Philip Moser QC in further win against MIB in Colley

14 Dec 2020
Philip Moser KC

Colley v Shuker & ors, Freedman J [2020] EWHC 3433 (QB)

This is the latest judgment against the Motor Insurance Bureau (MIB) in a case where it refused compensation to a passenger victim of a road traffic accident not covered by insurance. The case follows the establishment of the principle that there should be no gaps in the duty under the EU Motor Insurance Directives to compensate the victim (see Delaney v Secretary of State for Transport [2015] 1 WLR 5177; news item here) and that the MIB is the responsible emanation of the state for that purpose in the UK (see Lewis v Tindale & ors [2019] 1 WLR 6298; news item here).

The MIB nonetheless denied that it was such an emanation for the purposes of a claim in the circumstances of this case and that the correct claim was for Francovich damages against the Secretary of State.

The Claimant was a passenger in a car crash. The vehicle was covered by a policy of insurance at the time of the accident, but the driver was not insured to drive it, a fact which the Claimant knew. The insurer later invalidated the insurance under section 152(2) of the Road Traffic Act 1988 (now repealed) and successfully resisted liability towards the Claimant. The Claimant turned to the MIB as insurer of last resort.

The MIB had argued, first, that its duty under Article 10 of Directive 2009/103/EC to pay compensation where the general insurance obligation in Article 3 of that Directive “has not been satisfied” was limited to cases where there is an unidentified vehicle or an uninsured vehicle, which the MIB contended did not extend to the present facts. It argued (relying on the CJEU case of C-287/16 Fidelidade) that the insurance obligation had been satisfied by the taking out of a policy. The Court held that the phrase that the insurance requirement “has not been satisfied” embraced more than just unidentified or uninsured vehicles and was apt to include the present case where the vehicle was insured but a vagary of the national legislation of the Member State gave rise to the insurance obligation not being satisfied.

The MIB argued, secondly, that the case fell within the exception in Article 10(2) of the 2009 Directive where “the Claimant voluntarily entered the vehicle which caused [him] the… injury when … [he] knew the vehicle was uninsured.” The Court held that this was a matter of Community law, as decided by the CJEU in Case C-442/10 Churchill and Fidelidade and meant knowledge that the vehicle was uninsured rather than the driver not being insured.

Judgment for the Claimant. Reference to the CJEU refused, the Court finding that the expiry of the Transitional Period on 31 December 2020 did not alter the test to be applied in deciding whether or not to make a reference.

Philip Moser QC acted for the successful Claimant, instructed by Irwin Mitchell.

A copy of the Judgement is here.