This blog post is by James Beeton of 12 King’s Bench Walk.
The issue in this case was the applicability of the QOCS provisions contained in CPR Part 44 to claims against the Motor Insurers’ Bureau (“MIB”) pursuant to reg. 13 of the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003 arising out of accidents abroad. The Court of Appeal’s decision on this issue and the reasoning employed have significant implications for the viability and impact of claims against compensatory bodies at home and abroad.
Background
C was driving a lorry in France when a wheel detached from a lorry in front of him. Through no fault of his own, C collided with the wheel. The resulting accident left him severely injured. Neither the other vehicle nor its driver could be traced. C eventually brought a claim against the MIB pursuant to reg. 13 of the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003. The claim was dismissed on the ground that it was statute barred and C was ordered to pay 85% of the MIB’s costs. His appeal against the decision to dismiss the claim was subsequently struck out following Moreno v MIB [2016] UKSC 52.
The remaining issue before the Court of Appeal related to the costs of the claim and of the unsuccessful appeal. This was because Stewart J below had held that, as a matter of construction, C’s claim was not a claim for damages for personal injury for the purposes of CPR r. 44.13 and hence did not qualify for QOCS protection.
Decision
Lewison LJ, giving the leading judgment, noted that the right of action under the 2003 Regulations had been enacted in order to give effect to the UK’s obligations under the Fourth Motor Insurance Directive (Directive 2000/26/EC). The 2003 Regulations therefore had to be interpreted so far as possible in a manner consistent with the Directive (following Marleasing SA v La Comercial Internacional de Alimentación SA (Case C-106/89) [1990] ECR I-4135).
Drawing on the ECJ’s earlier guidance in relation to the Second Motor Insurance Directive (Directive 1984/5/EEC) in (Case C-63/01) Evans v Secretary of State for the Environment, Transport and the Regions [2005] All ER (EC) 763, he determined that whether costs are recoverable (and enforceable) by the MIB in line with those Directives is a matter for an individual member state, subject to respect for the principles of ‘equivalence’ and ‘effectiveness’ –
- In relation to the principle of equivalence, he noted that: ‘it follows that if the rules relating to the recoverable costs in a claim against the MIB are less favourable to a claimant than the rules relating to the recoverable costs in a claim against an insured driver, the principle of equivalence will have been breached. Plainly, if an injured person sues an insured driver his claim will be covered by QOCS.’
- In relation to the principle of effectiveness, he noted that ‘the principle requires that national laws or procedures do not render practically impossible or excessively difficult the exercise of rights conferred by EU law.’
He went on to hold that the court’s interpretive duty under Marleasing applied not only to national provisions enacted to give effect to EU directives, but also to national law as a whole – including the relevant provisions of the CPR in Part 44. Nor did the application of those principles necessarily depend on the court reaching a positive conclusion one way or the other about the existence of any EU law rights (i.e. in circumstances where it had already been determined that C had no such rights).
The Fourth Directive required the ability to claim ‘compensation’ from the compensation body. Article 1.1 of the Fourth Directive described it as ‘compensation in respect of any loss or injury resulting from accidents.’ Article 1.4 of the Second Directive described it as ‘compensation …for … personal injuries.’ Lewison LJ was satisfied that ‘[i]n view of the requirement in regulation 13 that the MIB must compensate the injured party “in accordance with Article 1 of the second motor insurance directive” I do not consider that there is any difficulty in characterising Mr Howe’s claim as a claim for compensation “for personal injuries”.’
Crucially, ‘[t]he rationale underlying QOCS is, in my judgment, a domestic version of the principle of effectiveness. Those who have (or may have) valid claims for damages for personal injury should not be deterred from pursuing them by the risk of having to pay the defendant’s costs, except in the circumstances laid down by Section II of Part 44. If Mr Howe’s claim under regulation 13 is covered by QOCS he will be in an equivalent position to an injured person who sues an insured driver.’
His conclusion was therefore as follows:
‘The change required is to disapply the common law taxonomy of legal claims to a claim to compensation under regulation 13 and to treat the word “damages” in Part 44.13 as including compensation under that regulation. That is, no doubt, a departure from “the strict and literal application of the words”. However, I do not consider that it “goes against the grain” of the CPR. As Mr Williams QC, for Mr Howe, pointed out the glossary of terms in Appendix E to the CPR itself describes “damages” as a “sum of money awarded by the court as compensation to the claimant”. Nor does this interpretation run counter to the underlying thrust of either the CPR or QOCS. As the judge himself said, Mr Howe is within the rationale which inspired QOCS. This interpretation is also supported by Lord Mance’s statement in Moreno at [31] that the compensation to which the injured party is entitled is “the same compensation as that to which the victim is entitled as against the driver responsible.”’
It followed that C had the benefit of protection under QOCS. The judge below had indicated that if he were wrong about the application of QOCS then he would not have exercised his discretion in favour of MIB on the basis of a further argument under r. 44.16(2)(b): that conclusion would not be disturbed.
Comment
As above, the Court of Appeal’s decision has significant implications for claims against compensatory bodies at home and abroad. The strong likelihood is that Claimants will benefit from QOCS in such claims. The broad interpretive approach suggests that a similar approach may also be adopted in relation to direct claims against insurers under the European Communities (Rights against Insurers) Regulations 2002.
The outcome in this case is to be contrasted with the outcome in Wagenaar v Weekend Travel Ltd [2014] EWCA Civ 1105. In Wagenaar, QOCS protection was not afforded to a defendant in a personal injury action who sought an indemnity or contribution from a third party who had been joined pursuant to CPR Part 20. However, the two decisions are mutually consistent: the Court of Appeal in Howe was able, adopting a purposive interpretation, to find that a claim against a compensatory body was a claim for damages for personal injury. By contrast, it would have taken more than a purposive interpretation in Wagenaar for the Court of Appeal to find that a claim for an indemnity or contribution by a defendant in a personal injury action was a claim for damages for personal injury.
The Court of Appeal relied heavily on the Marleasing duty in order to interpret the 2003 Regulations in line with the relevant EU Directives: absent that duty it seems hard to escape the conclusion that the ‘strict and literal interpretation of the words’ would win out, with the result that Stewart J’s original decision would stand. EU law remains prevalent within the English statute books, both directly and indirectly. But once Brexit has occurred in March 2019, will the courts still need to take a European approach to interpretation or will the courts revert to the ‘strict and literal’ approach more familiar to English lawyers? Will a European approach to interpretation be required in relation to the legislation and secondary legislation caught under the (one-time ‘Great’) Repeal Act? These questions remain unanswered but this case provides a useful insight into how a European approach to interpretation can lead to a different outcome. Given the outcome in this case, it is not hard to imagine how the English interpretation of the law preserved under the Repeal Act might vary from the supposedly same law being applied in Europe.