Colley -v- Shuker & ors (defendants/appellants)

Wednesday 2 – Thursday 3 February 2022

Before Lord Justice Holroyde
Lord Justice Stuart-Smith
Lord Justice Warby

The Third Defendant (the MIB) appeals two orders of Freedman J sitting in the QBD following his judgment dated 14 December 2020.

1 :- Is the appeal of Freedman J’s order dated 31 December 2020 whereby he answered two issues as to whether (1) having regard to Articles 3 (1) and 12 of Directive 2009/103/EC (the 2009 Directive) the MIB was liable to pay C compensation in the circumstances of this case -YES (2) the MIB had a defence under Article 10(2) 2nd sub paragraph of the 2009 Directive – NO.

He also refused the MIB’s asking for a reference to the CJEU and refused permission to appeal. He adjourned costs and other consequential issues.

2 :- is the appeal of Freedman J’s consequentials order dated 29 January 2021 making costs orders against the MIB.

The claim arises out of a route traffic accident on 27 March 2015 in which C was catastrophically injured. C was a passenger in a vehicle driven by the First Defendant (D1) which crashed due to D1’s negligence. D1 was not insured to drive the vehicle and C knew this before entering the vehicle. Judgment has been entered against D1 dependent to contributory negligence.

C also claimed against the Insurers of the vehicle (D2), the MIB and the secretarial assistant of province for Transport (D4). In 2016 the Insurers obtained an order avoiding the policy of insurance on the basis of material misrepresentation and so are exempt from any obligation to meet any judgment against D1.

The secretarial assistant of province admits in its Defence that s152 (2) of the 1988 Act was not compliant with EU law at the relevant time. The claim against the secretarial assistant of province was stayed pending the determination of the Preliminary Issues. The secretarial assistant of province denies the claim.