Dr Nicholas Bevan

Dr Nicholas Bevan
www.nicholasbevan.com

Saturday, 9 December 2017

LEWINGTON V MIB 2017

Lewington v Motor Insurers’ Bureau [2017] EWHC 2848 (Comm)


High Court rules that an off-road dumper truck requires compulsory third party motor cover.

Case Commentary

The facts


On 23 February 2012 Ms Lewington was severely injured in a road accident.  She had been following her uncle’s car along a dark and unlit stretch of the A120 dual carriageway at 10.45 pm when he suddenly swerved to avoid two large dumper trucks that were moving relatively slowly in the road ahead.  Although she was also able avoid hitting them, she lost control of her car causing it to leave the road. 

The drivers of both Bell B30D articulated dumpers ran off and were never traced.  It later transpired that the trucks had been stolen from a quarry.

The MIB’s rejection

When the claimant applied for compensation from the Motor Insurers’ Bureau (MIB) for her compensatory entitlement under the Untraced Drivers Agreement 2003 (UtDA), her claim was rejected.  The MIB asserted that because the accident was caused by an off-road vehicle it fell outside the scope of this scheme. 

The MIB relied on clause 4 (1) UtDA that restricts the scheme to incidents ‘giving rise to liability of a kind which is required to be covered by a policy of insurance or a security under Part VI of the 1988 Act’.  This reference is to the Road Traffic Act 1988 (hereafter RTA).  This is a sensible provision, since the MIB agreements are designed to dovetail with the compensatory guarantee for victims of uninsured and untraced drivers with the statutory insurance guarantee, which is delivered through the compulsory insurance requirement.

The flaw in the MIB’s case was its assertion that the dumper truck did not fall within the scope of the RTA.  The RTA does not impose a uniform requirement that every motor vehicle should be covered by compulsory third party insurance; only motor vehicles intended or adapted for road use.  The MIB argued that the dumper truck was not intended or adapted for road use.

Superficially at least, the MIB seemed to make a good point.  The Bell B30D articulated dumper truck was nearly 3 meters high and 2.5 meters wide. It had a top speed of 30 mph.  Whilst it was equipped with front lights, it had no rear lights.  Furthermore, it’s owners had not equipped, registered or licenced it for road use.

The claimant appealed the MIB’s rejection of her claim.  Under the UtDA an appeal lies to an arbitrator selected from a panel of arbitrators approved by the Lord Chancellor. 

The arbitral appeal

Richard Methuen QC found that the accident had been caused by the negligence of the unidentified driver of the dumper truck which Ms. Lewington swerved to avoid.  This preliminary finding of primary liability against the driver was not challenged at the arbitration hearing. 

However, on 26 September 2016, the arbitrator upheld the MIB’s rejection.  He accepted the MIB’s contention that the dumper truck did not fall within the RTA definition and so did not need to be insured.  That led to the inevitable conclusion that clause 4 (1) UtDA was not satisfied: namely the accident did not constitute a liability that required to be met by the MIB under the terms of the UtDA.

The arbitrator reached this conclusion, despite making the following findings:
  1. This model of dumper truck was capable of road use;
  2. Unusual vehicles and engineering plant of this kind are capable of being registered and taxed for road use and that ‘It may have been possible to render the [road] use of the Bell lawful’;
  3. An even wider model of the Bell articulated dump truck had been registered for road use and insured for road use at China Clay quarries in Cornwall.
A Bell B30D articulated dumper truck


He ruled that, ‘A reasonable person would not have contemplated the use of the earth mover on a road unless that use had been unlawful’.  This was an invalid test.

When confronted by the EU law standard of compensatory guarantee that the RTA and the UtDA are both supposed to give full effect to, the arbitrator accepted that the RTA was required to be construed in a way that is consistent with the legislative objective of Articles 1 and 3 of the EC Motor Insurance Directive 2009/103/EC (the Directive), whenever possible.  

The Directive prescribes the scope and extent of the compulsory civil liability motor insurance requirement that every member state is required to implement into their domestic law (Articles 1 and 3) as well as the MIB’s role as the compensating body for victims of uninsured or unidentified vehicles (Article 10).  Article 1 requires member states to ensure that the Article 3 insurance requirement applies to ‘any motor vehicle intended for travel on land and propelled by mechanical power,…’ 

The dumper truck clearly met that criteria as it does not feature a road use restriction.  However, the arbitrator opined: ‘I can see no way in which I can interpret section 185 so as to make it compatible with Article 1’. 

Appeal to the High Court

The claimant was nevertheless successful in her appeal before the High Court.

Although judgment dedicates a considerable amount of space to an analysis to the Directive, in my view this was unnecessary given, the facts of this case.  The reason being that a raft of well-established common law authorities provided a complete answer, that led to an outcome that was also consistent with the EU law insurance requirement.  Even so, it was entirely proper for the Mr Richie QC to refer to the minimum standard of compensatory guarantee prescribed under EU law, particularly as this featured so prominently in the arbitrator’s confused reasoning.  However, this does not detract from the fact that EU law was coincidental, not central, to the outcome of this appeal. 
It was common ground that the appeal turned on a single issue: what is the proper interpretation of section 185(1)(c) of the Road Traffic Act 1988 (RTA)? 

The domestic law

Section 185 RTA prescribes the type of vehicle that is subject to this insurance requirement imposed by s143 RTA (that prescribes the statutory duty to insure) and specified by s145 RTA (the scope and extent of third party cover).  It defines a motor vehicle, amongst other things as: ‘…a mechanically propelled vehicle intended or adapted for use on roads’.
The central question in this appeal was whether the arbitrator’s finding that a Bell B30D dumper truck did not conform with s185’s RTA definition was correct. 
Unfortunately, the arbitrator distracted himself with irrelevant issues, such as whether the dumper truck’s use off-road was compatible with s185, when no one disputed the fact that the accident had taken place on a road. 
Most if not all of the leading UK authorities interpreting and applying s185 RTA arises out of criminal prosecutions.  These decisions are made independently of the Directive and correctly so.  This is because the Directive does not seek to regulate criminal or civil liability.  It is concerned only with ensuring that civil liability resulting from motor vehicle use is covered by insurance.  Accordingly, in a prosecution, even where the charges postdate the UK’s accession to the European Community in 1973, the provisions of the Directive and its predecessors are irrelevant.
As if to make the point, the common law key authority is Burns v Currell [1963] 2 All ER 297, which predates even the first motor insurance directive.  The judgment was delivered by Lord Parker (with Ashworth and Winn JJ concurring).  At paragraph 300E he formulates the objective criteria for determining whether a vehicle falls within the statutory definition (of an identically worded predecessor, section 253 (1) of the Road Traffic Act, 1960):
I prefer to make the test whether a reasonable person looking at the vehicle would say that one of its users would be a road user.  In deciding that issue, the reasonable man would not, as I conceive, have to envisage what some man losing his senses would do with a vehicle, nor an isolated user or a user in an emergency.  The real question is: Is some general use on the roads contemplated as one of the users?’  [emphasis added]
There is also an extensive body of common law that offers a gloss on this dictum.  In Chief Constable of North Yorkshire Police v Saddington [2001] RTR 227 it was held that a Go-Ped electric scooter satisfied the Burns test and in DPP v King [2008] EWHC 447 (Admin) a City Mantis collapsible electric scooter was also held to be a ‘motor vehicle’ within the meaning of s185 RTA because one of its foreseeable subsidiary uses could be road use.  In both cases, the manufacturers of these diminutive conveyances had both specified that they were unsuited to road use and, again in both cases, the court had accepted that their use on a road would have been unlawful.
One need only refer back to the arbitrator’s three factual findings to reach the inevitable conclusion that the Bell B30D articulated dumper truck satisfied the requisite criteria.  This appeal succeeded through the simple expedient of applying the correct, long established, common law test in Burns; nothing more. 

European law

Mr Justice Bryan’s observation that such a finding is consistent with the Directive’s civil liability insurance requirement is also true.  One need only consider the ECJ ruling in Damijan Vnuk [2014] (C/162/13) featuring a farm tractor being used as a piece of agricultural machinery when reversing a trailer inside a barn on private property, to see the holistic scope intended by this EU legislation.   However, the decision in Lewington does not provide a complete answer for every off-road vehicle, still less a determination, on what precisely what is meant by the definition of ‘vehicle’ in Article 1 of the Directive.  It is also just as clear that the common law test is not wide enough to bridge the implementation gap in every case. 
It is incontestable that Article 1 of the Directive has a wider scope than s185 RTA that is confined to vehicles intended or adapted for road use.  Article 1 stipulates what vehicles are subject to the Article 3 insurance requirement and it defines it thus: ‘'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.’  Although Article 5.2 allows member states to derogate certain categories of vehicle from the Article 3 insurance requirement, I can confirm that my Freedom of Information request to the Department for Transport has revealed that UK has never invoked this power.    
The judge did not rule that all off-road mechanically propelled vehicles fall within s185’s definition.  The judge confined his ruling to the facts before him. 
Burns v Currell featured a four-wheeled go-kart, powered by an engine and equipped with a silencer and brakes but not much else.  Their Lordships, applying Lord Parker’s test held that the go-kart in question did not met the statutory criteria.  Accordingly, it is probable that in a different scenario, perhaps one featuring an even larger quarry truck, one that is obviously unsuited to road use, that it would not satisfy the Burns test either.  What then?  This is when the EU law principle of consistent construction comes into play. 

EU law consistent construction

The judge’ offers a helpful obiter discussion on the doctrine of purposive construction of national laws that are intended to give effect to a directive [at paragraphs 55 to 57]. 
He asserts in robust terms that s185 is capable of being construed in a manner that is compatible with the Directive.  However, his use of the term ‘Marleasing principles’ sets a rather quaint tone, as the EU principles have moved on a long way since Marleasing [1990] (Case C-106-89).  The modern ECJ authority on what is now termed as ‘EU law consistent construction’ is Bernhard Pfeiffer and others v Deutsches Rotes Kreuz, and others ECJ [2004] C-297/01.

Pfeiffer is to Marleasing what a Bell B30D dumper truck is to a Toyota Hilux pickup truck: they have the same function, only one of them does it on a far more impressive scale.  

Pfeiffer extends this EU law consistent construction principle to the all national rules and laws.  Furthermore, it imposes on national courts a legal presumption that the domestic law or rule is intended to fully implement the EU directive it is supposed to transpose.  This has important implications for the UtDA and the Uninsured Drivers Agreements.  If the government to seek to argue that these private law agreements between the Secretary of State for Transport and the MIB are not justiciable rules intended to confer civil rights on individuals then it would risk an infringement action by the European Commission.  This is because the EU legal certainty principle insists that every directives must be properly implemented in this way to ensure that the rights intended to be conferred are accessible and intelligible.  Accordingly, the House of Lords ruling in White v White & MIB [2001] UKHL 9 (to the effect that because the MIB schemes are private law agreements they are not subject to a Marleasing style construction) is overruled by Pfeiffer
It is important to re-emphasise, however, that it was not necessary to undertake a Marleasing / Pfeiffer style construction of section 185 (or of the UtDA, for that matter) as the vehicle in question fell within the statutory definition.

Direct effect of Articles 1,3 and 10 of the Directive

Although EU law was not determinative in Lewington, it is worth noting that in other cases, where the claim falls foul of an implementation defect, that our courts cannot always be relied on to give effect to the Directives’ protective objective through consistent construction, to cure the problem.  A recent first instance judgment in UK Insurance v Pilling [2016] EWHC 264 (QB) attests to this. 
In UK Insurance a car had burst into flames inside a building whilst undergoing repairs.  HHJ Waksman QC made an obiter comment to the effect that the geographic scope of s145 RTA (which restricts third party cover to accidents on roads or other public places) was incapable of being cured though a purposive interpretation to conform with the Directive that allowed no such restriction.  He opined this would go against the grain of Parliament’s legislative intention.  In my view he was wrong to say so.
Even so, it is important that practitioners should be are aware of an alternative (if as yet, untested) route to redress for motor accident victims involved in accidents that ought to be covered by compulsory third party cover under the Directive but which (wrongly) fall outside the remit of compulsory insurance in the UK.
On 10 October 2017, the ECJ ruled in Farrell v Whitty (no 2) [2017] (Case C-413/15)) that the MIB of Ireland (which was instituted and managed on an almost identical basis to the MIB in the UK) was subject to the direct effect of Article 10 MID and it gave further guidance that strongly indicates that the MIB is also bound by the EU law principle of direct effect (applying Foster v British Gas) because of its important role as the UK’s authorised compensating body under Article 10 of the Directive. 
If the MIB is indeed subject to the direct effect of the Directive, as I believe, then then victims injured by an uninsured vehicle of a type that does not conform with the Burns v Currell test, and where the court has failed or refused to cure the infringement by construing s185 RTA consistently with Article 1 of the Directive, can now invoke the actual wording of the Directive against the MIB as though it were enacted in UK legislation: word for word.  Unfortunately, all EU law remedies may well have a short shelf-life, due to Brexit – but that’s a topic for another day.

Reflections on Lewington

The Lewington appeal exposes some very poor judgment: by the MIB, in rejecting a genuine claim that clearly and obviously satisfied a long established common law test.  It also suggest a partisan and possibly even opportunistic approach to determing cases, out of keeping with the quasi-judicial role it has assumed under the UtDA.  

The initial arbitral finding does not reflect particularly well on the arbitrator either.  It seems fairly clear, from the extensive references made to the arbitrator’s decision in Bryan J’s judgment, that the arbitrator not only had a poor command of the issues but he either misapplied or was ignorant of a line of well-established common law authorities, that were decisive.  The learned judge devotes 13 paragraphs to the arbitrator’s errors.  

Monday, 4 December 2017

DEFENDING THE INDEFENSIBLE

New Law Journal feature

https://www.newlawjournal.co.uk/content/defending-indefensible

https://www.newlawjournal.co.uk/content/defending-indefensible

Update on the RoadPeace judicial review


The process of RoadPeace v Secretary of State for Transport [2017] EWHC 2725 has resulted in the most far reaching challenge of the United Kingdom's implementation on the Sixth EC Motor Insurance Directive 2009/103/EC since the first such directive in 1972.

During its two year progress, the defendant has been forced to admit that  its statutory provision and private law arrangements with the motor insurance industry fail to meet the minimum standard of compensatory protection for motor accident victims.

Extensive changes have been made to the MIB agreements that govern the compensation scheme for victims of uninsured and unidentified vehicles. Furthermore, the government has openly admitted that the Road Traffic Act 1988 and the EC Rights Against Insurers Regulations 2002 which prescribe the duty to insure and confer direct rights of action against motor insurers are too narrowly scoped.

See my earlier post: EU and UK Motor Cover Compared.

It is regrettable, reprehensible even, that the government has failed to amend its defective legislation notwithstanding having been alerted to the urgent need to do so in its own February 2013 consultation and following the landmark European Court of Justice ruling in Damijan Vnuk (Case C-162/13)  over 3 years ago.

In my latest New Law Journal article, published this week, I explain why Mr Justice Ouseley's judgment in  RoadPeace is a disappointment - despite the judicial review process having resulted in the most significant reappraisal and reform to motor insurance for decades.

Declarations awaited


Declaratory orders are expected imminently.

It is to be hoped that when the learned judge delivers the declarations of non-conformity that he has agreed to, he will impose a strict time limit on the government to clarify the law by amending its legislation. Otherwise, motor accident victims who are encouraged to approach insurers and the Motor Insurers' Bureau direct will be unaware of their proper entitlement.

Continuing Lack of Legal Certainty


The rule of law depends on legal certainty to ensure that statutory provisions and compensatory schemes can be understood by a reasonably intelligent layperson.  A recent spate of ill informed judicial decisions demonstrates that not even the Court of Appeal can be relied on to decipher the true legal entitlement of individuals under EU law to a compensatory guarantee through insurance.  I refer in particular to Ward LJ's judgment in EUI v Bristol Alliance Limited Partnership [2012] EWCA and Longmore LJ's judgment in Sahin v Havard [2016] EWCA Civ 1202 and my earlier articles and posts that explain why both are per incuriam.

In my next post (on Lewington v Motor Insurance Bureau [2017] EWHC 2848 (Comm) ) I will explain how this motor insurers consortium, which has been invested with extensive quasi-judicial and inquisitional powers, continues to invoke these non-conforming statutory provisions to evade compensating genuine third party motor accident victims.