Moore v Secretary of State for Transport Motor Insurers Bureau [2007] EWHC 879 (QB)

[2007] EWHC 879 (QB)

Case No HQ06X00325

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 20 th April 2007

Before

THE HON. MR JUSTICE EADY

Between

Kenneth Dudley MooreClaimant

The Secretary of State for TransportFirst Defendant

Motor Insurers BureauSecond Defendant

Robert Seabrook QC and Oliver Sanders (instructed by Lewis Cutner & Co) for Claimant

Jonathan Crow QC, Jemima Stratford and David Barr (instructed by the Treasury Solicitor) for First Defendant

Dermod O’Brien QC and Fergus Randolph (instructed by Greenwoods) for Second Defendant

Hearing Hearing date: 29 March 2007

Judgment

[1]Mr Kenneth Moore, the Claimant, seeks a remedy in damages against the Secretary of State for Transport in accordance with the principles in Joined Cases C-6/90 and C-9/90 Francovich v Italian Republic

[1991] ECR I-5357

. The Motor Insurers Bureau (“MIB”) was joined as a second defendant at its own instance because it may potentially be affected by the outcome and is an interested party. The applications brought on behalf of the Secretary of State, and argued before me on 29 March 2007, are to strike out the claim as a whole as being statute barred and/or for summary judgment under CPR Part 24 in respect of a significant part of the claim, which is said to have no real prospect of success.

[2]The claim for damages is based upon the proposition that the United Kingdom has failed properly to implement Council Directive 84/5/EEC (generally referred to as “the Second Motor Insurance Directive”). This required Member States to put in place provisions for the protection of those injured by uninsured or untraced drivers of motor vehicles.

[3]Mr Moore was a professional actor with the Royal Shakespeare Company at the time when he was, at the age of 28, seriously injured in a motor accident which took place on 19 April 1995. The driver of the vehicle was untraced. A claim was submitted on his behalf (by the first firm of solicitors he instructed) on 6 July 1995 pursuant to the 1972 Untraced Drivers Agreement, which was still operative at that time. Unfortunately, the matter dragged on and it was only confirmed on 30 September 1997 that the MIB was willing to make an award in principle. On 7 June 1999 (by which time Mr Moore was represented by his third firm of solicitors) an award was made by the MIB in the sum of £376,286.

[4]Not being satisfied with the award, Mr Moore’s solicitors served a notice of appeal on 21 July 1999, together with written submissions and a bundle of documents. He had been encouraged by an opinion on quantum from Mr David Kemp QC, dated 15 April 1999, which valued the claim at about £1.19m.

[5]In due course, on 8 February 2000, Mr Alan Rawley QC, who had been appointed as arbitrator for the purposes of the appeal, significantly increased the award to £585,134.56 and also awarded interest on the sum which represented the difference between the two awards in accordance with s.49 of the Arbitration Act 1996. That was the extent of his powers so far as an award of interest was concerned.

[6]The present claim was begun on 3 February 2006 (i.e. just short of 6 years after the arbitrator’s award). By this time Mr Moore was represented by his fourth firm of solicitors. It is his contention that if the Second Motor Insurance Directive had been properly transposed into domestic law he would have been awarded substantially greater compensation. His claim may be conveniently sub-divided as follows: i) £605,075.44 in respect of damages (“the damages claim”); ii) £53,729.30 by way of interest (“the interest claim”); and iii) £15,051.75 by way of costs (“the costs claim”).

[7]Although the Secretary of State’s application based on limitation applies to all three elements of Mr Moore’s claim, it should be noted that the application for summary judgment is confined to what has been called the “damages claim”. It is thus recognised, subject to the limitation point, that Mr Moore would have at least an arguable case in respect of interest and costs; that is to say, his contention that the Second Motor Insurance Directive obliged the United Kingdom government to make provision for the payment of interest and the recovery of costs (including legal costs) in respect of claims against the MIB.

The legal background

[8]Before I turn to the arguments on the applications before me, I need to consider the legal background in further detail. The public policy considerations underlying the Second Motor Insurance Directive, of 30 December 1983, are well known. In particular, it was recognised that “… the amounts in respect of which insurance is compulsory must in any event guarantee victims adequate compensation irrespective of the Member State in which the accident occurred”. Moreover, in those cases where a driver causing an accident was uninsured or unidentified, it was necessary to make provision for “a body to guarantee that the victim will not remain without compensation”. It was accordingly required by Article 5(1) that Member States should amend their national provisions to comply with the Directive not later than 31 December 1987 and, by Article 5(2), that the provisions thus amended should be applied no later than 31 December 1988.

[9]For present purposes, the critical requirements are contained in Article 1(4): “Each Member State shall set up or authorize a body with the task of providing compensation, at least up to the limits of the insurance obligation for damage to property or personal injuries caused by an unidentified vehicle or a vehicle for which the insurance obligation provided for in paragraph 1 has not been satisfied. This provision shall be without prejudice to the right of the Member States to regard compensation by that body as subsidiary or non-subsidiary and the right to make provision for the settlement of claims between that body and the person or persons responsible for the accident and other insurers or social security bodies required to compensate the victim in respect of the same accident. The victim may in any case apply directly to the body which, on the basis of information provided at its request by the victim, shall be obliged to give him a reasoned reply regarding the payment of any compensation. However, Member States may exclude the payment of compensation by that body in respect of persons who voluntarily entered the vehicle which caused the damage or injury when the body can prove that they knew it was uninsured. Member States may limit or exclude the payment of compensation by that body in the event of damage to property by an unidentified vehicle. They may also authorize, in the case of damage to property caused by an uninsured vehicle an excess of not more than 500 ECU for which the victim may be responsible. Furthermore, each Member State shall apply its laws, regulations and administrative provisions to the payment of compensation by this body, without prejudice to any other practice which is more favourable to the victim”.

[10]As at 31 December 1987, there was already within the United Kingdom an agreement in operation dated 22 November 1972 between the Secretary of State for the Environment and the MIB, which was known as the 1972 Untraced Drivers Agreement. That was, as I have said, the regime under which Mr Moore applied in 1995. It is the Secretary of State’s primary case that, in the light of these existing arrangements, it was unnecessary for the United Kingdom to introduce any new legislation for the purpose of transposing the Second Motor Insurance Directive effectively into domestic law. Although it is not directly relevant, I should record that subsequently changes have come into effect which provide for greater rights to victims in these circumstances. I am concerned, on the other hand, with the provisions of the 1972 Agreement which, it is agreed, governed the situation at all times material to Mr Moore’s claim.

[11]So that the issues can be properly understood, it is desirable that I should set out those parts of the 1972 Agreement which are relevant as background to the present applications:

“1. (1) Subject to paragraph (2) of this Clause, this Agreement applies to any case in which an application is made to MIB for a payment in respect of the death of or bodily injury to any person caused by or arising out of the use of a motor vehicle on a road in Great Britain and the case is one in which the following conditions are fulfilled, that is to say – (a) the event giving rise to the death or injury occurred on or after the 1 December 1972; (b) the applicant for the payment either (i) is unable to trace any person responsible for the death or injury, or (ii) in a case to which Clause 5 hereof applies where more than one person was so responsible, is unable to trace one of those persons. (Any person so untraced is hereinafter referred to as ‘the untraced person’); (c) the death or injury was caused in such circumstances that on the balance of probabilities the untraced person would be liable to pay damages to the applicant in respect of the death or injury; (d) the liability of the untraced person to pay damages to the applicant is one which is required to be covered by insurance or security under Part VI of the Road Traffic Act 1972, it being assumed for this purpose, in the absence of evidence to the contrary, that the vehicle was being used in circumstances in which the user was required by the said Part VI to be insured or secured against third party risks; (e) the death or injury was not caused by the use of the vehicle by the untraced person as a weapon, that is to say, in a deliberate attempt to run the deceased or injured person down; (f) the application is made in writing within three years from the date of the event giving rise to the death or injury. … 2. (1) An application to MIB for a payment in respect of the death of or bodily injury to any person may be made either by the person for whose benefit that payment is to be made (hereinafter called ‘the applicant’) or by any solicitor acting for the applicant or by any other person whom MIB may be prepared to accept as acting for the applicant. … 3. Subject to the following provisions of this Agreement, MIB shall, on any application made to them in a case to which this Agreement applies, award to the applicant in respect of the death or injury in respect of which the application is made a payment of an amount which shall be assessed in like manner as a court, applying English law in a case where the event giving rise to the death or injury occurred in England or Wales or applying the law of Scotland in a case where that event occurred in Scotland, would assess the damages which the applicant would have been entitled to recover from the untraced person in respect of that death or injury if proceedings to enforce a claim for damages in respect thereof were successfully brought by the applicant against the untraced person. … 7. MIB shall cause any application made to them for a payment under this Agreement to be investigated and, unless MIB decide that the application should be rejected because a preliminary investigation has disclosed that the case is not one to which this Agreement applies, they shall cause a report to be made on the application and on the basis of that report MIB shall decide whether to make an award and, if so, the amount of the award which shall be calculated in accordance with the foregoing provisions of this Agreement. … 9. (1) MIB shall notify their decision to the applicant and when so doing shall – (a) if the application is rejected because a preliminary investigation has disclosed that it is not one made in a case to which this Agreement applies, give their reasons for the rejection; or (b) if the application has been fully investigated furnish him with a statement setting out – (i) the circumstances in which the death or injury occurred and the evidence bearing thereon, (ii) the circumstances relevant to the assessment of the amount to be awarded to the applicant under this Agreement and the evidence bearing thereon, and (iii) if they refuse to make an award, their reasons for that refusal; and (c) in a case to which Clause 5 of this Agreement applies specify the way in which the amount of that award has been computed and its relation to those provisions of Clause 5 which are relevant to its computation. … 10. Subject to the provisions of this agreement, MIB shall, - (a) on being notified by the applicant that MIB’s award is accepted; or (b) if at the expiration of the period during which the applicant may give notice of an appeal under Clause 11 hereof there has not been given to MIB either any such notification as aforesaid of the acceptance of MIB’s award or a notice of an appeal under the said Clause 11, pay the applicant the amount of that award, and such payment shall discharge MIB from all liability under this Agreement in respect of the death or injury in respect of which that award has been made. 11. The applicant shall have a right of appeal to an arbitrator against any decision notified to him under Clause 9 hereof on any of the following grounds, that is to say, - (a) that the case is one to which this Agreement applies and that his application should be fully investigated by MIB with a view to their deciding whether to make an award to the applicant and, if so, the amount of that award; or (b) where the application has been fully investigated – (i) that MIB were wrong in refusing to make an award, or (ii) that the amount they have awarded to the applicant is insufficient; or (c) in a case where a decision not to indemnify the applicant against the costs of any proceedings has been notified under Clause 9(2) hereof, that that decision was wrong, if, within six weeks from the date when notice of the decision against which he wishes to appeal was given to him, the applicant, not having previously notified MIB that their decision is accepted, gives notice to MIB that he wishes to appeal against their decision. … 13. The applicant may, when giving notice of his appeal or at any time before doing so, make comments to MIB on their decision and may supply them with such particulars as the applicant may think fit of any other evidence not contained in the written statement supplied to the applicant by MIB which he considers is relevant to the application and MIB may, before submitting the applicant’s appeal to the arbitrator, cause an investigation to be made into this further evidence and shall report to the applicant the result of that investigation and of any change in their decision which may result from it. The applicant may, within six weeks from the date on which this report was sent to him, unless he withdraws his appeal, make such comments thereon as he may desire to have submitted to the arbitrator. 14.(1) In a case where MIB receive from the applicant a notice of appeal in which the only ground of appeal which is stated is that the amount awarded to the applicant is insufficient MIB may before submitting that appeal to the arbitrator give notice to the applicant that if the appeal proceeds they will request the arbitrator to decide whether the case is one in which MIB should make an award at all and if they do so they shall at the same time furnish the applicant with a statement setting out such comments as they may consider relevant to the decision which the arbitrator should come to on that question. … 15. MIB shall, where they receive notice of an appeal from the applicant under the foregoing provisions of this Agreement, unless the appeal is previously withdrawn, submit that appeal (but in a case where they cause such an investigation to be made as is mentioned in Clause 13 hereof, not until the expiration of six weeks from the date on which they sent the applicant a report as to the result of that investigation and, in a case where they gave such a notice to the applicant as is mentioned in Clause 14(1) hereof, not until the expiration of six weeks from the date on which they gave that notice and, if they have caused an investigation to be made into any evidence supplied under Clause 14(2) hereof, not until the expiration of six weeks from the date on which they sent the applicant a report as to the result of that investigation) to an arbitrator for a decision, sending to the arbitrator for that purpose the application made by the applicant, a copy of their decision thereon as notified to the applicant and of all statements, declarations, notices, undertakings, comments, transcripts, particulars or reports furnished, given or sent under this Agreement either by the applicant or any person acting for him to MIB or by MIB to the applicant or a person so acting. 16. On any such appeal, - … (b) if the appeal is against a decision by MIB given after an application has been fully investigated by MIB (whether before the appeal or in consequence of its being remitted for such investigation under paragraph (a) of this Clause), the arbitrator shall decide, as may be appropriate, having regard to the grounds stated in the notice of appeal and to any notice given by MIB to the applicant under Clause 14 hereof, whether MIB should make an award under this Agreement to the applicant and, if so, the amount which MIB should award to the applicant under the foregoing provisions of this Agreement; … 17. The arbitrator shall decide the appeal on the documents submitted to him as set out in Clause 15 hereof and no further evidence shall be produced to him: Provided that – (a) the arbitrator shall be entitled to ask MIB to make any further investigation which he considers desirable and to submit a written report of their findings to him for his consideration; and (b) MIB shall send a copy of any such report to the applicant who shall be entitled to submit written comments on it to MIB within four weeks of the date on which that copy is sent to him; and (c) MIB shall transmit those comments to the arbitrator for his consideration. … 20. Subject to the provisions of this Agreement, MIB shall pay the applicant any amount which the arbitrator has decided shall be awarded to the applicant, and such payment shall discharge MIB from all liability under this Agreement in respect of the death or injury in respect of which that decision has been given.”

It is provided that the MIB shall pay the arbitrator’s fee (subject to the arbitrator’s discretion to decide otherwise if there were no reasonable grounds for the appeal). Otherwise, each party to an appeal bears its own costs.

Provided that –

[12]There is also in the background a possibility of an application for judicial review or for an appeal to the High Court from the arbitrator’s award in accordance with the provisions of the Arbitration Act 1996. Neither course was pursued by Mr Moore.

The significance of the video surveillance evidence

[13]Mr Rawley found that Mr Moore had been likely, prior to the accident, to enjoy a reasonably successful career as an actor in regular employment. He concluded that his case had, however, been somewhat overstated and also that functional overlay played a significant part in his symptoms. This conclusion seems in part to have been based upon video surveillance evidence carried out by private detectives on the instructions of MIB. A significant element of Mr Moore’s current complaint centres upon the way in which the surveillance evidence was treated at various stages. The footage had been taken on four separate occasions in 1997 and 1998, and it led to the conclusion on Mr Rawley’s part that Mr Moore’s walking abilities and capacity for movement generally suggested that the effects of his spinal injuries were being exaggerated. Mr Rawley recorded that he had taken Mr Moore’s comments on the video material into account and stated that he treated it with caution.

[14]Some of the video evidence had also had an impact at an earlier stage on the conclusions drawn by a medical expert instructed on behalf of the MIB called Professor Beaumont. He saw Mr Moore on 24 March 1998, but at that stage was not aware that video recordings had already been made on two occasions in the autumn of 1997. It may have been that the information was withheld from him in case he should alert Mr Moore to the fact that he had been watched and might also be observed in the future. Whether or not this was the case, it seems clear that a Mrs Pendle of MIB, on 1 June 1998, sent Professor Beaumont the video evidence recorded on 19 September and 26 November 1997. This was after she had received the first draft of his report, which had been dated 28 March 1998 and which referred inter alia (at paragraphs 20 and 23) to a “small” or “slight” degree of exaggeration in Mr Moore’s presentation of his symptoms. Having seen the video material, however, Professor Beaumont sent Mrs Pendle a further letter of 5 June 1998 in which he made the following observations: “I was interested to review the surveillance evidence which you sent me, recorded on 19.9.97 and 26.1.97 (sic). I note in these recordings that Mr Moore walks with comparative ease, that on occasion he carries his stick rather than using it, and for periods also uses the stick in his left rather than his right hand. All this suggests that the stick is not a significant aid to his mobility. I also note the relatively carefree manner of Mr Moore and the ease with which he negotiates the steep hills of what I take to be Lewes. In my report of 28 March 1998 I did note … that I believed Mr Moore to be exaggerating his symptoms to some degree. I had noted a variability in his state and in his performance during the course of the interview. I also noted that he had elected to walk some distance from the tube station. The video evidence confirms my opinion that there is both variability and exaggeration, and that this is of a greater degree than I might previously have suspected. The difficult outstanding question is whether this is simple variability; that in some situations Mr Moore is able to conduct himself in a relatively normal manner, but that in others when reminded of his difficulties (as when being interviewed by experts) his experience of pain and his depression become worse. Alternatively, Mr Moore was deliberately misrepresenting himself to me, that his presentation was a gross exaggeration and that he is either malingering or suffering from a factitious (functional) disorder. It is frankly very difficult [to] determine the truth on the evidence available to me. In the light of the evidence to date, it is still my opinion, as stated in my report of 28 March 1998 that Mr Moore is exaggerating his difficulties, but that he nonetheless has some genuine underlying psychological problems, both cognitive and affective. However, my opinion is modified to the extent that I believe the degree of exaggeration to be greater, and the severity of the underlying problems to be less. It is further now my view that, with appropriate psychological support, Mr Moore has a better prognosis of returning to near normal function and re-entering gainful employment”.

[15]In a letter of 7 August 1998 Mrs Pendle asked the Professor to amend his original report of 28 March to include the opinion expressed in his letter of 5 June 1998, which he duly did. Thus came into existence the second version of his report, which he forwarded to Mrs Pendle on 17 August 1998. He added “You will see that I have dated the revised version 29 March to permit the two versions to be distinguished”. In this amended version he expressly included among the material which he had reviewed the additional item “videotape recordings of Mr Moore, recorded 19.9.97 and 26.11.97”. In paragraph 20 of the report, he left in the original sentence:

“I have to add that it is my clinical impression that there is a small degree of exaggeration in Mr Moore’s presentation”

. He included, however, a description of Mr Moore walking “with comparative ease”, which was derived from his viewing of the video material, and went on to amend a sentence which had appeared in the original report in these terms:

“This is not to doubt the existence of a primary organic disorder, or the genuine existence of PTSD, depression and pain, but Mr Moore is actively demonstrating his symptoms just a little more clearly than might normally be the case”

. At the end of that sentence he added the words “… with a significant degree of exaggeration”. In other words, it seems that the video material led Professor Beaumont to “pump up” somewhat the degree of exaggeration which he had earlier perceived. On the other hand, he left in the original sentence referring to “a small degree of exaggeration in Mr Moore’s presentation”. This is undoubtedly confusing. He also substituted (in paragraph 23) the word “significant” for “slight” which had qualified the degree of exaggeration in the first report.

[16]At this point Mrs Pendle intervened again, and apparently asked Professor Beaumont to produce a third version of his report excluding any reference to having seen the video material. He duly obliged and chose to date the third version “30 March 1998”. This, again, was for no better reason than to distinguish it from the earlier drafts.

[17]The third version of the report omitted reference to the video evidence but retained the references to “a significant degree of exaggeration” which, it appears, had initially been prompted as a result of seeing that evidence. It still retained the confusion (in paragraph 20) of referring both to “a small degree of exaggeration” and “a significant degree of exaggeration”.

[18]This state of affairs was hardly satisfactory. There were two reports, one of which became the final version, which had been falsely dated by Professor Beaumont. Moreover, the third version omitted reference to the video material which had informed at any rate part of his conclusions. There seems to have been, as a result of this, scope for confusion on the part of the arbitrator. Mr Rawley recorded in his report that he had seen two reports of Professor Beaumont, which were identified as those of 30 March and 5 June 1998. An obvious difficulty is that the 5 June letter refers back twice to the original report of 28 March. It may be (although I cannot conclude one way or the other) that Mr Rawley interpreted those references as being to the third version of the report which he obviously had before him (albeit dated, wrongly, 30 March 1998). If that is so, this would have led to confusion since he would have read the 5 June letter as confirming that Professor Beaumont believed “the degree of exaggeration to be greater, and the severity of the underlying problems to be less” than described in his 30 March report – whereas the truth was that the third version of the report (which Mr Rawley saw) had already incorporated within it the changes of opinion identified in the 5 June letter.

[19]It has been necessary to refer to this somewhat complicated history because Mr Moore’s criticisms in this respect are relevant to the damages claim, in respect of which the Secretary of State seeks (in the alternative) to obtain summary judgment.

Mr Moore’s case on the failure to transpose the Second Motor Insurance Directive

[20]It is necessary always to have in mind that this claim was brought by Mr Moore against the Secretary of State on the basis that the 1972 agreement was inadequate for the purpose of achieving implementation of the Second Motor Insurance Directive. His case may be summarised as follows: i) The United Kingdom has not authorised a body to provide compensation for victims of untraced drivers, as required, since the Agreement does not have the effect of creating rights which a victim can enforce directly against the relevant body (i.e. the MIB). ii) It is a further criticism that such victims do not have their claims adjudicated upon by a conventional court, and are thus disadvantaged compared to the victims of a traced or insured driver. iii) It is also said that such victims have insufficient access to the court system, since the only right of appeal against a determination by the MIB is to an arbitrator, rather than a court. iv) The Agreement makes no provision for interest on damages awarded. v) The Agreement makes no provision for the payment of costs incurred by victims.

The Evans case

[21]Some of these matters have been touched upon by the European Court of Justice in

Case C-63/01

Evans v Secretary of State for the Environment Transport and the Regions

[2003] ECR I-14447

. The case provided an opportunity for the Court to consider the provisions made by the United Kingdom in the light of the requirements of the Second Motor Insurance Directive. The High Court in England, by order dated 17 May 2000, had referred to the Court for a preliminary ruling five questions on the interpretation of Article 1(4) of the Second Motor Insurance Directive. The five questions were as follows:

“1. On the proper interpretation of Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (‘the Second Motor Insurance Directive’): (a) must the arrangements concerning the provision of compensation by the body established or authorised pursuant to Article 1(4) include provision for the payment of interest on the sums found to be payable for the damage to property or personal injuries? (b) if the answer to question (a) is yes, from what date and on what basis should such interest be calculated? 2. On the proper interpretation of Article 1(4) of the Second Motor Insurance Directive, in circumstances where the compensating body itself has an obligation to investigate the victim’s injury and loss (and to incur the costs thereof, including the costs of medical and other reports): (a) must the arrangements concerning the provision of compensation by the body include provision for the payment of the costs incurred by a victim in preparing and making his application to that body for compensation? (b) if the answer to question (a) is yes, on what basis are those costs to be calculated in a case where that body has made an offer to the victim in excess of the amount that he finally recovers, which offer the victim declined to accept? 3. On the proper interpretation of Article 1(4) of the Second Motor Insurance Directive, if the victim’s application for compensation is determined by a body that is not a court, must he have a full right to appeal against that determination to a court, on both the facts and the law, rather than an appeal to an independent arbitrator having the following principal characteristics: (i) the victim may appeal to the arbitrator on both the facts and the law; (ii) when giving notice of appeal, the victim may make further representations and adduce further evidence to the compensating body upon which the compensating body may alter its award prior to the appeal; (iii) the victim is provided in advance with a copy of all the material to be provided to the arbitrator and is given the opportunity to add any material that he wishes in response; (iv) the arbitrator makes an award, without an oral hearing, in which he or she decides what award the compensating body ought to make and gives reasons for that decision; (v) if the victim is dissatisfied, he is entitled to appeal from the arbitrator to the Courts but he may do so only on the grounds of serious irregularity affecting the arbitration or on a question of law (including whether there was any evidence to support any particular conclusion of the arbitrator or whether any particular conclusion was one to which no arbitrator could reasonably come upon the evidence), and in the case of an appeal on a question of law, permission to appeal must be obtained from the court which will not be given unless the decision of the arbitrator is obviously wrong and it is just and proper in all the circumstances for the Court to determine the question? 4. If the answer to question 1(a) and/or 2(a) and/or 3 is Yes, has a Member State duly authorised a body under Article 1(4) of the Second Motor Insurance Directive when an existing body has the task of providing compensation to victims pursuant only to an agreement with the relevant authority of the Member State that does not correspond to the Second Motor Insurance Directive in those respects, and: (a) that agreement creates a legal obligation owed to the relevant authority of the Member State to provide compensation to victims which is directly enforceable by the relevant authority and does not give such victims a directly enforceable legal right to claim against that body, but the victim may apply to the Court for an order that the authority should enforce the agreement if the authority were to fail to do so; and (b) that body carries out that obligation by accepting and paying claims from victims in accordance with that agreement; and (c) the Member State considered in good faith that the provision of that agreement gave at least as good protection to victims as the requirements of the Second Motor Insurance Directive? 5. If the answer to any of questions 1(a) or 2(a) or 3 is Yes, and/or if the answer to question 4 is No, does a failure to comply with the Second Motor Insurance Directive in that respect constitute a sufficiently serious breach by the Member State to give rise to liability for damages as a matter of Community law if it is established that such damage was caused?”

[22]The Advocate-General, whose recommendations were not followed, proposed that the Court reply as follows: i) Interest and costs are a necessary component of compensation claims brought by victims of untraced vehicles if and to the extent to which interest and costs form part of claims for compensation brought by victims of properly insured and identified vehicles. This finding holds good in regard to both the substance and the payment details. ii) In the circumstances outlined in the third question, a victim must, on grounds of effective legal protection, have the right to appeal to an ordinary court on questions of fact and law. iii) Regard being had to the rights of victims, the Second Directive has not been transposed in the national law of the Member State with the precision and clarity necessary to satisfy the requirement of legal certainty. iv) By virtue of the fact that it has failed to ensure that persons injured by untraced vehicles have an enforceable claim, at least up to the limits of the insurance obligation, against the body defined in Article 1(4) of the Second Directive, the United Kingdom has committed a sufficiently serious breach of Community law.

[23]Having referred to the procedure adopted in this jurisdiction in accordance with the relevant Agreement, which I have summarised above, the Court went on to draw the following conclusions: “53 As the United Kingdom Government observes, the procedure thus established by the Agreement gives the victim the advantages of speed and economy of legal costs. The United Kingdom Government claimed, without being contradicted, that the bulk of the costs incurred in relation to applications for compensation and gathering of relevant evidence are borne by the MIB, which makes contact with all the witnesses to the accident to obtain statements from them and endeavours to obtain all necessary medical and other expert evidence. 54 In the light of all the foregoing considerations, it must be held that the procedural arrangements laid down by the national law in question do not render it practically impossible or excessively difficult to exercise the right to compensation conferred on victims of damage or injury caused by unidentified or insufficiently insured vehicles by the Second Directive and thus comply with the principle of effectiveness referred to in paragraphs 45 and 46 of the judgment. 55 In view of the objective pursued by the Second Directive which, as stated in paragraphs 21 to 28 of the judgment, is to provide a simple mechanism for compensating victims, it further appears that the cumulative effect of the possibilities of review available under the procedure established in the United Kingdom and also the practical advantages associated with that procedure confer on victims of damage or injury caused by unidentified or insufficiently insured vehicles a level of protection corresponding to that provided for by that directive. 56 Nevertheless it is important to stress that the procedure established must guarantee that, both in dealings with the MIB and before the arbitrator, victims are made aware of any matter that might be used against them and have an opportunity to submit their comments thereon. 57 It is for the national court to determine whether those conditions have been fulfilled in this case. 58 Subject to that reservation, it must be held that procedural arrangements such as those adopted in the United Kingdom are sufficient to provide the protection to which victims of damage or injury caused by unidentified or insufficiently insured vehicles are entitled under the Second Directive”.

[24]So much for structure. The specific questions were dealt with in the following way:

“1. … - A body may be regarded as authorised by a Member State within the meaning of that provision where its obligation to provide compensation to victims of damage or injury caused by unidentified or insufficiently insured vehicles derives from an agreement concluded between that body and a public authority of the Member State, provided that the agreement is interpreted and applied as obliging the body to provide victims with the compensation guaranteed to them by Directive 84/5 and provided that victims may apply directly to that body. - Procedural arrangements such as those adopted in the United Kingdom are sufficient to provide the protection to which victims of damage or injury caused by unidentified or insufficiently insured vehicles are entitled under Directive 84/5. - The compensation awarded for damage or injuries caused by an unidentified or insufficiently insured vehicle, paid by the body authorised for that purpose, must take account of the effluxion of time until actual payment of the sums awarded in order to guarantee adequate compensation for the victims. It is incumbent on the Members States to lay down the rules to be applied for that purpose. - The compensation awarded for damage or injury caused by an unidentified or insufficiently insured vehicle, paid by the body authorised for that purpose, is not required to include reimbursement of the costs incurred by victims in connection with the processing of their application for compensation except to the extent to which such reimbursement is necessary to safeguard the rights derived by victims from Directive 84/85 in conformity with the principles of equivalence and effectiveness. It is for the national court to consider whether that is the case under the procedural arrangement adopted in the Member State concerned. 2. It is incumbent on the national court, if examination of the existing compensation system discloses a defect in transposition of Directive 84/5 and if that defect has adversely affected Mr Evans, to determine whether the breach of that obligation of transposition is sufficiently serious”

. In the light of these findings, it will be readily apparent why it is not suggested that Mr Moore’s case on either interest or costs is unarguable.

[25]When the Evans claim came back before the High Court following this ruling, there was an application for summary judgment and strike out. As it happens, one of the arguments on that application was to the effect that the arbitration procedure had not given Mr Evans an opportunity to challenge a finding, based on video evidence, that his claim was exaggerated. At all events, the Defendants’ application succeeded. That was the end of the case.

The Secretary of State’s argument on limitation

[26]It is logical for me to turn first to the application based upon limitation. Needless to say, if that application of the Secretary of State is successful, this will conclude matters and there would be no need, strictly speaking, for me then to go on to consider the Part 24 application.

[27]On this question, there is a fundamental clash between Mr Moore’s position and that adopted by the Secretary of State. The Secretary of State’s argument was supported and supplemented by Mr O’Brien QC for the MIB. It is Mr Moore’s case that there was a continuing breach on the part of the United Kingdom government from 31 December 1988 up to and including 8 February 2000, when the arbitrator made his award. Accordingly, he contends that these proceedings are not statute barred (having been commenced on 3 February 2006). The Secretary of State, by contrast, advances the argument that the material date was 19 April 1995 (when the accident occurred). That is because (he submits) all the necessary ingredients for a Francovich claim had by then come about.

[28]It is possible to define the necessary constituent elements in such a claim by reference to the following authorities: R v Secretary of State for Transport, ex parte Factortame (No. 5)

[2000] 1 AC 524

; Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur SA v Federal Republic of Germany; R v Secretary of State for Transport, ex parte Factortame Ltd (No. 4)

[1996] 1 QB 404

. There are essentially four ingredients: i) The Member State’s failure to transpose the Directive must have been “sufficiently serious”; that is to say, there must have been a manifest and grave disregard by the State of its discretion. ii) The Directive must have been intended to confer rights on individuals. iii) The content of those rights must be capable of being identified on the basis of the provisions of the Directive. iv) There must be a direct causal link between the breach in question and any loss or damage sustained. Obviously, in the context of a limitation argument, it is necessary for the court to assume that each of those elements could be proved by the Claimant.

[29]It is agreed between the parties that the applicable limitation period in accordance with domestic law is six years, in accordance with s.2 of the Limitation Act 1980.

[30]For the purpose of identifying the relevant date it is necessary to establish when the Claimant’s legal rights and liabilities accrued. It is elementary that this is not to be confused with the date or dates when it becomes possible to quantify the relevant claim: see e.g. Nykredit Mortgage Bank plc v Edward Erdman Group Ltd (No. 2)

[1997] 1 WLR 1627

, 1632 E-F.

[31]Because this is a claim against the Secretary of State for Francovich damages, to compensate for Mr Moore’s inability to enforce what he says are the rights to which he is entitled under the Second Motor Insurance Directive, it is clearly necessary to focus on when his right to such compensation would have accrued (which may or may not be the same as the date when his rights accrued in respect of MIB or the unidentified driver). It is argued by Mr Crow QC on behalf of the Secretary of State that, on the assumption that Mr Moore is correct, the United Kingdom would have been in breach of its general obligations with effect from 31 December 1988. The critical issue is, therefore, the fourth ingredient which Mr Moore has to demonstrate, namely a direct causal link between the breach and any loss or damage sustained by him.

[32]It is true, as Mr Seabrook QC for Mr Moore has pointed out, that the Secretary of State’s pleading identified the relevant date originally as that of the MIB’s award (7 June 1999). Mr Crow has now contended for the earlier date of 19 April 1995 and (subject possibly to my giving permission for a formal amendment) that is a case he is entitled to advance. The fact that other lawyers may have taken a different view in the past does not affect the merits of Mr Crow’s primary argument. He submits that, as from the moment of the accident, Mr Moore was entitled to compensation from the relevant body in this jurisdiction in accordance with Article 1(4) of the Second Motor Insurance Directive. Assuming Mr Moore’s legal contention to be correct, he was thus from that moment entitled to have his compensation assessed by a court and to recover interest and costs in due course. Since the law of England and Wales at the material time afforded no such opportunities, it is said by Mr Crow that his Francovich entitlement (if any) accrued from that moment.

[33]By contrast, Mr Seabrook argues that Mr Moore’s right of action only accrued when it became clear through the arbitrator’s award on 8 February 2000 that he was not going to recover interest or costs, or have the advantage of the other rights which he claims. It can thus be seen that the limitation issue turns upon what is essentially a narrow dispute.

[34]Mr Crow responds as follows. The date in February 2000 is of no significance for the accrual of a cause of action and simply happens to be the date on which Mr Moore’s claim was, finally, quantified. Many claimants do not even go to the arbitration stage and it is difficult to see why the date of the arbitrator’s award is any more appropriate, for crystallising Mr Moore’s rights, than would be (by way of example) the date of the original MIB award. In fact, neither of them would signify the accrual of a cause of action (by supplying a missing ingredient). Neither date has any significance beyond quantification.

My conclusion on limitation

[35]It is important to have in mind that all Mr Rawley was doing was applying the law and practice in this jurisdiction at that time, which had been operative for many years. In a Francovich context, it is upon the supposed defects in law and practice that Mr Moore’s cause of action depends. As soon as he was injured by a person who turned out to be an untraceable driver, Mr Moore was correspondingly disadvantaged by the defects for which he contends. It is this argument which seems to me to accord with reason and principle.

[36]Reliance was placed in this context by Mr Seabrook on Phonographic Performance Ltd v Dept. of Trade and Industry

[2004] 1 WLR 2893

. That was a case concerning an allegation of continuing breach of statutory duty in the context of the playing of sound recordings in circumstances which would prima facie constitute infringements of copyright. It was said that ss. 67 and 72 of the Copyright, Designs and Patents Act 1988, in permitting the playing of such recordings if certain conditions were fulfilled, created an unlawful limitation on the right to a single equitable remuneration (in accordance with Article 8(2) of Council Directive 92/100/EEC). It became necessary for the Judge to consider when the cause(s) of action arose. It was held that a cause of action had accrued on 2 July 1994, but a fresh one arose each time the Claimant suffered a fresh loss. Accordingly its claim (launched on 10 March 2003) was not statute barred, since the Claimant would be entitled to recover in respect of any such loss within the relevant six year period.

[37]In this case, it cannot be said that separate and distinct causes of action went on accruing after the date of the original cause of action. The question is simply on which occasion the relevant loss occurred. Mr Seabrook submits that this was when Mr Rawley had made his award: Mr Crow, on the other hand, argues that it was when Mr Moore became the victim of an untraced driver and thus found himself subject to the restriction upon the rights contemplated for such victims by the Second Motor Insurance Directive. I agree with Mr Crow’s analysis.

[38]In these circumstances, I have concluded that the Secretary of State’s argument on limitation succeeds and the Francovich claim is therefore statute barred.

Mr Moore’s Part 24 application

[39]For the sake of completeness, and out of deference to Counsel’s arguments on the alternative application, I shall now proceed to address the issues relating to summary judgment. This is confined to the “damages claim” and does not, as I have already made clear, affect those based upon Mr Moore’s supposed right to recover interest and costs.

[40]The essence of the argument is that, if the government had properly transposed the requirements of the Second Motor Insurance Directive into English law, Mr Moore would have recovered more by way of compensation.

[41]The summary judgment application is directed towards specific paragraphs in Mr Moore’s pleaded case. These contain the following contentions: i) If the United Kingdom had not been in breach of the Second Motor Insurance Directive, and it had been properly implemented, Mr Moore would have had an opportunity of presenting his claim in accordance with a procedure which, at the very least, would have guaranteed that, in his dealings with MIB and the arbitrator, Mr Moore was made aware of any matter that might be used against him and given an opportunity to submit his comments thereon. ii) If a compliant procedure had been followed, then(a) Mr Moore would have recovered, or had a substantial chance or prospect of recovering, a sum in the region of £1,190,210 and, in any event, he would have recovered a greater sum than that awarded by the arbitrator; and

(b) Mr Moore would not have had his award reduced on the basis of alleged functional overlay or alleged uncertainty in the acting profession. iii) Mr Moore is entitled to seek as an element of his recoverable loss and damage: a) the difference between the amount awarded by the arbitrator and the amount he would have been awarded if a compliant procedure had been followed, namely £605,075.44; or b) the loss derived from the arbitrator’s conclusions and reductions in respect of alleged functional overlay and/or uncertainty in the acting profession.

[42]The following propositions are advanced on Mr Moore’s behalf, in respect of which it is said that the Secretary of State cannot surmount the Part 24 hurdle by demonstrating that he has no real prospect of success: i) The Second Motor Insurance Directive and/or the general principles of Community law, including the principles of equivalence and effectiveness, require that the MIB should have made Mr Moore aware of material which is adverse to him and thus afforded him an adequate, meaningful and effective opportunity to comment thereon: see e.g. the ECJ judgment in Evans at paragraph 56, cited at [23] above. ii) The United Kingdom failed to guarantee that, in his dealings with the MIB and the arbitrator, Mr Moore was made aware of adverse material or given any meaningful opportunity to comment upon it. iii) In the light of these matters: a) Mr Moore was not made aware of vital adverse material submitted to the MIB adjudication panel and the arbitrator or given an opportunity to comment thereon; b) The MIB adjudication panel and the arbitrator were unable to and did not appreciate, understand or properly evaluate the nature, effect and significance of that material; c) The MIB adjudication panel and the arbitrator consequently came to incorrect findings of fact as to exaggeration on his part, functional overlay and future employability, and Mr Moore’s compensation award was accordingly undervalued.

[43]Evidence was put forward in support of Mr Moore’s claim in this regard by Mr Cutner, his most recent solicitor who was engaged very shortly before the hearing. It is in this context that the material relating to Professor Beaumont becomes important.

[44]Reliance is placed upon the “concealment” of the evidential basis for the third version of Professor Beaumont’s report (i.e. that falsely dated 30 March 1998), which was produced to Mr Moore on or about 28 August 1998. It is said that by causing Professor Beaumont to conceal the true evidential basis for this report (i.e. that it included viewing part of the video footage) MIB prevented Mr Moore from being able effectively to comment on its content. The likelihood is also that the MIB adjudication panel and the arbitrator were misled as to the nature, effect and significance of the report dated 30 March 1998 because of the confusing changes to which I have referred above.

[45]There was something of a dispute as to the significance of the fact that Professor Beaumont only saw material from the first two examples of video surveillance (those in September and November 1997). It had been submitted on behalf of the MIB that the later footage provided relevant evidence of the consistency of exaggeration, but that was disputed, and indeed Mrs Pendle has said in her evidence that the later surveillance material did not add anything new to what Professor Beaumont had originally seen.

[46]There is also a more significant dispute of fact as to whether or not the letter of 5 June 1998 was provided to Mr Moore or his advisers. This specific complaint has only been articulated recently. (The point was not taken, for example, on receipt of the arbitrator’s award which referred to it.) If Mr Moore is factually correct in this respect, which would presumably be a matter for resolution at a later stage, it would arguably follow that he was not given an adequate opportunity to submit comments upon it to the MIB panel or the arbitrator.

[47]One of the complaints raised by Mr Moore is that the 5 June 1998 letter from Professor Beaumont was the only document to suggest that he might be able to return to near normal function and to work, and yet neither he nor his solicitor was provided with a copy. If this is correct, it would follow that Mr Moore was not given an opportunity to submit any comments upon it. Yet no such point was taken by Mr Moore, or on his behalf, at the time. No advantage was taken of the procedure available under s.68 of the Arbitration Act 1996.

[48]The 5 June letter was contained in the bundle sent to the arbitrator. As I have already noted, Mr Rawley made express reference to it. Since that bundle was copied to Mr Moore’s then solicitors, it is said that he must have received the 5 June letter. This is despite the fact that the letter to Mr Moore’s solicitors of 7 June 1999 did not expressly refer to the letter in question; nor did it state whether it had been placed before the MIB adjudication panel or contributed to the reasoning processes which led to its decision. It is argued on behalf of the Secretary of State that there is no evidential basis for supposing that the decision-makers had made their respective awards in reliance on any material on which Mr Moore had not been given an opportunity to comment. This negative proposition is in itself hardly compelling. It would be necessary to address and resolve the disputed issue of fact. Mr Moore would apparently go into the witness box and deny receipt of the document concerned. No doubt he would be cross-examined as to why this proposition has surfaced so late in the day. His evidence in this respect may ultimately be rejected, but it is not a matter in itself suitable for summary judgment.

[49]As I have already pointed out, in reciting the factual background, anyone reading the third version of Professor Beaumont’s report, dated wrongly 30 March 1998, in combination with the supplemental letter of 5 June 1998, might be forgiven for thinking that the degree of exaggeration which he was by then supporting was greater than “significant” (as opposed to greater than “small” or “slight”). Whether this proposition has any clear meaning or not, it is obvious that such a reader would be given a false impression. That is a direct result of the rather curious machinations of Mrs Pendle and Professor Beaumont, who failed to take account of the confusion that would be caused by the doctored report when read with the (supposedly) later document genuinely dated 5 June 1998.

[50]I have not lost sight of the fact that Mr Moore and his advisers had seen and commented upon the video material itself, and it is thus extremely doubtful whether a chance to analyse the 5 June letter (assuming it had not been received) would have made any difference to the award at all – let alone the difference between Mr Rawley’s assessment and that of Mr Kemp.

[51]It is submitted on Mr Moore’s behalf that there resulted manifest unfairness and injustice to him amounting to a “completely unanswerable” case. It is not for me to decide that question one way or the other. On the other hand, I am prepared to assume that there is at least an arguable case to that effect in general terms. What matters for present purposes, however, is how this would impact upon the case against the Secretary of State.

[52]Although it is true that the United Kingdom (like other Member States) is required to put in place procedural “guarantees”, it has to be recognised that the operation of any such procedure will inevitably be subject to human fallibility on the part of those charged with implementing it in any particular case. It cannot be right that there will be a case for Francovich damages (based upon supposedly inadequate transposition of the terms of the Second Motor Insurance Directive) every time a claim is treated unfairly or in a way which falls short of the Directive’s aspirations (as interpreted, for example, in the Evans case). As Mr O’Brien succinctly put it, Mr Moore’s case “fails to draw a distinction between a possibly erroneous failure to carry out a compliant procedure and a non-compliant procedure”.

[53]It is said on behalf of Mr Moore that there was here, at the material time, a continuing failure to establish procedural guarantees capable of preventing what happened in this case (e.g. by requiring procedures corresponding to those operative in civil litigation, such as disclosure, inspection, and the means of obtaining further information or questioning experts). It is said also that there was a direct causal link between the absence of these guarantees and the “incorrect findings of fact on critical issues” caused by the confusion in this particular case. In consequence, it is argued, Mr Moore’s compensation was significantly undervalued. I should address these two propositions in turn.

[54]On the present facts, I found it difficult to envisage exactly what the Secretary of State was supposed to have put in place in order to achieve the guarantee for which Mr Seabrook contends. How could the system and structures be designed so as to avoid the unfairness here relied upon? When I asked Mr Seabrook this question in argument, the only suggestion he made was that bundles of documents supplied to applicants should be properly indexed. While it is clearly desirable as a matter of good practice, the point rather lacked conviction in a Francovich context.

[55]There is also the problem of causation. I have difficulty in understanding why any criticisms of Mr Rawley’s quantification of the appropriate compensation, as compared to that of Mr Kemp, can be linked to the government’s failure (if such it was) to transpose the terms of the Directive adequately into English domestic law. There is no apparent causal nexus. Arguments may, no doubt, be developed as to why Mr Rawley should have given greater weight to one factor, or Mr Kemp less to another. Yet that is about matters of judgment in the domestic law and practice of personal injury quantum. It has not in my judgment been shown to have anything to do with the alleged omissions of the United Kingdom in relation (say) to the status of the tribunal making the decisions, to the recovery of interest or of costs incurred, or even to the requirement highlighted by the ECJ that “… victims are made aware of any matter that might be used against them and have an opportunity to submit their comments thereon”. I am unable specifically to perceive any such link with “… reductions in respect of alleged functional overlay and/or uncertainty in the acting profession”.

My conclusion on the Part 24 application

[56]I have to ask myself in these circumstances whether it is indeed the case that there is no real prospect, in the sense contemplated by Part 24, that such an argument could succeed. I can naturally appreciate the hurdles to be overcome in presenting a case against the Secretary of State, but there are issues of fact to be investigated and resolved. I must assume at this stage that those may all be resolved in Mr Moore’s favour. In particular, I should assume (contrary to Mrs Pendle’s evidence) that no copy of the 5 June letter was received by Mr Moore’s advisers. Nevertheless, I am persuaded that the Secretary of State has fully discharged the burden imposed under Part 24. There is no other reason why the claim should come to trial. I would therefore have granted summary judgment on the “damages claim” if it had remained a live issue.