Use of vehicles on private land – Supreme Court appears to have had nowhere to go

Last year we blogged about Lewis v Tindale & MIB (here) and alluded to the likelihood of the Supreme Court being asked to hear a further appeal. Those acting for the claimant now report that the SC has refused the MIB’s request for permission.

This refusal means the decision on appeal and the implications analysed in our blog stand, i.e. that the Bureau can be liable for claims arising from the use of motor vehicles on private land despite such use being outside the requirements of the Road Traffic Act.

Frankly, the refusal of permission is unsurprising – which is not at all to say it was misplaced to seek it. Taken together, the binding decisions of the Court of Justice of the EU in the key cases Vnuk v Zararovalnica and Farrell v Whitty (no. 2) simply don’t appear to have left any wriggle room for the SC. The former interprets the Motor Insurance Directive as requiring compulsory insurance cover for use of vehicles anywhere and the latter categorises the guarantee fund as an emanation of the state, thereby permitting claims against it (under the Francovich doctrine) in circumstances in which the national motor insurance law is narrower than the post-Vnuk scope of the Directive.

It would seem likely therefore that the terms of the SC’s refusal in this case might be framed in very similar language to that which it has used recently in completely different fields. Two particular formulations would appear relevant.

  • “Permission to appeal be refused because the application does not raise a point of law which ought to be considered at this time bearing in mind that the case has already been the subject of judicial decision and reviewed on appeal.”
  • “In relation to the point of European Law said to be raised by or in response to the application it is not necessary to request the Court of Justice to give any ruling because the Court’s existing jurisprudence already provides a sufficient answer.”

So, if case law will not provide an answer, where does this issue go? Surely there is a compelling case for the DfT to conduct a speedy consultation and full review of the impact of the decision?

The consequences mean that the Bureau – and therefore its members and the wider motor insurance premium paying public – are being required to pay for liabilities which were simply not envisaged when the present MIB agreements with the government were put in place. Even if the funding of future cases such as Lewis was capable of being resolved, the retrospective imposition of liability for existing cases certainly feels inequitable (and, perhaps, justiciable?).

One view is that the UK has, since the Vnuk decision and the EU referendum, bumbled along and kicked the motor insurance law reform can down the road (or other public place…), perhaps in the hope that ‘Brexit’ will provide an easy answer.

It won’t. The end of the line in the Lewis litigation must surely now be a catalyst for the government actively to consult on properly worked-up policy options about what to do here and for an informed debate on who ultimately should pay.


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Alistair Kinley, Director of Policy & Government Affairs alistair.kinley@blmlaw.com

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