 |
[2007] EWCA Civ 74
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
HIS HONOUR JUDGE RICHARD SEYMOUR
(SITTING AS A JUDGE OF THE HIGH COURT)
HQ05X02258
Royal Courts of Justice
Strand, London, WC2A 2LL
the Rt Hon. Lord Justice Ward
the Rt Hon. Lord Justice Latham and
the Hon Mr Justice Charles
Case No: B3/2006/1386
Stephen Worthington QC and James McKeon (instructed by Messrs Weightmans) for the appellant
Andrew Ritchie (instructed by Field Fisher Waterhouse) for the respondent
Hearing date: 23rd January 2007
Lord Justice Ward
The issue in this appeal is this: is the appellant, the Motor Insurers' Bureau (“M.I.B”) liable upon the proper construction of the Uninsured Drivers Agreement of 1999 to satisfy any judgment obtained against the first defendant in this action brought by Mrs Louise Phillips, the widow of the late Neville Phillips, on her behalf and on behalf of his dependents, for damages under the Fatal Accidents Act 1976 in circumstances where the deceased was killed in a road traffic accident and where he knew that he was being carried as a passenger in the vehicle concerned when it was being used without there being in force in relation to its use such a contract of insurance as would comply with Part VI of the Road Traffic Act 1988. This is the M.I.B's appeal against the declaration made on 11th May 2006 by His Honour Judge Seymour Q.C. sitting as an additional judge of the Queen's Bench Division that the Bureau is so liable.
The background facts
The salient facts are not in dispute. Mr Phillips acquired the vehicle concerned, a Fiat Marea, registration number S394MTH, under a conditional sale agreement dated 25th November 2001. At the time he arranged temporary insurance cover which was valid until Christmas Day 2001. That expired and Mr Phillips neglected to take steps to continue the insurance on the motor car and his use of it thereafter was uninsured.
On 27th August 2002 Mr Phillips was in the Birmingham area assisting his friend, Mr Mohammed Rafiq, the first defendant in the action to plaster and paint a shop belonging to members of Mr Rafiq's family. When the work was finished Mr Phillips began the drive back to London but via Walsall where they collected two female relatives of Mr Rafiq for a lift back to London. They sat in the back of the car. Mr Rafiq took over the driving from Walsall. He was driving on the M25 motorway near Potter's Bar at about 3 a.m. on the morning of 28th August 2002. It would appear from the accident reconstruction that he lost control of the vehicle probably because he fell asleep. The car veered into the central crash barrier and overturned. Mr Phillips was in the front passenger seat, possibly not wearing a seat belt. He suffered such serious injuries that he died in hospital later that day. The two young girl passengers were also killed. Mr Rafiq survived. He was later convicted of driving without due care and attention.
Although Mr Rafiq had a policy of motor insurance which covered his driving of his own vehicle, that policy did not cover his use of Mr Phillips' vehicle. Mr Phillips did not trouble to ask Mr Rafiq whether he had cover to drive and the judge had no difficulty in finding that Mr Phillips knew or ought to have known that he was being carried in the vehicle when its use was uninsured. There is no appeal against that finding of fact.
Mrs Phillips brings her claim under the Fatal Accidents Act but deliberately makes no claim on behalf of the estate under the Law Reform (Miscellaneous Provisions) Act 1934. She sought a declaration that the M.I.B. were liable to satisfy any judgment obtained by her against Mr Rafiq who played no part in the action. His negligence is not disputed by the M.I.B.
The defence of the M.I.B. is that the claim depends wholly upon whether the deceased would have been entitled to recover his damages from the Bureau had he not died. It is averred that the M.I.B. would not be liable to satisfy any award made in his favour because he had voluntarily allowed himself to be carried in the vehicle when he knew or ought to have known that the vehicle was being used without proper insurance being in force. It is contended that if the M.I.B. would not have been liable to him, it could have no residual liability to the claimant whose entitlement under the Fatal Accidents Act is derivative of and dependant upon the viability of the claim the deceased would have had if he lived. If he could not recover, she could not recover.
The answer depends upon the proper construction of clause 6.1(e) of the Uninsured Drivers' Agreement which provides an exception to the M.I.B's obligation to satisfy compensation claims in these terms:
“Clause 5 [obliging the M.I.B to satisfy any judgment against the driver] does not apply in the case of an application made in respect of a claim of any of the following descriptions …
(e) a claim which is made in respect of a relevant liability described in paragraph (2) [it being common ground that this is such a relevant liability] by a claimant who, at the time of the use giving rise to the relevant liability was voluntarily allowing himself to be carried in the vehicle and, either before the commencement of his journey in the vehicle or after such commencement if he could reasonably be expected to have alighted from it, knew or ought to have known that –
(i) …
(ii) the vehicle was being used without there being in force in relation to its use such a contract of insurance as would comply with Part VI of the 1988 Act, …“
“Claimant” has been defined in the Agreement as follows:
“In this Agreement, unless the context otherwise requires, the following expression shall have the following meaning –
“Claimant” means a person who has commenced or who proposes to commence relevant proceedings and has made an application under this Agreement in respect thereof.”
The interpretation of contracts: the modern principles
It is common ground between the parties that the proper approach is, of course, the enunciation of principle expressed by Lord Hoffman in I.C.S. Ltd v West Bromwich B.S. [1998] A.C. 896, 912:
“(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.
(2) The background was famously referred to by Lord Wilberforce as the “matrix of fact,“ but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.
(3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. …
(4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax: (see Mannai Investments Co. Ltd. v. Eagle Star Life Assurance Co. Ltd. [1997] A.C. 749).
(5) The “rule” that words should be given their “natural and ordinary meaning” reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. Lord Diplock made this point more vigorously when he said in The Antaios Compania Naviera S.A. v. Salen Rederierna A.B. [1985] A.C. 191, 201:
“… if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business commonsense, it must be made to yield to business commonsense.”“
Our attention was also drawn to R (Westminster City Council) v National Asylum Support Service [2002] UKHL 38 [2002] 1 W.L.R. 2956 where Lord Steyn explained in paragraph 5:
“The starting point is that language in all legal texts conveys meaning according to the circumstances in which it was used. It follows that the context must always be identified and considered before the process of construction or during it. It is therefore wrong to say that the court may only resort to evidence of the contextual scene when an ambiguity has arisen.”
The M.I.B. scheme for compensation of victims of uninsured drivers
The Road Traffic Act 1930 made it compulsory for motor vehicles to be insured against third party risks yet the Act gave no protection to those third parties where the negligent motorist had failed to comply with his statutory obligation to insure. That lacuna was filled...
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Anne Louise Tiffney (ap) V. Sean Flynn (ap)+motor Insurers Bureau
...Britton Phillips deceased) v Mohammed Rafiq and Motor Insurers Bureau which is reported at [2006] EWHC 1461 (QB) and, on appeal, at [2007] EWCA Civ 74 ("the case of Phillips"). [17] At the proof, Mr Ellis QC and Mr Primrose appeared for the pursuer. The pursuer argued that on a proper const......
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...the cases cited in Lewison ([50] supra) at para 1.02, fn 19). Thus, in the recent English Court of Appeal case of Phillips v Rafiq [2007] 1 WLR 1351, Ward LJ was able to state (at [8]): It is common ground between the parties that the proper approach [to contractual interpretation] is, of c......
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Zurich Insurance (Singapore) Pte Ltd v B-Gold Interior Design & Construction Pte Ltd
...the cases cited in Lewison ([50] supra) at para 1.02, fn 19). Thus, in the recent English Court of Appeal case of Phillips v Rafiq [2007] 1 WLR 1351, Ward LJ was able to state (at [8]): It is common ground between the parties that the proper approach [to contractual interpretation] is, of c......