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On 12 July 2016 the Supreme Court heard the appeal of Moreno v The Motor
Insurers’ Bureau. It concerns the question of which law applies to the assessment of damages when an EU national is injured by a culpable, uninsured car in another EU member state – the law of the country in which the damage occurred or the law of the country in which the claim is brought.
Background
On 17 May 2011, Ms Tiffany Moreno, who lives in England and Wales, was on holiday on the Greek island of Zakynthos. During that holiday she was hit by a car that had left the road. She suffered severe injuries to her legs and has since received extensive surgical, medical and therapeutic treatment. She continues to suffer from physical and psychological pain. She has also suffered losses of earnings and it is claimed that she will be at a disadvantage on the open labour market.
The car that struck Ms Moreno was registered in Greece. Her solicitors contacted the Motor Insurers’ Bureau (“MIB“) to get the insurer details for the car. The MIB’s Greek equivalent considered the vehicle was uninsured and that the driver was responsible for the accident.
Ms Moreno issued a claim against the MIB under the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body Regulations) 2003 (SI 2003/37) (the “2003 Regulations”).
Legal issues
Under Regulation 13 of the 2003 Regulations an injured party who resides in the UK may make a claim for compensation from a compensation body (such as the MIB) where an accident, caused by the use of a vehicle which is normally based in an EEA state:
1. occurs in an EEA state other than the UK;
2. the injured party has made a request for information in accordance with the 2003 Regulations; and
3. it has proved impossible to identify an insurance undertaking which insures the use of the vehicle within 2 months of the request for information.
Regulation 13(2) states that the MIB shall compensate the injured party as if the accident had occurred in Great Britain.
However, under Regulation (EC) No 864/2007 of the European Parliament and Council on the law applicable to non-contractual obligations (“Rome II”), which is binding in its entirety and directly applicable in England and Wales, the law applicable to a non-contractual obligation arising out of a tort shall be the law of the country in which the damage occurs.
The MIB admitted liability under Regulation 13 of the 2003 Regulations, but contended that the measure of compensation payable should be assessed in accordance with the law of Greece. Ms Moreno’s solicitors submitted that the damages should be assessed in accordance with the law of England and Wales. The level of damages available to Ms Moreno in this case would be higher if they were calculated using English law rather than Greek law.
As such, the High Court was asked to decide the preliminary issue of whether the scope of the MIB’s liability to Ms Moreno should be determined in accordance with the law of England and Wales or the law of Greece.
High Court Decision
In Moreno v The Motor Insurers’ Bureau [2015] EWHC 1002 (QB), having reviewed the relevant domestic and European legislation and the case law, the High Court found that it was bound by the previous Court of Appeal decisions of Jacobs v MIB [2010] EWCA Civ 1208 and Bloy and Ireson v MIB [2013] EWCA Civ 1543. These decisions held that the damages in such a Regulation 13 claim should be assessed in accordance with the law of England and Wales.
In Jacobs a UK resident was hit by a car (with no identifiable insurer) in Spain driven by a German national in December 2007. The claimant commenced a Regulation 13 claim. A preliminary issue trial was ordered to determine whether Spanish or English law should be applied to the assessment of compensation. The Court of Appeal decided that compensation should be calculated in accordance with the law of the country in which the court dealing with the case is located, in this case England and Wales.
It is worth noting that the Supreme Court in Jacobs had granted the MIB permission to appeal the decision, but before this appeal was heard the Court of Justice of the European Union (“CJEU“) gave judgment in a subsequent case dealing with the date on which Rome II came into force – Homawoo v GMF Assurances SA [2011] EUECJ C-412/10. The CJEU in Homawoo held that Rome II applies to determine the governing law of non-contractual obligations only where the events giving rise to damage occurred after 11 January 2009. Consequently, it did not apply in the Jacobs case and the MIB’s appeal in that case was abandoned.
Given this judicial background, Mr Justice Gilbart in the present case found that he was bound by the Court of Appeal in Jacobs and Bloy. He therefore concluded that Ms Moreno’s compensation should be assessed in accordance with the laws of England and Wales. However, the judge commented that there was very considerable force in the MIB’s argument that the effect of Rome II on the interpretation of Regulation 13 meant that Jacobs had been wrongly decided, but that issue was for a higher court to decide.
Appeal to the Supreme Court
The High Court’s decision meant that Ms Moreno would receive a higher level of compensation under English law than she would have done under Greek. It also has potentially wide-reaching implications for the MIB, which would have to follow English law when assessing damages in all such cases in the future.
The High Court granted the MIB leave to appeal directly to the Supreme Court, as there was an important issue to be determined which would affect a substantial number of claims.