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STUART MCCALL (Claimant) v DANIEL POULTON (First defendant) & MOTOR INSURERS' BUREAU (Second defendant/Appellant) & (1) HELPHIRE (UK) LTD (2) ANGEL ASSISTANCE LTD (Interveners/Respondents) (2008)

CA (Civ Div) (Waller LJ, Carnwath LJ, Wilson LJ) 21/11/2008



INSURANCE - CIVIL PROCEDURE - EUROPEAN UNION - ROAD TRAFFIC



DIRECT EFFECT : EUROPEAN COURT OF JUSTICE : MOTOR INSURERS' BUREAU : REFERENCES TO EUROPEAN COURT : UNINSURED DRIVERS : APPROPRIATENESS OF REFERENCE TO EUROPEAN COURT OF JUSTICE : DIRECTIVE 84/5 : DIRECTIVE 84/5 ON INSURANCE AGAINST CIVIL LIABILITY IN RESPECT OF THE USE OF MOTOR VEHICLES 1983 : art.1(4) DIRECTIVE 84/5 ON INSURANCE AGAINST CIVIL LIABILITY IN RESPECT OF THE USE OF MOTOR VEHICLES 1983



A judge had been entitled to conclude that it was necessary to refer to the European Court of Justice a question of construction of Directive 84/5 and the issue of whether the Motor Insurers' Bureau was an emanation of the state.



The appellant Motor Insurers' Bureau appealed against a decision to refer to the European Court of Justice questions arising out of its dispute with the respondents regarding compensation for the victim of an uninsured driver. A taxi driver (M) was involved in a motor accident caused by a negligent driver (P). M needed a replacement vehicle so he hired one from the first respondent (H). He also obtained a post-accident insurance policy, provided by the second respondent, to cover the legal costs of his claim against P, and H's charges if they were not met by P. It transpired that P was uninsured, and he paid M no compensation. M claimed on the policy, and the insurers paid H's hire charges. The MIB compensated M for his physical injury and other losses but, in reliance on either or both of the exclusions in the Uninsured Drivers Agreement clauses 6(1)(c) and 17(1), declined to pay for the hire charges. The respondents submitted that the MIB could not rely on either of the exceptions in the Uninsured Drivers Agreement because (1) on the proper construction of Directive 84/5 the effect of applying the principle in Marleasing SA v La Comercial Internacional de Alimentacion SA (C-106/89) (1990) ECR I-4135 ECJ (6th Chamber) would be to strike them out; (2) in any event art.1(4) of the Directive was directly effective, the MIB was an emanation of the state and therefore M had a direct claim against it under the Directive. The MIB submitted that the House of Lords had ruled in White (Brian) v White (2001) UKHL 9, (2001) 1 WLR 481 that the Marleasing principle did not apply to private agreements such as the Uninsured Drivers Agreement, and that it was for the national court to consider whether the MIB was an emanation of the state, which it had decided it was not in Byrne v Motor Insurers' Bureau (2007) EWHC 1268 (QB), (2008) 2 WLR 234


HELD: (1) Only if there had been some development at the ECJ, since White v White, indicating that it might take the view that the Marleasing principle should apply to an agreement similar to the Uninsured Drivers Agreement, would it be right to refer to the ECJ the question of whether White v White was correct, Marleasing and White v White considered. It was certainly arguable that the ECJ had subsequently taken the view that the courts had an obligation to construe an agreement entered into or relied on for the very purpose of fulfilling an obligation under the Directive in accordance with the Marleasing principle, Evans v Secretary of State for the Environment, Transport and the Regions (C-63/01) (2005) All ER (EC) 763 ECJ (5th Chamber) and Pfeiffer v Deutsches Rotes Kreuz Kreisverband Waldshut eV (C-397/01) (2004) ECR I-8835 ECJ considered. The judge in Byrne v MIB did not refer in his judgment to the decision in Pfeiffer or apparently consider its possible effect. Therefore the judge in the instant proceedings was right to conclude that this was a difficult issue and he was entitled to conclude that it should be referred to the ECJ. (2) In the ECJ views had been expressed that cast some doubt on whether the decisions in Byrne and Mighell v Reading Unreported September 30, 1998 CA that the MIB was not an emanation of the state represented the position under European law, Farrell v Whitty (C-356/05) (2007) 2 CMLR 46 ECJ, Byrne and Mighell v Reading considered. The High Court in Ireland had ruled that the Irish equivalent of the MIB was an emanation of the state, Farrell v Whitty (2008) IEHC 124, (2008) Eu LR 603 considered. It was difficult to think that a body such as the MIB or its equivalent should be an emanation of the state in one member country and not in another. Although strictly it might have been for the Court of Appeal to decide whether the MIB was an emanation of the state, it would be of assistance to have the guidance and view of the ECJ. The judge could not be criticised for referring the matters, which were of some general importance, to the ECJ.



Appeal dismissed



Counsel:

For the appellant: Dermod O'Brien QC, John McDonald, Marie Louise Kinsler For the respondents: Iain Milligan QC, Benjamin Williams



Solicitors:

For the appellant: Weightmans LLP

For the respondents: Burges Salmon LLP



LTL 21/11/2008 (Unreported elsewhere)



Judgment: Approved subject to editorial corrections - 17 pages



Document No.: AC0119072




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