James Morgan v Bryson Recycling Limited [2018] NIQB 12

The High Court in Northern Ireland has ruled that the failure to MOT a vehicle is sufficient to provide a defendant with an illegality defence to a hire claim. The decision contrasts with previous judgments in other UK jurisdictions regarding the applicability of the ex turpi causa defence to those criminal offences which might ordinarily be considered minor.

Background

The Claimant's vehicle had been parked outside his home, when a vehicle driven by a representative of the Defendant collided with it.

A claim was submitted for the pre-action value of the car, storage and hire costs for a replacement vehicle. The Defendant accepted liability, agreed settlement of the PAV claim but disputed the hire claim. The Claimant's vehicle was found not have had a valid MOT for 4 months prior to the collision.

As the vehicle was not subject to a valid MOT, the Claimant's insurance policy did not cover claims arising from any accident, injury, loss or damage.

The Claimant did not dispute that if the collision had not occurred he would have continued to drive the car, probably until his insurance came up for renewal several months after the expiry of the previous MOT.

The Defendant relied on the doctrine of ex turpi causa (the illegality defence), disputing the hire claim on the basis that Claimant was not entitled to hire a car to replace the damaged vehicle, as by driving this vehicle (had it been roadworthy) this would have constituted two criminal offences - to drive without a MOT Certificate and driving while uninsured.

Decision

The High Court held that the hire claim was not recoverable.

The judge found that whilst the offences were "not at the most serious end of the legal calendar", they were not insignificant. The need for the MOT reflected the roadworthiness of a vehicle. A vehicle not fit for the road had the risk of causing damage or injury to other road users and the general public. The requirement for insurance was also important, as it provides adequate protections to other road users.

In the absence of the MOT certificate, the vehicle would not have been insured under the policy. To drive without a valid MOT certificate is against the law, as is to drive without insurance. The court held the Claimant could not claim for hire replacement charges, as the damage vehicle could not have been used legally but for the accident.

What can we learn?

  • This decision will be persuasive in the other UK jurisdictions, and it remains to be seen whether it will be followed in subsequent decisions.
  • Lord Sumption, sitting in the Supreme Court stated in 2015 that the application of the illegality defence had become "encrusted with an incoherent mass of inconsistent authority". It is therefore perhaps not surprising that this decision is inconsistent with previous case authorities which suggested that the illegality defence would not apply to minor traffic offences. Lord Justice Elias in the case of Joyce v O’Brien and another [2013] All ER (D) 225 recognised that, given that the doctrine was one of public policy, there should be some flexibility in its application.
  • In the County Court claim of Mode v. Southern Rock (Northampton CC), it was held that a failure to replace a bald tyre was not so clearly reprehensible behaviour so as to justify an illegality defence. It was also commented that the conduct of a claimant had to be so much a part of his claim that it was the cause of his loss in order to find an illegality defence was applicable.
  • It could be argued that the Claimant's actions were not linked to the loss at all, and rather than invoke the res ipsa doctrine one might have expected the Court to have found was that there was a simple failure by the Claimant to prove the claimed losses: As the car could not legally have been used but for the accident, he couldn't claim a 'road legal' vehicle to replace it. A claimant can defeat such an argument where, for example the vehicle was due to have the MOT test but for the accident and was clearly roadworthy.
  • This decision may have closed a loophole for other claims where a vehicle was not subject to a valid MOT but was due to have one shortly. If a vehicle does not have an MOT, an owner may drive it to or from a pre-arranged MOT only. However, it may have previously been the case, that driving a vehicle without a valid MOT in a short intervening period between the expiry of the previous certificate and the test, might have been considered a 'minor offence' and that any losses sustained would not be subject to an illegality defence that based on the case authorities above.
  • This decision will be persuasive in the other UK jurisdictions, and it remains to be seen whether it will be followed in subsequent decisions. However, it is clear that in Northern Ireland at least, the 'paper' offence of having no MOT – when that leads to an invalidity of insurance cover - is clearly of such gravity as to require for reasons of public policy that a claimant be disallowed from recovering any consequential losses should that vehicle be damaged.
  • In terms of general application to claims, it is not necessary to ask a claimant for their MOT certificate as part of any investigations, a vehicle's MOT history can be easily accessed via the government's website: https://www.gov.uk/check-mot-history. Where an absent MOT is identified it will be necessary to recover the Claimant's Insurance policy schedule to ascertain whether a valid is a prerequisite for valid cover to put the claim on all fours with Morgan.
  • Had the Claimant's insurer agreed to supply a hire vehicle, then any subsequent subrogated action by the Claimant's insurer to recover its hire costs would have failed. The insurance policy made it clear that any vehicle without a valid MOT would not be covered. Any offer of hire by the insurer would have been considered an ex gratia payment, and therefore, any subrogated recovery claim would have failed.