Philip Moser QC wins again vs MIB in Court of Appeal – MIB liable to victim if insurance voided post-accident

22 Mar 2022

Colley v Motor Insurance Bureau, Court of Appeal, Judgment 22 March 2022, [2022] EWCA Civ 360

The Court of Appeal has dismissed the appeal in Colley v Shuker & ors (the first instance decision is discussed here). Philip Moser QC acted for the successful claimant/respondent.

The claim is by Mr Daniel Colley, the passenger victim of a road traffic accident who suffered catastrophic injuries in a car crash in 2015. He claims Francovich damages by his directly effective rights under the Codified Motor Insurance Directive 2009/103/EC (“the Directive”).

The claim is against the Motor Insurers’ Bureau (“the MIB”), which was held to be the appropriate UK body for claims under the Directive in MIB v Lewis (see news item here). The MIB nonetheless denied liability, claiming that it was not the appropriate body for the particular obligation in this case.

The question on appeal was: Is the obligation of the MIB under Articles 3, 10 and 12 of the Directive an obligation limited to providing compensation where there is an unidentified vehicle or a vehicle in respect of which there is no policy of insurance in being at the time of the incident giving rise to liability? Or does the obligation also extend to a case where there is a policy of insurance in being at the time of the incident giving rise to liability, but that policy is subsequently avoided ab initio?

The Court of Appeal (Stuart-Smith LJ giving the judgment of the Court) held that the MIB’s obligation to pay the victim does extend to such a case.

It was not in dispute in the appeal that UK implementation of the Directive was in breach of EU law. As a consequence of this breach Mr Colley did not receive the compensation from the Insurer that, as a matter of European law, he should receive.

The MIB’s (directly enforceable) obligation under Article 10 to provide compensation for personal injuries caused by “a vehicle for which the [Article 3] insurance obligation … has not been satisfied” is coextensive with the Article 3 obligation on the State and the MIB must therefore make good the shortfall between what should have been provided and what was provided as a result of the non-compliance (which was nothing).

In so finding the Court of Appeal followed and applied the CJEU cases Case C-409/11 Csonka and Case C-287/16 Fidelidade and reaffirmed its own case law in Delaney (see news item here) and Lewis (see news item here).

Philip Moser QC was instructed by Irwin Mitchell LLP. A link to the judgment is here.

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