Dr Nicholas Bevan

Dr Nicholas Bevan

Wednesday, 12 February 2014

UK law applies to MIB untraced driver claim in Lithuania

What follows is a failed challenge by the MIB in which it sought to gain a windfall at the expense of the child victim whose interests it is supposed to protect by arguing that Rome II applied to the level of damages to be awarded.

Bloy and another v Motor Insurers' Bureau [2013] EWCA Civ 1543

The facts: The claimant was a grievously injured young child and also his mother.  They were British citizens, resident in the UK but injured abroad by an uninsured driver in Lithuania.  Liability was conceded. 
Due to special transitional provisions that no longer apply, the level of the Lithuanian MIB’s compensatory guarantee[1] was probably less than 10% of the damages would be likely to be recoverable in the UK through the combined effect of our civil justice system and the Uninsured Drivers Agreement 1999.  The MIB was concerned that it prospects of recovering the substantial difference in outlay[2] was prevented by an intra-bureau agreement[3] it had entered into that restricted its right to recoupment from its Lithuanian equivalent to the levels pertaining at the accident location.  Accordingly it sought to revisit a challenge it had previously lost in Jacobs v Motor Insurers Bureau [2010] EWHC 231; attempting to distinguish it and dressing up its earlier case in different rhetorical clothing.  The issue was basically the same: the MIB argued that as the accident occurred abroad Rome II choice of law considerations applied with the effect that the MIB’s duty to compensate was limited to the paltry levels prescribed under Lithuanian law.

The decision: The MIB’s appeal against a first instance decision that applied Jacobs, was dismissed.  It held that the Jacobs ratio did apply.  The right of an injured person in these circumstances to make a claim against the MIB derives from the 2003 Regulations.  This is domestic legislation.  Rome II choice of law provisions simply did not arise.  The victims’ extensive compensatory needs were to be quantified applying UK law and procedure.  The MIB’s request to refer the issue to the Court of Justice of the European Union was refused.

Comment: the effect of regulation 13 (and arguably of a proper interpretation of article 25[4]) is that UK residents injured abroad in an EEA country will often be better off, procedurally and financially, where the driver responsible is either uninsured or untraced, because the MIB must handle the claim in the UK under the 2002 Regulations and to UK standards.  This creates something of an anomaly when one compares this approach to victims of identified and insured drivers abroad.

A more detailed commentary and analysis is published in BPILS Bulltin and in the March 2014 issue of the Journal of Personal Injury Law.

[1] Article 9 of the Sixth Motor Insurance Directive sets out the minimum amounts of compensatory guarantee required.
[2] Permitted under article 24 of the Directive.
[3] The Comité Européen Des Assurances Agreement, dated April 29, 2002.
[4] From which our national provision is derived, see above.

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