Richards v Secretary of State for Transport, Court of Appeal - Queen's Bench Division, November 02, 2018, [2018] EWHC 2944 (QB)

Resolution Date:November 02, 2018
Issuing Organization:Queen's Bench Division
Actores:Richards v Secretary of State for Transport
 
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Neutral Citation Number: [2018] EWHC 2944 (QB)

Case No: TLQ17/0913

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 02/11/2018

Before:

MR JUSTICE FOSKETT

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Between:

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Robert Weir QC (instructed by Irwin Mitchell LLP) for the Claimant

Jemima Stratford QC and Isabel Hitching (instructed by Government Legal Department) for the Defendant

Hearing date 18 October 2018

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MR JUSTICE FOSKETT:

  1. The trial of a preliminary issue in this case is floating in a 3-day window commencing on 10 December 2018 with a time estimate of 4-5 days. The current issue before the court is whether it should take place or be stayed to await the outcome of the appeal in the case of Lewis v Tindale and MIB and Secretary of State for Transport [2018] EWHC 2376 (QB), a decision of Soole J given in a judgment handed down on 14 September 2018. Soole J gave permission to appeal. The Defendant submits that the stay should be imposed. The Claimant disagrees.

  2. The claim in the present case is a ``Francovich claim'' or a ``claim for Francovich damages''. Such a claim involves the assertion that the national government of an EU country is liable to pay compensation to an individual who has suffered a loss by reason of the State's failure to transpose an EU Directive into national law. The claim in this case is one brought by the Claimant against the Defendant in respect of an accident on private land caused (on the Claimant's case) by her mother's negligent use of a vehicle. The vehicle was insured against third party risks, but not (on the Claimant's case) if the insured was negligent. Since the accident occurred on private land, Part VI of the Road Traffic Act 1988 did not cover the circumstances of this accident. The Claimant was crushed by the rear ramp of a horse lorry causing her serious injuries.

  3. The preliminary issue ordered by Master McCloud on 8 June 2017 is as follows:

    ``Whether the defendant's admitted breach of duty is sufficiently serious to merit an award of damages.''

  4. The foregoing is the second of the three constituent elements of a Francovich claim which (following the CJEU decision in Brasserie du PĂȘcheur v Germany and R v SoST, ex p. Factortame (No. 4) Joined Cases C-46/93 and C-48/93 [1996] QB 404) are -

    (a) The EU rule of law in question was intended to confer rights on individuals.

    (b) That the breach of EU law is sufficiently serious to merit an award of damages; and

    (c) That the breach of EU law has directly caused loss to the claimant.

  5. Of those three elements, (a) is admitted in this case. (b) and (c) are in issue.

  6. The relevant Directive is Directive 2009/103/EC. Soole J described it in this way:

    ``17. Directive 2009/103/EC consolidates a number of Motor Insurance Directives (MID) relating to compulsory insurance against civil liability in respect of the use of motor vehicles and which date back to Council Directive 72/166/EEC of 24 April 1972. By Article 8 thereof, the latter required Member States to `...bring into force the measures necessary to comply with this Directive...' by no later than 31 December 1973. Unless otherwise stated, all references are to the Articles of the 2009 Directive.

  7. Article 3 headed `Compulsory insurance of vehicles' provides as material: `Each Member State shall, subject to Article 5, take all appropriate measures to ensure that civil liability in respect of the use of vehicles normally based in its territory is covered by insurance.

    The extent of the...

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