MIB time limit unlawful | Thompsons Solicitors
Law Bulletin - July 2007 Practice and Procedure
The claimant was a minor suing through his Litigation Friend. He was injured in a road traffic accident involving an untraced motorist. The claim was made under the Untraced Driver’s Agreement but there is a three-year time limit under the agreement. The MIB refused to deal with the claim for that reason.
The claimant commenced proceedings against the MIB and also against the Secretary of State for damages for breach of statutory duty in failing properly to implement the second European Directive on motor insurance. The Judge held that there was a failure by the UK to comply with the Directive because the Untraced Driver’s Agreement was not compliant with Community Law in that the Directive required that victims of uninsured or untraced drivers had to have equivalent and as effective protection under the national legal system as victims of insured drivers.
For insured drivers there would be no time limit for a minor. The court also held that the MIB was not an emanation of the State and the claimant had no right of direct action against the MIB for breach of the directive; but the breach by the UK government was sufficiently serious to expose it to a claim for damages.
Byrne -v- MIB & Anotherr. Mr. Justice Flaux, 5 June 2007, Times Law Reports.
Consequences of failure to comply with an unless order
In a commercial case the claimants sought damages for the wrongful termination of a general agency agreement. The Judge ordered the parties to give further disclosure which the claimant failed to comply with. The Judge made an unless order which the claimant also failed to comply with.
The Judge dismissed the claim finding there had been a clear breach of the order and no explanation of why the claimant had failed to comply and what steps had been taken to enable it to do so. The claimant submitted that the striking out of the claim for failure to comply with an order of the court could not be justified unless the breach was so serious as to prevent there being a fair trial, a requirement that the Judge had failed to consider.
The Court of Appeal held that the sanction embodied in an unless order took effect without the need of any order if the party to whom it was addressed failed to comply with it in any material respect. The Judge’s finding that there had been a clear breach of the unless order had not been challenged and it followed that the sanction for which that order provided became effective.
It was therefore not appropriate on an appeal to hear arguments about whether that was an appropriate response to the failure to comply with the order.
Marcan Shipping (London) Limited -v- Kefalas and Another. Court of Appeal, 17 May 2007.