THE MOTOR INSURERS BUREAU IS AN EMANATION OF THE STATE: IT IS LIABLE TO INDEMNIFY CLAIMANT INJURED BY AN “OFF ROAD” VEHICLE

I am grateful to  David Gauler of Thompsons, solicitors,  for sending me a copy of the judgment of Mr Justice Soole in Lewis -v- Tinsdale & the Motor Insurers Bureau [2018] EWHC 2376 (QB), a copy of which is available here  davidg_17-09-2018_15-50-12. It is on the important issue of when the MIB is liable for accidents that take place “off road”.

THE CASE

The claimant suffered serious injuries when walking on private land, he was struck by an uninsured 4 x 4 vehicle.  He obtained judgment against the driver, who was debarred from defending liability.   The key question in the case was whether the MIB had any liability.  The matter was set down for a preliminary trial on the issue of the MIB’s liability to indemnify.

KEY POINTS OF THE DECISION

Mr Justice Soole found that the MIB were liable to indemnify the claimant.  This a long and complex judgment reviewing the authorities in considerable detail. They key points are:-

• The MIB is an “emanation of the state”.
• This differed from an earlier judgment of Flaux J, but it was held that subsequent case law led to the conclusion that the MIB was an “emanation” for the purposes of the Insurance Directives.
• The MIB was, therefore, liable to indemnify the claimant, at least to the minimum requisite cover of EUR 1 m per victim.

DAVID’S COMMENTS

David has provided me with a useful summary.

“Upshot is  MIB are now an emanation of the state, compulsory insurance directives can now be read down against them, they must now cover accidents on private land (in accordance with EU case of Vnuk).

Arguably, and this will need to be litigated by others going forward, the decision rips up the MIB agreements or at least a lot of their exclusions for not paying out. Technically, the directives only permit one real exclusion (knowingly entering  stolen vehicle) and there is an argument that every other exclusion that the MIB rely on that a standard defendant couldn’t rely on in a normal civil case breaches the EU principle of “equivalence” and a Claimant will just need to plead reliance on the directive to get around. This opens up civil litigation in untraced claims.

Left undecided is the level of compensation the MIB must indemnify under a claim made under the Directive. The Directive sets a minimum of 1 million Euros. It is therefore unknown whether recovery will be limited to that amount. Anyone pursuing on the Claimant side should plead “equivalence” again.”

 PERMISSION TO APPEAL

The MIB have permission to appeal.