Marshall & Pickard v MIB & Others  EWHC 3421 (QB)
These claims arose out of a road traffic accident in the municipality of Thiais, France on 19 August 2012. Mr Pickard, a UK national domiciled in England (now and at the time of the accident), was the driver of a Ford Fiesta. Mr Pickard had a passenger in the Ford Fiesta: another English domiciled UK national, Paul Marshall. While driving southbound on a 3-lane French motorway (the A86) the Ford Fiesta lost a wheel. Mr Pickard pulled over to the hard shoulder and contacted both the police and a recovery company. Subsequently, a recovery truck attended the scene and Messrs Pickard and Mr Marshall stood outside the Ford Fiesta in the hard shoulder while the wheel was changed. They wore fluorescent tabards while they did so. There was a warning triangle in place to alert passing motorists to the presence of the stricken vehicle and the Ford Fiesta’s hazard warning lights were also flashing. The recovery truck was parked in front of the Ford Fiesta (to the oncoming traffic) and was also flashing its hazard lights. The recovery truck driver had placed warning cones alongside the Ford Fiesta. Suddenly, a Peugeot 106 motor vehicle drove off the A86 and into collision with Mr Pickard, Mr Marshall and the stationary Fiesta. The Peugeot collided with Mr Pickard and flung him further up the road and away from the stationary vehicles. He sustained serious injuries. Mr Marshall was crushed against the trailer of the Ford Fiesta and lost his life as a result of the accident. The Peugeot 106 was driven by a French national domiciled in France. The Peugeot driver was asleep at the wheel. She was the subject of criminal proceedings in France. For good measure, the Peugeot driver was uninsured.
Two sets of English proceedings were brought as a result of the accident: First, a straightforward claim by Mrs Marshall (the deceased’s widow) against the Defendant Motor Insurers’ Bureau (UK) pursuant to the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003 (SI No 37/2003). The MIB denied liability to compensate under regulation 13 of the 2003 Regulations on the basis that Mrs Marshall was unable to establish that the French Guarantee Fund (the “FdG”: the French equivalent of the MIB) had a notional liability to compensate and this, so the MIB argued, was – on a proper construction of regulation 13 (which did not require any consideration of the Rome II Regulation and applicable law issues) – a necessary prerequisite to its own liability to compensate. The MIB further argued that, as a result of the Loi Badinter (a French law, no-fault liability scheme) and decisions of the French Cour de Cassation, the “involvement” in the accident of other insured vehicles (the Fiesta/trailer and Recovery Truck) meant that the FdG had no liability. By subsequent amendment, Mrs Marshall pursued proceedings against three Defendants: (1) the MIB; (2) Mr Pickard; (3) Generali France Assurances, a French insurance company (which insured the recovery truck). The second claim was brought by Mr Pickard. He pursued the MIB alone. It was his case that there was no other French vehicle involved in his accident and, accordingly, the FdG had a notional liability and the MIB had a liability to compensate. Mr Pickard also argued that the MIB had a liability to compensate under regulation 13 regardless of the FdG’s notional liability. The following preliminary issues were tried over 5 days by Dingemans J (with judgment handed down on 27 November 2015): (a) Is Mr Pickard and/or Generali (the French insurer of the recovery truck) liable to compensate Mrs Marshall? (b) Would the FdG be liable to compensate the Claimants under French law? (c) If the FdG would not be liable to compensate the Claimants, is MIB liable to compensate them under the 2003 Regulations? The conclusions of Dingemans J on these issues was as follows: “(a) … Yes, both … [Mr Pickard and Generali] are liable to compensate Mrs Marshall; (b) … The … [ FdG] is liable to compensate Mr Pickard, but it is not liable to compensate Mrs Marshall; (c) … The MIB is liable to compensate Mr Pickard, but is not liable to compensate Mrs Marshall.” The Judge concluded, as a matter of French law, that no other insured vehicle (with the exception of the Ford Fiesta/trailer) was involved in Mr Pickard’s accident and, as a matter of French law, Mr Pickard could not sue his own insurer. Accordingly, again as a matter of French law, the FdG had a notional liability and the MIB a corresponding liability to compensate Mr Pickard by reason of regulation 13 of the 2003 Regulations. In Mrs Marshall’s case – by contrast – the deceased had collided with the trailer and the Fiesta had collided with the recovery truck. There was, as a matter of French law, involvement by insured vehicles. This meant that there was no notional liability for the FdG and, accordingly, no liability for the MIB. The Judge’s conclusion as to the proper construction of regulation 13 was based: (a) on the words “… as if it were the body authorised” under article 1(4) of the Second Motor Insurance Directive; and, (b) on the nature of the liability of the FdG and the MIB : a subsidiary, rather than freestanding liability. The Judge rejected the Claimants’ argument that the MIB’s liability under regulation 13 was subsidiary only to the notional liability of the tortfeasor driver and to no other party (cf. Jacobs v MIB  1 WLR 2609 (CA) and Bloy & Ireson v MIB  Lloyd’s Rep IR 75 (CA)). Instead, he held that the words of regulation 13 led back to the Second Directive body: the FdG. Accordingly, in claims brought against the MIB pursuant to regulation 13 it will now be necessary to consult a foreign (local) lawyer to discern whether the local compensation body/guarantee fund (in the jurisdiction where the accident occurred) would have a notional liability. It is thought that in most cases the local compensation body/guarantee fund will have such notional liability (and the point is likely to be conceded by the MIB in most, if not all, cases).