Smith (by his Mother and Litigation Friend, Mrs Bonner) v Stratton and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Moore-Bick,Lord Justice Elias |
| Judgment Date | 08 December 2015 |
| Neutral Citation | [2015] EWCA Civ 1413 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2014/2347 |
| Date | 08 December 2015 |
[2015] EWCA Civ 1413
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LEEDS DISTRICT REGISTRY
(HIS HONOUR JUDGE SAFFMAN (sitting as a Judge of the High Court))
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Moore-Bick
Lord Justice Laws
Lord Justice Elias
Case No: B3/2014/2347
Mr Andrew Axon (instructed by Harrison Clark Solicitors) appeared on behalf of the Appellant
The First Respondent did not attend and was not represented
Mr William Featherby QC (instructed by Thursfields Solicitors) appeared on behalf of the Second Respondent
This is an appeal with permission granted by my Lord Moore-Bick LJ on 20 February 2015 against the decision of his HHJ Saffman sitting as a Judge of the High Court on 26 June 2014.
The question in the case was and is whether the Motor Insurers' Bureau ("the MIB"), second defendants in the action and respondents in this court, are liable to meet the appellant's claim for damages for personal injury sustained in a motor accident on 6 January 2011. The appellant was a back seat passenger in a Vauxhall Astra being driven by the first defendant, Stratton. The Astra struck a parked vehicle. Stratton has taken no part in the proceedings.
On 28 August 2012 the insurers, who would otherwise have been liable to cover the claim, obtained a declaration under section 152(2) of the Road Traffic Act 1988 by which they were entitled to avoid the relevant insurance policy for non-disclosure of material facts and misrepresentations made before the policy took effect. The first defendant Stratton thus became an uninsured driver and the MIB became responsible to meet the appellant's claim against Stratton if a judgment against the latter were unsatisfied, subject (as the judge said) to certain exceptions with which this case is concerned.
The judge described the incident leading to the collision by reference to the witness statements of two police officers and said at paragraph 10 that:
"They were in a police vehicle. They came across the Astra driven by the first defendant. The Astra sought to accelerate away from the police vehicle and failed to heed a signal to stop. It drove in excess of 50 miles per hour in a 30 mile per hour zone when the roads were damp. It signalled one way but went another. It failed to heed the police vehicle's sirens and flashing blue lights. It took a corner at such a speed as to skid sideways and ultimately the first defendant lost so much control that the vehicle collided with a parked vehicle."
( Quote unchecked)
There was no dispute unsurprisingly but that Stratton had driven negligently. The appellant (who was 20 at the time of the accident) suffered a severe brain injury. He is represented in the litigation by his mother as his litigation friend. There were in fact four young men in the car including the appellant. The MIB's case was that they were in a joint enterprise of dealing in cannabis from the car and made off in the car when spotted by the police and this led directly to the collision and to the appellant's injuries.
In those factual circumstances, as to which the burden of proof was upon the MIB on the balance of probabilities, the MIB claimed to be entitled to avoid liability in reliance on either or both of two exceptions in clause 6 of the Motor Insurers' Bureau (Compensation of Victims of Uninsured Drivers) Agreement 1999 and/or the common-law maxim ex turpi causa non oritur actio. The material part of clause 6 of the MIB Agreement is set out by the judge at paragraph 14 and reads as follows:
"Clause 5 [requirement to pay an unsatisfied judgment] 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…
(iii) the vehicle was being used in the course or furtherance of a crime, or
(iv) the vehicle was being used as a means of escape from, or avoidance of, lawful apprehension."
The judge explained the effect of the ex turpi maxim in this way (paragraph 11):
"This is the principle that the court will not lend their aid to a litigant so as to enable him to obtain a benefit from his own crime or reparation for the consequences of his own culpable, criminal act."
( Quote unchecked)
There was as the judge acknowledged (paragraph 25) no direct evidence that the appellant was involved in drug dealing from the car. The case was a circumstantial one. The judge was to conclude that the case was made out. The appellant by Mr Axon of counsel disputes that conclusion on this appeal.
The circumstances relied on by the MIB and found to be significant by the judge were as follows. First, all four occupants of the car had convictions for drugs offences and dishonesty, two of them (not the appellant) for conspiracy to supply drugs. The first defendant had a conviction for producing cannabis. The appellant had admitted to a neuropsychiatrist that he had used cannabis and cocaine himself. No prosecutions for drug-related crime arose out of the incident in question in January 2011 and some of the convictions to which the judge referred post-dated the collision.
The next point was this. Two small plastic bags of cannabis were found in immediately outside the Astra and one in the rear passenger footwell. The evidence of DC Tasker (see paragraph 37 of the judgment) was that the quantity found (4.73 grams) would produce 23 to 24 joints with a street value of about £40.
The next point was that all four young men were unemployed at the time but when detained one of them had £140 cash on him and another £215. Neither the appellant nor the first defendant had cash on their person. The total £355 would be the proceeds of something over 200 joints.
Next the first defendant, Stratton, drove off at speed when the police vehicle was sighted. Stratton told the police in interview that he had been pulled over twice the previous day and was going to show the police what he could do. However, the notes of the police interview (see judgment paragraph 26) also indicate that when the police vehicle was pointed out to him the first defendant asked the others what he should do and they replied, "Blow them", that is, drive off fast enough for the tyres to produce smoke.
Mr Nicholls, solicitor to the MIB, gave oral evidence. He produced a signed statement which he took from the first defendant when he interviewed him in prison in an attempt to establish the purpose of the trip in the car but, said Mr Nicholls, there were some things that...
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Kieran Blake v Dominic Croasdale and Another
...In particular, I was referred to Smith v Stratton, both at first instance: [2014] EWHC 1749 QB, and in the Court of Appeal [2015] EWCA Civ 1413. In that case the issue arose as to whether the Motor Insurers Bureau ("MIB") were liable to meet a claim for damages for personal injury in whic......