Motor Insurers’ Bureau

Byrne v Motor Insurers’ Bureau and another [2007] EWHC 1268 (QB); TLR 15 June

Clause 1(1)(f) of the Untraced Drivers’ Agreement provides for applications to be made by victims of untraced drivers to the MIB within a three-year time limit. The claimant was injured by a car in June 1993, when he was four years old, but an application was not made to the MIB until October 2001. The claim was rejected on the grounds that the time limit had expired. The claimant, by his parents, issued proceedings alleging that the agreement had to be interpreted in accordance with Community law or alternatively there was a breach of statutory duty arising out of Community law, applicable directly to the MIB. As a further alternative, the claimant sought damages against the Secretary of State for failure to properly implement article 1(4) of the Second Motor Insurance Directive (84/5/EEC) because the MIB procedure did not provide protection equivalent to, or as effective as, the protection provided by the English common law in respect of insured drivers, as a result of the disparity in terms of the time bar for making a claim under the agreement and the relevant provisions of the Limitation Act 1980. Even though the court was satisfied that the claimant had no common law claim against the MIB, the UK was sufficiently in serious breach of the terms of the Second Directive to give rise, in principle, to a claim for damages for its failure to amend clause 1(1)(f) of the Untraced Drivers’ Agreement to bring it into line with the Limitation Act 1980, and hence comply with article 1(4) of the Directive. This was not attributable to confusion or to misunderstanding, but to an inexcusable lack of thoroughness. That was compounded by the fact that, notwithstanding that the ECJ had in Evans v Secretary of State for the Environment (Case-C63/01) [2005] All ER (EC) 763 indicated that the Untraced Drivers’ Agreement did not comply with the Directive in certain respects, it seems that the Secretary of State had not checked the entire agreement to ensure compliance. In the context of the trial of preliminary issues, the court would say nothing about whether the claimant would in fact be able to recover such damages from the Secretary of State.