Earlier this month, the Court of Appeal again examined the legal consequences of an injury to a passenger caused by the driving of a uninsured car that was being used to supply drugs. The same Court had, in Delaney v Pickett in 2011, held that a particular clause in the MIB’s agreement operated to bar a civil claim for damages in such circumstances. In the current case, it also barred the claim for damages but for a quite different reason.
The recent case of Smith v Stratton and MIB differs from Delaney because in the latter the criminal activity was not causative of the injures. Delaney was injured in a single vehicle accident caused by his driver’s negligence. The fact that both of them were using the car to transport and supply cannabis was irrelevant to how the accident was caused. On that basis, Delaney’s civil claim would not be defeated by the ex turpi causa rule and would, ordinarily, have succeeded. However, because his claim lay against an uninsured driver it was therefore barred by a particular clause in the MIB’s agreement which prevented recovery of damages if the car was being used in furtherance of a crime.
The damages claim in Smith arose out of a collision caused by the uninsured defendant’s driving while attempting to evade the police. The police were pursuing the car because it was being used to supply drugs. The driver and all three passengers had previous drug convictions. The defendant driver was in prison at the time of the civil trial and gave a written statement in which he confirmed that he and his passengers, of which Smith was one, had been dropping off drugs and that he had driven off when spotted and pursued by the police.
The judge found that all in the car were jointly involved in the crimes of supplying illegal drugs and attempting to evade arrest. This criminal activity could not be separated from how Smith’s injuries had been caused. It followed that the ex turpi rule should apply and would prevent the recovery of damages for his injuries.
On 8 December the Court of Appeal agreed with the judge’s findings and conclusions and dismissed Smith’s appeal. It added that neither the fact that the MIB clause that defeated Delaney’s claim had subsequently been held to be incompatible with EU law nor that it (the clause) had thereafter been removed from the 2015 version of the MIB agreement would be of any help to Smith.
Although these last points are not part of the reasoning in Smith – which failed on ex turpi alone – they do seem to be soundly-based. The rule was properly invoked in this case and is a defence against liability in English law. It is difficult to see how it might offend against the EU Motor Insurance Directive. In contrast, the clause of the previous MIB agreement that barred Delaney’s claim had set out an exception to the scope of the compulsory insurance regime which was not permitted by the Directive. As a consequence, Delaney went on to succeed in a public law claim for damages against the UK Government and the MIB agreement was changed. Neither outcome seems very likely should Smith take any further action following the dismissal of his claim.
Note also that the ex turpi rule was successfully used as a defence in Joyce v O’Brien in 2013, which also involved the passenger and driver in a joint criminal enterprise that was causative of the accident. Once that civil claim had been dismissed no further proceedings were brought against the Government.
Smith v Stratton and MIB, reported on Lawtel on 9 December 2015 [The full text of the judgment had not published when this blog was posted]
About the Author
Alistair Kinley is BLM’s Director of Policy & Government Affairs.
Alistair is responsible for BLM’s engagement with government departments and regulators on policy and public affairs issues and consultations affecting the firm and its customers. He coordinated BLM’s market-facing activities in connection with the Insurance Act 2015 and the consultations which preceded its publication and introduction in Parliament.
He is a member of the Civil Justice Council (CJC), a regular speaker and experienced commentator on legal and procedural reforms and was a contributing editor to the Law Society’s Litigation Funding Handbook (September 2014).