Moore v Secretary of State for Transport

In an appeal concerning an untraced-driver compensation scheme, a distinction must be drawn between an accidental failure to carry out a compliant document-based procedure and a system that is itself non-compliant with the governing directive. The scheme need not provide an oral hearing where the arbitrator decides on documents and the procedure is designed to disclose the material before him. However, in an inquisitorial process, it was arguable that an applicant should receive material historically used to produce an expert report, not merely the report itself. Permission could therefore be granted on an important additional issue, without expressing a view on its eventual success.

The appellant, who was seriously injured by an untraced driver in 1995, claimed damages from the Secretary of State on the basis that the 1972 MIB Untraced Drivers Agreement failed to implement the Second Motor Insurance Directive. He challenged the adequacy of the award made under the Agreement, including the assessment of future loss of earnings, interest and costs.

Mr Justice Eady struck out the claim as statute-barred and held alternatively that summary judgment should be entered against the appellant on the damages claim. Hughes LJ granted permission on the limitation issue but refused permission on the merits issue. The appellant renewed that application, raising the scope of disclosure in the inquisitorial arbitration procedure.

Application granted.

1. The Court of Appeal accepted that causation was a substantial obstacle. The uncertainty as to whether disclosure of the omitted letter would have altered the arbitrator’s assessment did not, however, justify summary judgment on causation alone. [9]-[10]
2. The critical question was what procedure should have been established to enable the appellant to comment on the letter. The 1972 Agreement required the arbitrator to decide the appeal on documents. The ECJ had given general approval to the scheme in Evans [2003] ECR I-14447, and that did not require an oral hearing. An intended document-disclosure procedure was not necessarily defective merely because an individual omission occurred. [11]-[12]
3. The appellant’s broader argument was nevertheless arguable. Because the process was inquisitorial and the MIB made the running, it was possible to contend that an applicant should receive all material historically used in preparing a single expert’s report, rather than only the report placed before the arbitrator. That material might have revealed both the backdating and the omitted letter. [13]-[15]
4. Given that the limitation appeal was already to be heard, and that the additional issue was important to the compliance of similar agreements, permission was granted on ground 2 as well. The court expressed no view on the likelihood of success. The issues were to be considered together. [14]-[16]

• Court of Appeal (Civil Division): Permission was granted on the limitation ground and on the renewed procedural ground. Both issues were directed to be considered together. [2007] EWCA Civ 908
• Queen’s Bench Division: Mr Justice Eady struck out the claim as statute-barred and held alternatively that summary judgment should be entered against the appellant on the damages claim.
• Permission stage: Hughes LJ granted permission on the limitation issue on the papers but refused permission to challenge the conclusion on the damages claim. The additional ground was renewed before the Court of Appeal.