On 13.2.20 the Supreme Court (Lord Reed (President), Lady Arden and Lord Hamblen JJSC) refused the MIB’s application for permission to appeal against a finding that it was directly liable under EU law for injuries sustained by a pedestrian who was struck by an uninsured vehicle on private land. At the same time, it concluded that it was not necessary to refer the case for any ruling by the Court of Justice of the European Union. As a result, David Knifton QC (who acted for the Claimant) explains, the MIB has exhausted all avenues of appeal, and will have to meet Mr Lewis’s claim for the catastrophic injuries he suffered.
In a landmark ruling in June 2019, the Court of Appeal in MIB v Lewis  EWCA Civ 909 unanimously upheld a High Court decision ( EWHC 2376 (QB), Soole J) that the MIB was liable for accidents involving uninsured vehicles on private land. The CA ruled that the provisions of Articles 3 and 10 of the Sixth EU Motor Insurance Directive (2009/103/EC) could be relied upon by an individual as having direct effect against the Motor Insurers’ Bureau, as an emanation of the State.
Despite being refused permission by the CA, the MIB sought permission to appeal to the Supreme Court, including a request for a referral to the CJEU, arguing that a point of law of public importance with far-reaching financial consequences was raised by the decision. They contended that both the CA and Soole J had been wrong to find that Articles 3 and 10 were capable of giving rise to directly-effective rights against a private body such as the MIB. Although Art 3 required member states to impose a compulsory insurance regime on the use of vehicles, including their use on private land (Vnuk v Zavarovalnica Triglav dd (Case C-162/13)  RTR 10), the MIB argued that Art 3 was not “unconditional”, and thus lacked direct effect, as it allowed member states a discretion as to how the system of compulsory insurance would operate, enabling different regimes for use on roads and use in other circumstances, and did not define any rights which individuals could assert against the state.
Further, Art 10, which required each member state to set up or authorise a body to provide compensation to victims of uninsured vehicles, had not been fully implemented in the UK, in that the MIB had only been delegated to provide compensation to victims of uninsured vehicles within the limits of the Road Traffic Act 1988 (i.e. where the accident occurred on a road or other public place). Since the task of compensating victims of uninsured vehicles on private land had not been delegated to the MIB, it could not be held liable as an emanation of the state for matters not delegated to it.
In a robust response, however, David Knifton QC argued that the MIB was seeking to re-open issues which had been extensively considered and unanimously rejected by both the High Court and the CA, following a consistent line of authority from the CJEU concerning the purpose and effect of the Motor Insurance Directives. The CJEU had repeatedly made clear that the Directives were designed to ensure the protection of victims of motor accidents, and had previously held that their provisions could be directly relied upon against private law bodies such as the Irish MIB (Farrell v Whitty (No 1) (Case C-356/05) and Farrell v Whitty (No 2) (Case C-413/15)). As a result, the grounds of appeal did not raise an arguable point of law, nor was there any doubt as to the correct application of EU law. The MIB’s attempt to invoke the “floodgates argument” overstated the importance of the point of law involved.
The Supreme Court accepted the Respondent’s arguments. Permission to appeal was refused “because the application does not raise an arguable point of law.” Nor was it necessary to request any ruling from the CJEU, since “the Court’s existing jurisprudence already provides a sufficient answer.”
The decision arose out of a tragic accident in June 2013, when Mr Lewis was pursued and run down in a field by an uninsured vehicle driven by a local farmer, Mr Tindale, causing a spinal cord injury which has left him tetraplegic and with permanent brain damage and reduced life expectancy. Since Mr Tindale had no funds to meet the claim for damages, the MIB was joined to the action. However, they denied that they had any liability to compensate Mr Lewis, as the accident occurred on private land, and was therefore not a “relevant liability” under the terms of the Uninsured Drivers Agreement 1999.
Commenting on the decision, David Knifton QC said: “I am delighted that the Supreme Court has decisively rejected the MIB’s attempts to deny compensation to Mr Lewis. The European Court has consistently endeavoured to ensure that innocent victims of motor vehicle accidents have a right to compensation, either from an insurer or from a body such as the MIB. Despite Brexit, the Directive rights recognised in previous CJEU decisions would have remained available in UK domestic law, but the decision of the Supreme Court lays to rest any lingering doubts there may have been. It is high time the Government amended the Road Traffic Act to bring it into line with EU law. In the meantime, victims of accidents caused by uninsured vehicles on private land are entitled to pursue a claim for damages against the MIB.”
David Gauler, Serious Injury Solicitor at Thompsons, Birmingham, added: “The Supreme Court’s decision is both emphatic and eminently sensible. Now it is up to the Government to make sure that the rights of UK citizens established in this case are not tossed aside in the rush for Brexit. The Government has made much of its promise that after we leave the EU no one will lose rights they previously enjoyed so here is a chance for them to show that it isn’t going to row back on fairness. They should as a priority commit to amending the Road Traffic Act 1998 to consolidate the decision in Mr Lewis’s case.”
For a link to the CA judgment on Bailii, click here: www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2019/909.html&query=(lewis)+AND+(v)+AND+(motor)+AND+(insurers)+AND+(bureau)
David Knifton QC and Philip Moser QC acted for the Claimant, instructed by David Gauler of Thompsons Solicitors