Dr Nicholas Bevan

Dr Nicholas Bevan
www.nicholasbevan.com

Thursday, 6 June 2019

PILLING V UK INSURANCE (part 2)


Phoenix in flames: lessons from Pilling (Part 2)


R & S Pilling t/a Phoenix Engineering v UK Insurance Ltd [2019] UKSC 16



In the first instalment of my commentary on Pilling Part I, see earlier blog, I note that the Supreme Court failed to apply the correct approach to interpreting national implementing law consistently with the objectives of a directive it is supposed to transpose into UK law.  In deciding that it was not possible to ‘read down’ section s145 Road Traffic Act 1988 with a conforming construction that included private property within the geographic scope of compulsory insurance it failed to apply the legal presumption mandated by the Court of Justice of the European Union (CJEU) n Pfeiffer v Deutsches Rotes Kreuz (Case C-297/01) [2004]. This requirement dates back to Wagner Miret (Case C 334/92) [1993] and is set out in Pfeiffer as follows:

‘…when the national court is seised of a dispute concerning the application of domestic provisions which, as here, have been specifically enacted for the purpose of transposing a directive
intended to confer rights on individuals. The national court must … presume that the
Member State, following its exercise of the discretion afforded it under that provision,
had the intention of fulfilling entirely the obligations arising from the directive concerned.’

Pfeiffer’s rule does no more than presume that a member state does not intend to flout its EU treaty obligations, without at least expressing this in clear and unequivocal terms, raises the bar considerably for any finding that a conforming interpretation is contra proferentem (i.e. goes against the grain of Parliament's legislative intentions)

Had the Justices complied with Pfeiffer, as they are obliged under the primacy of EU law to do, then they would have found that this mandatory presumption raises the bar considerably to establishing the contra proferentem exception that it relied on in its deliberations. 

I also express a second concern that in considering what is meant by Article 3 of the Motor Insurance Directive (2009/103/EC) by ‘use of a vehicle’ it did so in apparent ignorance of two recent rulings by the Court of Justice of the European Union. The first of these was delivered by the Grand Chamber and is highly authoritative: Fundo de Garantia Automóvel v Juliana (Case C 80-17) [2018]; the second being BTA Baltic Insurance Company’ AS v Baltijas Apdrošinašanas Nams (Case C 648/17) [2018].  It is abundantly clear that Article 3’s insurance requirement carries a much wider scope for the types of use requiring insurance than the UK’s common law authorities allow for.  This much is evident from the following excerpt from Juliana:

‘41      Therefore, the fact that the Court held, in essence, in the judgments mentioned in the preceding paragraph, that only situations of use of the insured vehicle which fall within the use of a vehicle as a means of transport and, therefore, fall within the concept of ‘use of vehicles’, within the meaning of Article 3(1) of the First Directive or of the first paragraph of Article 3 of Directive 2009/103, may give rise to the insurer being responsible, under a contract of insurance against civil liability in respect of the use of that vehicle, for the damage or injuries caused by the latter, does not in any way mean that the determination of whether there is an obligation to take out such insurance should be dependent on whether or not the vehicle at issue is actually being used as a means of transport at a given time.

42      In the light of the foregoing, it must be held that a vehicle which is registered and therefore has not been officially withdrawn from use, and which is capable of being driven, corresponds to the concept of ‘vehicle’ within the meaning of Article 1(1) of the First Directive and, consequently, does not cease to be subject to the insurance obligation laid down in Article 3(1) of that directive, on the sole ground that its owner no longer intends to drive it and immobilises it on private land.’

A third concern I have with the Supreme Court’s ruling is that it failed to refer this issue, as to what is meant by ‘use of a vehicle’ to the CJEU for a preliminary ruling under Article 267 TFEU. As a court of final appeal, it was the Justices non-discretionary treaty bound duty to do so.

In the second and final instalment of my commentary on Pilling I explain why the three step approach adopted by the court for construing motor policy terms is based on a logical fallacy.

This is the second time in as many months that the Supreme Court has signally failed to apply the rule of law and to deliver justice to the parties in this context.  See my critique of the Supreme Court’s ruling in Cameron v Liverpool & Victoria Insurance [2019] UKSC 6.



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