Under this new law the MIB is obliged to compensate motor accident victims who have been wrongly denied a compensatory guarantee through compulsory insurance due to the government’s failure to implement fully Article 3 of the Sixth Motor Insurance Directive 2009/103 (the Directive) within the provisions of Part VI of the Road Traffic Act 1988 (the 1988 Act) and the EC Rights Against Insurers Regulations 2002.
Article 3’s direct effect
Article 10’s direct effect
Potential Article 10 challenges
What sort of claim?
Limits of liability
However, it should be noted that the amendments introduced in 2020 to the European Union (Withdrawal) Act 2018 confer a ministerial discretion to modify, after the implementation period, various statutory instruments such as the EC Rights Against Insurers Regulations 2002 under s7 of the amended Act of 2018. There are also wide powers to revise retained EU law under s8 where a minister of state considers that there is a deficiency in EU law or where, in the minister's view, it is not operating effectively. Furthermore, the amendments to s6 are arguably even more radical in the way they licence a departure from retained EU case law. It confers a constitutionally unprecedented power on ministers to prescribe by regulation a mandatory test that the courts must apply when deciding whether it is appropriate to exercise their new power under s6(4) to depart from retained EU case law. Two obvious candidates for revision are the CJEU's rulings in Damijan Vnuk C 162/13  and Farrell v Whitty and Others (no 2) Case C‑413/15 . Both of these decisions exposed the UK's contumacious infringement of EU law and they were critical to both the first instance decision and appellate ruling in Lewis. Given that the government has failed to honour its repeated assurances to bring the geographic scope of the Road Traffic Act 1988 into line with the EU law for over four years , it seems highly likely that, by one route or another, the Lewis ruling will be effectively reversed.