This case comment is by Patrick Vincent of 12 King’s Bench Walk.

The recent decision of the Supreme Court in Moreno has cleared up one – but only one – of the difficulties created by the complicated and fragmented way in which the legislature has attempted to implement the requirements of the EU Motor Insurance Directives.

The Claimant was injured by an uninsured driver in Greece. The issue was whether her damages should be assessed according to English or Greek law.

The claim was based on the Motor Vehicles (Compulsory Insurance)(Information Centre and Compensation Body) Regulations 2003. The purpose of the Regulations was to implement the requirement of the 4th Motor Insurance Directive that a driver resident in state A but injured in a road accident in state B should be able to claim compensation via a compensation body specifically set up for that purpose in State A, thus avoiding the victim having to bring proceedings in a foreign country.

In relation to such accidents caused by uninsured or untraced vehicles, regulation 13(2)(b) provided that

…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.’

In the preceding decisions of Jacobs v MIB [2010] EWCA Civ 1208 and Bloy v MIB [2013] EWCA Civ 1543, the Court of Appeal had decided that this regulation meant that an English claimant bringing a claim under the Regulations should have his or her claim valued according to English law. Whilst this was a reasonable interpretation of regulation 13(2)(b) it produced an anomalous result in the context of the Motor Insurance Directives as a whole, and in the context of Rome II. It meant that if an English Claimant claimed direct to a foreign guarantee fund then his damages would be assessed according to French law, whereas if he claimed via the MIB under the 2003 Regulations his damages would be assessed according to English law.

At first instance Gilbart J held that he was bound by Jacobs and Bloy to determine that Ms Moreno’s damages should be assessed according to English Law, but had considerable sympathy with the MIB’s arguments to the contrary and granted a leapfrog certificate to the Supreme Court.

Overruling Jacobs and Bloy, the Supreme Court clarified that the only effect of the wording of regulation 13(2)(b) was to identify the MIB as the compensation body to whom UK Claimants could look when bringing a claim in relation to an accident abroad. The words of the regulation did not have the added effect of entitling Claimants to have their damages assessed as if the accident had occurred in Great Britain.

There remain several areas of difficulty with the 2003 Regulations, but the decision in Moreno does appear to have disposed of the argument advanced by the MIB that in Regulation 13(2)(b) the words ‘as if it were the body authorised’ refer to the foreign guarantee fund – an argument run successfully by the MIB in Marshall v MIB & Others [2015] EWHC 3421 (QB) and unsuccessfully in Howe v MIB [2016] EWHC 640 (QB).

John-Paul Swoboda Motor Insurers' Bureau, Rome II ,

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