Summary
EU motor-insurance directives require victims to receive compensation through the insurer or, where necessary, the national compensation body. Member States may not add exclusions beyond those expressly permitted by the directives, unless justified by an established and proportionate domestic public-policy rule.
A crime-related exclusion in an uninsured drivers’ agreement was therefore incompatible with the directives. The United Kingdom had a closely circumscribed discretion and committed a sufficiently serious breach for Francovich state liability. Causation was not broken by the separate uninsured-vehicle exception because the claimant lacked actual knowledge or wilful blindness as required by White v White.
Factual background
The claimant was seriously injured as a passenger in a vehicle driven negligently during a criminal joint enterprise. The driver’s insurer avoided the policy under section 152(2) of the Road Traffic Act 1988. The claimant’s domestic claim against the driver and insurer was initially dismissed, but the Court of Appeal allowed the public-policy appeal and dismissed the claim under clause 6(1)(e)(iii) of the Uninsured Drivers’ Agreement 1999.
The claimant then alleged that the crime exception breached Articles 3.1, 1.4 and 2.1 of the relevant EU directives and claimed damages under the Francovich principle. The issues were whether the directives applied where insurance had been avoided, whether their permitted exclusions were exhaustive, whether the crime exception was lawful, and whether any breach caused recoverable loss.
Held
Directive coverage. Articles 1.4 and 2.1 of the Second Directive applied where a policy had been taken out but the insurer could avoid liability under domestic law. The United Kingdom’s arrangements placed the Article 75 insurer in the position of insurer of last resort, so the victim could not be left without a remedy merely because the policy had been avoided for misrepresentation or non-disclosure (paras [39], [48], [60]-[63]).
Exhaustive exclusions. The directives established a comprehensive code. Compensation had to be provided unless one of the specific exclusions or derogations stated in the directives applied. The recitals could not enlarge those express exceptions. The reasoning in Ruiz Bernaldez, Candolin and Farrell supported that conclusion (paras [41], [46]-[50], [63]-[67]).
Crime exception. Clause 6(1)(e)(iii) was a material additional exclusion. It was not merely a subset or explanation of the exception for a passenger who knew that the vehicle was uninsured under clause 6(1)(e)(ii). It therefore breached the United Kingdom’s EU-law obligations (paras [68]-[72]).
State liability. The Francovich test is applied contextually. The seriousness inquiry remains multifactorial, but the available margin of discretion is central. Where the directives are clear and leave little or no discretion, a material breach will more readily be sufficiently serious. The defendant had no wide legislative choice and could not establish that the breach was excusable. The breach was sufficiently serious to found liability (paras [74]-[85], [104]-[117]).
Causation. Applying White v White, the claimant did not have information from which he concluded that the vehicle might be uninsured while deliberately refraining from inquiry. His knowledge of cars did not justify an inference of actual knowledge or wilful blindness. The causation defence therefore failed.
There was judgment for the claimant on liability, with damages to be assessed (paras [118]-[124]).
The court’s approach to earlier authorities
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Appellate history
- Court of Appeal: On 21 December 2011, the Court of Appeal allowed the appeal on the ex turpi causa issue but, by a majority, dismissed it on the clause 6(1)(e)(iii) issue. No EU-law compatibility argument was determined.
- High Court (Queen’s Bench Division): The present court determined the EU-law and state-liability issues and gave judgment for the claimant on liability, with damages to be assessed.
Appeal route
- This judgment [2014] EWHC 1785 (QB) High Court (Queen's Bench Division)
- Appealed to[2015] EWCA Civ 172Outcomeappeal dismissed unanimously
Key cases cited
19 authorities cited.
- White (A.P.) v. White and the Motor Insurers Bureau [2001] UKHL 9
- R v Secretary of State for Transport, Ex p Factortame Ltd (No 5) [2000] 1 AC 524
- Nulty & Ors v Milton Keynes Borough Council [2013] EWCA Civ 15
- Wilkinson v Fitzgerald (Evans v Equity Claims Ltd, Evans v Cockayne) Case C-442/10
- Byrne (A Minor) v The Motor Insurers Bureau & Anor [2008] EWCA Civ 574
- Wisniewski v Central Manchester Health Authority [1998] PIQR P324
- Barco De Vapor BV & Ors (t/a Joint Carrier) v Thanet District Council [2014] EWHC 490 (Ch)
- Csonka v Magyar Állam Case C-409/11
- Candolin v Vahinkovakuutusosakeyhtio Pohjola Case C-537/03
- Evans v Secretary of State for the Environment, Transport and the Regions Case C-63/01
- Dillenkofer v Federal Republic of Germany [1997] QB 259
- R v Ministry of Agriculture, Fisheries and Food, Ex parte Hedley Lomas (Ireland) Ltd (Hedley Lomas (Ireland) Ltd, Ex parte) Case C-5/94
- R v HM Treasury, Ex parte British Telecommunications Plc (British Telecommunications Plc, Ex parte) Case C-392/93
- Brasserie du Pêcheur SA v Federal Republic of Germany (R v Secretary of State for Transport, Ex p Factortame Ltd (No 4)) Joined cases C-46/93 and C-48/93
- Ruiz Bernaldez Case C-129/94
- R v International Stock Exchange of the United Kingdom and the Republic of Ireland Ltd, Ex p Else (1982) Ltd (R v International Stock Exchange of the United Kingdom and the Republic of Ireland Ltd, Ex parte Thomas, Thomas, Ex parte) [1993] QB 534
- Francovich [1991] ECR 5357
- Owens v Brimmell [1977] QB 859
- Farrell v Whitty Case C-356
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Cases citing this case
3 later cases · 3 positive
Most senior citing decisions:
- Daniel James Colley v Motor Insurers' Bureau [2022] EWCA Civ 360 approved
- Lewington v The Motor Insurance Bureau [2017] EWHC 2848 (Comm) followed
- AD v The Home Office [2015] EWHC 663 (QB) applied
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