Kerry Underwood

MIB, SET-OFF AND QOCS

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These issues are dealt with in my book Qualified One-Way Costs Shifting, Section 57 Set-off available from Amazon here.

In Howe v Motor Insurers’ Bureau [2017] EWCA Civ 932, 6 July 2017

the Court of Appeal held that a Claimant who had lost his claim against the Motor Insurers’ Bureau, following an accident in France, enjoyed the protection of Qualified One-Way Costs Shifting and thus did not have to pay the costs of the MIB.

The Court of Appeal overturned the decision of the High Court which had held that the Claimant was not entitled to QOCS protection as the claim was not a claim for damages for personal injury, but rather for compensation under Regulation 13 of the Motor Vehicle (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003 (SI 2003/37).

Here the Court of Appeal held that the reference in CPR 44.13 to  “damages for personal injuries” could be interpreted easily to include a claim for compensation under Regulation 13 by applying the principles set out in Marleasing SA v La Comercial Internacional de Alimentacion SA (Case -106/89 [1990]) ECR 1-4135.

The Marleasing principle requires national legislation to be interpreted in accordance with European Union Law in so far as possible.

The purpose of QOCS is to ensure that those who have, or may have, valid claims for damages for personal injury are not deterred from pursuing them by fear of having to pay the Defendant’s costs, except in certain circumstances as set out in the QOCS rules.

The Court of Appeal also held, although by the stage it reached the hearing the parties had agreed the same, that QOCS applies to appeals in cases that are covered by QOCS at first instance.

Regulation 13 of the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003 reads:

Entitlement to compensation where a vehicle or insurer is not identified

(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.”

Regulation 16 provides:

“Any sum due and owing pursuant to these Regulations shall be recoverable as a civil debt.”

In Moreno v MIB [2016] UKSC 52

the Supreme Court said:

“In construing the 2003 Regulations, the starting point is that they should, so far as possible, be interpreted in a sense which is not in any way inconsistent with the Directives: Marleasing SA v La Comercial Internacional de Alimentación SA (Case C-106/89) [1990] ECR I-4135.”

Here the Court of Appeal held that the rationale underlying QOCS is a domestic version of the principle of effectiveness, that is that those who have, or may have, valid personal injury claims should be able to bring them without fear of the Defendant’s costs, save as set out in the QOCS exceptions themselves.

By the Claimant’s Regulation 13 claim being covered by QOCS he would be in an equivalent position to an injured person who sues an insured driver.

Comment:

A correct and welcome decision and, out of pure vanity, I set out my comment on the original High Court decision which has been overturned:

““This decision must be wrong in principle. It is over technical and fails to give effect to the clear intention of Parliament in implementing the Jackson Report, that is, as the judge himself here recognized, to protect “those who had suffered injuries from the risk of facing adverse costs orders obtained by insured or self-insured parties or well-funded Defendants.”

QOCS was of course brought in as part of a deal whereby those insured or self-insured parties would no longer have to pay the claimant’s After-the-Event insurance premium.

The effect of this decision is that a claimant in the circumstances does not get QOCS protection and to protect him or herself would need to take out ATE insurance, which is no longer recoverable from the paying party and therefore has to be paid by the claimant.

That is entirely contrary to the whole point of the Jackson Report on this point and entirely contrary to the clear will and intention of Parliament.
This decision should be overturned on appeal.

I am grateful to Ben Williams QC for advising me concerning this decision and for background information and material.”

 

Also see:

KERRY ON QOCS: BOOK UPDATE AND LINKS: UNIFIED

QOCS, APPEALS, SET-OFF & KAFKA

QOCS, PART 36, TWO DEFENDANTS: SOME PROBLEMS

QOCS, DISCONTINUANCE AND STRIKE-OUT AND OTHER THINGS

CREDIT HIRE, QOCS AND NON-PARTY COSTS ORDERS

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Written by kerryunderwood

July 18, 2017 at 7:49 am

Posted in Uncategorized

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