THE LIMITS OF QOCS: HIGH COURT DECISION TODAY

In Howe -v- Motor Insurers’ Bureau [2016] 884 (QB) Mr Justice Stewart considered the meaning of an action for “personal injury”. He held that  an action against the MIB under several regulations was not an action for personal injury and the claimant did not have the benefit of QOCS protection.

“The effect of my ruling is that the Claimant does not have protection under the QOCS regime”

KEY POINTS

  • An action against the MIB  on the issue of whether the MIB was liable to compensate the MIB under 2003 Regulations was not an action for damages for personal injuries as defined in the CPR.
  • Consequently the claimant did not have QOCS protection.

THE CASE

The claimant had been injured by a wheel which came off an unidentified lorry 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 (SI2003/37).  The Claimant was unsuccessful and the issue arose as to whether he was entitled to QOCS protection.

THE RULES

CPR Rule 44.13(1) sets out the scope of QOCS. The Rule states:

“44.13

(1) This Section applies to proceedings which include a claim for damages –

(a) for personal injuries;

THE JUDGE’S DECISION

The judgment sets out the competing arguments at some length.  However the judege concluded that the claimant’s action against the MIB was not an action for damages for personal injuries as defined in the CPR.
  1. The short answer to the point is that what I have to decide is ultimately a matter of construction of Rule 44.13, having regard to the principles set out by Lord Mance in Bloomsbury. The construction is clear in my judgment. Mr Howe’s claim against the MIB is not one for damages for personal injuries. Reference to the principles in the Marleasing case [1990] ECRI-4135 cannot change that construction. Nor can reference to Evans or Byrne. 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. In this regard I note, in particular from Evans, that the ECJ, whilst recognising the differences between the MIB procedure and a court procedure, acknowledged advantages in the MIB procedure in holding that the procedural arrangements adopted in the United Kingdom are sufficient to provide the protection to which unidentified or uninsured vehicle victims are entitled under the Second Directive (paragraphs 44 – 58). Given the procedural differences between a Regulation 13 claim and a standard claim for damages against an insured driver, I am not prepared to say, without more, that the lack of applicability of the QOCS regime does (or probably does) offend against the principles. This is, in any event, an unusual case. It is worth stating that though this is a claim under Regulation 13, claims before a court in respect of the Untraced Drivers’ Agreement are thought to be extremely rare. That Agreement contains its own internal procedure.
  2. The effect of my ruling is that the Claimant does not have protection under the QOCS regime.”

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