Court of Appeal

Published July 2, 2008

Byrne v Motor Insurers’ Bureau and Another

Before Lord Justice Waller, Lord Justice Keene and Lord Justice Carnwath

Judgment May 22, 2008

The procedure for making a claim to the Motor Insurers’ Bureau for compensation in respect of injury caused by an untraced driver should be subject to a limitation period no less favourable than that which applied to the commencement of proceedings by minors for personal injury in tort against a traced driver.

Because the three-year time limit for the bringing of a claim under the Untraced Drivers Agreement 1972 was not compliant with Community law, the United Kingdom was in sufficiently serious breach of its Community law obligations to give rise in principle to a liability for damages.

The Court of Appeal so held when dismissing an appeal by the Motor Insurers’ Bureau and the Secretary of State for Transport against two declarations of Mr Justice Flaux in the Queen’s Bench Division (The Times June 15, 2007; [2008] 2 WLR 234) in a trial of preliminary issues which arose during the course of a dispute concerning a hit-and-run incident alleged by the claimant, Ben Byrne, a minor suing by his litigation friend Julie Byrne, to have occurred in 1993.

The MIB having in 2001 refused the claim for compensation under the 1972 Agreement as being out of time, the claimant commenced proceedings claiming damages for breach by the MIB of the 1972 Agreement as it should properly have been interpreted in accordance with Community law, alternatively for breach of statutory duty arising out of Community law directly applicable to the MIB.

Alternatively, the claimant made a claim against the secretary of state for damages for breach of statutory duty in failing properly to implement article 1(4) of Council Directive 84/5/EEC (OJ 1984 L8/17).

Mr Nicholas Paines, QC and Mr Josh Holmes for the claimant; Mr Dermod O’Brien, QC and Mr Fergus Randolph for the MIB; Mr Jonathan Crow, QC, Miss Jemima Stratford and Mr David Barr for the secretary of state.

LORD JUSTICE CARNWATH said that he agreed with the judge that in order to meet its intended role as implementing the 1984 Directive the MIB agreement should be subject to a limitation period no less favourable than that which applied to the commencement of court proceedings by a minor under section 28 of the Limitation Act 1980. The United Kingdom’s failure to comply with the Directive was sufficiently serious to expose it to a claim for damages.

Evans v Secretary of State for the Environment, Transport and the Regions (Case C-63/01) (The Times December 9, 2003; [2004] RTR 534; [2003] ECR I-4447) was clear that liability was to be decided in accordance with well established Community case-law principles. Evans was an authoritative statement of the legal context in which the 1972 Agreement had to be considered.

The “sufficiently serious” criterion laid down by the European Court of Justice was not a hard-edged test. It required a value judgment by the national court, taking account of the various factors summarised by the court in Evans.

In the present case, the important points were threefold: the relative precision of the requirement, following Evans; the serious consequences of failure to comply; and the clear warning in Evans of the need to make the comparison. The liability in principle was established.

Lord Justice Waller and Lord Justice Keene agreed.

Solicitors: Pinto Potts LLP, Aldershot; Greenwoods, Bloomsbury; Treasury Solicitor.

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