The Court of Appeal has overturned the High Court's decision and held qualified one-way costs shifting (QOCS) applies to a claimant seeking an indemnity from the Motor Insurers' Bureau (MIB).
The English Claimant was injured in a road traffic accident in France in March 2007. The French authorities were unable to identify the driver of the other vehicle. The fourth Motor Directive provides that a victim who suffers an accident in a Member State, other than his own, can make a claim in his own Member State. Article 6 of that directive requires every Member State to establish a compensation body (which is the MIB in the UK and the Fonds de Garantie ("FDG") in France).
Article 7 of the same directive provides that where there is an unidentified vehicle and unidentified insurer, the injured party can apply for compensation from the compensation body in the Member State where he resides (which can then claim against the compensatory body where the accident took place).
The 2003 Regulations were brought in by the UK to comply with the fourth Directive requirements. Regulation 13(2)(b) provides that "the compensation body shall compensate the injured party….as if it were the body authorised under paragraph 4 of [Article 1 of the second Motor Directive] and the accident had occurred in Great Britain".
Of issue in this case was the interpretation of "damages for personal injuries" under CPR 44.13 and whether the Claimant was entitled to QOCS protection under this provision for their claim against the MIB.
At first instance Stewart J concluded the claim against the MIB was not a claim for damages for personal injuries because the MIB had not injured the Claimant. As a result the Claimant was not entitled to QOCS protection as the compensation sought from the MIB was outside the scope of CPR 44.13.
Upon appeal Lord Justice Lewison held CPR 44.13 could be interpreted to include a claim for compensation under Regulation 13. Whilst Lewison LJ acknowledged this was a departure from the strict and literal application of the word 'damages' under CPR 44.13, he said to allow the provision to include compensation under Regulation 13 would not go against the grain of the CPR.
The ruling will be welcomed by claimants as QOCS will now apply to cases where the injured party pursues a right of compensation against a body rather than the actual wrongdoer. This will apply equally to claims under the Package Travel Regulations.
We are likely to now see an influx of claims before the courts as many cases have been stayed pending the decision of Howe.