The Court of Appeal has overturned an earlier decision in the case of Howe v MIB [2017] EWCA Civ 932 and held that the Claimant was in fact protected by QOCS.


The Claimant had been driving in France and was involved in a road traffic accident when he collided with a rogue wheel that had detached itself from a lorry in front of him, through no fault of his own. The Claimant sustained serious injuries as a result but neither the negligent driver nor the vehicle could be successfully traced. After a lengthy delay, the Claimant brought a claim under the Motor Insurance Bureau under Regulation 13(1) of the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Board) Regulations (SI2003/37) which stated:

“Entitlement to compensation where a vehicle or insurer is not identified;

(1) This regulation applies where— (a) an accident, caused by or arising out of the use of a vehicle which is normally based in an EEA state, occurs on the territory of— (i) an EEA state other than the United Kingdom, or (ii) a subscribing state, and an injured party resides in the United Kingdom, (b) that injured party has made a request for information under regulation 9(2), and (c) it has proved impossible— (i) to identify the vehicle the use of which is alleged to have been responsible for the accident, or (ii) within a period of two months after the date of the request, to identify an insurance undertaking which insures the use of the vehicle.

(2) Where this regulation applies— (a) the injured party may make a claim for compensation from the compensation body, and (b) the compensation body shall compensate the injured party in accordance with the provisions of article 1 of the second motor insurance Directive as if it were the body authorised under paragraph 4 of that article and the accident had occurred in Great Britain.”

Unfortunately for the Claimant, his claim was unsuccessful and was dismissed for being time-barred under French statute. The Court was also bound following the decision in Moreno v MIB that the Defendant’s liability was not dependent under the Regulations upon establishing that the French MIB equivalent was liable and so the Court struck out the appeal on the grounds that it was bound to fail.

Therefore the only remaining issue was the costs of the unsuccessful claim and appeal and whether the Claimant could benefit from QOCS.

The Arguments

In the initial Judgment, Stewart J had held that this was not a claim for damages for personal injury for the purposes of CPR 44.13.

The argument advanced by the Defendant was that, under the Regulations that the claim had been brought, Regulation 16 provided that “Any sum due and owing pursuant to these Regulations shall be recoverable as a civil debt”, thus falling foul of Part 44.13 which stated that a claim must be for “damages for personal injuries”. Therefore the Defendant argued, QOCS did not apply as the monies that would have been owed would have been considered a debt rather than damages.

The Claimant argued that to deny QOCS would provide the Claimant less protection that that where he was making a claim against an insured driver.

Court of Appeal decision

The Court of Appeal held that this was a QOCS case on the basis that this was not an action for debt and could be properly construed as being akin to an action for damages for personal injury.

The Court of Appeal considered the ECJ decision in Evans v Secretary of State for the Environment, Transport and the Regions [2005] All ER (EC) 769 regarding the purpose of the original Directive that the Regulations had been drafted to implement. In that decision, the ECJ held that whether Claimants are entitled to recover their costs of pursuing their claim was a matter for an individual matter but the principles of equivalence and effectiveness must be respected. Lord Justice Lewison therefore concluded that the principle of equivalence would be the system of remedies available for claims against insured drivers.

Lord Justice Lewsion stated at paragraph 36 of the Judgment:

“Can the reference in CPR Part 44.13 to “damages for personal injuries” be interpreted, conformably with the Marleasing principle, to include a claim for compensation under regulation 13? The rationale underlying QOCS is, in my judgment, a domestic version of the principle of effectiveness. Those who have (or may have) valid claims for damages for personal injury should not be deterred from pursuing them by the risk of having to pay the defendant’s costs, except in the circumstances laid down by Section II of Part 44. If Mr Howe’s claim under regulation 13 is covered by QOCS he will be in an equivalent position to an injured person who sues an insured driver.”

The Court of Appeal also referenced CPR Part 44.16(2) and that at first instance the Judge must both (a) exercise a discretion and (b) conduct an evaluation of what is just on the facts of any particular case.

MRN analysis

This is obviously a good decision for Claimants. When QOCS was introduced it was to protect Claimants from the risk of adverse costs once ATE premiums had been abolished. Therefore it follows that to not provide protection to Claimants as a result of bringing a claim through the MIB is fundamentally unfair and we are glad that the Court of Appeal has closed this particular loophole for Defendants.