This article is taken from 39 Essex Chambers’ Personal Injury Newsletter – April 2015.
Compatibility of MIB agreement with EU directives considered: The Court of Appeal delivered the significant judgment of Delaney v Secretary of State for Transport1 recently. This case concerned whether clause 6(1)(e) of the MIB’s uninsured drivers agreement complied with EU directives. Clause 6(1)(e) provides that the MIB’s obligation to meet a claim against an uninsured driver is subject to an exception in respect of:
“a claimant who, at the time of the use giving rise to the relevant liability was voluntarily allowing himself to be carried in the vehicle and, either before the commencement of his journey in the vehicle or after such commencement if he could reasonably be expected to have alighted from it, knew or ought to have known that –
(iii) the vehicle was being used in the course or furtherance of a crime.”
The Court considered whether this clause was incompatible with article 1(4) of Directive 72/166/EEC of 24 April 1972 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability. This is the article which requires the MIB to pay compensation for damage to property or personal injuries caused by an unidentified or uninsured vehicle. Article 1(4) sets out the two bases upon which payment of compensation can be excluded by the MIB. The first exception is where ‘persons who voluntarily entered the vehicle which caused the damage or injury when the body can prove that they knew it was uninsured’ and the second is ‘in the event of damage to property by an unidentified vehicle.’
The Court of Appeal upheld Jay J’s first instance decision that clause 6(1)(e) is indeed incompatible with EU law. They also upheld his conclusion that damages should be paid to Mr Delaney applying Francovich principles.
The need for proof of foreign law: Also worth reading is the case of Bianco v Bennett2 which reiterates the importance of pleading and proving foreign law. In that claim the Italian claimant brought two subrogated claims based on Italian law which were not recoverable under English law. Italian law had been neither pleaded nor proved as a fact by expert evidence. In the absence of satisfactory evidence of Italian law the court held that it had to apply English law. The subrogated claims as pleaded could not therefore succeed.
This article was written by Katherine Scott.
1  EWCA Civ 172
2  EWHC 626 (QB)