What one hand gives, the other takes away

 What one hand gives, the other takes away.

Sophie Firth examines Howe v Motor Insurers’ Bureau [2016] EWHC 884 (QB) in which the High Court ruled that QOCS does not apply in claims against the MIB where the Claimant has been injured in the EEA by an untraced driver.

THE ISSUE

Is a claim for compensation against the MIB where the Claimant has been injured in the EEA by an untraced driver a claim for damages for personal injury, such as to entitle the Claimant to QOCS protection?

THE LAW

The Claimant had been injured by an untraced driver in the European Economic Area and claimed under s13(1) of the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body Regulations 2003 (“the 2003 Regulations”).

For QOCS to apply, under CPR 44.13 the proceedings must include a claim for damages for personal injury.

THE DECISION

The High Court held that a claim under the 2003 Regulations does not include a claim for damages for personal injury:

• When interpreting CPR 44.13, the purpose of QOCS had to be borne in mind. This purpose was to protect those who had suffered injuries from the risk of facing adverse costs orders obtained by insured, self-insured or well-funded Defendants and to prevent injured persons from being deterred from bringing claims. The Claimant – who was rendered paraplegic in the accident – fell within this class of persons QOCS is intended to protect.

• However, the index case – similarly to a solicitor’s negligence claim secondary to a personal injuries claim – was a special case which did not attract QOCS protection.

• McGregor on Damages distinguishes damages – an award of money for a civil wrong – from actions claiming money under statute, where the claim is made independently of a wrong.

• No breach of duty or other civil wrong had been alleged against the MIB.

• s16 of the 2003 Regulations specifically states that any sum due pursuant to the Regulations is “recoverable as a civil debt”. This is recoverable under statute without the need for a breach of duty or other wrong on the part of the MIB.

• The Court did not consider that the question of whether QOCS complied with the EU principles of equivalence and effectiveness was for it to determine.

THE WIDER IMPLICATIONS OF THE DECISION

It may well be that this is essentially a decision confined to its own facts, because it deals only with the provision relating to untraced drivers in the EEA and, as the High Court commented, these cases reach Court very infrequently. There is no equivalent provision to regulation 16 of the 2003 Regulations in the domestic Uninsured Drivers Agreement 2015.

However, because the Court held that no breach of duty or civil wrong had been alleged against the MIB, there is a chance that its applicability could extend to untraced and uninsured drivers domestically. There is also potential for the principle to extend more broadly to cases brought directly against insurers under Reg 3 of European Communities (Rights Against Insurers) Regulations 2002, because this has been held to be a claim for an indemnity under statute limited to the insurer’s liability to their insured as opposed to a claim for personal injury (Nemeti v Sabre Insurance Co Ltd [2013] EWCA Civ 1555).

Whether such extensions would offend the principles of equivalence and effectiveness remains to be determined. The Court hinted that a wide disapplication of QOCS to domestic untraced and uninsured drivers would be non-compliant.

SOPHIE FIRTH

PUPIL BARRISTER