Phillips v Rafiq
| Jurisdiction | England & Wales |
| Judgment Date | 11 May 2006 |
| Neutral Citation | [2006] EWHC 1461 (QB) |
| Court | Queen's Bench Division |
| Date | 11 May 2006 |
| Docket Number | Case noTLQ/05/1220 |
[2006] EWHC 1461 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
His Honour Judge Richard Seymour QC
(Sitting as a Judge of the High Court)
Case noTLQ/05/1220
MR A RITCHIE(instructed by Field Fisher Waterhouse)appeared on behalf of the Claimant
MR J MCKEON(instructed by Weightmans)appeared on behalf of the Defendants
HIS HONOUR JUDGE RICHARD SEYMOUR Q.C.:
On 28 August 2002 at about 3.00 a.m. Mr. Neville Phillips was the front seat passenger in a Fiat Marea motor car, registration number S394 MTH, to which vehicle I shall refer in this judgment as "the Car". The registered keeper of the Car was Lombard Vehicle Management Ltd. By a conditional sale agreement in writing dated 25 November 2001 Mr. Phillips agreed to acquire the Car from a company called Direct Auto Financial Services Ltd. It appears that at the time of purchasing the Car Mr. Phillips arranged a temporary insurance cover note in respect of it which was valid from 13.22 hours on 25 November 2001 to the same time on Christmas Day of the same year. However, it seems that Mr. Phillips neglected to take steps to continue the insurance of the Car and that his use of the Car was uninsured after Christmas Day 2001.
As at 28 August 2002 Mr. Phillips lived habitually with his wife, Mrs. Louise Phillips, the claimant in this action, and his family at an address in Beckton, East London. It seems that on 27 August 2002 Mr. Phillips had been in Birmingham assisting a friend, Mr. Mohammed Rafiq, the first defendant, to plaster and paint a shop belonging to members of Mr. Rafiq's family. Mr. Phillips had driven to Birmingham in the Car. Once the work was completed, Mr. Phillips, Mr. Rafiq and some young relations of Mr. Rafiq, Sadiyah Bint Rafiq and Moneba Bint Rafiq, set off back towards London in the Car with Mr. Phillips driving. It appears that when they got to Walsall Mr. Phillips and Mr. Rafiq changed positions, so that thereafter Mr. Rafiq was the driver and Mr. Phillips was the front seat passenger. That was the position when the Car crashed on the M25 motorway near Potters Bar at 3.00 a.m. or thereabouts on 28 August 200Mr. Phillips was very seriously injured in the accident and died in hospital later that day. The two young girls were also killed. Mr. Rafiq survived.
It transpired that Mr. Rafiq was not insured to drive the Car at the time of the accident.
Mr. Rafiq has taken no part in this action.
The second defendant in this action is Motor Insurers' Bureau, to which it is convenient to refer in this judgment as "MIB". MIB is a company limited by guarantee. Its establishment and function were described by Lord Nicholls of Birkenhead in his speech in the House of Lords in White v. White [2001] UKHL 9 at paragraphs 6 and 7 in this way:-
6. At the end of the war the insurers set up the Motor Insurers' Bureau, which for brevity I will refer to as "MIB". MIB is a company incorporated under the Companies Acts. Its primary object is to satisfy judgments in respect of any liability required to be covered by contracts of insurance under the Road Traffic Acts. Its members comprise all insurers who are for the time being transacting compulsory motor vehicle insurance in this country. MIB is funded by levies payable by its members. The amount of the levy is based on the premium income of the members. Ultimately, therefore, the funds of MIB come from the pockets of law abiding motorists who have complied with their statutory insurance obligations.
7. The obligations of MIB are not to be found in an Act of Parliament. Instead, they are the subject of agreement with the appropriate minister. The first agreement was made on 17 June 1946, between the Minister of Transport and MIB. From time to time this has been brought up to date with supplemental agreements. The latest supplemental agreement is dated 13 August 1999, made between the Secretary of State for the Environment, Transport and the Regions and MIB."
It is that agreement, to which I shall refer in this judgment as "the 1999 Agreement", which is relevant in the present case. An earlier agreement, to which it will be necessary to refer later in this judgment, was dated 21 December 1988, and I shall refer to that agreement as "the 1988 Agreement".
For present purposes the core of the 1999 Agreement is to be found in clause 5. That is in these terms:-
5.1 Subject to clauses 6 to 17, if a claimant has obtained against any person in a Court in Great Britain a judgment which is an unsatisfied judgment then MIB will pay the relevant sum to, or to the satisfaction of, the claimant or will cause the same to be so paid.
5.2 Paragraph (1) applies whether or not the person liable to satisfy the judgment is in fact covered by a contract of insurance and whatever may be the cause of his failure to satisfy the judgment."
The expression "claimant" is one defined for the purposes of the 1999 Agreement in clause 1. The material part of the definition is introduced by the words, "In this Agreement, unless the context otherwise requires, the following expressions have the following meanings". The relevant definition is:-
""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."
In order to appreciate the full implications of that definition it is necessary to know that the expression "relevant proceedings" is also defined in clause 1 and that the definition of that expression in its turn refers to another defined expression "relevant liability". The definitions of those expressions are:-
""relevant liability" means a liability in respect of which a contract of insurance must be in force to comply with Part VI of the 1988 Act [that is, Road Traffic Act 1988];
"relevant proceedings" means proceedings in respect of a relevant liability (and "commencement", in relation to such proceedings means, in England and Wales, the date on which a Claim Form or other originating process is issued by a Court …)"
In this case it is anticipated that Mrs. Phillips will in due course obtain a judgment against Mr. Rafiq on the grounds that his negligence was the cause of the death of Mr. Phillips. In this action Mrs. Phillips's claims against Mr. Rafiq are pursued on behalf of his estate pursuant to the provisions of Law Reform (Miscellaneous Provisions) Act 1934 and on behalf of his dependants pursuant to the provisions of Fatal Accidents Act 1976.
By Fatal Accidents Act 1976 s.1 it is provided, so far as is presently material, that:-
"(1) If death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable if the death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.
(2) Subject to section 1A(2) below, every such action shall be for the benefit of the dependants of the person ("the deceased") whose death has been so caused."
The 1999 Agreement is one to which Mrs. Phillips is not a party. However, by long-standing convention a person who wishes to be able in due course to claim payment of a sum which MIB has promised the Secretary of State under clause 5 of the 1999 Agreement, or under the equivalent provision in an earlier agreement, to pay, joins MIB as a defendant in an action against the driver who is considered to be responsible for the relevant accident and about whose ability or willingness to satisfy an eventual judgment there is doubt. The relief sought against MIB is a declaration as to its liability to pay. MIB then participates in the action, taking whatever points are considered to be appropriate, but these do not include, again by convention, that the claimant is not a party to the relevant agreement, in this case the 1999 Agreement.
So it is that MIB has been made a party to the present action. In the defence served on its behalf MIB has accepted that Mr. Rafiq caused the death of Mr. Phillips by his negligence. In order to understand the basis upon which MIB contests its liability to pay to Mrs. Phillips the amount of any judgment which she may obtain against Mr. Rafiq it is necessary to notice some other provisions of the 1999 Agreement.
Clause 6 of the 1999 Agreement contains exceptions to the obligations contained in clause 5. One of the exceptions relates to the case in which a claim is made by someone who was a passenger in a vehicle in respect of which he knew or ought to have known that at the time he was a passenger in it there was not in force in respect of its use a valid contract of insurance. The parts of clause 6 which are concerned with that situation are:-
"6.1 Clause 5 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) 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 –
…
(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,
…
6.2 The...
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