THREE ERRONEOUS RULINGS

Three unanimous but erroneous Court of Appeal rulings. 

• Delaney v Pickett [2011] EWCA Civ 1532

• EUI Ltd v Bristol Alliance Ltd Partnership [2012] EWCA Civ 1267

• Sahin v Havard & Riverstone Insurance (UK) Ltd [2016] EWCA Civ 1202

·         In Delaney v Pickett [2011] the court failed to question whether the insurers’ staple defence of seeing a court declaration under s152(2) Road Traffic Act 1988 that the policy is null and void due to a material non-disclosure or misrepresentation could be invoked against a third party accident victim.  It then proceeded to compound its error by failing to disapply both s152 (2) and the MIB’s exclusion of liability because it failed to attempt a European law consistent construction of either the s152 or the Uninsured Drivers Agreement by interpreting these provisions in the light of the European Motor Insurance Directives they are supposed to implement. 

My case commentary in the Journal of Personal Injury Law explained why the court had fallen into error on both counts.  Since when, the Court of Justice’s ruling in Fidelidade Case C-287/16 in July 2017 has completely vindicated my contention that s152 (2) infringes Article 3 of this Directive and the Department for Transport has since been forced to remove the offending exclusion of MIB liability.

·        In both EUI Ltd v Bristol Alliance Ltd Partnership [2012]  and Sahin v Havard & Riverstone Insurance [2016]  I have been openly critical of the way the court refused to engage properly with the extensive line of European Court of Justice (ECJ) rulings that preclude member states from permitting any exclusions or restrictions of liability to be relied on against a third party claimant (as opposed to the policyholder).  In my JPIL article ‘Marking the Boundary’ I explained in 2012 why EUI was made per incuriam because it wrongly sought to restrict the general application of the protective purpose principle, first propounded in Ruiz Bernaldez (Case C-129/94) in 1996, when it clearly has a wide and general application as is evidence from the consistent line of subsequent rulings culminating in Vnuk (Case C-162/13) in 2014 and Fidelidade (Case C-287/16) in 2017.  

In my New Law Journal article ‘Third Time Lucky’ in January 2017 I explain why the Court of Appeal erred in Sahin in following EUI.  Unfortunately, both of these erroneous rulings continue to act as a deadweight for those seeking to uphold their proper entitlement under European law to a compensatory guarantee from a motor insurer: one that is free from any policy breaches or contractual restrictions that apply between the insurer and policyholder.  

 The profound incompatibility with European law remains.  It has been raised as a ground within the ongoing judicial review by RoadPeace against the Secretary of State for Transport.  More news about this soon, hopefully.