Evans v The Secretary Of State For The Environment, Transport And The Regions And The Motor Insurers Bureau [2001] Court of Appeal

Reported: [2001] EWCA Civ 32
Year: 2001
Court: Court of Appeal

FACTS:-

The facts and history of this case are set out in Evans v Motor Insurers Bureau; Mighell v Reading; White v White [1999] 1 LLR 30 which was decided by Mr Justice Buckley in the Queen’s Bench Division of the High Court. The Defendants, the government and the MIB appealed against that decision to the Court of Appeal.

HELD:-

Lord Justice Walker said that the principal issue on the appeal was whether the judge erred in referring two of the five questions that were to be put to the European Court of Justice. There was also a secondary issue as to whether there should be summary judgment pursuant to CPR Part 24 against the Claimant.

Lord Justice Walker referred to the judgment of Hobhouse LJ in Evans v MIB [1999] 1 LLR 30 as well as the judgement of Diplock LJ in Gurtner v Circuit [1968] 2 QB 587.

He then turned to the provisions of Article 1(4) of the Second Motor Insurance Directive of the 30th December 1983 (84/5/EEC). The obligation to amend national provisions so as to comply with the Directive was to be performed by the 31st December 1987. The amended provisions had to take effect from the 31st December 1988. The government, after consultation with the MIB took the view that no new measures were required to implement Article 1(4) of the Directive as regards untraced drivers.

Lord Justice Walker referred to a witness statement from the MIB’s claims manager, Mr Roger Snook which gave a detailed account of the MIB’s procedures in an untraced driver application. These were:-

Notification of claim
Inquiries and investigations carried out by MIB or its member
An informal offer by the MIB
Formal adjudication
If the Claimant wishes to appeal, formal adjudication, as a rehearing by a different adjudication panel
Appeal to an independent arbitrator

He then referred to the questions set by Justice Buckley to be put to the European Court of Justice. These were:-

whether the MIB was duly authorised by the First Defendant, pursuant to the Second Directive;
whether the First Defendant was in breach of obligations under the Second Directive in respect of;

the absence of any provision for the payment of interest

the absence of any provision for payment of costs

the procedural method adopted by the MIB in relation to claims by victims of unidentified drivers;

in the event that the answers to any of the above questions was yes, whether the claimant was a member of a class of persons intended to be protected or benefited by the Second Directive and thereby entitled to bring an action against the First Defendant.

There was then a fourth question:-

“……has a Member State duly authorised a body under Article 1(4) of the Directive when an existing body has the task of providing compensation to victims pursuant only to an agreement with the relevant authority of the Member State that does not correspond to the Directive in those respects, and:

a)    that agreement creates a legal obligation owed to the relevant authority of the Member State to provide compensation to victims which is directly enforceable by the relevant authority and does not give such victims a directly enforceable legal right to claim against that body, but the victim may apply to the Court for an order that the authority should enforce the agreement if the authority were to fail to do so; and
b)    that body carries out that obligation by accepting and paying claims from victims in accordance with that agreement; and
c)    the Member State considered in good faith that the provisions of that agreement gave at least as good protection to victims as the requirements of the Directive?”

Finally there was a fifth question, was whether a failure to comply with the Directive in that respect constituted a sufficiently serious breach by the Member State as to give rise (if causation is established) to liability for damages as a matter of community law.

The Claimant’s counsel had said that other MIB cases awaited the outcome of this case. This was denied by the Government and MIB counsel.

The Government counsel (supported by the MIB’s counsel) argued that even if the third and fourth questions were seriously open to debate, there were academic because the Claimant’s complaints about the MIB and its procedures were, on the facts, bound to fail. It did not matter whether or not his claim was fairly adjudicated on by a duly authorised body, because any breach of Community law was not causative of the loss pleaded in his Statement of Claim.

However this was too bold a submission because no full fact finding exercise had taken place. Walker LJ did not think that the Court of Appeal or the court below should find as a fact, that the outcome would have different if the Claimant had had the right to an oral hearing on the facts. The Claimant’s counsel had pointed out that if the preliminary issues were necessary to determine the action, then the questions posed to the European Court of Justice must be equally necessary. Furthermore it would be difficult if not impossible for any court to decide the issue of whether there had been a grave and manifest breach of Community law which had been causative of loss, without knowing what breaches of Community law had been established.

Walker LJ commented that he was concerned about the huge expense of this litigation, of which was being conducted at public expense. The amount at stake originally was quite small, and there was not it seemed any accumulation of other cases waiting on its outcome.

Therefore the appeal would be dismissed.

Lord Justice Judge went over the history of the litigation. He said that the total costs of both side amount to something in excess of £100,000, and that did not include the costs of the hearing before Justice Buckley and the present hearing before the Court of Appeal.

On the face of it, the litigation was about £8,000 in interest and just over £8,000 for the Claimant’s costs of the hearing before the arbitrator appointed by the MIB. The MIB made an informal offer of £50,000 to settle the litigation, which marginally exceeded the amount awarded by that arbitrator. However in fairness if the Claimant managed to dispose of the finding of contributory negligence, he might well exceed that offer of £50,000.

The assessment of the Claimant’s claim for loss of earnings was not ungenerous. He was a man of 67 at the time of the accident in a precarious business. The real issue here was not the claim for interest or the costs of the arbitration, but the costs of the litigation in the High Court and Court of Appeal thereafter.

The Claimant had been in receipt of public funding since 1999. He had not paid the costs orders made against him, in his appeal to the High Court against the Arbitrator’s decision and his subsequent appeal to the Court of Appeal. Therefore the likelihood was that the other parties to the litigation would have to spend more on litigation without any hope of recovery.

Unless the Claimant won on every point, he would end up with nothing, and even if he did succeed the litigation would not necessarily be over. Judge LJ remained seriously troubled about the reference to the European Court of Justice but that reference could not be stigmatised as merely theoretical, or hypothetical. The appeals would be dismissed, but he urged the parties to consider the practicalities of what they were about.

The Lord Chief Justice agreed with both judgments above.

Malcolm Johnson & Co Solicitors is regulated by the Solicitors Regulation Authority. - Registered No. 364117

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Evans v The Secretary Of State For The Environment, Transport And The Regions And The Motor Insurers Bureau [2001] Court of Appeal

FACTS:-

HELD:-

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