Dr Nicholas Bevan

Dr Nicholas Bevan

Thursday, 10 November 2016


Nicholas Bevan
Solicitor and consultant on EU law and motor insurance
07968 427134

This is a copy of the paper I delivered to the APIL Accidents Abroad Conference held at the Law Society on 3 November 2016 


We are likely to witness some significant reforms to the European law requirement on motor insurance.  Specifically:
  • ·         On 8 June 2016 the European Commission has announced its intention to amend the Directive 2009/103[1] (the Directive) by the end of this year to curb the impact of the Court of Justice’s ruling in Damijan Vnuk v Zavarovalnica Triglav d.d., [2014] (Case C-162/13).  However, it this is likely to be postponed for at least a year.
  • ·         The Commission also plans to undertake a wide-ranging compliance assessment of all the member states as part of a regulatory review of this directive.  This could lead to a completely revised 7th Directive in about two years’ time.
  •       The Court of Justice of the European Union (JJEU) will shortly provide a second preliminary ruling in Farrell v Whitty and others, this time from the Irish Supreme Court (Case C-356/05) on whether Article 1 of the Third Directive (90/232/EEC) on motor insurance, which extended the Article 3 insurance obligation to ‘cover liability for personal injuries to all passengers, other than the driver, arising out of the use of a vehicle’ (now incorporated in the Directive as Article 12) is capable of direct effect against its Article 10 compensating body (the Irish Motor Insurers Bureau).  This has important implications for domestic and accidents abroad throughout the EEA.

1.Curtailing Vnuk

The Vnuk ruling

On 4 September 2014 the CJEU delivered a controversial ruling in Damijan Vnuk v Zavarovalnica Triglav d.d., [2014] (Case C-162/13) that took most motor claims specialists and many European governments by surprise. 
The facts of the case involved a Slovenian farmworker who was injured when he was knocked off a ladder by a reversing tractor and trailer, whilst he was stacking bales of hay into a barn loft. 
This was clearly an employer’s liability case but could it conceivably also be a motor liability claim?  The tractor was not transporting anyone; merely delivering the next consignment of bales to the loading point.  It was in effect being used a piece of agricultural machinery.  The farmyard was off road and on private land.  

Yet the farmworker pursued his claim against the tractor’s motor insurers.  The claim failed at first instance. It held that the duty to insure did not extend to the use of a motorised machinery.  He appealed and ultimately the Slovenian Supreme Court referred the case to the Court of Justice of the European Union to determine whether the duty to insure ‘the use of vehicles’ within the meaning of Article 3(1) of the First Directive on motor insurance (72/166/EEC) covered the accident circumstances.

A number of member states intervened in the proceedings, including the UK, and they argued that the compulsory insurance requirement should not apply.
Because there were different emphasises discernible from the different language editions of the Directive, the CJEU was obliged to consider the underlying objectives of the directive.  It ruled that the objective of protecting accident victims was of equal importance to the dual aim of freeing the movement of persons and goods within the EU / EEA with a view to achieving the internal market[2]
As to the case before it, the Court ruled that the accident circumstances were capable of falling within the scope of insurance cover required under the directives.  It referred the case back to the Slovenian courts to make the necessary factual findings 
On the specific issue as to whether a reversing trailer propelled by a tractor was required to be covered by the article 3 insurance ‘use of vehicles’ requirement, it ruled that it was.  Motor vehicle use covers ‘any use of a vehicle that is consistent with the normal function of that vehicle’ [59]
The Court also ruled that ‘the fact that a tractor, possibly with a trailer attached, may, in certain circumstances, by used as an agricultural machine has no effect on the finding that such a vehicle corresponds to the concept of 'vehicle' in Article 1(1) of the First Directive[3].’

Although the Court’s characteristically elliptical phraseology in its judgment did not expressly rule that the geographic scope of the duty to insure extended to private property, such as the farm yard where Mr Vnuk was injured, this is the inescapable conclusion to be drawn from the Court’s judgment.  It appears to have subsumed considerations as to the location of the accident within a broader concept that any motor vehicle use must be covered by insurance.  This is clear from its concluding paragraph where it ruled that ‘the concept of 'use of vehicles' in that article [viz article 3] covers any use of a vehicle that is consistent with the normal function of that vehicle. That concept may therefore cover the manoeuvre of a tractor in the courtyard of a farm in order to bring the trailer attached to that tractor into a barn, as in the case in the main proceedings, which is a matter for the referring court to determine.’

The implications of Vnuk

When Article 3 of the Directive is read in the light of the underlying principles that feature in the consistent line of Court of Justice judgments from Bernaldez in 1996[4] to Vnuk[5] in 2014 the third party protection required by the Directive is capable of being distilled into the following colligate propositions: 
  1. The civil liability cover provided to third party victims must be good for:
    1. Any motor vehicle conforming with the article 1 definition[6]
    2. Any use consistent with the normal function of the vehicle[7]
    3. Anywhere on land[8]
  2. The user’s duty to insure and the insurer’s scope of cover are coextensive[9]
  3. Member states have no discretion to introduce new restrictions, exclusions or limitations[10].
  4. Only one exclusion of cover is permitted: this applies to a passenger who voluntarily enters the vehicle knowing that it has been stolen[11].
It is also clear from the CJEU judgments in Churchill[12]  and Csonka[13] that the Directive requires the compensatory protection to be provided at the anterior stage, namely within the insurance policy.  The Article 10 compensating body responsible for compensating victims of uninsured and unidentified vehicles (which in the UK is the Motor Insurers’ Bureau) is a’ last resort’; not a catch-all for insufficiently insured vehicles. 

The fall-out from Vnuk

Vnuk’s effect was to expose at least six member states implementation of the geographic scope of the Article 3 insurance requirement as clearly non-compliant, with a number of other jurisdictions (whose implementation was drafted in less specific terms) being at risk of being non-compliant.
The United Kingdom is one of those jurisdictions that whose transposition is clearly defective.  Part VI of the Road Traffic Act 1988, that implements the Article 3 insurance requirement, contains numerous provisions that are inconsistent with the broad scope of both a literal interpretation of Article 3, let alone the additional gloss provided by the CJEU’s interpretation in Vnuk. 
The Vnuk judgment was particularly unwelcome news for the Department for Transport.  By this time, the United Kingdom’s transposition was already the subject of investigation by the Commission following an extensive infringement complaint that cited over forty separate instances of noncompliance spanning the Road Traffic Act 1988, the EC Rights Against Insurers Regulations 2002 and both Motor Insurers’ Bureau agreements.  The Vnuk judgment not only validated a number of the complaints but it went further in extending the scope of the protective purpose beyond normal traffic scenarios into agricultural and potentially industrial machine use.
This resulted in the ABI, MIB and the Department for Transport joining a vociferous international lobby to persuade the Commission to curtail the effect of Vnuk.

Reform proposals

On 8 June the European Commission issued an inception impact assessment roadmap[14] that announced that it was considering whether to take urgent steps to amend the Directive to limit some of the implications of the Vnuk ruling.  It also announced its plans to undertake a wide-ranging re-evaluation of the Directive.

The EC communiqué set out four different options, including taking no action on Vnuk, and there appeared to be a consensus within the Commission and European Council at that time to sanction an urgent amendment of Articles 1 and 3 of the Directive.  The most likely outcome at that time was that the Directive would be revised to:
  • reduce the scope of the Article 3 insurance requirement so that its applies only to accidents caused by motor vehicles when used in traffic.  This would require a new Article 1 definition of what is meant by ‘traffic’.  This is likely to encompass the use of a vehicle for the transport of persons or goods, whether stationary or in motion.
  • Introduce a new restriction that would restrict the insurance requirement to places where the public has access under national law. 
It was intended that this amendment should be rushed through so it becomes effective late in 2016 or early in 2017.  The change would not have retrospective effect.  

The same communiqué also proposes, as an option, that member states might set up a compensatory guarantee fund to specifically cover purely agricultural, construction, industrial, motor sports or fairground use of uninsured motor vehicles and of the directive specifying that certain types of vehicles (e.g. tractors, cranes, forklifts, motor sports vehicles in regular traffic, or vehicles with a maximum speed below a defined limit) are excluded from the Article 3 requirement, presumably as an alternative to member states exercising their rights to derogate under Article 5.2.

The effect of the first two revisions (bullet pointed above) and which seemed at the time to be most likely to be approved, would be to bring the Road Traffic Act 1988 closer into line with the Directive from the date it comes into effect but not before.  Accordingly, whilst the exclusion of private property implicit in section 143 RTA (the duty to insure), section 145 (the cover required) and section 192 (the definition of road) are currently inconsistent with the unrevised European law as presently formulated and interpreted by Vnuk, this may be set to change. 

However, these reforms will not cure the numerous additional inconsistencies in the UK transposition of the Directive. Take for example the definition of ‘motor vehicle and trailer’ in section 185.  This restricts compulsory third party cover to motor vehicles intended or adapted for use on roads.  This clearly conflicts with the protective purpose and the wide ambit of the Article 3 insurance requirement.

However, following Lord Hill’s resignation as EU Commissioner for Financial Stability, Financial Services and Capital Markets Union, the Commission has recently determined on a different path. 
The Commission’s latest thinking is that a full impact assessment of each of the four options listed in the roadmap is now necessary.  This will involve a process of consultation, evaluation and regulatory scrutiny that could take up to a year to conclude. 

So it seems that whilst the 8th June road map is still applicable, all bets are off as to what changes will be made.  It is conceivable that the Commission could opt to remove completely from the scope of the Directive certain categories of off-road vehciles.

2. Plans for a seventh directive

The Commission ‘road map’ of 8 June also announced its intention to undertake a far-reaching review of every member state’s compliance and a full review of the Directives itself.  This was triggered by a wide ranging infringement complaint levelled against the United Kingdom in the autumn of 2013 following the Secretary of State’s refusal to respond from numerous calls for extensive reform of third party provision for accident victims to bring the statutory and extra-statutory implementation of the Directive into line with its minimum standards of protection.  The Commissioner then responsible, Baron Hill, decided that it would be unfair to limit the enquiry just to the UK’s transposition and so the complaint has resulted in a much wider enquiry and reform project.
The Commissions regularity fitness and performance programme (aka ‘REFIT’) will consider every member state’s compliance and will review the regulatory fitness of the Directive itself.
It is likely to result in a seventh directive on motor insurance being approved in 2019 / 2020.
The Commission has given no indication as to what its recommendations are likely to be.  It will publish a separate Inception Impact Assessment for this project.  However it seems plausible that we will see a new 7th Directive on motor insurance: one 
  • ·         that removes the anomalies that arose from the way in which the Directive comprises five preceding directives that sometimes used inconsistent terminology as well as being influenced by the interpretive gloss given by the Court of Justice from (Case C-129/94) Bernaldez in 1996 through to Vnuk in 2014.
  • ·         the incorporation of the Green card scheme for domestic accidents involving foreign EU registered vehicles,
  • ·         possibly also some provision for insurer insolvency – following: (Case C 409/11) Csonka from 2013
  • ·         possibly also better clarification of the insurance requirement and the circumscribed role of the compensating body, post (Case C-442/10) Churchill in 2011 and (Case C 409/11) Csonka in 2013
  • ·         possibly a clearer statement of the free-standing nature of the insurance cover required for third party victims, which seems clear from recital 15 which states) ‘It is in the interest of victims that the effects of certain exclusion clauses be limited to the relationship between the insurer and the person responsible for the accident.’  Whereas, in the UK the limitations attributable to the common law third party rule[15] have only be abrogated to the limited extent provided for in sections 148 and 151 of the Road Traffic Act 1988.

It is interesting to note that the Commission does not anticipate that there will be any need to revise the Article 3 insurance requirement to address the arrival on our roads of semi and fully automated vehicles over next decade or so.  The reason being that Article 3 already encompasses product liability.  This should come as something of a shock to the Department for Transport as section 145 of the 1988 Act only covers the personal liability of the user.

 3. MIB as an emanation of the state

In June 2006 Mr Justice Flaux J ruled in Byrne v Motor Insurers Bureau and another [2007] EWHC 1268 (QB) that the European directives on motor insurance were not capable of direct effect against the MIB (the UK’s Article 10 compensating body for victims of uninsured and unidentified vehicles) as it is merely a private contractor and thus not capable of being an emanation of the state.  In this he was influenced by the weighty authority of Hobhouse LJ’s obiter comments in Mighell v Reading and Another; Evans v Motor Insurers' Bureau; White v White and Another (1998) Times, 12 [1999] 1 LLR 30, a view endorsed by his colleagues. 

In my 3rd June 2016 New Law Journal article, Putting wrongs to rights (Pt2), I had the temerity to contend that this decision was made per incuriam on the basis that the judge was neither fully informed of the relevant facts nor of the relevant law and so consequently he asked the wrong questions and misapplied the Court of Justice’s guidance[16] on the question of whether Article 10, that defines the role of the compensating body, is capable of having direct effect against the MIB.
One fact that the learned judge appears not to have been appraised of was the Irish High Court’s referral of an almost identical issue to the CJEU in Elaine Farrell v Alan Whitty and MIB [2007] Others (Case C-356/05). In that case, the Advocate General Stix-Hackl opined that because[17] of ‘the Irish Motor Insurance Bureau[18] special public function, there is reason to consider it to be an emanation of the State’.  Furthermore he expressed the view that the predecessor provision under consideration (which is now Article 10 of the Directive) is capable of direct effect.  This was also the view of the European Commission in that case.  None of this is mentioned in Flaux Js judgment in Byrne.  As it transpired, the CJEU declined to make the factual determination but when case was referred back to Birmingham J in Farrell v Whitty and Others [2008] IEHC 124 he ruled that it was an emanation of the state and bound by the direct effect of the earlier directive’s provisions. 

This discrepancy between the UK and Irish authorities on this point caused Waller LJ to observe in Mcall v Pouton & MIB [2008] EWCA Civ 1263: ‘It is difficult to think that a body such as the MIB or its equivalent should be an emanation of the state in one member country and not in another. This furthermore gives cause for concern as to whether the guidance is so clear that it needs no further input from the ECJ.’  He referred the same issue to the CJEU but the case was promptly settled.
This same issue has been revisited by the Irish Supreme Court, once more in Farrell v Whitty 1997/10802P (Appeal number: 145/2008), this time as part of a titanic struggle between the Irish state and the MIBI over who pays for the Irish governments legislative failings.  Instead of asking the CJEU to make a factual determination, the Irish Supreme Court seeks clarification of the CJEU’s so called ‘tripartite test’ in Foster and Others v British Gas plc (Case C-188/89).  The referral is made in the following terms:
‘Questions posed
23. The Supreme Court therefore asks the assistance of the Court of Justice of the European Union by referring the following questions:
1. Is the test in Foster and Others v British Gas plc (Case C-188/89) as set out at para. 20 on the question of what is an emanation of a member state to be read on the basis that the elements of the test are to be applied
(a) conjunctively, or
(b) disjunctively?
2. To the extent that separate matters referred to in Foster and Others v British Gas plc (Case C-188/89) may, alternatively, be considered to be factors which should properly be taken into account in reaching an overall assessment, is there a fundamental principle underlying the separate factors identified in that decision which a court should apply in reasoning an assessment as to whether a specified body is an emanation of the State?
3. Is it sufficient that a broad measure of responsibility has been transferred to a body by a member state for the ostensible purpose of meeting obligations under European law for that body to be an emanation of the member state or is it necessary, in addition, that such a body additionally have (a) special powers or (b) operate under direct control or supervision of the member state?’

I am optimistic, for the reasons set out in my New Law Journal article[19], that the CJEU will clarify the flexible and nuanced nature of the Foster guidance and refer back to the basic principles underscoring state liability set out in Ursula Becker v Finanzamt Münster-Innenstadt [1982] CJEU (Case 8/81) and so clear the way for the Irish Supreme Court to uphold Birmingham J’s first instance finding.  The CJEU is likely to hold that the tripartite test in Foster is to be applied cumulatively but that it is not fatal if one of the criteria are missing provided there is good reason to fix the body with direct effect having regard to the governing rules on state liability for faiing to implement a directive.
The implications of Article 10 having direct effect against the Article 10 compensating body are far reaching.  In this jurisdiction, the MIB will face liability for product liability claims that are not covered by section 145 of the Road Traffic Act 1988 and also for accidents on private property and / or featuring unusual off road vehicles, none of which are caught by the compulsory third party requirement.  It will also make legal challenges of unlawful exclusions and restrictions of liability in the MIB agreements that much easier to challenge[20]

What applies to the UK Article 10 compensating body will also apply with equal force to any other EEA compensating body.  This should make it easier to challenge the idiosyncratic approach of many EEA states implementation of the Directive, when considering the local applicable law under Rome II.

On a final related note, the Commission has recently set up an Intelligent Transport Systems working group to consider the implications of automated driver systems and driverless vehicles.

[1] The European legislation is set out in Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability
[2] Hitherto, the social aim of providing compensatory protection was widely considered to be subordinate to the wider objective of encouraging free movement within the European Community, now European Union
[3] Article 1 of the sixth Directive 2009/103
[4] Ruiz Bernaldez [1996] CJEU (Case C-129/94)
[5] Damijan Vnuk v Zavarovalnica Triglav d.d. [2014] CJEU (Case C-162/13)
[6] The Article 1 definition of "Vehicle" means any motor vehicle intended for travel on land and propelled by mechanical power, but not running on rails, and any trailer, whether or not coupled”.
[7] Vnuk, paras 56 and 59
[8] Vnuk, para 59
[9] This is the implication of Bernaldez, Katja Candolin and Others. v Vahinkovakuutusosakeyhtiö Pohjola and Others [2005] CJEU (Case C-537/03) , and Farrell v Whitty 2007 CJEU (Case C-356/05)and it is subject only to the single exception permitted by Article 13.1 of the Directive.  However, Ward LJ took a very different view in EUI Ltd v Bristol Alliance Ltd Partnership [2012] EWCA Civ 1267 and it is one that is impossible to reconcile with Vnuk
[10] See Mr Justice Jay’s analysis in Delaney v Secretary of State for Transport 2014 EWHC 1785 para 108 in the context of the MIB Uninsured Drivers’ Agreement.  The same principles apply to primary or secondary legislation implementing the Directive.  This issue of legislative discretion is also important in the context of state liability under Francovich principles, as to which see Clyde LJ’s guidance on what constitutes a serious breach in R v Secretary of State for Transport Ex p. Factortame (No.5) (1999) [1999] 4 All ER 906
[11] See Benaldez paras 18 to 21 (the opinion of Advocate General Lenz of 25 January 1996, paras 25 to 30, provides a helpful analysis of the rationale) and Candolin paras 17 to 23
[12] Churchill v Benjamin Wilkinson and Tracy Evans 2011 Case C-442/10
[13] Gábor Csonka v Magyar Állam [2014] CJEU (Case C 409/11
[15] Note Harman LJ memorable comment: ‘one cannot pick out the plums and leave the duff behind’ in Post Office v Norwich Union Fire Insurance Society Ltd [1967] 2 QB 363, 376  A view apparently shared by Ward LJ in EUI v Bristol Alliance Partnership [2012] EWCA Civ 1267
[16] Foster and others v British Gas plc [1990] CJEU Case C-188/89
[17] On 5 October 2016
[18] Founded on near identical terms and context to the UK’s MIB
[19] Referred to above.
[20] In White v White & MIB [2001] UKHL 9 the House of Lords ruled that as the MIB agreements are private law contacts they are not subject to a Marleasing style purposive construction.  This was relied on by Flaux J in Byrne, supra, without reference to the CJEU’s judgment in Bernhard Pfeiffer et al v Deutsches Rotes Kreuz, Kreisverband Walshut eV: (Case C-397/01 to C-403/01); [2004] ECR 1-8835 that clearly brings any national rule or law implementing a directive within the scope of the rule

Wednesday, 26 October 2016


Deadline for submissions expires today

The deadline for the House of Lords Select Committee On Science and Technology's call for evidence on driverless vehicles, expires tonight at 11.50 p.m.

My thanks to Professor Merkin QC and Dr Kyriaki Noussia for their contributions to our joint submission on behalf of University of Exeter.

Professor Merkin QC is the leading authority on motor insurance and his impressive prize winning text book, The Law of Motor Insurance, has only very recently been updated.  The second edition of The Law of Motor Insurance is published by Sweet & Maxwell.  Its a gem and a bargain at £255.

Go to - https://www.parliament.uk/business/committees/committees-a-z/lords-select/science-and-technology-committee/news-parliament-2015/autonomous-vehicles-inquiry/



I am really proud to have been awarded the Best Article Of 2016 Award by the editorial board of BILA Journal.

I received my award at BILA's AGM at Lloyds of London earlier this month.  Here is a photo of  Professor Rob Merkin QC about to to confer the honour.

For any Doubting Thomas who notices this is actually no evidence of anything at all and who suspect (probably with good reason) that I had probably just gate crashed the event.... then here's my certificate:


Modern Law Awards

On the basis that if I don't puff very hard into my tin cornet, no one else will...

I am delighted to be shortlisted for Modern Law Journal's prestigious Lawyer of the Year Award this year.   The lucky winner will be announced at Modern Law's do at the Hurlingham Club on 10 November.

In the meantime I am proud to boast this splendid logo which I intend to paste on anything and everything:

Tuesday, 18 October 2016

CLT Motor Claims Update

Here is a temporary copy of the supplementary notes on ex turpi causa non oratur actio.

If you are having difficulty downloading this,  please email me at nicholasbevan@btconnect.com and I will send you an electronic copy within 24 hrs.



The common law defence of illegality has a long history. It applies to contract as well as to tort law.  It first surfaces in recognisable form within a law report dating from the late 18th Century, in the case of Holman v Johnson (1775) 1 Cowp 341.  It is worth quoting from Lord Mansfield judgment, at 343 where he set out the broad remit of the doctrine of illegality, albeit in the context of contractual dispute: 
"The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may so say. The principle of public policy is this; ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both are equally in fault, potior est conditio defendentis.
In keeping with the policy’s wide remit and ancient precedent, this excerpt associates the doctrine of illegality with two relatively well known Latin tags: firstly, ex dolo malo non oritur actio (no action can arise out of a fraud), and secondly, ex turpi causa non oratur actio (no action can arise out of an illegal cause).  It is the latter maxim and its application to claims based in tort that concerns us here.  However the Holman dictum is just as relevant today as it was when Lord Mansfield pronounced it. 
The essential ingredients of the modern tort law application of the doctrine of illegality, which he expounded, remain true:
  • you cannot recover compensation for loss which you have suffered as a result of your own illegal or criminal act, and
  • the object of this policy is not to punish a claimant’s criminality but to prevent inconsistency, inherent in compensating someone for a loss sustained through their own criminality, and
  • that where the parties are equally at fault the position of the defendant is the stronger. 
However, the ex turpi causa principle is not an inflexible rule, neither is it to be applied arbitrarily whenever a claimant’s loss is linked with an illegal act; that would be tantamount to outlawry. 

Pragmatism and striking a balance

Three benchmark rulings have developed and refined the doctrine. 
The first is to be found in Bingham LJ’s judgment in Saunders v Edwards [1987] 1 W.L.R. 116, 1134:
‘… I think that on the whole the courts have tended to adopt a pragmatic approach to these problems, seeking where possible to see that genuine wrongs are righted so long as the court does not thereby promote or countenance a nefarious object or bargain which it is bound to condemn.’ 
Accordingly, there is a balance to be struck between a consistent application of the rule and providing a remedy.  Lord Bingham then proceeded to define a broad dichotomy that limits the scope of the defence:
‘Where the plaintiff's action in truth arises directly ex turpi causa, he is likely to fail.  Where the plaintiff has suffered a genuine wrong, to which allegedly unlawful conduct is incidental, he is likely to succeed …’

Linking the illegality to the loss complained of

Next, in Vellino v Chief Constable of Greater Manchester Police [2001] EWCA Civ 1249; [2002] 1 WLR 218 Sir Murray Stuart-Smith expanded on the type of illegality required to trigger the defence:
‘The operation of the principle arises where the claimant's claim is founded upon his own criminal or immoral act. The facts which give rise to the claim must be inextricably linked with the criminal activity.  It is not sufficient if the criminal activity merely gives occasion for tortious conduct of the Defendant.’
In this case the claimant’s injury was caused by an unsucessful attempt to escape from police custody.  The claimant rather rashly jumped out of a window and was badly hurt in the fall.  No surprise then that the Court of Appeal upheld the trial judge’s rejection of the claim.  This ruling was also based on a finding that the Police did not owe the claimant a duty of care to prevent him escape, even where his attempt was foreseeable.  The latter principle has been undermined in recent years and in particular by the next judgment.

Causation is key

The third formative ruling comes from the House of Lords.  In Gray v Thames Trains Ltd [2009] UKHL 33, [2009] 1 A.C. 1339.  The case facts in Gray were very different to Joyce (see below); not least because this was not a claim against a fellow miscreant: there was no joint endeavour.  The claimant was a passenger in a train involved in a major railway accident.  He suffered post-traumatic stress disorder caused by that accident.  Whilst so suffering he killed a man and on conviction of manslaughter on the grounds of diminished responsibility was ordered to be detained in hospital under the Mental Health Act.  In an action against the train operator he claimed for loss of earnings after his detention and for loss of his liberty and damage to reputation and for his feelings of guilt and remorse consequent on the killing, all of which he said had resulted from the PTSD caused by the defendants. 
Lord Hoffman’s tentative approach, was to apply a causational ‘but for’ test to the illegality: 
‘Can one say that, although the damage would not have happened but for the tortious conduct of the defendant, it was caused by the criminal act of the claimant?  Or is the position that although the damage would not have happened without the criminal act of the claimant, it was caused by the tortious act of the defendant? ‘

Policy then principles

Lord Hoffman reviewed a number of subordinate principles and competing judicial expositions for the doctrine.  These included a line of Australian authorities arising out of joint criminal endeavours and their ratio suggested that a parties’ criminality either negated any duty of care, or at least made it impossible to determine the appropriate standard; none of which were particularly helpful to the case at issue.  He then went on to observe:
The maxim ex turpi causa expresses not so much a principle as a policy.  Furthermore, that policy is not based upon a single justification but on a group of reasons, which vary in different situations.’
The wider and narrower principles
The application of the doctrine in Gray’s case featured two discrete principles:  firstly a ‘wider rule’ that you cannot recover for damage which is the consequence of your own criminal act (which is relevant to Joyce v O’Brien, below) and a ‘narrower form’ of the rule by which it would be inconsistent for a Court to permit a claimant to recover for damage which was the consequence of a sentence.
The House of Lords ruled unanimously that these claims were prevented by the ex turpi causa doctrine.  This was based on a finding that the claimant’s detention and his loss of earnings following his arrest resulted from his act of manslaughter and not his PTSD. 
No single justification
The Gray ruling is helpful in acknowledging that there are a number of different principled explanations that the courts offered to justify the application of the ex turpi causa doctrine and there is no single overarching principle that can be extrapolated and applied uniformly to every circumstance.  Its other great significance lies in Lord Hoffman’s use of a ‘but for’ causation test to determine whether the illegal act is sufficient to trigger the doctrine.  If the loss is a direct consequence of the criminality, then the doctrine will prevent the claim.  If it is only incidental, then it is unlikely to apply. 
Lord Hoffman’s exposition of the doctrine was followed by Elias LJ in his leading judgment in Joyce v O’Brien.

Applying the doctrine

We have already noted that the doctrine involves a balancing act.  As Beldam LJ pointed out in Cross v Kirkby (2000) Times, 5 April (para 74):
'it faces the dilemma that by denying relief on the ground of illegality to one party, it appears to confer an unjustified benefit illegally obtained on the other'
Cross featured a claim brought by a hunt saboteur who was injured by the man he had just attacked, whom he alleged had used disproportionate force to defend himself.  The Court of Appeal ruled unanimously that his claim was prevented by ex turpi causa, justified by principles consistent the ‘wider rule’ propounded by Lord Hoffman in Gray.  This outcome is to be compared with that Revill v Newbery [1996] QB 567 in which a 76 year old pensioner shot a burglar who was attempting to break into his garden shed.  The pensioner had been waiting in ambush.  There was no evidence that the injured burglar and his accomplice intended to injure the claimant.  Ex turpi causa did not apply to prevent the burglar’s claim.
In Pitts v Hunt [1991] 2 QB 24 a motor cycle pillion passenger’s claim was caught by this doctrine.  Both the claimant and the defendant driver were intoxicated.  Furthermore, the claimant encouraged and abetted his driver in reckless and dangerous manoeuvres that lead directly to the accident itself.  This is a relatively clear cut case where the claimant’s actions were not only criminal but they were part of a joint enterprise that led directly to his own loss.  In Pitts Balcombe LJ explained his decision on the basis that the circumstances of the case were such as to preclude the court from finding that the deceased owed a duty of care to the claimant.
However, as we have seen, the criminality must be causative.  In Delaney v Pickett 2011] EWCA Civ 1532, [see Part 1 of the Notes under the heading NINE KEY CASES] the claimant passenger and his driver were fellow conspirators who were actively engaged in drug dealing at the time of the car accident.  The Court of Appeal upheld an appeal against the first instance decision dismissing the claim under the ex turpi causa doctrine, because the illegality was merely incidental to the accident; not causative (per Vellino and Gray).  Whilst the criminal activity afforded the opportunity for the accident, in the sense that it could not have occurred had they not been engaged in transporting a large amount of cannabis by car; nevertheless, what actually injured the claimant was the defendant’s dangerous driving, not the illegal objective of the journey. 
These cases are highly fact specific. 


Joy riding

McCracken v Smith, Bell & MIB [2015] EWCA Civ 380

The facts:
Damian Smith (DS) and Daniel McCracken (DM) were close friends.  They were both 16 years old and they were joy-riders.  At the time of the accident, they were riding an off road scrambler motor bike fast along a cycle lane in Carlisle.  Not only was the bike was uninsured and unfit for road use but it was not even designed to carry a passenger.  Neither boys were wearing a helmet. 
The accident happened when the bike which DS was riding, with DM as his pillion passenger, collided with the minibus driven by Mr Bell.  . The minibus had been travelling towards the city centre and was turning right into a community centre when the bike collided with the offside of the minibus near the driver's door.
The judge found that DS had been driving dangerously and that Mr Bell had been negligent in failing to observe the bike or to react to its presence.
Both the MIB and Mr Bell argued that DM’s claims were barred by the ex turpi causa non oritur actio doctrine.  It is worth noting that the MIB did not seek to argue that the off road bike was not a ‘relevant liability’.
At first instance:
Keith J held that although DS was liable to DM in negligence. The defence of ex turpi causa non oritur actio could not succeed in respect of the claim against DS (and by corollary, against MIB who were potentially liable to meet any unsatisfied judgment against an uninsured driver) because DM was not part of a joint criminal enterprise but simply ‘going along for the ride’.   As it was, the MIB's liability was excluded by c 6.1(e)(ii) of the Uninsured Drivers' Agreement 1999 because he found that DM knew that the bike was being used without insurance.  
He also ruled that DM’s award should be reduced on account of his contributory negligence by 45% (which included a 15% reduction for his failing to wear a helmet).  Unfortunately DS had no means with which to satisfy the claim. 
After the hearing and following an exchange of notes, liability was subsequently apportioned between the two drivers (DS and Mr Bell), in the ratio of 80% to 20%[1]. It was ordered that the 90% of the MIB’s costs were ordered to be paid by Mr Bell, rather than by the DS.  
Only Mr Bell appealed.
The decision:
The unanimous decision of the Court of Appeal was that DM was guilty of sufficient turpitude to expose him to the potential application of the ex turpi policy.  Had the appeal extended to DM’s claim against DS, it opined that the ex turpi causa defence would have succeeded as there was a joint enterprise between DM and DS to ride the bike dangerously, and the increased risk of harm as a consequence of such riding was plainly foreseeable and causative.  The Court of Appeal’s ratio in Joyce v O’Brien applied (see below) as DM's injury could properly be said to have been caused by his own criminal conduct even though it resulted from the negligent act of DS.
Where ex turpi causa applied to a claim by a third a party such as Mr Bell, Pitts v Hunt (see above) and Joyce v O’Brien were of less assistance – as those cases featured claims between parties engaged in a joint criminal endeavour.  The fact that DM’s was jointly participating in DS’s dangerous driving had no effect on the duty of care owed by Mr Bell nor on the standard of care reasonably to be expected of him.  The Court of Appeal was influenced by its earlier decision in Revill v Newbery [1996] QB 567 which was a claim by a tresspasser who was shot and injured by the occupier of land in the course of an attempted burglary on the property. The Court of Appeal held that the liability of the occupier depended on ordinary principles of negligence at common law and that he had been negligent in firing the shot.  The court had rejected the occupier’s defence of ex turpi causa based on general public policy considerations that extended the remit of the common duty of care even towards trespassers engaged in criminal activities. 
One aspect of the Joyce v O’Brien decision was considered relevant. Elias LJ’s states at para 28 of his judgment that for ex turpi causa to apply: ‘the injury will be caused by, rather than occasioned by, the criminal activity of the claimant where the joint criminal illegality affects the standard of care which the claimant is reasonably entitled to expect from his partner in crime’.  In other words the criminal activity must be directly causative.  This same principle influenced the Court of Appeal to overturn the first instance decision in Delaney v Pickett (see Part 1 of the Notes under the heading NINE KEY CASES) so that Delaney’s claim against his driver was not debarred by the ex turpi causa rule.  That was because their joint criminal enterprise (of trafficking drugs) was merely the context to and not the cause of Pickett’s dangerous driving.
In the McCraken’ case, Richards LJ who presented the unanimous decision of the court, held that the accident had two distinct causes: (i) the dangerous driving of the bike and (ii) the negligent driving of the minibus.  As with the Revill case, the causal contribution of the dangerous riding of the bike for which DM was responsible can and should be taken into account in the assessment of his contributory negligence pursuant to s1 of the Law Reform (Contributory Negligence) Act 1945 (see below).
In consequence, the court allowed Mr Bent’s appeal on liability to the extent of increasing the total deduction for DM’s contributory negligence from 45% to 65%.  The court considered this a fair reflection of that greater degree of blameworthiness and causative potency of DM’s conduct (i.e. 50%, plus the agreed deduction of 15% for failure to wear a helmet).l
The other aspects of Mr Bent’s appeal, including the costs appeal, were dismissed.

Fair Jumping

Beaumont and Another v Ferrer [2014] EWHC 2398 (QB) (unreported) 16 July 2014

The facts:
Six youths aged between 13 and 17 booked a taxi to take them Urbis in Salford.  The boys had already determined that instead of paying the fare, they would ‘jump the taxi’ as it approached its destination.  The defendant was the licensed taxi driver who picked them up in his Nissan Serena minivan.  This has sliding doors on either side, neither of which were not locked in transit. 
As the taxi approached the junction of Deasngate on Blackfriars Street, the driver noticed the boys were preparing to leave.  He told them that the fair was £10 and asked for payment.  When he stopped at traffic lights, three of the boys got out and ran for it.  With the door still open, the driver then carried on with the remaining three.  The court found that the driver’s motives were mixed: he was acting partly out of fear of being attacked and partly to prevent the remaining boys leaving without paying.  It seems that he may have intended to drive to the local police station.  However, as he turned a corner at a speed of approximately 18 mph, the First Claimant leapt out of the taxi backwards and the back of his head hit the road. Within a matter of seconds, and as he was driving up Deansgate at approximately 24 mph, the Second Claimant leaped from the taxi.  Both boys were badly injured and they sued the driver. 
The decision:
The driver had done nothing to justify the passengers being placed in a position whereby they were next to an open door with no seatbelts on.  The reason why they jumped was that they had agreed on a joint criminal enterprise to avoid paying the fair.  They had had plenty of time to reseat and secure themselves after the first three boys had jumped. 
If the driver had breached his duty of care to these comparatively young people by not driving off after the first three had ran away and simply resigning himself to the inevitable loss of his fare, then that fault was overwhelmed by the reckless and criminal intention and actions of the passengers. 
The judge found that the boys were committing an offense of making off without payment contrary to section 3 of the Theft Act 1978, this carries a potential term of imprisonment of up to 2 years.  He found that their actions were the cause of their injuries, which they had brought upon themselves.
Furthermore, although it was not necessary to make a finding of ex turpi causa, the issue was discussed in the light of Joyce v O’Brien and it would appear that the judge would have been prepared to make a finding of ex turpi causa, nothwithstanding the claimant’s argument that this would have been disproportionate. 
The judge was of the view that proportionality was not a relevant consideration in this kind of case.  ‘The correct approach was to ask whether the criminal act was no more than the occasion for the damage or whether the damage was caused by the criminal act.’

Shameless glitterati

Flint v Tittensor and MIB [2015] EWHC 466 (QB)

The facts:
The defendant, Mr Tittensor, was accused of deliberately assaulting Mr Flint by driving his car at him and causing the very serious injury that resulted. 
Immediately prior to the incident, T had been in the act of dropping off his girlfriend at McDonalds in Kentish Town Road, London in the very early hours of the morning when they were approached by a stranger, the claimant who recognised T’s passenger as Ms Kaya Scodelario, the actress who plays Effy in the TV drama Skins.  As it happens, Mr Tittensor, is also a minor soap star, known for his role in the TV series Shameless.   He was driving a flashy new BMW that had not insured. 
The claimant, Mr Flint, importuned himself on Ms Scodelario and was behaving in a drunk and confrontational manner to which T reacted aggressively.  A loutish shouting match ensured in which both men exchanged insults.  F then struck and damaged T’s expensive new car.  T overreacted again by deliberately driving forward towards F, forcing him onto the bonnet.  F held on as well as he could as T accelerated hard forwards along Kentish Town Road before deliberately steering and veering the car to tip him off.  Fell off violently and heavily onto the road.  F’s action was based solely in trespass to the person as the assault had been deliberate. 
The MIB intervened as T brand new car was uninsured.
T argued that he had been acting in self defence, in the belief that F had a knife and was intent on murdering him.   He also argued for good measure that F’s claim was barred by virtue of his illegal conduct under the ex turpi causa rule and that volenti non fit injuria applied.  The judge rejected T’s assertion that he was acting out of an imminent fear for his life.  Both T and F proved to be very unreliable witnesses.
The decision:
Edis J held that by driving his car at F in such a way that he landed up on his bonnet, T had committed an act of battery.  Since had at all times been secure inside his locked (albeit slightly dented) car and because as he could easily have reversed away from F, self-defence would not avail him. 
As to T’s culpability  the judge noted that victims behaviour had been only a relatively minor type of criminality that the judge said was not uncommon in cities.  
The judge reviewed the case law on ex turpi causa, including the Gray and Vellino cases from which he extracted the following propositions.
‘(1) The operation of the principle arises where the claimant's claim is founded upon his own criminal or immoral act. The facts which give rise to the claim must be inextricably linked with the criminal activity. It is not sufficient if the criminal activity merely gives occasion for tortious conduct of the defendant.
 (2) The principle is one of public policy; it is not for the benefit of the defendant. Since if the principle applies, the cause of action does not arise, the defendant's conduct is irrelevant. There is no question of proportionality between the conduct of the claimant and defendant.
 (3) In the case of criminal conduct this has to be sufficiently serious to merit the application of the principle. Generally speaking a crime punishable with imprisonment could be expected to qualify. If the offence is criminal but relatively trivial, it is in any event difficult to see how it could be integral to the claim.
 (4) The Law Reform (Contributory Negligence) Act 1945 is not applicable where the claimant's action amounts to a common law crime which does not give rise to liability in tort.’
The judge held that it was necessary to establish what the claimant did wrong, and what it caused the defendant to do in response.  It is necessary to do this in order to decide whether, for the purposes of the causation rule applicable to this public policy defence, the one caused the other.  T’s response to F’s provocation exceeded what was reasonable in the circumstances and so was disproportionate (which remained relevant to the issue of self defence).  What T did was analogous to pulling out a knife and threatening an unarmed opponent. 
There was no policy justification for barring the claim under the ex turpi causa principle; F’s criminality was not of sufficient gravity to engage the doctrine.  Accordingly judgment was awarded against T.
F’s claim was very sensibly founded on trespass to the person; not negligence.

Thief not liable for injury to his accomplice

Joyce v O’Brien and Tradex [2013] EWCA Civ 546

C was standing on the back step of a van being driven carelessly by his uncle as they made their escape with some stolen ladders. The ladders were protruding from the back of the van and C was trying to prevent them from slipping out with one hand whilst holding on to the back of the van with his other hand. The uncle took a corner at speed and C was flung off, sustaining a severe head injury. He sued his uncle and joined in the third party motor insurers.  The insurers defended the claim contending that it had no liability to indemnify a C’s claim as the uncle owed no duty of care by virtue of the ex turpi causa non oratur action rule.
At first instance, Cooke J held that the insurers defence was upheld.  The driver owed no duty of care to his nephew as he was participating in a criminal joint enterprise at the time.  The injury was caused whilst they were attempting to steal the ladders and thus the crime was directly causative of the injuries.  Public policy precluded a duty of care being owed to a fellow conspirator of a criminal enterprise. 
C appealed against the dismissal of his claim.
C’s appeal was dismissed.
Although the uncle’s driving was also causative, C was injured whilst stealing some ladders and in riding on the back of the van he was also careless for his own safety.  The trial judge was entitled to hold that the claimant’s own criminality was causative of his injury. 
Most of us are familiar with the doctrine of ex turpi causa non oratur actio.  It is pleaded routinely as a defence by some defendants whenever a claim is tainted by some nefarious activity on the claimant’s part.  However, its proper application and correct usage is more nuanced.

Assailant’s act not sufficiently linked to the injury

Clarke v Clarke and another [2012] All ER (D) 06 (Apr)

In Clarke v Clarke a claimant was rendered tetraplegic when he was knocked down by a jeep that his sister in law was driving.  He had just perpetrated an assault on her, smashing the jeep window with a baseball bat during a violent family alteration with other members of the family present.  He had also shouted threats at her, with her five children present in the vehicle.  When she attempted to drive away, she crashed the jeep through a paling and into a paddock and it was here that it struck down the claimant.  She was uninsured.  The Motor Insurers Bureau raised ex turpi causa as a defence. Surprisingly it did not succeed in that defence.  McKenna J decided, on the facts, that the claimant’s injury was not inextricably linked to his criminal activity. 
However, the MIB still managed to avoid any liability.  It argued successfully that as the injury had occurred off road this was not a use that required compulsory motor insurance under s143 Road Traffic Act 1988 and so the claim was not a relevant liability within the terms of the Uninsured Drivers Agreement 1999.
If the claimant’s participation in the joint criminal endeavour has ceased, this can prevent the doctrine applying. 

The illegality must be causative of the loss

Miller v Miller [2011] HCA 9

In Miller v Miller the claimant, a sixteen year old, decided to steal a car to get home after she had missed the last train.  She was accompanied by two other members of her family.  She was later joined by a relative, who insisted on driving the car. Later, other passengers were joined her, so there were ultimately nine people in the car.  Her cousin drove so dangerously that he lost control and the claimant was badly injured and became a tetraplegic.  As one might expect, the ex turpi causa defence was raised.  However, on the facts, the court found that what had begun as a joint criminal endeavor had ended when the claimant had repeatedly asked to get out of the car but was ignored.  The illegality doctrine did not apply as she was not a party to the negligent driving that caused the accident.
In Joyce, the claimant’s criminality was clearly causative.  His injury was sustained whilst in the very act of stealing some ladders and so his claim failed.  The severity of his injuries was irrelevant. 
This case is similar in many respects to Ashton v Turner [1981] QB 137.  There the claimant had just taken part in a burglary with an associate and they were in the act of escaping from the scene with the associate driving a car belonging to a third member of their gang.  They had been drinking heavily. The driver was driving very dangerously in order to avoid their arrest after two taxi drivers had tried to block the car.  An accident ensured and the claimant was badly hurt and brought a claim against his driver, who as in this case had pleaded guilty to dangerous driving.  That claim failed on two counts.  Firstly on public policy on the basis that there could be no duty of care between those involved in a joint criminal endeavor and secondly under the volenti non fit injuria rule, the claimant having voluntarily assumed the risk involved.  However, post Gray, the decision in Ashton would now be justified by differently.  It would be based on the broad policy that underlies the ex turpi causa rule, first enunciated in Holman (namely that you cannot recover compensation for loss which you have suffered as a result of your own illegal or criminal act), even if the rationale for denying liability is explained in terms of causation as opposed to a negation of a duty of care. 
Modern jurisprudence recognises that a duty of care can exist between criminals, however under the doctrine it refuses to come to the aid of a claimant where the wrong is inextricably linked with the commission of a crime.  In Delaney, both driver and passenger were up to no good but what caused the passengers injuries was not their criminal enterprise but the the drivers’ negligent driving.
Incidentally and on a point of detail, it should also be noted that s149 (3) of the Road Traffic Act 1988 precludes volenti being raised as a defence by a driver against his passenger.  This is one more reason to treat the reasoning in Ashton with circumspection.

Practice Points on ex turpi cases
  • As these are highly fact specific cases, much turns on the evidence.  Accordingly it is vital to take detailed statements.
  • Focus on determining whether the alleged criminality was so inextricably connected with the criminal activity as to be causative. 
  • Remember, the basic principle is that criminals are protected under the common law.  Outlawry holds no sway in modern judicial thinking.
  • Check whether the claimant’s participation in the joint criminal endeavour had been terminated or lapsed in any way, as in Miller.
  • The burden of proving the criminal behaviour is to be established by applying the civil standard: on the balance of probability.  However the court should apply this rigorously and to a high standard: looking to bridge the evidential gap between civil and criminal proof.  A 51% probability may not be sufficient.
  • The seriousness of the criminal activity is a relevant consideration.  Usually, any crime that carries a potential sentence of imprisonment is sufficient to warrant an ex turpi causa defence; a victim who is double parked would not.  The doctrine is reserved for exceptional cases.
  • The significance of the illegal activity depends on a variety of factors and principles.  When advising a claimant who may be affected by this doctrine, it will be necessary to consider one or more of the following:
    • The seriousness of the illegality
    • The causative potency of the illegal activity
    • The knowledge and intention of the claimant
    • Whether denying relief would act as a deterrent
    • Whether denying relief would further the purpose of the rule which renders the claimant's conduct illegal, such as in health and safety legislation
    • Whether denying relief would be proportionate to the illegality involved
    • Closeness of connection
    • Knowledge of the defendant
    • Proportionality as between claimant and defendant
    • Consistency with the law, in the sense that the court will entertain a claim arising out of a sentence imposed for the illegal act
  • The case facts are likely to raise issues as to the victim’s contributory negligence, where the claimant’s criminality has not triggered the ex turpi causa doctrine.
  • Once established, the ex turpi causa principle usually defeats the entire claim but not always so.   In Gray, the claimant’s PSLA and initial loss of earnings resulting from the train accident injury were unaffected by his subsequent crime. 

Although the legality of this policy in this context was not considered by the Court of Appeal here or elsewhere, there is a strong argument that an ex turpi causa conflicts with European Motor Insurance Directives.  Whilst these directives do not see to alter our criminal or civil law as such, the European Court of Justice has ruled that whilst Member States are free to determine the rules of civil liability applicable to road traffic accidents, they must ensure that the civil liability arising under their domestic law is covered by insurance which complies with the provisions of the three directives in question (Case C-348/98 Mendes Ferreira and Delgado Correia Ferreira [2000] ECR I-6711, paragraphs 23 and 29; Case C-537/03 Candolin and Others [2005] ECR I-5745, paragraph 24 and Elaine Farrell v Alan Whitty and Others CJEU 2007 Case C-356/05 paragraph 34).  In other words, national civil law provisions governing civil liability in road traffic accidents cannot not detract from the effectiveness of the Directive’s objective of providing a compensatory guarantee to victims of the use of motor vehicles.  More recently yet, in Churchill v Benjamin Wilkinson and Tracy Evans 2011 Case C-442/10 the CJEU ruled:
49. Accordingly, national rules, formulated in terms of general and abstract criteria, may not refuse or restrict to a disproportionate extent the compensation to be made available to a passenger by compulsory insurance against civil liability in respect of the use of motor vehicles solely on the basis of his contribution to the occurrence of the loss which arises. It is only in exceptional circumstances that the amount of compensation may be limited on the basis of an assessment of that particular case ( Candolin and Others , paragraphs 29, 30 and 35; Farrell , paragraph 35; Carvalho Ferreira Santos , paragraph 38; and Ambrósio Lavrador and Olival Ferreira Bonifácio , paragraph 29).’
If this author is correct in his view, then the Joyce decision adds to a growing tally of rulings where our national law provisions have not been properly construed in accordance with European law by the Court of Appeal.  See the commentary on Delaney v Pickett

[1] Presumably this was to resolve the liability between the drivers’ respective insurers, as DS and Mr Bell’s liability to the victim, DM, would have been joint and several.