Colley V Shuker & Ors

At an interlocutory stage, a claim has a realistic prospect of success where it is more than fanciful, but the court should avoid conducting a mini-trial. A short point of law may be determined summarily where the evidence and submissions are sufficient, including in an area of developing jurisprudence.

EU law incompatibility may give a claim a real prospect of success, but a domestic court cannot adopt a purposive interpretation which contradicts clear statutory language or amounts to amendment. Nor may a directive be relied upon to disapply domestic legislation in a dispute between private parties. Service at a defendant’s last known residence remains effective under the CPR where reasonable steps have been taken to ascertain the current address.

The claimant, a passenger seriously injured in a road accident, brought proceedings against the driver, an insurer and the Motor Insurers’ Bureau. Three applications were before the court.

• The insurer sought strike-out and summary judgment on the basis that it had obtained a declaration allowing it to avoid the policy under section 152 of the Road Traffic Act 1988.
• The Motor Insurers’ Bureau sought to set aside an extension of time for service on the driver.
• The claimant sought permission to join the Secretary of State for Transport and amend the Particulars of Claim.

The central issues were whether the insurer’s statutory defence was incompatible with Directive 2009/103/EC, whether that incompatibility could be remedied by interpretation or disapplication, whether service was effective, and whether the amendments should be permitted.

1. Insurer’s application. The pleaded claim against the insurer was struck out and summary judgment was entered for it. The claimant’s argument that section 152(2) of the Road Traffic Act 1988 was incompatible with Directive 2009/103/EC had a real prospect of success. That was sufficient to prevent the court from treating the incompatibility issue itself as fanciful.
2. Section 152(2), however, used clear language and provided the insurer with a complete defence where the statutory declaration had been obtained. The proposed implication of a residual discretion to set aside or disregard the declaration would go against the grain of the legislation and cross the boundary between interpretation and amendment. The incompatibility therefore could not be resolved by a permissible purposive interpretation.
3. The claimant’s claim was against a private insurer and sought to enforce rights derived from a directive. Under Smith v Meade (Case C-122/17), a directive could not of itself impose obligations on a private individual or require domestic legislation to be disapplied in a dispute between private persons. The court accordingly had no obligation or power to disapply section 152(2). The claimant also lacked standing to set aside the earlier declaration and had no direct claim against the insurer under the European Communities (Rights against Insurers) Regulations 2002.
4. Service. The claimant had taken reasonable steps by instructing an enquiry agent to ascertain the driver’s address shortly before service. Sending the claim form to that last known residence therefore engaged the deeming provision in CPR 6.14, and good service was effected. The fact that the claim form was returned did not itself displace the deeming provision, applying Cranfield v Bridgegrove [2003] EWCA Civ 656.
5. Alternatively, an extension of time was properly granted. The claimant had a reasonable explanation, had not delayed until the last moment, had taken reasonable steps to identify the address, and the third defendant suffered no prejudice. The application to set aside the extension was dismissed.
6. The claimant was permitted to join the Secretary of State for Transport and amend the Particulars of Claim, except insofar as the allegations against the insurer had been struck out.