Howe v Motor Insurers' Bureau

When the UK joined the EEC in 1973 it became subject to the first Directive (1972). The most relevant article of that Directive is Article 3 which required motor vehicle insurance for accidents in UK territory and in the other member states. The latter requirement necessitated an amendment to the Road Traffic Act 1972. Article 7 of the first Directive also recorded that the National Bureau in each Member State guaranteed settlement of claims in respect of accidents occurring in their territory and caused by vehicles normally based in another Member State.

The second Directive of 1983/1984 required the insurers referred to in Article 3 of the first Directive to cover damage to property and personal injuries, and that each Member State set up or authorise a body to provide compensation at least up to the limits of the insurance obligation for damage caused by unidentified or uninsured vehicles (Footnote: ³).

The fourth Directive enables a victim who suffers an accident in a Member State other than his home Member State to make his claim in his own Member State irrespective of whether it is an insured case, uninsured case or untraced driver case. Prior to this Directive and the 2003 Regulations the Claimant would have had to sue the FDG in France. In insured cases, direct action against insurers and procedures/penalties for dilatory insurers are referred to in Recitals (Footnote: ⁶). Article 1 sets out the scope of the Directive and Articles 3 – 5 deal with direct rights of action, claims representatives and information centres in relation to insured driver cases.

Under Article 6 of the fourth Directive every Member State has to establish or approve a compensatory body responsible for providing compensation to injured parties in cases referred to in Article 1, and to enable injured parties to present a claim to the compensation body in their Member State of residence in the case of delay by insurers and/or the failure by them to appoint a claims representative in the country of residence of the injured party. In those cases where the compensation body compensates the injured party, it can claim reimbursement from the compensation body in the Member State of the insurance undertaking’s establishment which issued the policy.

In unidentified vehicle and unidentified insurer cases Article 7 enables the injured party to “apply for compensation from the compensation body in the Member State where he resides. The compensation shall be provided in accordance with the provisions of Article 1 of Directive 84/5/EEC” (The second Directive). In such a case the compensation body then has a claim, on the conditions laid down in Article 6(2) of the fourth Directive:

“(a)

Where the insurance undertaking cannot be identified: against the Guarantee Fund provided for in Article 1(4) of Directive 84/5/EEC in the Member State where the vehicle is normally based;

(b)

In the case of an unidentified vehicle: against the Guarantee Fund in the Member State in which the accident took place;

(c)

In the case of third country vehicles: against the Guarantee Fund of the Member State in which the accident took place.” (Footnote: ⁷)

MIB submits that:

The MIB further relies on the Travaux Préparatoires to support its submission that the fourth Directive did not require the compensation body in the victim’s home state (here the MIB) to be liable where the foreign guarantee fund or insurer (here the FDG) was not liable. It is said that the Travaux Préparatoires demonstrate that the fourth Directive was aimed at merely permitting victims to proceed in the home state. MIB relies upon the following:

The Agreement between the compensation bodies and the guarantee funds envisaged by Article 6(3) of the fourth Directive, and which made such an Agreement a pre-condition of the Article taking effect, was entered into on 29 April 2002. The MIB and the FDG were both signatories (Footnote: ¹⁵). In the second part of the Agreement reference is made to unidentified vehicles and sets out the procedure under clause 7 for communications between the compensation body and the guarantee fund. Reimbursement is dealt with under clause 8. The MIB accepts what was said in Bloy v MIB, (Footnote: ¹⁶) namely that the Agreement is neither legislation nor an agreement between Member States, but purely a private agreement between insurance industry bodies. However it submits that the agreement is reflective of the Directives when it states that the applicable law is the law where the final paying body is situate, and that non-observance of the rules of applicable law is the ground upon which the final paying body may dispute the claim of the compensation body. (Footnote: ¹⁷)

These Regulations were brought in by the UK to comply with the fourth Directive requirements. Details about information centres are in Regulations 3 – 9. Regulation 10 approves the MIB as the compensation body for the UK for the purposes of the fourth Directive. Regulations 11 and 12 deal with compensation where the insurer is identified. Reimbursement of a foreign compensation body where the insurer is identified is dealt with by Regulation 14. The central Regulation for purposes of the present case is Regulation 13. This provides:

“Entitlement to compensation where a vehicle or insurer is not identified

13(1) This regulation applies where –

(a)

an accident, caused by or arising out of the use of a vehicle which is normally placed in an EEA State, occurs on the territory of –

(i)

an EEA State other than the United Kingdom, or

(ii)

a subscribing State,

and an injured party resides in the United Kingdom,

(b)

that injured party has made a request for information under regulation 9(2), and

(c)

it has proved impossible –

(i)

to identify the vehicle the use of which is alleged to have been responsible for the accident, or

(ii)

within a period of two months after the date of the request, to identify an insurance undertaking which insures the use of the vehicle.

(2)

Where this regulation applies –

(a)

the injured party may make a claim for compensation from the compensation body, and

(b)

the compensation body shall compensate the injured party in accordance with the provisions of Article 1 of the second motor insurance directive as if it were the body authorised under paragraph 4 of that Article and the accident had occurred in Great Britain.” (Footnote: ¹⁸)

The explanatory note states:

“These Regulations give effect to Articles 5, 6 and 7 of the Fourth Motor Insurance Directive.” (Footnote: ¹⁹)

It seems clear therefore that the 2003 Regulations were intended to implement the fourth Directive in the UK. The MIB submits that they do no more than that and that, in the circumstances of cases such as the present, it would not appear sensible to have one Member State go beyond the requirement of the fourth Directive when the objective is to have consistency across the Member States.

It is necessary to focus on Regulation 13(2)(b) of the 2003 Regulations. The main dispute between the parties centres on the words “as if it were the body authorised under paragraph 4 of that Article and the accident had occurred in Great Britain”.

Regulation 13(2)(b) has been the subject of Court of Appeal and High Court authority as regards which law applies to the assessment of damages of a UK resident who has an accident abroad. In Jacobs v MIB (Footnote: ²⁰) the Court of Appeal held that MIB had to pay compensation assessed in accordance with English law in a case where the Claimant was a UK citizen who suffered serious injury in a road traffic accident in Spain, at the hands of a German National resident in Spain, in respect of whom it was not possible to identify any insurance undertaking. The first instance judge had found that Regulation 13(2)(b) required that the claim had to be determined in all respects, including the assessment for damages, in accordance with English law, but that the Regulation was inconsistent with Article 4(1) of Rome II and therefore compensation had to be assessed in accordance with Spanish law (Footnote: ²¹). The Court of Appeal accepted that the 2003 Regulations must be interpreted, as far as possible, in a way which gives effect to the fourth Directive. (Footnote: ²²) The Court agreed that the right of an injured person to make a claim against the compensation body derives from the 2003 Regulations themselves and then continued:

“It is for Member States to decide how to achieve that end and they are entitled, if they wish, to put in place legislation that goes beyond the minimum requirements, provided its effect does not conflict with the object of the Directive. When interpreting the Regulations, however, it must be borne in mind that the scheme established by the Fourth Directive provides that liabilities imposed on the compensation body in the state where the injured person resides will be passed back, usually to the driver's insurer by way of the compensation body in the state where the insurer is established, but in the case of an uninsured or unidentified vehicle to the relevant guarantee fund….The central concept behind the scheme, therefore, is to provide the claimant with easy access to a defendant in his own country while ensuring that the liability ultimately comes to rest with the person or body with whom it ought to reside….” (Footnote: ²³)

In Jacobs the Court of Appeal first considered Regulation 12(3) and 12(4)(b) which deal with the situation where the responsible driver is identified and insured. The specific provision of Regulation 12(4)(b) (Footnote: ²⁴) drove the Court to the conclusion that in the case of the insured driver the MIB is obliged to pay compensation assessed in accordance with UK law. The Court of Appeal had already pointed out (Footnote: ²⁵) that when the fourth Directive was published in May 2000 Rome II had not been introduced and complete harmony between the conflict of law rules applied in Member States was lacking. The Court said that this conclusion (Footnote: ²⁶) “may reflect the fact that prior to Rome II conflicts of laws rules relating to non-contractual obligations differed as between Member States or it may,…reflect a policy decision to ensure that compensation paid to a resident of the United Kingdom by the domestic compensation body is no less generous than would be payable under domestic law.”

The Court of Appeal then turned to the assessment of compensation under Regulation 13 (Footnote: ²⁷). It said that it would be expected that compensation recovered by the victim of an unidentified or uninsured driver should be neither more nor less generous than that available to the victim of an insured driver under Regulation 12. The Court of Appeal had to grapple with the wording in Regulation 13(2)(b) which requires MIB to compensate the injured party “as if it were the body authorised under paragraph 4 of that Article and the accident had occurred in Great Britain.” (Footnote: ²⁸) MIB submitted that this expression simply reflected the fact that it was the guarantee fund for Great Britain under Article 1(4) and was also designated by the UK as the compensation body required by the fourth Directive. Moore-Bick LJ continued:

“[34] Sections 143-145 of the 1988 Act apply to the use of a vehicle in Great Britain and the EEA and the Uninsured Drivers’ Agreement is of corresponding scope. The Untraced Drivers’ Agreement, however, is limited in its scope to accidents occurring in Great Britain. (Separate arrangements exist for Northern Ireland.) However, not only do the Regulations designate the MIB as the compensation body for the whole of the United Kingdom, they impose on it an obligation relating to accidents occurring abroad. Accordingly, if the Untraced Drivers’ Agreement were to be retained for this purpose, it was necessary for the Regulations to bring a wider range of cases within its scope. In my view, therefore, Mr. O'Brien was right in saying that the somewhat complicated language of regulation 13(2)(b) was designed to achieve that result. It does not necessarily follow, however, that it does not have the effect for which Mr. Layton contended. (Footnote: ²⁹) A legal fiction may have consequences beyond its immediate purpose.

[35] The mechanism by which the MIB's obligation to compensate persons injured in accidents occurring abroad involving uninsured or unidentified drivers is established is to treat the accident as having occurred in Great Britain, but in the absence of any provision limiting its scope it is difficult to see why it should not also affect the principles governing the assessment of damages….”

The Court of Appeal then looked at the fourth Directive Recitals and came to the conclusion (Footnote: ³⁰) that compensation was to be assessed on the basis that the accident occurred in Great Britain, this having the merit that compensation recoverable under Regulation 13 was likely to be broadly the same as that recoverable under Regulation 12.

In Bloy v MIB (Footnote: ³¹) the Court of Appeal was concerned with an accident to British citizens in Lithuania. Under Lithuanian law there was a cap on damages of €500,000. The Court of Appeal rejected MIB’s argument that Jacobs was not binding upon them. Further it rejected MIB’s submission that the limits on compensation under Lithuanian law were a cap on liability and therefore a matter of substantive law, rather than a procedural matter such as the assessment for quantification of damages. In doing so the Chancellor said:

“….I consider that the short answer to that argument is that Regulation 13(2)(b) deems the accident, in which the claimants were injured, to have occurred in England and that leaves no room for Lithuanian law at all in the assessment of compensation. As I have said, that was the conclusion of the Court of Appeal in Jacobs and why Moore-Bick LJ confirmed that no conflict of laws issue was involved.”

The third ground of appeal was that the Court was wrong to find that the imposition of a cap under Lithuanian law on the liability of a given domestic guarantee fund did not derive from EU law. The Court recorded (Footnote: ³²) the MIB’s submission that where a Member State seeks to implement an EU Directive by national legislation, the domestic courts should, if possible, interpret the national legislation in a way that makes it compatible with, and so as to give effect to, the Directive and, secondly, that the role of the compensation fund in a case where the accident occurred in a different Member State was to act as a "post box" for the guarantee fund in the Member State in which the accident occurred. The Court rejected a further submission that the 2002 Agreement can determine the meaning of the fourth Directive or of the Regulations. (Footnote: ³³) In paragraph 62 the Chancellor said:

“Regulation 12 provides the clearest possible indication that Parliament did not intend to limit compensation in the way stipulated in the 2002 Agreement. The wording of Regulation 13(2)(b) is different from Regulation 12(4)(b) but, as Moore-Bick LJ observed in Jacobs (at para 34), that is because its purpose was to bring a wider range of cases within the scope of the Untraced Drivers’ Agreement, which is limited to accidents in Great Britain.”

Finally the Chancellor opined (Footnote: ³⁴) that Article 10.4 of the 2009 consolidated Directive was directly in point in providing that each Member State shall apply its laws regulations and administrative provisions to payment of compensation by the compensation body, without prejudice to any other practice which is more favourable to the victim.

In Moreno v MIB, (Footnote: ³⁵) MIB argued that the Court of Appeal decisions of Jacobs and Bloy had been wrongly decided and that damages should be Greek damages rather than British damages. MIB pointed out that it was only entitled to indemnity from the Greek compensation body based on the Greek measure of damages. MIB submitted (amongst other things) (Footnote: ³⁶) that the purpose of the Motor Insurance Directives was to enable the victim of an unidentified or uninsured driver to obtain compensation from it on behalf of the guarantee body in the state where the accident occurred. Further, it was speculative to assume, as was assumed in Jacobs, (Footnote: ³⁷) that there was a policy decision to be more generous to UK Claimants then the Directives required. Four significant legal errors in Jacobs were alleged, the fourth of which was that the reference in paragraph 35 of that decision that Regulation 13 (treating the accident as if it had occurred in Great Britain) should apply in the absence of a provision limiting its scope was to adopt the wrong approach. What the Court of Appeal should have done was to interpret the words of the Regulation in line with the scheme in the Directives. Gilbart J found:

The final case in this series is Marshall v MIB (Footnote: ³⁹), a decision of Mr Justice Dingemans. The Claimant’s case is that Marshall was wrongly decided. The third main issue in Marshall was whether MIB was liable under the 2003 Regulations (Footnote: ⁴⁰) in circumstances where the FDG was not liable because there were other insurers of motor vehicles who were liable. The judge decided that MIB was not liable to Mrs Marshall in those circumstances (Footnote: ⁴¹) and therefore he did not have to decide whether MIB were entitled to rely on the words “as if the accident had occurred in Great Britain” and rely on that part of English law which means that MIB is not liable if there is another insurer liable in respect of the same accident (Footnote: ⁴²). Giving his judgment Dingemans J said:

“63.

The MIB contends that the FDG is not liable to make payments to Mrs Marshall under French law, and that in these circumstances it is not liable, on a proper construction of regulation 13 to compensate Mrs Marshall. This is because regulation 13(2)(b) of the 2003 Regulations requires the MIB to compensate Mrs Marshall “as if it were the body authorised” under article 1(4) of the second Motor Insurance Directive, which is the FDG, and it is common ground that under French law the FDG has no liability to make a payment in this case…..

66….I do not read Jacobs and Bloy as deciding when the MIB would be liable to the Claimant. This is because in both cases it was common ground that the uninsured driver was liable (as in this case) and that the MIB was liable under the 2003 Regulations (which is not this case).

67.

There was consideration in Jacobs about the circumstances in which the MIB would be liable and at paragraph 32 of Jacobs Moore-Bick LJ said that it was “implicit in the scheme of the directive that the victim must be able to establish that the driver is liable to him in respect of his injuries”. This is established, and this is because the MIB becomes liable “as if it were” the FDG. The FDG is not liable if there is no liability on the part of the uninsured driver, and (relevant in this case) the FDG is not liable if there are other insurers of motor vehicles who are liable.”

The following cases are of assistance in determining the court’s approach to interpretation:

Do the Directives and the Travaux Préparatoires have the effect which MIB contend, namely that its liability is dependent upon the liability of the foreign guarantee fund being established?

In the context of an uninsured driver Marshall is supportive of MIB’s submission. Jacobs and Bloy however, whilst strictly dealing with assessment of damages, do not support the MIB’s submission that the extent of their liability is co-extensive with that of the foreign guarantee fund.

The purpose and intent of the fourth Directive was to make it easier for a victim to claim damages abroad by claiming against the compensation body in his country of residence. In the Commission’s amended proposal (Footnote: ⁴⁸) it states:

“The whole point of the Directive is that, since visitors suffering an accident are in practice at a disadvantage, their legal position should be strengthened outside their state of residence, in comparison with “domestic” victims.”

In the opinion of the economic and social committee (Footnote: ⁴⁹) the difficulties of foreign victims are identified as language and communication problems, difficulties in identifying the person responsible for damage and his/her insurer, differences in the conditions for admitting the liability of the person causing an accident and different laws on procedure and compensation in different countries (Clause 3.1). These difficulties are similarly set out in Recital 6 of the fourth Directive.

These purposes permeate the Travaux Préparatoires when the untraced driver cases were first mooted. (Footnote: ⁵⁰) The proposal was that “The guarantee fund in the Member State where the victim resides will be responsible for compensating the victim” and “the guarantee fund in the Member State where the vehicle is normally based will have ultimate liability for the compensation.” The reimbursement provisions were specifically left to the subsequent agreement between the Member State funds.

An indication in the Travaux Préparatoires which is favourable to the Claimant is to be found in the Amended Proposal of the Commission (Footnote: ⁵¹) where it says “A victim of an accident occurring outside his State of residence has an interest in securing compensation on the same conditions as those applicable to the functioning of the compensation body provided for in Article 5 in his State of residence.”

Article 7 of the fourth Directive requires the home compensation body to provide compensation “in accordance with the provisions of Article 1” of the second Directive. Of course, before the fourth Directive a claimant had to apply in the foreign country to its compensation body which would then apply the laws of its own country. Therefore under the second Directive the MIB would be applying English law to a claim brought against it in the UK either by a UK resident or by a foreign resident. Article 7 gives the compensation body a claim in unidentified vehicle cases “against the guarantee fund in the Member State in which the action took place”. This claim is “on the conditions laid down in Article 6(2) of the fourth Directive”. By Article 6(2) the claim is for “reimbursement of the sum paid by way of compensation from the compensation body in the Member State of the insurance undertaking’s establishment which issued the policy.” That foreign compensation body is then subrogated to the injured party in its rights against the person who caused the accident or his insurance undertaking. (Footnote: ⁵²) Therefore, the full mechanism in Article 6(2) cannot apply to an Article 7 type case. I do not read Article 6(2) as necessarily requiring full reimbursement by the foreign guarantee fund to the compensatory body of the victim’s home state. This is because, as the MIB accepted, the home state can “gold plate” their own residents so as to provide that they always get the better of the provisions in their own state or in any other Member State.

I also see the Claimant’s point on the interpretation of the fourth Directive and its preparatory material, that it would be a strange result if a victim had to claim in his own state against his home compensation body but also to be bound by whatever limitation period a foreign guarantee fund imposed in its own state.

Nevertheless, were the matter free of authority, and before considering the 2003 Regulations, I can see force in the MIB’s submission that the purpose of the fourth Directive was to enable victims to sue at home in respect of accidents abroad but did not intend to apply English law to those claims. This is primarily because:

I now turn to the Regulations. I repeat the words in Regulation 13(2)(b). These require the MIB to compensate the injured party “in accordance with the provisions of Article 1 of the Second Motor Insurance Directive as if it were the body authorised under paragraph 4 of that article and the accident had occurred in Great Britain.”

In Marshall the “body authorised under paragraph 4” was held to be the foreign fund whereas in Jacobs, Bloy and Moreno the Court proceeded on the basis that it was the MIB. Indeed that was the MIB’s submission in those cases. (Footnote: ⁵⁴)

At first sight MIB’s present submission seems unusual. It requires the MIB to compensate a victim as if it were the FDG and the accident had occurred in Great Britain. It is difficult to construe these words and what their effect would be if correct. In Moreno (Footnote: ⁵⁵) the MIB again argued (and the judge had considerable sympathy with this argument) that these words were intended to enable the MIB to fulfil the objective of the fourth Directive. The judge went on to say that the words would have been surplusage (at the time) if they merely meant that damages would be assessed on the UK basis. Therefore as a matter of interpretation and following Jacobs and Bloy he found that the effect of Regulations 13 and 16 was to create a cause of action enforceable as a civil debt in which compensation would be assessed on the basis of the law of England and Wales.

On the plain wording of the Regulations the MIB is deemed to be “the body authorised”. Nevertheless, MIB submits that this is the wrong approach to construction and that the Court of Appeal has twice been culpable of this wrong approach. (Footnote: ⁵⁶)

Before revisiting Jacobs and Bloy I will touch on one of the Defendant’s arguments, that such a conclusion does not give full effect to the Directive because there may be more favourable limitation periods abroad than in Britain. The answer may well be that the Claimant’s lawyers have the option of bringing their claim against the MIB in Great Britain subject to the time limit imposed by the Untraced Drivers’ Agreement or, if they deemed it more favourable to their client, to claim abroad against the foreign guarantee fund. Nothing in the fourth Directive or the 2003 Regulations seem to detract from a victim suing in the Member State where the accident occurred. It gives a right to claim in the victim’s home state.

MIB does not shrink from the submission that the decisions of the Court of Appeal in Jacobs and Bloy are wrong. This is the issue to be determined by the Supreme Court in Moreno. MIB submits that I am not bound by these Court of Appeal decisions. In order to determine whether or not I am bound, and my approach to these decisions, I need to record, as succinctly as possible, MIB’s case in relation to them.

As to Jacobs MIB submits:

As to Bloy, MIB submits:

This Court is bound by the ratio decidendi of a decision of the Court of Appeal. According to Cross and Harris (Footnote: ⁷²):

“The ratio decidendi of a case is any rule of law expressly or impliedly refuted by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him, or a necessary part of his direction to the jury.”

This statement was approved by the Court of Appeal in Deane v Secretary of State for Work and Pensions (Footnote: ⁷³) where the Court added “To follow the line of reasoning, one must start with the issue the court had to decide.”

My decision is as follows:

I briefly mention Marshall again. Dingeman J’s consideration of Jacobs and Bloy was in paragraphs 66 and 67 of that judgment. Nevertheless, despite this, and for the reasons set out in detail above, I find that I am bound by the ratio decidendi of those Court of Appeal decisions which extends to the issue before me.

It is of course for the Supreme Court to decide whether the Courts of Appeal in Jacobs and Bloy were correct when they hear the Moreno appeal in the summer of 2016. Until then, I find it is impermissible and unnecessary for me to consider in any more detail MIB’s arguments as to the construction of Regulation 13(2)(b).

Therefore, the answer to the first issue is that I am bound by Jacobs and Bloy to find that the MIB is not liable only if the FDG is liable. Although this conclusion can be succinctly stated, I considered it appropriate to set out in some detail why I reached it. The arguments of counsel were wide ranging and helpful and it was right that I reflected to a large extent what they submitted to me, so as to provide a fuller context than might normally be the case where a first instance judge is bound by a Court of Appeal’s decision. It was also necessary to do this because of the detailed argument as to the ratio decidendi of Jacobs and Bloy and whether this Court was or was not bound by those decisions.

I have determined the first issue in the Claimant’s favour, therefore strictly this issue does not arise. However, I should deal with it in case my decision is reversed. That said, I will deal with it as briefly as possible.

I have the following expert evidence:

There is a joint report dated 27 February 2016. I heard oral evidence from both lawyers.

The joint statement contains an explanation of the jurisprudential system in France where the common law system of precedent does not apply. However, there are psychological, practical and technical reasons whereby judges are influenced by decisions taken by their peers, especially in the higher courts. It is also rare for a Court of Appeal to resist a ruling of the Cour de Cassation. The following also emerges:

If a Claimant can show that he has been unable to act then he can ask the French court for the time limit rule to be lifted. It is for the Claimant to establish inability to act. The Cour de Cassation (Footnote: ⁷⁶) found that the fact that a victim was assisted by a lawyer before the expiry of the foreclosure period meant that he was not “unable to act”. Mr Hughes said there is no authority in France on the position where the Claimant is a foreigner and instructs a foreign lawyer. In this regard there is a case from the Court of Appeal of Aix-en-Provence (Footnote: ⁷⁷). Here a Spanish Claimant brought a claim against the French Mandatory Liability Insurance Guarantee Fund. Article R421-12 was in point. The Court of Marseilles had decided “That it was impossible for action to be taken as a result of the consequences on the victim and his financial difficulties, and the lack of information about his rights in a foreign country, also considering that the interested party is a Spanish national.” The Court of Appeal held that there was no justification for lifting the time bar on the basis that he had “not demonstrated any mental inability to take action or the financial impossibility of entrusting a professional person to deal with his case, as alleged.”

I accept that a French judge would not be bound by the Court of Appeal decision and that, in common with all the French reports which I had, there is much less detail in relation to submissions and reasoning than in English reported cases. Nevertheless, this case is very persuasive, in conjunction with the Cour de Cassation case, that a French judge would not find that there was impossibilité d’agir in the present circumstances. This is particularly so given (a) that on the evidence of the Claimant’s solicitor (Mr Rigby) the file indicates that until the Jacobs decision in 2010 the Claimant’s solicitors considered that they had a claim against the FDG, albeit in England and at no stage took advice on the French position on limitation, (b) professional responsibilities these days have to take into account cross-border claims and a French court, in relation to an accident which occurred in France, would be highly unlikely to accept impossibilité d’agir when a Claimant had lawyers from elsewhere in the EEA.

The Claimant drew M. Charpentier’s attention to a passage in his report where he had extracted from a text book that the purpose of the foreclosure deadline was to punish tardy behaviour civilly. However M. Charpentier explained that where a public entity such as the FDG is involved, foreclosure (unlike prescription which is between individuals) has an element of protection of society as a whole and it is the impossibility to act which guides the time limit period.

Mr Hughes did suggest that the question of a manoeuvre by a Defendant could be taken into account in impossibilité d’agir. However this was not relied upon by Mr Vincent in final submissions and rightly so.

Finally, although it is a matter for me and not for the lawyers, even Mr Hughes said that he did not think the prospects of persuading the Cour de Cassation of an impossibilité d’agir in the present circumstances were any higher than 50/50.

In my judgment, the Claimant would not be able successfully to rely on impossibilité d’agir in a French court.

The joint statement reveals a difference of opinion on this point. M. Charpentier believes that there is a low probability that a French judge would apply the rule of estoppel in Mr Howe’s case, on the basis that the few decisions in which French courts have applied the rule of estoppel relate to cases in which bad faith was clear. Mr Hughes accepts that the general principle of estoppel is recent in French law. He says, nevertheless, that it is established and prevents a person contradicting itself to the detriment of another. He also considers that the admissions of the FDG might be regarded by a judge as amounting to bad faith or as a manoeuvre. He said that the application of the principle of estoppel would be probable in a French court.

There was no pleaded case by the Claimant about bad faith on the part of the FDG (or MIB). The way Mr Vincent put the submissions was that there is no evidence from the FDG/MIB on this point but, as I pointed out, in the absence of any pleading of bad faith, it would be wrong for the Court to deal with any suggestion of it and certainly the Court should not draw any inference of bad faith.

The Claimant’s submission is that although it is common ground that the finding of bad faith would be helpful, it is not the case that the absence of this meant that the plea of estoppel is not available. It is said that the key components were (i) a change of position and (ii) detriment. The Claimant pointed to the fact that the FDG continued to deal with the claim, having itself adverted to the limitation period, and continued to ask for information and make an interim payment. It is said that the expense and time to which the Claimant went in following their lead amounted to detriment. (Footnote: ⁷⁸) I will deal in some more detail factually with what happened between Claimant, MIB and FDG when I consider estoppel under English law. However, I have come to the conclusion under French law that estoppel would be unlikely to succeed for the following reasons:

In the 2005 case the appellant had requested an arbitral hearing before the Iran/USA claims tribunal and participated in those proceedings for over nine years. The Cour de Cassation held that it was ineligible for him, due to the estoppel rule, to sustain that the arbitral tribunal had no jurisdiction. This was clearly tactical manoeuvring of the sort envisaged by the French law experts in the present case.

In the 2009 case the Court of Appeal at Orléans ruled that a company’s behaviour should be punished by virtue of the principle according to which a party cannot contradict itself to the detriment of others (estoppel theory). The Cour de Cassation overturned and annulled that decision on the basis that “the sole circumstance of a party contradicting itself to the detriment of others does not necessarily entail a dismissal of the case.”

In the 2010 decision the Conseil d’état was considering a tax dispute. It decided that there were “grounds for responding negatively to the first question raised by the Administrative Tribunal”. That question was “If, within the framework of a fiscal dispute proceeding, a plaintiff may usefully invoke the principle of estoppel, a principle according to which a party may not make contradictory claims to the detriment of its adversary.”

Finally, in the 2011 decision the Commercial Chamber of the Cour de Cassation overturned and annulled a decision of the Court of Appeal of Paris. The Court of Appeal had declared claims presented by N Companies against GF inadmissible. It had ruled that fraud perpetrated by GF “had not been characterised” and that N Companies’ irregularity consisted in taking legal action against GF which was an entity devoid of legal personality and originated in a lack of vigilance on the part of the N Companies. The Cour de Cassation found that the company GF had itself introduced and instructed the appeal against an earlier ruling and therefore (in English terms) had held itself out as having legal personality. It was therefore held that GF could not “without contradicting itself to the detriment of the N… companies, take advantage…of the circumstance that it had no legal personality during the proceedings that led to these decisions.” Therefore “In view of the principle according to which a party may not contradict itself to the detriment of others” N companies succeeded in their appeal. In the grounds of appeal attached to the ruling the third ground clearly alleged fraud in relation to the principle that “no party can contradict itself to the detriment of others”. The abstract promulgated by the Cour de Cassation was in the following terms:

“No party being able to contradict itself to the detriment of others, the Court of Appeal declaring inadmissible the claims made against a company that takes advantage before it of the circumstance that it was devoid of legal personality at the time of the proceedings having led to the decisions criticised violate this principle, while this company had itself lodged and investigated the appeal having given rise to a referral after a partial overturning…Legal texts applied: the principle according to which no party can contradict itself to the detriment of others.”

In relation to the 2011 decision M. Charpentier accepted that the Cour de Cassation did not specifically find fraud but suggested it was implicit in the decision. He said there was bad faith on the part of GF Company. It had essentially lied about its legal personality in the first case. There was therefore a notion of fraud.

I find that it is a possibility a French court would find for the Claimant on the principle of estoppel, but that it is not a probability. This would be a novel point, especially in the circumstances which, as M. Charpentier pointed out, the foreclosure period of five years is imposed “externally” and there was no manipulation or deceit on behalf of FDG. (Footnote: ⁸⁰)

Mr Hughes had not raised the question of waiver in his report. M. Charpentier raised it as a point that might be argued in the French court, but then dismissed it as having any real prospect of success. He said that there were no decisions expressly deciding the question whether or not the FDG could waive foreclosure periods stipulated in Article R421-12. He pointed to a ruling of the Second Civil Chamber of the Cour de Cassation (Footnote: ⁸¹) where the action of a victim against the FDG was found to be foreclosed, even though the FDG had paid several provisions and issued a transaction report that had not been accepted by the victim. Further, in a ruling of the Court of Appeal at Nîmes (Footnote: ⁸²) in a foreclosure case that court held that “a limitation period is a fixed period that cannot be interrupted and suspended; finally discussions are not, even under ordinary law, a legitimate cause for interruption or suspension of the period within which to take action.” (Footnote: ⁸³) In that case two provisions of payment were paid in July and August 2004, which was after the five year foreclosure period expiry. M. Charpentier accepted that a prescription period can be waived but said that there was simply no text mentioning the possibility of waiving foreclosure. He had searched long and hard to find something but the question had not come up. No specific argument about waiver had therefore been raised in any case. M. Charpentier accepted that a French court could at least consider the question. I also accept that the French court could consider the question but in all the circumstances I adjudge that it would be very likely to reject any suggestion that the foreclosure period had been waived in the circumstances obtaining in this case.

Therefore, in my judgment, according to French law the limitation period in this case, i.e. the foreclosure period of five years expired.

I should add that the issue that limitation had not expired according to French law was not pleaded until by way of Amended Particulars of Claim at the trial. Given that the experts had reported on it, I allowed the amendment and permitted the Claimant to raise all the above arguments. This was so even though some of them did not appear until after Mr Hughes report had been exchanged. Nevertheless, there can in those circumstances be no suggestion of adverse inferences being drawn against the MIB for not producing factual evidence.

I must refer to the pleadings. In their original form the case was that the Claimant made a request for information pursuant to Regulation 9(2) of the 2003 Regulations on 20 November 2014, and accordingly the Defendant’s liability to compensate the Claimant and his cause of action against the Defendant arose on that date. (Footnote: ⁸⁴)

I allowed an amendment during the course of the trial on the basis that the effect of the Regulations is to modify by statute the Untraced Drivers’ Agreement of 2003. MIB’s defence had been that, as far as English law is concerned, “The Claimant’s claim is statute barred under the Limitation Act 1980” (Footnote: ⁸⁵). It appears that the Claimant took this as alleging a six year defence in relation to the pleading of the statutory cause of action under section 9 of the 1980 Act. In its Skeleton MIB put forward an argument that the cause of action accrued at the date of the accident and the matter was governed by section 11 of the Limitation Act applying a 3 year limitation period. A Draft Amended Particulars of Claim relying upon section 33 of the 1980 Act in those circumstances was put before me. However, the section 11 point was not proceeded with; nor was the application to amend to rely on section 33 so as to attempt to overcome any section 11 time bar. The net result of this is that the only arguments presented to me were the ones to which I now turn.

Under the Untraced Drivers’ Agreement, dated 7 February 2003 (“the 2003 Agreement”) which applies to accidents in Great Britain, there is no claim in court to be made. The time limit is that an application has to be made to the MIB within 3 years of the date of the accident. (Footnote: ⁸⁶) Mr Howe did submit an application in writing to the MIB within 3 years of the date of the accident and, had his accident occurred in Great Britain, he would have been within time. As previously set out in this judgment, the Claimant relies upon paragraph 34 of the Jacobs case for the proposition that the 2003 Regulations bring accidents occurring abroad within the scope of the 2003 Agreement; thus the first case of the Claimant is that Regulation 13 statutorily modifies clause 4(1) of the 2003 Agreement so as to include accidents within the EEA.

Reference to the Amended Particulars of Claim shows how extensive this statutory modification to the 2003 Agreement would have to be. I set out below the original text in ordinary script and the proposed statutory modifications to the clauses of the 2003 Agreement in italics:

The effect of these textual modifications is to extend the ambit of clause 4(1)(a) to accidents occurring in EEA states, such that clause 4(1)(c) will be satisfied if the death, bodily injury etc occurred in circumstances giving rise to a liability of a kind required to be covered by compulsory motor insurance in those states. Further, clause 4(e) which requires an application in writing to the MIB within 3 years of the date of accident (clause 4(1)(f) and 4(3)(a)) is also modified. The second modification to clause 4(3)(c)(i) is to require reporting of the accident within 14 days of its occurrence to the police force in the Member State rather than in Great Britain.

The Claimant says he comes within the above proposed modifications because his accident was in an EEA state which required compulsory insurance for motor accidents, that he made an application to the MIB (as defined in the modified clause 1(1)) by letter dated 10 September 2007 and also by email/letters dated 21 May 2008, 27 May 2008 and 4 December 2008. Finally he says that he was interviewed by the French police on 3 April 2007, during which interview he reported the occurrence of the accident.

In the alternative he says that if any limitation period is relevant, the claim arises as a result of the Defendant’s breach of the 2003 Untraced Agreement on 2 October 2014, when it indicated its refusal to deal with the Claimant’s claim under that agreement. Therefore the time limit does not expire until 2 October 2020.

The Claimant acknowledges that these are unchartered waters and says that the problem arises from the fact that nobody as yet has grappled with the principles of the deeming provision in Regulation 13(2)(b) of the 2003 Regulations, certainly insofar as they concern untraced motorists.

As the Claimant submits, it is possible for statute to modify a non statutory agreement. The example given was section 148(1) of the Road Traffic Act 1988, which renders certain purported restrictions of liability in motor policies to be of no effect. However, what is contended for here is much less explicit in the 2003 Regulations. It would be a very substantial leap for the Court to uphold this submission and I am not prepared to do so.

In any event the Claimant’s case on this point has further difficulties. These are:

For all those reasons I reject the first argument put forward on behalf of the Claimant in respect of English limitation law.

On the pleadings before me that leaves the claim as a statutory claim under the 2003 Regulations. This does have the benefit of seeming to accord with Regulation 16 which says that any sum due and owing pursuant to the Regulations shall be recoverable as a civil debt. However, there are problems with this avenue also. They concern when the cause of action accrued. In an action for a sum recoverable by statute the limitation period expires 6 years after the date of accrual of the cause of action. This is section 9 of the 1980 Act.

The Claimant’s case depends on Regulation 13(1) and in particular 13(1)(b). He submits that all matters in the three sub paragraphs of Regulation 13(1) need to have occurred for the cause of action to have accrued. Those in sub paragraph (a) and (c) occurred shortly after the accident. However, in respect of “(b) that injured party has made a request for information under Regulation 9(2),” the request was not made by the Claimant’s solicitors until 20 November 2014. Therefore it is said that the cause of action accrued on that date and the limitation period does not expire until 2020.

I begin by looking at Regulation 9(2). The information may be requested of the information centre is that described in Regulation 9(4). None of that information in 9(4)(a)–(d) has any relevance to untraced motorists’ cases. Therefore in the context of an untraced motorists’ case a request under 13(1)(b) is meaningless. It is correct that the governing words of Regulation 13(1) set out when “this Regulation applies” followed by (a) – (c). It is also correct that the possibility of making a claim and being compensated under Regulation 13(2) is predicated on the opening words of 13(2), namely “Where this regulation applies”. Nevertheless, it is difficult to see at the outset how, in an untraced motorists’ case, the requirement in 13(1)(b) can sensibly be said to be a necessary ingredient in the cause of action.

Further, as appears in the Explanatory Note and on the authority of Jacobs, the Regulations are to give effect to (amongst others) Article 7 of the fourth Directive. There is no pre-condition to liability in Article 7 which requires the service of a request for information under Regulation 9(2). This suggests that the requirement is at most procedural and not substantive.

The most helpful case in this regard is Swansea City Council v Glass (Footnote: ⁸⁸). That case was clearly different on the facts. The necessary ingredients of the cause of action were set out by Taylor LJ at page 129F. He said that a statement of claim alleging those matters could not be struck out as disclosing no cause of action. As regards the argument that the limitation period ran only from the date of service for demand by the local authority he said this at 129H:

“Section 10(4) provides expressly that where the local authority opts to take summary proceedings to recover their expenses, the limitation period runs from the date of service of the demand or, if there is an appeal, the date when the demand becomes operative. Again, by implication, since no such provision is applied to proceedings in the High Court or County Court, time in those proceedings does not run from the date when the demand is served or becomes operative. It will run from the accrual of the cause of action which, ex hypothesi, is a different time.”

The ultimate question is whether, if the Claimant has not served a Regulation 9(2) request for information as required by Regulation 13(1)(b), the claim could have been struck out as disclosing no cause of action. In my judgment it could not. For the reasons I have already given this could not sensibly be a necessary ingredient in the cause of action.

The Claimant accepted that, apart from a Claimant wanting to move forward in a claim, there is nothing to stop him or her giving notice many years later. Mr Vincent said that this may be unattractive but that is what the Regulation states. In my judgment such a construction would be “a very anomalous and inconvenient result,” as Lopes LJ said in Coburn v Colledge (Footnote: ⁸⁹). Therefore on the arguments presented to me I find on this issue:

I add only this. I emphasise that I have had to decide the case on the argument put before me and, as previously mentioned, and not on any basis that section 11 (and therefore potentially section 33) of the Limitation Act 1980 is applicable to its case.

The Claimant’s case is pleaded in the Amended Particulars of Claim on the basis that until 19 August 2014 the parties shared the assumption that no limitation period was applicable to the Claimant’s claim, and that until that date there was a clear and unequivocal shared assumption that the Claimant had a valid claim against the Defendant. It is said that the Defendant’s representations to that effect included the making of an interim payment of £20,000 in September 2013, after the expiry of the limitation period. Finally, the Claimant says he acted to his detriment in reliance upon the Defendant’s conduct and representations by accepting and spending interim payments totalling £115,000, acceding to delays on the part of the Defendant on the basis of the Defendant’s incorrect assertions that its inability to deal with his claim promptly was caused by the FDG and submitting to examinations by experts at the Defendant’s request. It is therefore said that it would be inequitable and unconscionable for the Defendant to be permitted to rely upon a limitation defence.

The Claimant accepts that there are no communications from MIB unequivocally representing it would not take a limitation point. The Claimant’s case is that the correspondence and conduct of the MIB taken together provide more than enough material for the Court to conclude that the requirements of estoppel by convention/representation are met.

The only oral evidence I had was that of Mr Scott Rigby, a partner in Stewarts, the Claimant’s solicitors. His statement was dated 27 November 2015. He assumed conduct of the matter in September 2013 and therefore prior to that date his knowledge was based on reviewing the file, the relevant contents of which were set out as exhibits to his statement.

From the correspondence until the case of Jacobs in 2010 it is clear that the Claimant’s solicitors thought the claim was against the FDG with MIB as agent. MIB also worked on this basis. On 9 November 2010, after Jacobs, the Claimant’s solicitors wrote to MIB in these terms:

“It appears to us that the affect (sic) of this decision is to confirm that, pursuant to Regulation 13(2)(b)…in a case such as our clients, where a UK resident is injured abroad by an unidentified driver, the MIB is obliged to compensate the victim as if the accident had occurred in the UK.

In Mr Howe’s case the MIB have effectively been delegating its compensation obligation to the Fond de Guarantie (sic) of France presumably on the basis of Mr Howe’s compensation was to be assessed in accordance with French law. This is the construction of the relevant Directives and Regulations, contended for by counsel for the MIB in Jacobs, and is now established as being incorrect.

The result is that the evidence of various experts instructed by the French compensation body is irrelevant.

We look forward to discussing with you your proposals for assessing an award to Mr Howe on the basis of UK law which is what we understand should have occurred in the first place.”

Mr Rigby said that from that date Stewarts’ understanding (though he did not take over the file until 2013) was that the claim was against the MIB and the MIB would recoup compensation from the FDG. He accepted that there continued to be reference to the FDG and their position in the correspondence but said that when he took over in 2013 he thought it would be better to have a tripartite discussion so as to facilitate communication. Stewarts were really concerned with getting UK damages and so long as the MIB paid reasonable UK damages it did not matter to Stewarts. Nevertheless, as far as he was concerned, the claim was under the Untraced Drivers’ Agreement as a result of Jacobs and in accordance with the 9 November 2010 letter. He accepted that MIB had discussed appealing Jacobs and that once the appeal had been abandoned it would perhaps have been ideal that Stewarts should have written to MIB to clarify their position. His previous experience was that there was not much difference between French and English damages and, because the FDG had been involved up to that point it would assist the MIB to accept FDG’s role in paying compensation. Therefore, given that there was a third player (namely the FDG), it would be better to keep them involved. Nevertheless, nobody mentioned limitation prior to the expiry of the French limitation period (the five year period expired on 30 March 2012) or prior to the sixth anniversary of the accident on 30 March 2013.

Throughout this period and afterwards negotiations continued. For example, on 21 May 2013 MIB emailed the Claimant’s solicitors “I have had a response from FDG at long last (!), which was sent for translation. It has just been returned and will be reviewed next week. Hopefully we will be able to wrap up the claim fairly soon.” On 28 May 2013 MIB sent an email to the Claimant’s solicitors copying and pasting the main part of a letter it had received from the FDG dated 17 April 2013. The FDG’s document referred back to an offer, dated 28 September 2009 which it said had not been responded to (in fact this was not correct). FDG also said in that message:

“Would you please also point out to your contacts the fact that, in virtue of the provisions of Articles R421-12 Insurance Code, when the third party is unknown, the victim must, within a period of five years with effect from the date of the accident, have come to an arrangement with the Fonds de Garantie or brought against them the action provided for in Article R421-14 of the aforementioned code.

I therefore wait to hear what Mr Howe’s position is and to receiving all those documents which we have been asking for since 2009.”

This was the first reference to a limitation period but was in the context that FDG were continuing to deal with the claim.

There were further dealings. In September 2013 Mr Rigby assumed conduct of the matter. Later that month MIB informed Mr Rigby that FDG had agreed to make a further interim payment of £20,000 and a cheque in the sum was received. (Footnote: ⁹¹) Negotiations and discussions continued. On 10 July 2014 there was a telephone call between Mr Rigby and Glenda Crawford (Claims Handler) of MIB. There were further discussions about the valuation of the claim. Ms Crawford then mentioned that the Claimant had not litigated against the MIB. Mr Rigby said that they could not issue against the MIB. Ms Crawford then mentioned that she thought the Claimant was going to be out of time. Mr Rigby disputed this on the basis that it was an Untraced Drivers’ case and there was no defendant. Ms Crawford then asked a colleague who dealt with cross-border matters. The transcript then records:

“Ms Crawford – Okay, it sounds complicated but you can do it but limitation is as per the limitation period in France and according to their own Untraced Agreement, should one exist. It is all quite complicated but, just for future reference, you can issue against MIB on its own as compensation body on a cross-border case where you have an English Claimant who is abroad in a foreign country because that is what the 4^th Directive says.

Mr Rigby – Do you happen to know the limitation period?

Ms Crawford – No I don’t. But I have already had an email from Irene yesterday, saying it has passed. I will read out what she said. Hang on a minute (it’s muffled).

No sorry scrub round that. Scrub round that. That is wrong. Sorry, Scott. It’s because it’s untraced. No, you are right. You are right. I thought you could as you could just sue MIB as compensation body…

Mr Rigby – sure…

Ms Crawford…without having a named defendant but it seems you can’t. Yeah…

Mr Rigby – Well that makes my heart stop beating a little faster. I can tell you.

Ms Crawford – Yes, so we can all calm down…”

The conversation continued and ended with discussion about the possibility of getting another €20,000 interim payment fairly quickly from the FDG.

On 8 August 2014 the FDG wrote to Stewarts relying on the French limitation period. Mr Rigby then spoke to Ms Crawford at MIB. During the conversation she again referred to the limitation difficulties in terms of the Claimant against the Defendant. Mr Rigby referred to their earlier conversation. Ms Crawford recalled what she had said but said it did not really matter and since that conversation she had spoken with a solicitor and urged Mr Rigby to take counsel’s advice. On 19 August 2014 MIB wrote to Stewarts:

“The position, as we understand it, is that you made a claim on behalf of Mr Howe against MIB as compensation body, in accordance with the 2003 Regulations. Proceedings were not commenced within the six year limitation period and you are now out of time to do so. You may try to persuade a court otherwise, and if indeed proceedings are issued, we will instruct Weightmans solicitors to accept service. However, the limitation point will be raised in our defence.”

As to estoppel by convention “…the estoppel will occur where: (i) the parties have established, by their construction of their agreement or a common apprehension as to its legal effect, a convention basis; (ii) on that basis the parties have regulated their subsequent dealings; (iii) one party would suffer detriment if the other were to be permitted to resile from that convention. These three limbs have recently been restated as:

In London Borough of Hillingdon v Arc Limited (Footnote: ⁹³) estoppel by convention arose in the context of limitation. There, as here, most of the communications between the parties could be taken from the correspondence (Footnote: ⁹⁴). The judge’s finding was that LBH’s view throughout had been that ARC had not provided sufficient information to substantiate its claim such that in July 1992 LBH wrote to ARC requesting further particulars of the claim “so that it can be fully and properly considered, negotiated, agreed and/or rejected as appropriate.” (Footnote: ⁹⁵) The judge also found that ARC’s representatives never considered any statutory limitation period and both sides made the same mistake, namely that there was no statutory time limit applying to ARC’s claim, with both parties dealing with the claim on the basis that it was valid and capable of being resolved by negotiation or referred to the Land Tribunal if settlement could not be reached. (Footnote: ⁹⁶)

The Court of Appeal (Footnote: ⁹⁷) referred to the case of K Lokumal v Lotte Shipping (Footnote: ⁹⁸) where the Court of Appeal had held that the time bar did not apply based on convention estoppel because of the lack of communication. It held that the case was one of genuine misunderstanding and there was no scope for estoppel by silence or acquiescence and in addition no scope for convention estoppel. The parties had acted independently of each other and nothing had “crossed the line between them”. Kerr LJ said:

“… all estoppels may be regarded as requiring some manifest representation which crosses the line between representor and representee, either by statement or conduct… There cannot be any estoppel unless the alleged representor has said or done something, or failed to do something, with the result that – across the line between the parties – his action or inaction has produced some belief or expectation in the mind of the alleged representee, so that, depending on the circumstances, it would thereafter no longer be right to allow the alleged representor to resile by challenging the belief or expectation which he has engendered. To that extent at least, therefore, the alleged representor must be open to criticism.”

The Court of Appeal in Hillingdon also said:

“… no authority has been cited to us…whereby a party has been held disentitled from relying on a limitation defence merely because he has continued to negotiate with another party about the claim after the limitation period had expired and without anything being agreed about the manner in which the claim was to be resolved if negotiations broke down…

60…There has to be more to establish a convention than simply a request for details of ARC's claim. Where parties are acting on the basis of some generally assumed view of the law, which turns out to be wrong, more is needed than simply an assumption as to the legal position if a party is to be estopped from taking a defence which he then discovers is available to him.

…

62.

A shared assumption is not on the authorities sufficient to establish an estoppel unless it is communicated. It follows that if in this case there was no shared assumption to the effect that ARC had a valid claim that was not time-barred, there could be no communication by LBH that it was making any such assumption. It also follows from what we have said above that the communication required would in any event be not simply that ARC had a valid claim but also that LBH would not take any defence that might be open to it on the basis of a statutory limitation period.”

In the present case I have the correspondence, transcriptions of conversations and Mr Rigby’s evidence (which so far as he personally was concerned can only deal with the matter from September 2013). There is nothing in the evidence about limitation until the FDG’s reference to the five year period in their correspondence of 17 April 2013, communicated to the Claimant on 28 May 2013. Thereafter there is the conversation with Ms Crawford on 10 July 2014. In my judgment:

Both parties took me in some detail to the further Court of Appeal case of Seechurn v Ace Insurance SA (Footnote: ⁹⁹). The Court of Appeal set the scene in the following way: (Footnote: ¹⁰⁰)

The Claimant suggests that the MIB represented that the door was open for negotiation and would stay open. They say this is not surprising given that an email sent on 1 March 2013 from FDG to MIB included the words “We are waiting for this (sic) documents, but our offer of 2009 is always valid.” (Footnote: ¹⁰¹) Nevertheless this communication did not go at any stage from MIB to the Claimant. The Claimant accepts that the making of interim payments will not necessarily be sufficient of itself to amount to the necessary representation but says that it depends upon the circumstances. His case is that here MIB were purporting to deal with FDG’s money. The Claimant had not asked FDG for money and it is difficult to see how they could recover it from him. The making of interim payments in those circumstances, according to the Claimant, is a clear representation that nothing will be done or occur (including taking a limitation defence) that would put into question the Claimant’s entitlement to those interim payments. The Claimant says this is a very different situation from under CPR 25.8 where the Court may order an interim payment to be repaid.

I do not accept that making interim payments in the circumstances of this case is any different from the general position. Three of the interim payments were made prior to the expiry of the limitation period. The one that was made afterwards in September 2013 was made against the backdrop of the FDG having raised the five year limitation period in April 2013 and continuing to deal with the claim. Nevertheless that is not sufficient in my judgment to be an unequivocal ambiguous promise or representation that MIB did not intend to enforce its strict legal rights in relation to any limitation defence. Further and in any event, any claim against the MIB would be made in England under the 2003 Regulations. In those circumstances the interim payment would appear to be recoverable under CPR 25.8 (2) which gives the Court wide powers to discharge or vary an interim payment including the power to order any money paid to be repaid. (Footnote: ¹⁰²) Nor, for the reasons I have already given, did anything in the correspondence or in the conversation between Ms Crawford and Mr Rigby in July 2014 amount to an unequivocal unambiguous promise or representation that MIB did not intend to enforce its legal rights.

I therefore find:

This has been a difficult case and I am grateful to counsel for their assistance.

In short form, my rulings are:

Therefore the claim fails.

CHRONOLOGY

Each Member State shall, subject to Article 4, take all appropriate measures to ensure that civil liability in respect of the use of vehicles normally based in its territory is covered by insurance. The extent of the liability covered and the terms and conditions of the cover shall be determined on the basis of these measures.

Each Member State shall take all appropriate measures to ensure that the contract of insurance also covers: - according to the law in force in other Member States, any loss or injury which is caused in the territory of those States;

Every vehicle normally based in the territory of a third country or in the non-European territory of a Member State must, before entering the territory in which the Treaty establishing the European Economic Community is in force, be provided either with a valid green card or with a certificate of frontier insurance establishing that the vehicle is insured in accordance with Article 6.

However, vehicles normally based in a third country shall be treated as vehicles normally based in the Community if the national bureaux of all the Member States severally guarantee, each in accordance with the provisions of its own national law on compulsory insurance, settlement of claims in respect of accidents occurring in their territory caused by such vehicles.

Upon having ascertained, in close cooperation with the Member States, that the obligations referred to in the preceding paragraph have been assumed, the Commission shall fix the date from which and the types of vehicles for which Member States shall no longer require production of the documents referred to in paragraph 1……

The insurance referred to in Article 3 (1) of Directive 72/166/EEC shall cover compulsorily both damage to property and personal injuries……

Each Member State shall set up or authorize a body with the task of providing compensation, at least up to the limits of the insurance obligation for damage to property or personal injuries caused by an unidentified vehicle or a vehicle for which the insurance obligation provided for in paragraph 1 has not been satisfied…..

It is in fact appropriate to supplement the arrangements established by Directives 72/166/EEC, 84/5/EEC(7) and 90/232/EEC(8) in order to guarantee injured parties suffering loss or injury as a result of a motor vehicle accident comparable treatment irrespective of where in the Community accidents occur; for accidents falling within the scope of this Directive occurring in a State other than that of the injured party's residence, there are gaps with regard to the settlement of injured parties' claims.

The application of this Directive to accidents occurring in third countries covered by the green card system, affecting injured parties resident in the Community and involving vehicles insured and normally based in a Member State does not imply an extension of the compulsory territorial coverage of motor insurance as provided for in Article 3(2) of Directive 72/166/EEC.

This entails giving the injured party a direct right of action against the insurance undertaking of the responsible party.

One satisfactory solution might be for injured parties suffering loss or injury as a result of a motor vehicle accident falling within the scope of this Directive and occurring in a State other than that of their residence to be entitled to claim in their Member State of residence against a claims representative appointed there by the insurance undertaking of the responsible party.

This solution would enable damage suffered by injured parties outside their Member State of residence to be dealt with by procedures familiar to them.

This system of having claims representatives in the injured party's Member State of residence affects neither the substantive law to be applied in each individual case nor the matter of jurisdiction.

The existence of a direct right of action against the insurance undertaking for the party who has suffered loss or injury is a logical supplement to the appointment of such representatives and moreover improves the legal position of injured parties of motor vehicle accidents occurring outside that party's Member State of residence…..

The appointment of representatives responsible for settling claims should be one of the conditions for access to and carrying on the activity of insurance listed in class 10 of point A of the Annex to Directive 73/239/EEC(9), except for carriers' liability; that condition should therefore be covered by the single official authorisation issued by the authorities of the Member State where the insurance undertaking establishes its head office, as specified in Title II of Directive 92/49/EEC(10); that condition should also apply to insurance undertakings having their head office outside the Community which have secured an authorisation granting them access to the activity of insurance in a Member State of the Community; Directive 73/239/EEC should be amended and supplemented accordingly.

In addition to ensuring that the insurance undertaking has a representative in the State where the injured party resides, it is appropriate to guarantee the specific right of the injured party to have the claim settled promptly; it is therefore necessary to include in national law appropriate effective and systematic financial or equivalent administrative penalties - such as injunctions combined with administrative fines, reporting to supervisory authorities on a regular basis, on-the-spot checks, publications in the national official journal and in the press, suspension of the activities of the company (prohibition on the conclusion of new contracts for a certain period), designation of a special representative of the supervisory authorities responsible for monitoring that the business is run in line with insurance laws, withdrawal of the authorisation for this business line, sanctions to be imposed on directors and management staff - in the event that the insurance undertaking or its representative fails to fulfil its obligation to make an offer of compensation within a reasonable time-limit; this should not prejudice the application of any other measure - especially under supervisory law - which may be considered appropriate; however, it is a condition that liability and the damage and injury sustained should not be in dispute, so that the insurance undertaking is able to make a reasoned offer within the prescribed time-limit; the reasoned offer of compensation should be in writing and contain the grounds on the basis of which liability and damages have been assessed….

It is necessary to make provision for a compensation body to which the injured party may apply where the insurance undertaking has failed to appoint a representative or is manifestly dilatory in settling a claim or where the insurance undertaking cannot be identified to guarantee that the injured party will not remain without the compensation to which he is entitled; the intervention of the compensation body should be limited to rare individual cases where the insurance undertaking has failed to comply with its duties in spite of the dissuasive effect of the potential imposition of penalties…

This system can be made to function by means of an agreement between the compensation bodies established or approved by the Member States defining their functions and obligations and the procedures for reimbursement.

Where it is impossible to identify the insurer of the vehicle, provision should be made so that the ultimate debtor in respect of the damages to be paid to the injured party is the guarantee fund provided for in Article 1(4) of Directive 84/5/EEC situated in the Member State where the non-insured vehicle, the use of which has caused the accident, is normally based; where it is impossible to identify the vehicle, provision must be made so that the ultimate debtor is the guarantee fund provided for in Article 1(4) of Directive 84/5/EEC situated in the Member State in which the accident occurred.

The objective of this Directive is to lay down special provisions applicable to injured parties entitled to compensation in respect of any loss or injury resulting from accidents occurring in a Member State other than the Member State of residence of the injured party which are caused by the use of vehicles insured and normally based in a Member State.

Each Member State shall take all measures necessary to ensure that all insurance undertakings covering the risks classified in class 10 of point A of the Annex to Directive 73/239/EEC, other than carrier's liability, appoint a claims representative in each Member State other than that in which they have received their official authorisation. The claims representative shall be responsible for handling and settling claims arising from an accident in the cases referred to in Article 1. The claims representative shall be resident or established in the Member State where he is appointed…

For the purposes of allowing the injured party to seek compensation, each Member State shall establish or approve an information centre responsible:

for keeping a register containing the following information:..

The Member States shall ensure that the injured party is entitled for a period of seven years after the accident to obtain without delay from the information centre of the Member State where he resides, the Member State where the vehicle is normally based or the Member State where the accident occurred the following information:

the name and address of the insurance undertaking;

the number of the insurance policy; and

the name and address of the insurance undertaking's claims representative in the State of residence of the injured party.

The information centre shall provide the injured party with the name and address of the owner or usual driver or the registered keeper of the vehicle if the injured party has a legitimate interest in obtaining this information. For the purposes of this provision, the information centre shall address itself in particular:

to the insurance undertaking, or

to the vehicle registration agency….

Each Member State shall establish or approve a compensation body responsible for providing compensation to injured parties in the cases referred to in Article 1.

if, within three months of the date when the injured party presented his claim for compensation to the insurance undertaking of the vehicle the use of which caused the accident or to its claims representative, the insurance undertaking or its claims representative has not provided a reasoned reply to the points made in the claim; or

if the insurance undertaking has failed to appoint a claims representative in the State of residence of the injured party in accordance with Article 4(1). In this case, injured parties may not present a claim to the compensation body if they have presented a claim for compensation directly to the insurance undertaking of the vehicle the use of which caused the accident and if they have received a reasoned reply within three months of presenting the claim.

The compensation body which has compensated the injured party in his Member State of residence shall be entitled to claim reimbursement of the sum paid by way of compensation from the compensation body in the Member State of the insurance undertaking's establishment which issued the policy…..

where the insurance undertaking cannot be identified: against the guarantee fund provided for in Article 1(4) of Directive 84/5/EEC in the Member State where the vehicle is normally based;

in the case of an unidentified vehicle: against the guarantee fund in the Member State in which the accident took place;

in the case of third-country vehicles: against the guarantee fund of the Member State in which the accident took place.

In these Regulations—

MIIC is approved as the information centre for the United Kingdom for the purposes of the fourth motor insurance directive

This regulation applies where—

an accident, caused by or arising out of the use of a vehicle which is normally based in an EEA State, occurs in the United Kingdom;

an accident, caused by or arising out of the use of a vehicle, occurs on the territory of—

an EEA State other than the United Kingdom, or

a subscribing state,

an accident, caused by or arising out of the use of a vehicle which is normally based in an EEA State, occurs on the territory of—

an EEA State other than the United Kingdom, or

a subscribing state,

Where this regulation applies, an injured party may request the information centre to provide to him the information described in paragraph (4) in respect of every vehicle involved in the accident which is normally based in an EEA State.

The information centre shall provide the information requested if the request is—

made in writing,

received by the information centre no later than seven years after the date of the accident, and

contains sufficient information to identify the vehicle in respect of which the information is being sought.

The information which may be requested in respect of a vehicle is—

the name and address of any insurer who has issued a UK insurance policy or European insurance policy covering the use of that vehicle at the time the accident occurred;

the number of that policy;

the name and address of that insurer's claims representative in the state of residence of the injured party; and

where the information centre is satisfied that the injured party has a legitimate interest in obtaining that information, the name and address of the registered keeper of the vehicle or, where the territory in which the vehicle is normally based is an EEA State other than the United Kingdom, the person having custody of the vehicle.

Upon receipt of a claim for compensation under regulation 11, the compensation body shall immediately notify—

the insurer of the vehicle the use of which is alleged to have caused the accident, or that insurer's claims representative;

the foreign compensation body in the EEA State in which that insurer's establishment is situated; and

if known, the person who is alleged to have caused the accident,

The compensation body shall respond to a claim for compensation within two months of receiving the claim.

If the injured party satisfies the compensation body as to the matters specified in paragraph (4), the compensation body shall indemnify the injured party in respect of the loss and damage described in paragraph (4)(b).

The matters referred to in paragraph (3) are—

that a person whose liability for the use of the vehicle is insured by the insurer referred to in regulation 11(1)(c) is liable to the injured party in respect of the accident which is the subject of the claim, and

the amount of loss and damage (including interest) that is properly recoverable in consequence of that accident by the injured party from that person under the laws applying in that part of the United Kingdom in which the injured party resided at the date of the accident.

This regulation applies where—

an accident, caused by or arising out of the use of a vehicle which is normally based in an EEA State, occurs on the territory of—

an EEA State other than the United Kingdom, or

a subscribing State,

that injured party has made a request for information under regulation 9(2), and

it has proved impossible—

to identify the vehicle the use of which is alleged to have been responsible for the accident, or

within a period of two months after the date of the request, to identify an insurance undertaking which insures the use of the vehicle.

Where this regulation applies—

the injured party may make a claim for compensation from the compensation body, and

the compensation body shall compensate the injured party in accordance with the provisions of Article 1 of the second motor insurance directive as if it were the body authorised under paragraph 4 of that Article and the accident had occurred in Great Britain.

This regulation applies where—

an injured party is resident in an EEA State other than the United Kingdom, and

that person has been compensated by the foreign compensation body of the State where he resides.

Where this regulation applies, the MIB shall be liable to indemnify the foreign compensation body in the following cases—

where the accident took place in the United Kingdom and it was caused by or arose from the use of—

an unidentified vehicle, or

a vehicle normally based in a territory which is not an EEA State or a subscribing state or part of any such state;

where the accident was caused by, or arose from the use of, a vehicle normally based in the United Kingdom but it has proved impossible to identify the insurer of that vehicle within 2 months from the date when the request for compensation was lodged with the foreign compensation body.

Civil Liability