Claim against MIB does not have protection of QOCS, High Court rules


RCJ

Stewart J: simple question, but no “simple answer”

A claim against the Motor Insurance Bureau (MIB) by the victim of an accident in France does not have the protection of qualified one-way costs shifting (QOCS), the High Court has ruled.

Mr Justice Stewart described the victim as “a person who has suffered personal injuries” and said that without QOCS he faced enforcement of an adverse costs order obtained by the MIB, a “well-funded” defendant.

“If his claim does not have QOCS protection, then injured persons in situations similar to his may be deterred from bringing claims for compensation.”

The court heard in Howe v Motor Insurers’ Bureau [2016] EWHC 884 (QB) that Michael Howe, a lorry driver, was left paraplegic after a wheel came off another lorry and hit his vehicle while he was driving in France.

He brought an action against the MIB under regulation 13(1) of The Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Board) Regulations 2003.

Stewart J ruled in the main action that Mr Howe’s claim was barred by limitation under English law and ordered him to pay 85% of the defendant’s costs.

Under CPR rule 44.13(1), he said a claim protected by QOCS must be “a claim for damages… for personal injuries”, but “this simple question does not yield a simple answer”.

However, Stewart J said that in interpreting CPR 44.13(1) he must bear in mind the purpose of the QOCS scheme.

“That said there may well be some cases (possibly a solicitor’s negligence claim secondary upon a personal injuries claim) which do not come within the words of Rule 44.13 and where there is no QOCS protection. The real question is whether this is such a case.”

The judge said counsel for the claimant relied, among other cases, on the Court of Appeal ruling in Byrne v MIB [2009] QB 66 that it was for national courts to determine whether the MIB arrangements satisfied European law principles of effectiveness and equivalence.

“The appropriate comparison for the purposes of the principle of equivalence is the system of remedies available for insured drivers. The fact that the MIB procedure, looked at as a whole, met the requirements of effectiveness and equivalence was not a sufficient answer to specific complaints in respect of costs.

“Costs are a procedural matter for which a member state is responsible, but are subject to the principles of effectiveness and equivalence.”

Rejecting these arguments, Stewart J said: “Whether the non-applicability of the QOCS regime offends the principles of equivalence and effectiveness is not for me to determine. This requires a wide-ranging and careful analysis.”

However, he said the construction of the QOCS rules under CPR 44.13(1) was clear and the MIB claim was “not one for damages for personal injuries”.

Mr Justice Stewart ruled that QOCS did not apply to the claim and “orders for costs made against the claimant may be enforced in the usual way”.

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