MIB to appeal to the Supreme Court over Spanish unisured driving case

The Motor Insurers' Bureau is to challenge a Court of Appeal ruling that Russell Jones & Walker claims now asserts that a person resident in the UK, but wrongfully injured in another EEA state, will recover damages on the same basis as a person resident and injured in the UK.

It follows the case of Clint Jacobs who suffered very serious injuries in Spain when a speeding vehicle drove into a shopping mall's car park, colliding with a number of parked vehicles before striking Mr Jacobs as he stood with his wife. He had time to push his wife to safety but he suffered serious leg injuries and a fractured pelvis.

RJW said the case is of special interest to lawyers because it marks the first time in seven years that the particular jurisdictional issue has come before the courts.

The defendant was uninsured and hence the claim was directed to the MIB.

Kimberley Owen, Partner at Russell Jones and Walker, applied for a direction on the preliminary point as to whether Spanish or English law applied to the assessment of damages, liability not being in issue. In the first instance the claimant lost, which left him with damages to be assessed under the much smaller levels obtainable under Spanish law; and the Spanish regime which does not include either interim payments or rehabilitation facilities.

Mr Jacobs appealed. His team of lawyers, headed by Alex Layton QC and Philip Mead of Counsel, argued that the Fourth Motor Insurance Directive had been implemented (as to the provisions relating to compensation bodies) in the 2003 regulations, whereby the MIB was approved as the UK compensation body; and that the clear meaning of regulation 13 was that where a person resident in the UK is injured in an EEA state by negligent driving of a vehicle normally used in an EEA state, and no insurance cover can be identified, then the person may make a claim against the MIB and the MIB must compensate him as if the accident had happened in Great Britain.

They said that under regulation 13 no issue arose which called for the application of conflicts of laws rules.

The respondents' argument was that under Rome II, Article 4, a general rule is enunciated which provides that the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the event giving rise to the damage occurred.

Ms Owen commented: "The Court of Appeal held unanimously that the right of an injured person to make a claim against the compensation body (here the MIB) derived from the 2003 regulations. In the absence of those regulations there would be no compensation body against which to claim, and no right to make a claim.

"Each member state had a right to decide how to draft the legislation to implement the Directive; it was their individual choice whether to provide a scheme which exceeded the minimum requirements of the Directive provided it did not actually conflict with the Directive. The 2003 regulations provide a scheme which means that in some circumstances the MIB may be required to pay more to the injured person than they can recover from the foreign compensation body.

"One effect of this scheme is that a person resident in the UK but wrongfully injured in another EEA state will recover damages on the same basis as a person resident and injured in the UK. In Mr Jacobs' case, he should recover very substantially more than he would have done under Spanish law. This is welcome news for the many UK residents who visit other EEA states, if they are unfortunate to be wrongfully injured there."

Paul Kitson , head of personal injury at RJW added: "Mr Jacobs' claim was run under a Conditional Fee Agreement - the so called "no win no fee" arrangement, and was backed by insurance at first instance. But it proved very hard to obtain any cover for the appeal.

"Eventually only £20 000 cover could be secured, leaving him exposed to the risk of meeting the whole of the shortfall in relation to the MIB's costs. The current government plans to make insurance premium and success fees irrecoverable would make it highly unlikely that this claim could have been brought at all, leaving Mr Jacobs with a tiny proportion of the damages he would otherwise recover.

"And - as always - the inequality of the parties' funding positions is underlined by the MIB's apparent intention to appeal to the Supreme Court."