Sarfraz v Akhtar & Anor

For strike-out purposes, the court assumes the truth of the pleaded case and may act only where the claim is hopeless. Summary judgment requires a clear case in which the claimant has no real prospect of success and there is no compelling reason for trial.

Under s.151(4) of the Road Traffic Act 1988, it is properly arguable that a vehicle is not unlawfully taken until it is driven away. The expression “allowing himself to be carried” also contains a permissive element. Mere presence in the vehicle is insufficient where the passenger entered to prevent its taking.

The claimant, a protected party, suffered severe brain injury while travelling as a passenger in a car driven by the first defendant. The car was insured by the second defendant.

The claimant sued the driver and sought to enforce the insurer’s contingent liability under s.151 of the Road Traffic Act 1988. The insurer applied to strike out the claim or obtain summary judgment, arguing that the liability was excluded by s.151(4) because the claimant knew, or had reason to believe, that the car had been unlawfully taken and had allowed himself to be carried in it.

For the application, it was common ground that the driver had taken the car without the claimant’s authority and that the claimant had no reasonable opportunity to alight after the journey began.

1. Application dismissed. The insurer failed to establish that the claim had no arguable basis.
2. Under r.3.4(2)(a) of the Civil Procedure Rules 1998, the court focuses on the pleading and assumes the truth of the pleaded case. Strike-out is appropriate only where the case is hopeless. Under r.24.2, the court considers the evidence, but should avoid weighing competing evidence or making findings on the papers. Summary judgment is confined to clear cases.
3. The claimant’s pleaded case was that the car had been taken without his authority and that he entered it solely to prevent the first defendant from driving. Those facts had to be assumed for the strike-out application and could not properly be resolved summarily.
4. It was properly arguable that “unlawfully taken” in s.151(4) referred to the vehicle being taken without authority, consistently with s.12 of the Theft Act 1968. The verb “to take” involved movement. Taking the keys, sitting in the driver’s seat, or turning the ignition fell short of taking the car. The car was therefore arguably not unlawfully taken until it was driven away. After that point the claimant had no reasonable opportunity to alight.
5. The phrase “allowing himself to be carried” contained a permissive element. It did not mean mere presence in the vehicle. A true owner, kidnap victim, or police officer attempting to stop a theft would not necessarily be allowing himself or herself to be carried. On the assumed facts, the claimant’s case that he entered to prevent the driving was properly arguable.
6. The court noted that the insurer’s recovery rights under s.151(8) may be proportionate where the insured person caused or permitted the uninsured driving, applying Wilkinson v Fitzgerald [2012] EWCA Civ 1166; [2013] 1 W.L.R. 1776. That issue did not arise because the application proceeded on the basis that the claimant had not authorised the driving.