RTA abroad: consistency with EU law, for now
Moreno v Motor Insurers’ Bureau [03.08.16]
Supreme Court decides that Motor Insurers' Bureau’s liability should be determined in accordance with the law of Greece.
With the holiday season upon us, and many UK residents choosing to vacation in Europe, this judgment has clarified the applicable law where it has proved impossible to identify an insurer of one of the vehicles and Regulation 13 of the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003 applies. The consistency of approach, irrespective of whether an insurer can be located, must be welcomed.
However, this judgment is a clear reminder of how UK regulations should, so far as possible, be interpreted in a sense which is not in any way inconsistent with EU directives.
The ever-growing application of EU law within the UK has, of course, been a hotly debated issue throughout the recent referendum. As Lord Mance commented in his judgment:
“With British exit from the Union, this will, no doubt, be one of the many current arrangements requiring thought.”
Whether the UK government will choose to maintain the consistency of approach embodied within the Motor Insurance Directives and Rome II after Brexit remains to be seen.
One question the government might ask in the coming months is, does the current system for compensation for motor accidents overseas work? If it does, could we simply adopt a similar regime post Brexit? In true holiday fashion, answers on a postcard please!
The claim against the Motor Insurers' Bureau (MIB) stems from a series of EU Motor Insurance Directives, culminating in a consolidating Sixth Directive (2009/103/EC).
Transposed into English law, in part through the 2003 Regulations, the purpose of the Motor Insurance Directives is to harmonise the right to compensation across the EU and to facilitate the recovery of compensation for victims of motor accidents within the EU. In particular, the 2003 Regulations established the scheme (required under the Fourth Motor Directive) within the UK whereby a UK victim of a motor accident which occurs in another member state can claim compensation directly from the MIB where it has proved impossible to identify an insurer of the vehicle.
In the leading judgment, Lord Mance noted that there was no indication that the UK intended to do anything other than implement the UK’s European obligations through the 2003 Regulations. In construing the Regulations, he held that the starting point was therefore to interpret the Regulations in a way that was not “inconsistent” with the EU Directives.
Accordingly, the court had to answer two questions:
- Whether Article 7 of the Fourth Motor Directive (Article 25(21) of the Sixth Directive) prescribes a particular approach to the scope or measure of recovery applicable in a claim against a compensation body such as the MIB.
- If it does, whether Regulation 13(2) of the 2003 Regulations reflects this approach.
Lord Mance considered in detail the history of the Motor Insurance Directives as well as their predecessor, the Green Card System, and identified an intention that the victim of a motor accident should be entitled to the same compensation whether the driver was insured or uninsured.
By following the decision of the Court of Appeal in Jacobs v MIB  the measure of compensation could vary depending on the driver’s status:
- A claim against an insurer would be determined under Rome II (and in this case the law of Greece would apply).
- However, a claim against the MIB under Regulation 13 (because an insurer could not be identified) would be determined by reference to the law of England and Wales.
Lord Mance therefore held that it would not be consistent with the Directives for the MIB to provide compensation other than in accordance with the laws of the member state where the accident occurred.
The scheme set out by the Directives was clear. It is not up to individual member states to provide for compensation in accordance with any law that the state may choose. Consistency was key, and as such the Directives required that compensation be determined by reference to the law of the state of the accident. As EU law on this point was clear, Lord Mance considered that there was no need to contemplate a reference to the Court of Justice on the point.
Application of Regulation 13(2)
In Jacobs, the Court of Appeal had first looked at Regulation 12(4)(b) of the 2003 Regulations. This provides that, where a UK resident is the victim of a motor accident which occurs in another member state, a claim can be brought directly against the MIB where it has been possible to identify an EU insurer of the vehicle, but that insurer has not responded to the claim. Regulation 12 provides that, in such a situation, the amount of compensation shall be determined “under the laws applying in that part of the United Kingdom in which the injured party resided at the date of the accident.”
Lord Mance noted that the wording of Regulation 13(2) was notably different. It stated that the MIB should compensate the injured party in accordance with the Motor Directives as if “the accident had occurred in Great Britain.” He held that the purpose of the scheme laid down by the Motor Insurance Directives was to provide a consistent measure of compensation across the member states, whether the claim was made against an insurer or a compensation fund, such as the MIB. On this basis, there was no need to regard Regulation 13(2) as having further purpose or effect. The rather complicated wording was simply needed to expand the MIB’s liability to cover accidents when the vehicle responsible for the foreign accident was untraced.
As for Regulation 12, Lord Mance considered that the most obvious purpose of the wording was to determine which of the UK’s three legal systems should apply in proceedings which might be brought in any one of them. Even if the legislator had been intending to draw a distinction between liability and heads of recovery and the measure of compensation, that distinction had since been abolished through Rome II.
As a result of his findings, Lord Mance considered it unnecessary to address further submissions on Rome II. The MIB’s appeal was allowed and the scope of the MIB’s liability to the claimant fell to be determined in accordance with the law of Greece.
In 2011 the claimant, who lives in England and Wales, was on holiday in Greece. She was on the verge of a road when a car left the road and struck her, causing serious injuries.
The car was registered in Greece. The Greek equivalent of the MIB considered that the vehicle was uninsured and that the driver was responsible for the accident. The claimant made a claim against the MIB under Regulation 13(2) of the 2003 Regulations.
At first instance, Mr Justice Gilbart held as follows:
- Following Rome II, unless an exception applies, if a UK claimant is injured in a motor accident in Greece by an insured driver, the law by which liability is to be adjudicated and compensation calculated is the law of Greece.
- He was bound by the decision in Jacobs to find that damages in a claim under Regulation 13 should be governed by the law of the country in which the court dealing with the claim is situated, in this case under the law of England and Wales.
- There was some force in the defendant’s case that, given the fundamental change in the landscape introduced by Rome II, what was required was the interpretation of the 2003 Regulations so that Rome II was given effect. However, this was an issue for a higher court to decide.
The MIB was permitted to “leapfrog” its appeal directly to the Supreme Court.