Dr Nicholas Bevan

Dr Nicholas Bevan
www.nicholasbevan.com

Wednesday, 15 May 2019

LEWIS V TINDALE & MOTOR INSURERS BUREAU 2019

The appeal in Lewis v Tindale & MIB opens today in the Court of Appeal.

Extract from today's cause list:


THE MASTER OF THE ROLLS' COURT COURT 71
Before LORD JUSTICE HENDERSON
LORD JUSTICE FLAUX and
SIR STEPHEN RICHARDS
Wednesday, 15th May, 2019
At half-past 10
APPEAL
From The Queen's Bench Division
FINAL DECISIONS
B3/2018/2411 Michael Lewis (a protected party by his Litigation Friend Janet Lewis) -v- Tindale and Ors. Appeal of Second Defendant from the order of Mr Justice Soole, dated 14th September 2018, filed 5th October 2018.

This appeal will be livestreamed live via the Courts and Tribunals Judiciary website.  For more information and to view the hearing please click the link below.


This appeal is likely to engender a sense of deja vu in Lord Justice Flaux.  

Twelve years ago, in Byrne v MIB & Secretary of State for Transport  [2007] EWHC 1278 (QB), Flaux J (as he was then)  found that the MIB was not an emanation of the state and this led him to conclude that it was not bound by the direct effect, under EU law, of the provisions of the Motor Insurance Directives.

My independent research, first published in 2012, revealed that the learned judge was not only misinformed on the legal test for establishing state liability but he was also misled about the true nature and status of the MIB and its close working relationship with the Department for Transport as well as to the degree of control exercised by the latter over the MIB's compensatory role. 

It should not be forgotten that Flaux J’s judgment delivered justice to the claimant.  He found that the MIB’s strict three year time limit for applying to the MIB under the scheme for untraced drivers had been unlawfully applied against a child.  His Francovich award against the minister was later upheld by the Court of Appeal ([2008] (EWCA Civ 574), and unanimously so, it was not necessary to revisit his findings on direct effect.

My critique of the Byrne ruling is set out in my New Law Journal article: Putting wrongs to rights (Part 2), from 3 June 2016. 

The case is even stronger now, after the Court of Justice's ruling in Farrell v Whitty (no. 2) [2017]  Case C413/15, fixed  the Irish MIB with the state’s liability (‘vicariously’ so to speak): to provide redress for motor accident victims who ought (under EU law) to benefit from the compensatory guarantee mandated by the Motor Insurance Directives but who are not - due to the Irish government’s failure to fully implement that law within the Road Traffic Act 1961.  

The Irish MIB was incepted and is governed under almost identical principles to the MIB in the UK.  There are numerous disparities between the minimum standard of compensatory protection mandated by the European Motor Insurance Directives and the UK's implementation of that law within Part VI of the Road Traffic Act 1988.

This ruling had a profound influence in the first instance decision in Lewis.  The implications of  Soole J's decision being upheld in this appeal will be profound.







































For my analysis on the implications of Farrell (no. 2) see my mini-series of articles in the New Law Journal:  State liability: betwixt & between Brexit (Parts 1 & 2), 27 October and 3 November 2017






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