B3/2016/1575(A),
 (C), (D), (E) 
Neutral Citation Number: [2017] EWCA Civ 302
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM THE HIGH COURT 
QUEEN'S BENCH DIVISION 
(MR JUSTICE STEWART) 
Royal Courts of Justice 
Strand
London, WC2A 2LL 

Wednesday , 8 February 2017
 
B E F O R E:

 LORD JUSTICE LLOYD JONES 

LORD JUSTICE CHRISTOPHER CLARKE 

‑ ‑ ‑ ‑ ‑ ‑ ‑
 
MICHAEL HOWE 
Claimant/Appellant
‑v‑
 
MOTOR INSURERS BUREAU 
Defendant/Respondent 
 
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E A Gumbel QC (instructed by Fieldfisher LLP (not instructed below)), (previous solicitors Stewarts Law LLP) appeared on behalf of the Appellant 
Mr Howard Palmer QC and Ms Marie Kinsler (instructed by Weightmans LLP) appeared on behalf of the Respondent 
 
J U D G M E N T 
(Approved)
Crown copyright©

1.	LORD JUSTICE CHRISTOPHER CLARKE:  We have before us applications for permission to amend the grounds of appeal, to amend the particulars of claim and for permission to appeal in relation to the amended material.  
2.	The history leading up to today has involved a sequence of applications made at different times and in different terms.  For reasons which will become apparent, much of those applications has become moot.  
3.	The sad history of this case is this. On 30 March 2007, Mr Michael Howe was driving in France when a wheel detached itself from the lorry in front of him.  He was in no way at fault.  As a result of the accident that occurred he became paraplegic.  The offending lorry and the driver thereof have never been traced.  
4.	On 10 September 2007 Mr Howe, through his then solicitors, notified the Motor Insurers' Bureau ("MIB") of the accident.  He has received some compensation from the Fonds de Garantie des Assurances Obligatoires ("FDG"), the French equivalent of the MIB, but as of now, nearly nine years later, he has received nothing like the full compensation to which he would appear to be entitled.
5.	Mr Howe's claim in these proceedings is against the MIB for compensation for his injuries.  That claim appears originally to have been advanced under, or by reference to, the MIB Untraced Drivers' Agreement 2003.  However, that agreement only applies to drivers in Great Britain.
6.	The arrangements for compensating claimants in respect of injury suffered by the acts or omissions of uninsured or untraced drivers are the subject of extensive Community provisions.  They are now embodied in the sixth Motor Insurance Directive, but the relevant provisions for the purposes of this case were formerly in the first, second and fourth of such Directives.  The regulations which seek to give effect to these Directives are the Motor Vehicle (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003, SI 2003/37.  Those Regulations include the following provisions:
"9(1) This regulation applies where ‑
 (a) an accident, caused by or arising out of the use of a vehicle which is normally based in an EEA State, occurs in the United Kingdom;
 (b) an accident, caused by or arising out of the use of a vehicle, occurs on the territory of ‑
 (i) an EEA State other than the United Kingdom, or 
 (ii) a subscribing state 
and that vehicle is normally based in the United Kingdom;
 (c) an accident, caused by or arising out of the use of a vehicle which is normally based in an EEA State, occurs on the territory of ‑
 (i) an EEA State other than the United Kingdom, or 
 (ii) a subscribing state 
and an injured party resides in the United Kingdom.
 (2) Where this regulation applies, an injured party may request the information centre to provide to him the information described in paragraph (4) in respect of every vehicle involved in the accident which is normally based in an EEA State.
 [...]
 (4) The information which may be requested in respect of a vehicle is ‑
 (a) the name and address of any insurer who has issued a UK insurance policy or European insurance policy covering the use of that vehicle at the time the accident occurred;
 (b) the number of that policy;
 (c) the name and address of that insurer’s claims representative in the state of residence of the injured party; and 
 (d) where the information centre is satisfied that the injured party has a legitimate interest in obtaining that information, the name and address of the registered keeper of the vehicle or, where the territory in which the vehicle is normally based is an EEA State other than the United Kingdom, the person having custody of the vehicle.
 [...]
13(1) This regulation applies where ‑
 (a) an accident, caused by or arising out of the use of a vehicle which is normally based in an EEA State, occurs on the territory of ‑
 (i) an EEA State other than the United Kingdom, or
 (ii) a subscribing State, and an injured party resides in the United Kingdom
 (b) that injured party has made a request for information under regulation 9(2), and
 (c) it has proved impossible ‑
 (i) to identify the vehicle the use of which is alleged to have been responsible for the accident, or.
 (ii) within a period of two months after the date of the request, to identify an insurance undertaking which insures the use of the vehicle. 
 (2) Where this regulation applies ‑
 (a) the injured party may make a claim for compensation from the compensation body, and
 (b) the compensation body shall compensate the injured party in accordance with the provisions of Article 1 of the second motor insurance directive as if it were the body authorised under paragraph 4 of that Article and the accident had occurred in Great Britain."
7.	On 20 November 2014 Mr Howe made a request to the MIB for information under Regulation 9(2).  On 2 December 2014 Mr Howe began proceedings against the MIB.  In the action he seeks payment of compensation or damages from the MIB.  
8.	In March of last year Stewart J determined four preliminary issues.  By his judgment of 22 March 2016 he first decided that any liability of the MIB to pay compensation was not dependent on FMG being liable to do so, and that MIB's liability was to be determined under English law.  He regarded himself as bound in this respect by two decisions of the Court of Appeal, Jacobs v MIB [2010] EWCA Civ 1208, and Bloy v MIB [2013] EWCA Civ 1543. 
9.	Secondly, he determined that the time for bringing an action in France was five years, and that certain possible defences to the application of that limitation period were likely to be rejected in France.  
10.	Thirdly, he decided that the action was statute‑barred in English law since more than six years had expired from the date of the accident.  He held, first, that the cause of action was a statutory cause of action which arose under Regulation 13 of the 2003 Regulations; secondly, that the limitation period was six years from the date when the cause of action accrued, i.e. the date of the accident, under section 9 of the Limitation Act 1980; and, thirdly, that in untraced motorists claims the requirement in Regulation 13(1)(b) was not a necessary ingredient of the cause of action.  He rejected a submission that Regulation 13 effected a statutory modification of the MIB Untraced Drivers' Agreement 2003.  That agreement simply required an application in writing to be made within three years of the accident, which application had taken place.  Fourthly, he rejected the submission that MIB was estopped from relying on the English law limitation period.
11.	The judge granted Mr Howe permission to appeal in respect of the argument that by virtue of Regulation 13(1)(b) his cause of action did not accrue until a request had been made for information under Regulation 9(2.  He also gave the MIB permission to cross‑appeal on the question as to whether it was necessary to show that there was liability under French law.  That cross‑appeal has not yet been launched, but an extension of time for doing so is in place.
12.	On 12 April 2016 Mr Howe applied for permission to amend the amended Particulars of Claim and the grounds of appeal and for permission to appeal, in order to be able to argue that the applicable section of the Limitation Act 1980 was section 11.  He claimed that the action was an action in respect of personal injuries which attracted the operation of section 33.  The court would therefore have the power to allow the action to proceed, as the court would be urged to do, if it appeared to the court that it would be equitable to allow the action to proceed having regard to the degree to which the provisions of section 11 would prejudice Mr Howe.  I call this the "11/33" point.  This was a point which counsel who then acted for Mr Howe had put forward in a proposed amendment at the trial, but counsel had abandoned any attempt to make this point and had conceded that section 33 did not apply.  Thus the amended pleading which was permitted by the judge at trial did not contain the 11/33 point.
13.	On 3 August 2006 the Supreme Court handed down its judgment in Moreno v MIB [2016] UKSC 52.  In a judgment of Lord Mance, concurred in by the remaining members of the court, the court ruled that Jacobs and Bloy had been wrongly decided and expressly overruled them.  In that case the accident had happened in Greece.  After a lengthy consideration of the Directives and the 2003 Regulations and the Untraced Drivers' Agreement, the court held that compensation should be the same whether it was awarded against the driver or his insurer or the guarantee fund of the State of the accident, and should remain the same if and when the victim had recourse instead to the compensation body established in his own State.  The route by which compensation was arrived at could not make any difference.
14.	The court held that it was not consistent with the scheme of the Directives for the compensation body to provide compensation otherwise than in accordance with the law of the State of the accident.  The scheme of the Directives was that a victim's entitlement was to be determined by reference to the law of that State.  Thus the scope of MIB's liability in that case was to be determined by the laws of Greece.
15.	The effect of this decision, as Miss Gumbel QC recognises, is that Mr Howe's entitlement to compensation depends ‑ subject to one point ‑ on the laws of France.  However, the judge has held that under the laws of France the claim is time‑barred.  Mr Howe was refused permission by the judge to appeal that finding, and the application for permission has not been renewed.  The question as to what would have been the position if the relevant law was that of England has accordingly become academic.  
16.	In those circumstances, we should in my view strike out the appeal notice filed on 12 April 2016, Appeal Court reference 2016/1575.  MIB did not apply for this remedy, but as it seems to me we should act of our own motion.  The point for which permission was given was live when permission was given.  It is now dead.  There is no point in allowing the appeal on this point to go ahead to its inevitable failure.  There is equally no point in allowing an amendment to plead the 11/33 point, which is also moot.  
17.	There would in any event have been formidable difficulty in the way of persuading this court that such an amendment should be allowed.  The point was raised but abandoned before the judge.  If it had continued to be relied on, it would require evidence in order for it to be addressed.  No evidence directed to this issue was before the judge, although it could have been.  In order to get any appeal off the ground it would be necessary to adduce evidence now.  The admission of such evidence would not, however, satisfy the Ladd v Marshall test.  Further, even if the court admitted such evidence on appeal, it would probably be necessary for the matter to be restored to the judge to reach a conclusion as to whether it would be equitable to allow the action to proceed.  A conclusion that it would be equitable to allow the action to proceed would itself be difficult to secure, given that Mr Howe has been represented since an early stage by solicitors and no action was commenced within either three or five or six years, the proceedings being begun over seven and a half years after the accident.  If the points sought to be made were not moot, I would have declined to grant permission for them to be raised in any event.
18.	All the above assumes that section 11 of the Limitation Act 1980 applies.  That section applies:
"... to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person."
It is not self‑evident that a claim for compensation under Regulation 13(2) is an action for damages for breach of duty as opposed to an action sui generis for compensation under the Regulations.  
19.	There remains for consideration the potential impact of section 2 of the Foreign Limitation Periods Act 1984.  This provides an exemption to section 1 of the same Act which in defined circumstances provides for the application of foreign limitation law.  Section 2 provides:
"2(1) In any case in which the application of section 1 above would to any extent conflict (whether under subsection (2) below or otherwise) with public policy, that section shall not apply to the extent that its application would so conflict.
 (2) the application of section 1 above in relation to any action or proceedings shall conflict with public policy to the extent that its application would cause undue hardship to a person who is, or might be made, a party to the action or proceedings."
Reference is made to these provisions in the last paragraph of Miss Gumbel's skeleton argument of 20 November 2016.  It does not, however, yet form any part of any proposed amended grounds of appeal or of any proposed amendment to the Particulars of Claim.
20.	In my judgment we should not grant permission to amend to advance this point.  I say that for a number of reasons.  
21.	First and foremost, this is a point that could have been run before Stewart J in March 2016, given that the second issue before him was concerned with the French law of limitation.  It would have been open to Mr Howe to contend that, if French law did prima facie apply, it would be against public policy to allow it to do so.  That course was never taken, and there is no good reason why it could not have been or why evidence bearing on the question could not have been adduced.  
22.	Second, the advancement of the point would require fresh evidence which, as I have said, could have been adduced at the trial.
23.	Third, such application as has been made to rely on the point 
24.	is to be found in the skeleton argument filed some nine months after the trial.  
25.	Fourth, the contention that the application of the French five‑year limitation would cause undue hardship is not at all promising in circumstances where the appellant has been represented throughout and has allowed the limitation period, whether it be three, five or six years, to lapse.  
26.	Miss Gumbel points out that, if the relevant period of limitation was English, Mr Howe would be able to avail himself of section 33 of the Limitation Act 1980.  Whether he could do so is itself, as I have indicated, highly debatable.  This was the point abandoned at trial.  It was abandoned on the basis that there was no breach of duty within the meaning of the section on the part of the MIB.  
27.	I note also that there is some authority at first instance that the absence of an escape clause such as section 33 in a limitation regime cannot make the imposition of the foreign rule of law contrary to public policy: Connelly v RTZ Corporation, unreported, 4 December 1998, Wright J, referred to by Wilkie J in KXL v Murphy [2016] EWHC 3102 at paragraph 45(vi). The latter case sets out a helpful summary of the applicable principles, the application of which would make any successful implication of section 2(2) very difficult.  In addition, section 1 of the 1984 Act provides:
"Subject to the following provisions of this Act, where in any action or proceedings in a court in England and Wales the law of any other country falls (in accordance with rules of private international law applicable by any such court) to be taken into account in the determination of any matter ‑
 (a) the law of that other country relating to limitation shall apply in respect of that matter for the purposes of the action or proceedings, subject to sections 1A and 1B; and 
 (b) except where that matter falls within subsection (2) below, the law of England and Wales relating to limitation shall not so apply."
It seems to me an open question whether the law of France falls to be applicable "in accordance with rules of private international law", as opposed to pursuant to paragraph 13(2) of the Regulations as interpreted by the Supreme Court in accordance with its terms and its purpose in the light of the scheme and the Directives.  I note that the Supreme Court found it unnecessary to address further submissions that were briefly addressed to it on the Rome II Regulation.  
28.	In short, I would as a matter of discretion refuse permission to advance this point in view of the fact that it is raised very late; could have been raised below; would require evidence which could have been produced below; and is one whose validity is far from clear.  Miss Gumbel recognised – correctly - that for us to grant permission to raise all or any of the points now sought to be raised would itself be an act of extreme indulgence.  I am not persuaded that the facts of this case justify that.
29.	Accordingly, the order that I would make is that we should:
(a)	strike out the notice of appeal filed on 12 April 2016 with the Appeal Court reference that I have given; and
(b)	refuse permission to amend the notice of appeal and the Particulars of Claim as sought in the applications of 2 April 2016 and 23 November 2016. 
30.	 This will leave for consideration the appeal in relation to one‑way cost shifting for which Stewart J gave permission, which I do not take to be affected by the orders which I propose that we should make.  
31.	I would not wish to end this judgment without making it clear that I realise how much Mr Howe has suffered and continues to suffer on account of what happened in 2007 and what happened ‑ and equally what did not happen ‑ thereafter.  The aim of the Directive is to make it easier for victims to claim compensation when the driver who injured them cannot be traced, and to enable them to seek redress through the compensating body in their home State.  For Mr Howe there has been a decade of paraplegia without proper resolution of his claim.  I cannot, however, allow my very real sympathy for him to cause me to make an order which does not reflect the applicable legal principles or to exercise discretion on that sympathy alone.
32.	LORD JUSTICE LLOYD JONES:  I agree.