The Motor Vehicles (Compulsory Insurance) (Miscellaneous Amendments) Regulations 2019

Introduced to Parliament on 1 July 2019.

Section 152 Road Traffic Act 1988 to be reformed once more

Once an insured risk has materialised, a motor insurer will no longer be able to avoid its statutory liability to compensate third party victims on the grounds that the policyholder deceived them when the motor policy was taken out.  

The section 152 declaration procedure, widely employed by motor insurers to deflect claims to the relatively disadvantageous scheme managed by the Motor Insurers' Bureau under the Uninsured Drivers Agreement 2015 is effectively abolished and not before time!

Two campaign victories!

June and July 2019 have been very satisfactory months from my perspective.  They have delivered two major reforms on issues that I was first to raise and then to campaign to reform.

 Reform 1: MIB v Lewis [2019] EWCA Civ 909

In June 2019 the Court of Appeal's ruling in MIB v Lewis confirmed something that I have been contending for, for the past twelve years.  It ruled that the Motor Insurers' Bureau is an emanation of the state and that this status fixes it with a liability to compensate motor accident victims adversely affected by the governments failure to fully implement the civil law rights conferred under the European Directive 2009/103/EC.  This has far reaching implications, some of which I allude to in this blog in my earlier postings this month [see The MIB's Surrogate Liability]. 

Reform 2: Abolition of section 152(2) Road Traffic Act 1988 declarations under Regulation 6 of The Motor Vehicles (Compulsory Insurance) (Miscellaneous Amendments) Regulations 2019

See: http://www.legislation.gov.uk/uksi/2019/1047/contents/made

The government’s explanatory note has this to say:

'Regulation 6 amends section 152 of the Road Traffic Act 1988 (c. 52) to limit the rights of an insurer to rely on having voided an insurance policy after an accident has taken place. Regulation 7 makes an equivalent change for Northern Ireland and amends section 98A of the Road Traffic (Northern Ireland) Order 1981. Regulation 8 is a saving provision for any court declarations obtained prior to 1st November 2019.'

A long overdue reform

I believe that I was first to argue (in my Journal of Personal Injury Law commentary on Delaney v Pickett [2011] EWCA Civ 1532 in 2012 and on several occasions in the New Law Journal, subsequently,  that the ability of insurers to obtain a court declaration that exculpates  them from any responsibility to compensate victims where a policy was induced by fraud or misrepresentation under s152 Road Traffic Act 1988 - was unlawful. I explained that this statutory provision failed to conform with the autonomous compensatory guarantee vouchsafed by Directive 2009/103 and a line of consistent Court of Justice rulings to this effect dating back to Bernaldez [1996] ECR 1-1929.


Excerpt from my 2017 article Inception Deception: 'Motor insurers have relied increasingly on  152 RTA 1988 in recent years, particularly in high value claims. It is a uniformly accepted convention that once a court declaration under s 152 (2) is made, the insurer is released from any direct liability to meet a third-party claim, whether  contractually or statutorily imposed (ie under either s 151 of RTA 1988 or Reg 3 of the Rights Against Insurers Regulations 2002 (SI 2002/3061). ....This author first criticised this approach for being inconsistent with the protective purpose of the Directives in his JPIL commentary on Delaney v Pickett [2011] EWCA Civ 1532 and again in this journal on 8 February 2013 in ‘On the right road? Pt II’, (see 163 NLJ, 7547 p 130) Fidelidade has vindicated this view.'

I also raised this particular issue initially in various consultation responses to the Department of Transport.  When this was ignored, after a long campaign, I manage to persuade RoadPeace to include this issue as one of the numerous grounds where we sought judicial review in 2015.  The strength of my argument was later reinforced by the Court of Justice’s ruling in Fidelidade-Compania de Seguros SA v Caisse Suisse de Compensation  C-287/16.

It was remarkable that Mr Justice Ouseley’s judgment in in RoadPeace v Secretary of State for Transport and Motor Insurers' Bureau [2017] EWHC 2725 condoned this clear and blatant infringement of European law by misconstruing, in the most strained terms, the inescapable implications of Fidelidade, when dismissing this particular ground of the judicial review. 

Although the RoadPeace judicial review was instrumental in forcing the MIB to introduce major reforms to both compensation schemes and although it resulted in additional declarations of the UK's non-conformity with EU law, the judgment obtusely rejected our claims that this and number of other similar statutory provisions flouted EU law. The spectre of Brexit appears to have had a tangible effect. After three long years of extensive pro bono work, we were forced to leave this highly unsatisfactory decision where it lay, unchallenged.

The fact that the government has forced through this reform, presumably in the face of stiff opposition from the motor insurance lobby (who rely on section 152 avoidance declarations as a staple first line of defence, especially in serious injury claims where they face extensive liabilities) makes it abundantly clear that the government accepts that Ouseley J got this (and in my view much else) badly wrong in 2017. 

Immediate effect through direct effect

Although these regulations only come into force on 1 November 2019 (on day one of Brexit *) their effect can be invoked against the MIB with immediate and retrospective effect, following the Court of Appeal’s decision in MIB v Lewis.

[* After this article was posted, Brexit day was postponed by three months] 

Worrisome developments at APIL

As to section 152 Road Traffic Act 1988 generally, I had proposed to deliver a webinar (Winning the unwinnable claim Part 2) for the Association of Personal Injury Lawyers, explaining why Mr Justice O’Farrell’s recent decision in Colley v Shuker [2019] EWHC 781 (QB) which upheld the effect of an insurer’s revocation of its cover under section 152 of the 1988 Act was misconceived and contrary to EU law.  I also intended to cover four new Court of Justice rulings, to explain where the Supreme Court went wrong in its decision in Pilling v UK Insurance  and to explain how, after MIB v Lewis, claimants can pursue direct personal injury actions against the MIB where a policy has been revoked by invoking the same European law directly against the MIB, as though the 1988 Act fully implemented the Directive – only to have my training proposal rejected on the basis that it raised no new point of law. How bizarre!  

As a senior fellow and longstanding member of APIL, who has supported its charitable objectives in different ways over several decades,  I am becoming increasingly baffled and concerned by the internal politics that are corroding the credibility and quality of APIL’s training and accreditation schemes.

The big question

If the government is able to implement the effect of Fidelidade’s ruling from 2017, why has it not implemented the Vnuk ruling from 2014.  

The government conceded that the scope of the UK’s compulsory third party motor insurance regime failed to implement the Directive’s unrestricted scope both within the RoadPeace judicial review and in its consultation on Vnuk.  Were are now five years on from Vnuk and three years on from the governments promise to act. I suspect that the prospect of a Brexit is influencing events but what has that to do with the rule of law?

THE MIB’s SURROGATE LIABILITY (Part 2)

The implications of Motor Insurers’ Bureau v Lewis [2019] EWCA Civ 909

Part 2 goes to press

The second article, in my two-part feature on Lewis, was published this Friday in the New Law Journal.  The first instalment explained the reasoning behind the Court of Appeal’s two confirmatory findings: (i) that the Motor Insurers’ Bureau (MIB) is an emanation of the state; (ii) that Articles 3 and 10 of the Motor Insurance Directive (2009/103) have direct effect against it. The second article sets out some of the wide-ranging and potentially disruptive ramifications of this ruling.

The key implications of the Lewis ruling are twofold. 

First, the MIB is fixed with a vicarious form of liability to redress any gaps in the compensatory guarantee vouchsafed by the third-party motor insurance regime in the UK.  A key point that the commentaries I have read and heard all miss is that this is a general principle that has a wide and encompassing application. It is not confined to the facts of the case (e.g. claims featuring a motor accident on private land where the compulsory insurance provisions of the Road Traffic Act 1988 does not apply) but to all other instances where our national provision fails to fully implement the Directive.  The impact is major, reflecting as it does the egregious and wide-ranging infringements of EU law in the UK’s transposition of the Directive.  For example, uncompensated victims of motor accidents caused by mechanical and software defects, or unusual vehicles (neither of which scenarios are covered by the UK regime, in clear breach of EU law) can now pursue a direct action against the MIB. The EU law principle of equivalence requires that these claims are to be governed by the normal civil procedural rules that apply to conventional personal injury claims; not the disadvantageous provisions of the Uninsured Drivers Agreement 2015.  

A second (major) collateral effect of Lewis is that the MIB Agreements themselves are now subject to a curative construction that bring their non-conforming provisions into line with the minimum standard of compensatory provision mandated under EU law. All this and more is explained in my New Law Journal Article, The MIB’s surrogate state liability (Pt 2).

Why did it take so long?

It took 12 years for the erroneous first instance findings in Byrne v MIB and the Secretary of State for Transport 2007 to be challenged in the UK. In Byrne, Flaux J (now Lord Justice Flaux) was not informed of consistent line of domestic authorities, which were determinative on the issue, concerning the correct approach to take when applying the Foster criteria for deciding whether a legal entity is to be treated as though it were part of the state and thus potentially subject to the direct effect of incompletely implemented rights conferred under a directive.  That same court was also badly misinformed on the facts. The MIB and the Secretary of State for Transport withheld an abundance of highly relevant material (documents and facts) that would, in my view, have established that the extensive control exercised by the minister over the MIB’s compensatory role and the special powers it enjoyed in this capacity; confer it with a special status as an emanation of the state. 

These important issues were not pressed by the claimant at the time.  This was an entirely justifiable tactic in the circumstances of the particular case: the claimant team’s imperative was to focus its limited resources, in what had become an expensive litigation, to the key issues necessary to establishing one of two alternative successful outcomes. Its case concentrated on the near certainty that the court would find the government liable under an alternative ground based on Francovich state liability principles; where it succeeded ultimately in the Court of Appeal.  

Unfortunately, Flaux J’s erroneous finding (on the alternative ground) as to the MIB’s state liability under Foster principles proved to be a dead-weight deterrent for numerous claimants thereafter (probably numbered in their thousands).

It took a ruling from the Court of Justice of the European Union in Farrell v Whitty (no 2) in 2018 to embolden a leading firm in an otherwise predominantly lack-lustre claimant personal injury sector, to bring the long overdue challenge in Lewis.  Farrell is on all fours with the domestic authorities on state liability that were completely overlooked eleven years before in Byrne.   Its finding on special powers coincided with my long-held view that the MIB’s compensatory role, which is funded through its imposition of a levy on all UK motor insurers as a precondition to authorised status in the UK, constituted a special power, which satisfied the criteria for emanation of the state status. The implications of Farrell (no 2) were as obvious as they were ineluctable.  However, it is striking that none of probably thousands of claimants were advised to challenge Byrne's evidently flawed findings on the MIB’s proper status, until Farrell (no2).

The 12-year hiatus of unjust outcomes from Byrne to Lewis neatly illustrates the sorry plight of individual claimants in our civil justice system.  Although the Civil Procedural Rules profess to impose equality between the parties, their failure to achieve this is abject: access to Justice is anything but equal.  

This is partly due to the fact, as the Byrne case illustrates, that multi-national and state parties are free to bend the rules when it suits them, with apparent impunity. Costs sanctions imposed for unreasonable conduct is a worthwhile risk where a distorted outcome might result in a windfall of £millions.  The multi-£bn motor insurance sector plays a vital and largely beneficial role in our society. Unfortunately, its powerful lobby has distorted our national law provision for compulsory insurance by obstructing much needed reform, over many decades, and it is able to invest disproportionate sums in civil actions to achieve partial and unmerited outcomes that serve its strategic aims. Whilst successive governments are responsible for excessive court fees and the abolition of legal aid which drastically curb access to justice, the judiciary have also contributed to the problem which deters many if not most private citizens from challenging abuses of power. Rupert Jackson’s dogmatic proposals for curbing legal costs through arbitrarily derived fixed fees, Draconian procedural penalties, and though the imposition of arcane cost recovery principles (such as the proportionality principle that imposes an arbitrary cap on recoverable costs in a Procrustean fashion) has made civil litigation an unjust process where disparities in resources is routinely exploited by wealthy institutions at the expense of private litigants. 

As a solicitor of many years standing it has also been disheartening to witness the recent startling decline in the quality of the Supreme Court’s judgments in this area. I can only hope that the Cameron and Pilling rulings in February and March this year, which I appear to be alone in robustly criticising (see my New Law Journal articles and my earlier posts in this blog) are anomalies that will never be repeated. It is also equally startling to note that none of my fellow commentators and law reporters featuring these two appalling rulings recognise the blatant misstatements of fact and law within them.  

Brexit’s effect

The findings that (i) the 1988 Act fails to conform with the unrestricted geographic scope of the Directive, (ii) that the MIB is an emanation of the state and (iii) that both Articles 3 and 10 of the Directive have direct effect against it, will all endure as retained EU law under s4(1) of the EU Withdrawal Act 2018. Accordingly, individual claimants will be able to invoke the direct effect of these findings beyond a Brexit notwithstanding that abolition of the primacy of EU law under s5.

It remains to be seen where the courts will draw the line on the wider implications of this ruling, especially where a domestic non-conforming provision has not yet been recognised as such on Brexit. It is also by no means certain that claimant law firms will exploit these newly confirmed rights to the full extent.

THE MIB's SURROGATE LIABILITY

Motor Insurers’ Bureau v Lewis [2019] EWCA Civ 909

The first instalment of my two-part feature in the New Law Journal was published on 12 July. It explains how the scattergun tactics employed by the Motor Insurers’ Bureau (MIB), in its futile appeal against Soole J’s first instance decision has proved to be a costly mistake. 

The MIB has appealed Soole J’s finding that it was bound by the direct effect of Article 3 of the Motor Insurance Directive 2009/103 (the Directive) under EU law.  Article 3 prescribes the minimum standard of civil liability insurance necessary to deliver a consistent level of compensatory guarantee is conferred on third party motor accident victims throughout the EU and EEA.

In Lewis, the claimant was grievously injured when he was run down by an uninsured car in a privately-owned field, which location does not fall within the geographic scope of the Part VI of the Road Traffic Act 1988 that regulates the compulsory insurance requirement in the UK. The MIB had rejected the claimant’s application arguing that it had no liability under the Uninsured Drivers Agreement on the basis that its contractual liability under that agreement is coextensive with the statutory insurance obligation. 

The first instance decision confirmed that the UK legislation infringed the Directive on this point.  Furthermore, it held that as it was bound by the Court of Justice of the European Union’s ruling in  (Case C‑413/15) Farrell v Whitty and Others (no 2) [2017], the MIB’s role in discharging the state’s obligation, imposed under Article 10 of the Directive, to authorise a compensating body to meet claims by victims of uninsured vehicles, pinned it with state liability to compensate victims wrongly denied the compensatory guarantee through insurance provision due to the government’s defective implementation.

The MIB’s unsuccessful appeal has served to compound its problems. 

• First, the Court of Appeal has upheld the first instance finding that the MIB is fixed with state liability (due to its emanation of the state status) to compensate victims affected by the government’s failure to fully implement Article 3 of the Directive (which provision met the criteria of unconditionality and sufficient precision to qualify for direct effect);

• Second, the court went on to rule that the Article 10 also qualified for direct effect against the MIB.

In the second instalment, to be published shortly, I consider the far-reaching implication of both findings. 

• I will explain how direct effect of Article 3 against the MIB leaves it exposed to an extraordinary range of novel extra-statutory liabilities, derived independently of its contractual obligations with the state.  It is fixed, under directly applicable EU law, to compensate victims injured or sustaining loss in a diverse range of scenarios that ought to be covered by the compulsory third party insurance requirement, but which are not, due to the UK’s longstanding infringements of the Directive. Any proper analysis reveals some surprising outcomes (unprecedented, even).

• I will also explain how the direct effect of Article 10 of the Directive against the MIB can be used to circumvent the House of Lords ruling in White v White in 2001 which hitherto has justified, wrongly so in my view, the judiciary’s reluctance to remedy non-conforming provisions within both the Uninsured Drivers Agreement 2015 and the Untraced Drivers Agreement 2017 by subjecting their provisions to the EU law doctrine of consistent construction. Although the RoadPeace judicial review I was behind in 2015-2018 was responsible for the excision of many blatantly unjust and arbitrary exclusions of liability (on the ground that they infringed the directive), a significant number remain.  These injustices can now be challenged with facility, provided it can be established that they fall below Article 10’s minimum standards to a disproportionate extent.

LAW COMMISSION ENDORSE NEED FOR PRODUCT LIABILITY REVIEW

Automated Vehicles and Liability for Vehicle Defects

The Law Commission has published its initial response and recommendations in its three year project that reviews the legal framework necessary to accommodate the introduction on our roads of automated vehicles.

LINK

In my response to Question 18 of the Law Commissions’ preliminary consultation on Automated Vehicles (Law Commission Consultation Paper 240; Scottish Law Commission Discussion Paper 166) I argued the case for a wider review of the compensatory protection afforded to motor accident victims under the Road Traffic Act 1988 and the Consumer Protection Act 1978. 

I explained that the no-fault liability under the Automated & Electric Vehicles Act 2018 failed to address the very real and immediate need for suitable cover for existing and near to market automation that present the gravest threat to the public.  Only advanced forms of automation (that have yet to be developed) or current levels automation operating within highly restricted environments qualify for the protection conferred under the 2018 Act. 

In my answers to Question 7 and 18 I stress that section 145 of the Road Traffic Act 1988 only requires compulsory third-party cover to provide an indemnity against the policyholder’s personal liability.  This appears to breach the wider insurance obligation mandated under Article 3 of the Motor Insurance Directive 2009/103 (the Directive) that extends to require civil liability cover for defects in the vehicle, such as defective automation; that can result spontaneously, independently of the policyholder or user’s fault. My views on this lacunae in our national law provision have since been fully vindicated by the Court of Justice of the European Union (CJEU).  See: (Case C-100/18) Línea Directa Aseguradora, SA v Segurcaixa, Sociedad Anónima de Seguros y Reaseguros of 20 June 2019.

It appears that my concerns about to this particular infringement of the Directive, first raised by me in my consultation response to the Department for Transport’s 2013 consultation on the MIB Agreements, has been acknowledged by the Law Commission; albeit in oblique terms. 

In the Law Commission’s 19 June 2019 paper: Summary of the Analysis of Responses to the Preliminary Consultation Paper it appears to recommend that the government undertake a general review of product liability for automated vehicles.

Unfortunately, the government has reneged on its commitment, made not only in the RoadPeace judicial review in 2018 but also in its own consultation paper on Vnuk in 2016, to bring the geographic scope of compulsory motor insurance under the Road Traffic Act 1988 into line with the wider remit of the Directive.  With a hard Brexit looking increasingly likely and given the government's manifest and obdurate disregard of EU law on this issue and its long standing refusal to fully implement various other aspects the Directive -  I am not holding my breath.

New remedy

Fortunately however, victims who are injured by a  mechanical or software defect in a vehicle whose compensatory guarantee under EU law is frustrated by the responsible vehicle's insurer and / or the MIB refusing to compensate the claim on the basis that it is not a relevant liability (i.e. because the fault does not fall within section 145’s non-conforming scope) now have a new remedy.  

Claimants can now invoke the direct effect of Article 3 of the Directive in an ordinary personal injury action against the MIB, see my blogs on the Court of Appeal ruling in MIB v Lewis 2019.  See also my New Law Journal articles which predicted this outcome: On the Right Road? in 2013, Putting Wrongs to Rights 2016; State Liability; betwixt and between Brexit in 2017 etc.

This new direct right allows the claimant to cite the wording of Articles 3 and 10 of the Directive as though they were fully incorporated into our national law, word for word, and to plead this in an ordinary civil / tort law action directly against the MIB.

WINNING THE UNWINNABLE MOTOR CLAIM

MIB v Lewis

Lunchtime webinar on 19 June 2019 at 13.00 hrs

There has been a programme change to accommodate the ground-breaking implications of last week's Court of Appeal ruling in Motor Insurers' Bureau v Lewis 2019 EWCA Civ 909

Book now via the Association of Personal Injury Lawyers at: https://www.apil.org.uk

In a break with 73 years of jurisprudence, the Court of Appeal has fixed the UK motor insurance industry’s’ privately-owned consortium, the Motor Insurers’ Bureau, with a new autonomous legal obligation to compensate outside the parameters of the Road Traffic Act 1988. 

Another important consequence of this ruling is that MIB Agreements are now subject to an EU law conforming interpretation; applying EU law authorities that effectively overrule an earlier House of Lords ruling to the contrary. 

Serious deficiencies in the Supreme Court’s rulings in Cameron v Liverpool Victoria Assurance [2109] and Pilling v UK Insurance [2019] may be flagged up but a more detailed consideration will be covered in a separate webinar, currently under preparation.

COURT OF APPEAL DISMISSES APPEAL BY MOTOR INSURERS' BUREAU IN LEWIS

Motor Insurers’ Bureau v Michael Lewis [2019] EWCA Civ 909

The Court of Appeal has ruled that:

• The Motor Insurers’ Bureau (MIB) is an emanation of the state under EU law.

• Articles 3 and 10 of the Motor Insurance Directive 2009/103/EC that prescribe the compulsory motor insurance obligation and the role of the compensating body authorised to compensate victims of unidentified and uninsured vehicles are sufficiently clear and unconditional to have direct effect against the MIB.

These findings fix the MIB with a liability to compensate motor accident victims whose compensatory entitlement ought to be guaranteed through compulsory third party motor insurance but who are not due to the UK government’s failure to properly implement the minimum standard of compensatory protection required by the Motor Insurance Directives.

The MIB faces potentially hundreds of claims by individual motor accident victims whose compensatory entitlement have been obstructed or denied due to the government’s longstanding failure to implement basic EU law requirements for motor insurance.

The MIB’s appeal against the first instance decision in Lewis v Tindale & MIB [2018] EWHC 2376 (QB) was resoundingly dismissed.  This is an unanimously endorsed ruling.  In presenting the only reasoned judgment, Lord Justice Flaux, rejected the MIB’s numerous arguments one after the other.

The Court of Appeal has ruled, in decisive terms, that not only does the MIB’s compensatory role under the Uninsured Drivers Agreement 2015 and the Untraced Drivers Agreement 2017 make it an emanation of the state in this context, but it is also pinned with liability to compensate motor accident victims who have been wrongly denied the compensatory guarantee mandated by Articles 3 and 10 of the Motor Insurance Directive 2009/103 due to the government’s  failure to properly transpose its requirements within the Road Traffic Act 1988 and under its private law agreements with the MIB.

Flaux LJ’s involvement might strike some as poetic justice for the MIB, since this ruling overturns his earlier decision in Byrne v MIB [2007] EWHC 1268 (QB) in which he had previously ruled that (i) the MIB was not an emanation of the state so that (ii) the provisions of the Motor Insurance Directives could not have direct effect against it. I have argued over several years, in my New Law Journal articles, that the Byrne judgment was wrong on these points.  First in February 2013 later in more detail in my two-part feature, Putting wrongs to rights, 27 May and 3 June 2016.  I did so again, following the Court of Justice’s ruling in Farrell v Whitty No. 2 (Case C-413/15) [2018] in State Liability: betwixt and between Brexit (Parts 1 and 2) 27 October 2017 and 3 November 2017.  I inferred from the judgment in Byrne that information relevant to the MIB’s close working relationship with the government was withheld from the court and I asserted that the learned judge was also misinformed on the proper approach to determining whether a body is an emanation of the state.  It was noticeable at the appeal hearing in Lewis that Flaux LJ was extremely well informed, which was evident from his timely and apposite interventions.

I will be presenting a lunchtime webinar on 19 June 2019 for the Association of Personal Injury Lawyers on the wide-reaching implications of this important ruling. 

The MIB’s exposure to liability extends far beyond the terms of its private law agreements with the Secretary of State for Transport; beyond even the governments failure to ensure that compulsory third party motor insurance extends to private land: it opens up new areas of claim previously thought to be untouched by third party motor insurance and the Road Traffic Act 1988.

I understand that the Court of Appeal have already refused the MIB leave to appeal.  However, the MIB have indicated that they intend to apply to the Supreme Court for permission to appeal, regardless. I think the MIB would be wise to think twice about that. 

If the MIB plan to pursue their empty technical argument that Articles 3 and 10 of the Motor Insurance Directive are insufficiently clear and unconditional to qualify for direct effect then that is likely to oblige the Supreme Court to refer the issue to the CJEU for a preliminary ruling under Article 267 TFEU. The autonomous nature of the EU law motor insurance obligation requires this; it is not something that lies within the Supreme Court’s discretion.  The European Commission and the CJEU are well aware of the UK’s extensive non-conformity with EU law in this area and it so may result in a crystal clear exposition of just how extensive the MIB’s liability is.

The UK remains the subject of a wide-ranging infringement complaint that has lain dormant following the 2016 Brexit referendum.  However, any Article 267 reference is likely to be expedited in the face of an impending Brexit.   

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.

PILLING v UK INSURANCE [2019] UKSC 16

Phoenix in flames: lessons from Pilling

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

The first installment of my mini-series on the Supreme Court's decision in Pilling is published in this week's edition of the New Law Journal (17th May 2019). I examine the court's approach to the consistent construction of the Road Traffic Act 1988 and find it wanting.

See my earlier post on this ruling. 

In next week's installment I consider the Supreme Court's approach to policy construction.

IS THE MOTOR INSURERS BUREAU PROPERLY ACCOUNTABLE?

At  APIL’s 2019 annual conference I attended Dominic Clayden’s update on the latest developments within the Motor Insurance Bureau and the new IT platform it is developing to handle personal injury claims by unrepresented members of the public.

After hearing the Motor Insurers Bureau’s new CEO declare that the MIB was the Ministry of Justice’s delivery partner for developing the new portal and on viewing his impressive powerpoint organisational schema that reveals the impressive range and variety of different public services it discharges on behalf of the government, I expressed puzzlement that the MIB still denies its status as an emanation of the state in the ongoing appeal in Lewis v Tindale & MIB.  The appeal was heard last week.

I suggested that the MIB has become a mini-ministry responsible for a significant proportion of the Department for Transport and Ministry of Justice’s responsibilities imposed under the European Motor Insurance Directives.  I invited him to consider reforming the constitution of this motor insurer consortium, given its important public service role.  I suggested that it should co-opt onto its board certain special interest groups, such as RoadPeace, and to make the organisation more open and accountable to the general public, who fund its operations through their insurance premiums.

I was not surprised that Dominic Clayden should reject my suggestion out of hand.  However, I was surprised by the lame excuse he gave.  He claimed that its governance was its own private concern and that if claimants choose to use its services or not then that was a matter of choice for them.  This is as obviously wrong as it is disingenuous.

One may choose to go shopping to one of several stores; claimants do not choose to be injured by another’s negligence, nor does the invocation of their legal entitlement to compensation by the only legally recognised route to redress amount to a question of  choice; it is a matter of compulsion; not free choice.

APIL Conference

Last week I attended the annual conference of the Association of Personal Injury Lawyers, of which I am a senior fellow.

It was a pleasure to join the panel to discuss ‘The Impact of Brexit’ with Katherine Deal QC of 3 Hare Court; Sarah Crowther QC of Outer Temple Chambers; Chris Deacon from Stewarts solicitors; Simon Davis, vice president of the Law Society, and Dominic Clayden the new CEO at the Motor Insurers’ Bureau.

Prior to this, Dominic Clayden presented an update on the latest developments within the MIB and the new IT platform it is developing to deal with personal injury claims by unrepresented members of the public.  He revealed that the insurance industry is investing £15m in this new online portal.  This online claims platform will be linked to a call centre.

Although much is still unknown about its precise workings, the MIB has a target of April 2020 for the system to go live.  The new portal’s launch is intended to coincide with the implementation of new reduced scale tariffs on the damages paid for soft tissue injuries sustained in road traffic accident claims, under the Civil Liability Act 2018. It is also intended to facilitate claims by litigants in person once the government’s extends the scope of the small claims track for motor claims valued up to £5,000, also planned for April 2020.

This new portal and these reforms will effectively remove, on some estimates, at least half of the present volume of road traffic accident claims from the current portal where solicitor’s receive modest levels of fixed costs from the insurers of an at-fault party. This will effectively divert a substantial quantity of routine low value civil liability litigation from solicitors practices.  Many view this as the final turn of the screw for the bulk personal injury claims sector that began with the civil justice reforms in 2013.

Listening in to a seminar that updated the membership on the progress being made on developing the new claims portal, I was reminded of the scene from Monty Python’s ‘Life of Brian’ where Michael Palin, solicitously instructs each participant: ‘Straight out; line up on the left, one cross each…’

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.

https://www.youtube.com/channel/UCvLfIeTq5grIEkc7JvOpoxg/live

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 C‑413/15, 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

NEW WEBINAR: WINNING THE UNWINNABLE MOTOR CLAIM

LEWIS V TINDALE AND THE MOTOR INSURERS' BUREAU 2019

The MIB's appeal against the landmark first instance decision in Lewis v Tindale & MIB is listed for a 1.5 day trial in the Court of Appeal in mid May this year.

The Court of Appeal's decision will be something of a moment of truth for me as the first instance decision was largely based on my earlier research.  See my earlier posts and my New Law Journal articles, over several years, that have advocated for the MIB's liability to compensate victims falling through the gaps left by the government's longstanding failure to implement the EU Directive 209/103/EC on motor insurance properly.

FORTHCOMING WEBINAR ON LEWIS V TINDALE AND MIB (and more) 19 June 2019.

The webinar will consider the Court of Appeal's judgment and, if time, it will also explain why two recent Supreme Court rulings are badly flawed and what remedies are available.

See Lewis v Tindale Court of Appeal ruling for details:

PILLING V UK INSURANCE 2019 - ANOTHER MISRULING

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

This is the second time in as many months that five justices of the UK Supreme Court have misdirected themselves on European law and reached a decision based on a line of reasoning that fails to withstand close scrutiny.  

See my earlier blog on Cameron v Liverpool Victoria Insurance [2019] UKSC 6 and my New Law Journal feature from 15 March 2019.

  

The Pilling case featured a a dispute between a motor insurer and a public liability insurer as to who was liable to indemnify the owners of business premises for an extensive fire.  The conflagration was caused by an attempted DIY welding repair to an employee's privately owned car.  This set his car ablaze.  The fire then spread; gutting the employer's business premises. The key issues were:

  

• whether a repair undertaken to return a car to immediate road-use after it had failed its MOT was a 'use of a vehicle' that is required by law to be covered by compulsory third party motor insurance.

• whether UKI's motor policy that certified that it conformed with the UK law insurance requirement, and which was ambiguously worded, should be construed to confer such cover.

  

The Court of Appeal held that  the motor insurer was liable indemnify the claim but the Supreme Court disagreed; unanimously.

As to the first issue, the Supreme Court misapplied the EU law that governs how national courts should set about construing UK implementing law, in its approach to interpreting the wording of the Road Traffic Act 1988.  This Act regulates compulsory third-party motor insurance in the UK and it is supposed to fully implement EU Directive 2009/103/EC on motor insurance. The Supreme Court also failed to consider two recent and highly relevant (and binding) Court of Justice rulings on ‘use of vehicles’ or to note that there is also an ongoing reference to the Court of Justice on a similar point.

On the second issue, the rationale for the three step approach devised by the Supreme Court to policy construction is badly flawed.

The first instalment of my two part feature criticising this decision is due to be published in the New Law Journal next week. 

The Pilling ruling also has a wider significance.  It provides a useful insight into how ‘EU-derived domestic legislation’ is likely to be interpreted by our courts under the EU Withdrawal Act 2018.

THE SUPREME COURT RUING IN CAMERON V LIVERPOOL IS UNJUST

Cameron v Liverpool Victoria Insurance [2019] UKSC 6

In Cameron v Liverpool  Victoria Insurance the Supreme Court upheld an appeal by a motor insurer (supported by the Motor Insurers’ Bureau as an intervening party) against a Court of Appeal ruling that allowed a personal injury claim to proceed against an unidentified and untraced driver. 

In a majority decision, the Court of Appeal permitted Ms Cameron's claim (originally against the registered keeper of the vehicle) to be amended to substitute the keeper, as first defendant, with the unidentified driver responsible for causing the accident.  Permission was also given for the unnamed driver to be identified in the proceedings by a description of the vehicle driven and the accident date, place and time.  The court had also ordered alternative service of the amended proceedings on the vehicle’s insurer and gave judgment against the unnamed driver; noting that the insurer would settle the outstanding judgment.

The Supreme Court based its unanimous decision primarily on time honoured natural justice considerations that require a party to be served with proceedings which enable a party at least the opportunity of being heard by the court.  It ruled that as alternative service on the insurer was unlikely to come  to the defendant’s attention, the claim could not proceed as a civil action.  

The justices opined that the claimant’s proper course should have been to apply to the compensatory scheme managed by the Motor Insurers’ Bureau under the terms of the Untraced Drivers Agreement 2003.

This ruling restores a long-established practice that predates the UK’s accession to the European Community whereby all untraced driver claims are processed under the MIB’s Untraced Drivers Agreement schemes.

Unfair

In my latest New Law Journal feature, I explain why the Supreme Court’s decision fails on its own terms.  I argue that even if one disregards the crucial EU law considerations, the natural justice implications of the court’s decision, on whether to exercise its discretion to authorise the amendment and to permit or waive service of the proceedings, fall heavily in the claimant’s favour.  

I contend that the evidence shows that Ms Cameron was the innocent victim of a ‘hit and run’ driver who, after colliding with her car (with enough force to write it off and injure her) then went on to hit a second vehicle, before fleeing the scene.  \I argue that it is inconceivable that the driver was ignorant of the fact that he had at the very least caused some actionable damage.  It is equally implausible to assume that he would not have been aware that had he stopped, he would have been identified and later face a civil action. Therefore, it seems likely (highly probable even) that his act of making-off was intended to evade civil proceedings that could then be readily anticipated (as well as the possibility of criminal proceedings: either for the careless driving or for driving whilst uninsured).  Unfortunately, the Supreme Court thought differently.

Wrong in law

Leaving to one side these natural justice considerations, I believe that the Supreme Court’s ruling is fundamentally flawed because the learned justices misinformed themselves about the relevant law.

For example:

• At para 5 of the judgment it states in robust terms that there is no direct right of action against insurers for the underlying liability of its assured under the UK compulsory insurance regime, when setting the scene for the exercise of its discretion (on whether, in a civil action, a court should order alternative service or to dispense with service entirely against an unidentified driver). The Supreme Court overlooks the fact that EC Rights Against Insurers Regs 2002 provides just such a remedy.

• At paras 4, 5 and 27, the court effectively asserts that the allocation of claims to the MIB against unidentified drivers of identified and insured vehicles is consistent with the Motor Insurance Directive 2009/103/EC.  This is wrong. It ignores no less than three CJEU rulings (Churchill, Csonka and Fidelidade) (see my earlier posts) that explicitly prohibit such claims from being allocated to the compensating body (which in the UK this is the Motor Insurance Bureau) – where a policy of insurance is in place for an identified vehicle.  This is because the protective purpose of the Directive requires the compensatory provision to be made by the insurer direct.  

Given that the MIB had no legal entitlement or authority to handle these claims under directly applicable EU law, Ms Cameron has been unjustly denied her entitlement by the Supreme Court justices.

I cannot think of another Supreme Court ruling that has got the basic applicable law so badly wrong. 

My three-page New Law Journal feature is published in the 15 March 2019 edition, in the Insurance Legal Update section.

Answer to Consultation Question 40

Law Commission Consultation on Automated Vehicles

Consultation Question 40 (Paragraphs 9.6 - 9.37)

We seek views on whether it would be acceptable for a highly automated vehicle to be programmed never to mount the pavement.

Answer:  

One of the main benefits of advanced automation is its promise of improved independent access to private transport for the elderly and the handicapped and cheap door to door delivery of goods. 

By shoehorning this new statutory form of product liability into the Road Traffic Act’s archaic and limited scope, both in terms of its geographic reach and the types of vehicles covered by s2’s new direct liability, the government has needlessly exposed children and other vulnerable individuals from the protection of the compulsory insurance regime.  It is hard to identify any coherent public policy objective that is served by this anomaly.  As indicated above, unless ADS are prohibited on private property (which is clearly undesirable), the current geographic restriction to roads and public places not only breaches EU law (Article 3 of Directive 2009/103/EC on motor insurance) but it also lacks vision as pavements and private places are likely to feature as points of embarkation or destination in many journeys featuring ADS.

Should highly automated vehicles ever exceed speed limits?

Answer:  
No comment

Answers to Consultation Questions 8 - 15

Law Commission Consultation on Automated Vehicles 

Consultation Question 8 (Paragraphs 4.102 - 4.104)

Do you agree that:

(1)               a new safety assurance scheme should be established to authorise automated driving systems which are installed: 

(a)  as modifications to registered vehicles; or

(b)  in vehicles manufactured in limited numbers (a "small series")? 

(2)               unauthorised automated driving systems should be prohibited?

(3)               the safety assurance agency should also have powers to make special vehicle orders for highly automated vehicles, so as to authorise design changes which would otherwise breach construction and use regulations?

Answer: 

Yes to all.

Consultation Question 9 (Paragraphs 4.107 - 4.109)

Do you agree that every automated driving system (ADS) should be backed by an entity (ADSE) which takes responsibility for the safety of the system? 

Answer: 

Yes

Consultation Question 10 (Paragraphs 4.112 - 4.117)

We seek views on how far should a new safety assurance system be based on accrediting the developers’ own systems, and how far should it involve third party testing.

Answer: 

No comment

Consultation Question 11 (Paragraphs 4.118 - 4.122)

We seek views on how the safety assurance scheme could best work with local agencies to ensure that is sensitive to local conditions.

 Answer: 

No comment

CHAPTER 5: REGULATING SAFETY ON THE ROADS A new organisational structure?

Consultation Question 12 (Paragraphs 5.30 - 5.32)

If there is to be a new safety assurance scheme to authorise automated driving systems before they are allowed onto the roads, should the agency also have responsibilities for safety of these systems following deployment? 

If so, should the organisation have responsibilities for: 

(1)               regulating consumer and marketing materials? 

(2)               market surveillance?

(3)               roadworthiness tests?

We seek views on whether the agency’s responsibilities in these three areas should extend to advanced driver assistance systems.

 Answer: 

Yes and much more (and this should be addressed as a matter of considerable urgency) given what is said at paragraph 3.12 of the LC report.  

I am awaiting a Freedom of Information Act request  on the number of Tesla Model S currently on our roads.  Some online sources indicate that this could be in excess of 2,000.  Tesla plans to launch its new mid range Model 3 into the UK market this year, presumably in greater numbers.See my concerns about the danger posed by driver assist technology in my response to Q7.

Driver training

Consultation Question 13 (Paragraphs 5.54 - 5.55)

Is there a need to provide drivers with additional training on advanced driver assistance systems? 

If so, can this be met on a voluntary basis, through incentives offered by insurers?

 Answer: 

Yes. 

No.  Guidance should continue to be provided by the government within the Highway Code.  This is a responsibility that should be delegated to commercial interests.  The Highway Code needs to be updated to accommodate the skills and standards appropriate to this new technology.  Every driver skill, standard or theory that is safety critical should be incorporated within the driving test syllabus be subject to mandatory testing.  It may be necessary to issue new vehicle categories for the driving licence.

A failure to address this urgent need to educate, test and licence emerging levels of automation as well as advanced automation would not only be anomalous but it would compromise public safety.

             

Accident investigation

Consultation Question 14 (Paragraphs 5.58 - 5.71)

We seek views on how accidents involving driving automation should be investigated.  We seek views on whether an Accident Investigation Branch should investigate high profile accidents involving automated vehicles? Alternatively, should specialist expertise be provided to police forces.

 Answer: 

This is not my field of expertise but my experience of local police forces is that their standard of investigation is variable. 

A national government agency should be incepted, possibly along similar lines tothe Air Accidents Investigation Branch.  A single authoritative national agency would be best placed to apply a consistent approach to the same standard.  A national body is needed to develop a strategic view as well as a specialist knowledge in ADS, motor engineering, data recording and collection et cetera. This might be a suitable role for a dedicated sub-division of the proposed Safety Assurance Agency. 

It might be sensible to restrict the agency's involvement to serious accidents involving an injury where a police report has confirmed that an automated vehicle was present at the scene of the accident. It would probably be necessary to impose a strict time limit to ensure prompt notification, if the accident data is to be preserved.

Setting and monitoring a safety standard

Consultation Question 15 (Paragraphs 5.78 - 5.85)

(1)               Do you agree that the new safety agency should monitor the accident rate of highly automated vehicles which drive themselves, compared with human drivers?

(2)               We seek views on whether there is also a need to monitor the accident rates of advanced driver assistance systems.

 Answer: 

Yes to both (1) and (2).