PI Newsletter June 2019 – Case Law Update

This case law update has been provided by current Pupil, Oliver May.

Kelly Wallet v Michael Vickers [2018] EWHC 3088 (QB)

Significance: In the absence of criminal joint enterprise between the claimant/deceased and defendant, dangerous driving by a claimant will not bar a claim pursuant to the ex turpi causa principle.

Facts: The claimant was the partner of a man killed in a car accident. The deceased and the defendant had been driving side by side on a dual carriageway at almost twice the speed limit. Each driver was attempting to pass the other before the road narrowed to a single lane. The deceased lost control of his vehicle and crashed, sustaining fatal injuries.

At first instance the recorder found that the defendant’s driving had made a material contribution to the fatal injuries sustained by the deceased, but that the claim was barred by the principle of ex turpi causa because the parties had been engaged in the criminal joint enterprise of dangerous driving.

The appellant alleged that there was no valid basis on which the recorder could conclude that that the deceased had intended to encourage the defendant to drive dangerously, and therefore the mental element of joint enterprise was not made out. Instead the deceased’s own fault should be taken into account by a reduction for contributory negligence.

Held: Dangerous driving was not a serious enough offence to prevent a claimant from recovering damages for a consequence related to his own criminal act, distinguishing Gray v Thames Trains Ltd [2009] UKHL 33 (in which the criminal act had been manslaughter. Determining a claim by applying the principles of causation and contributory negligence were sufficient to give effect to the requirements of justice and public policy.

The position is different in cases where the claimant participates in a criminal joint enterprise. Such a claim would be for damages from conduct for which, in law, the claimant was responsible.

In the instant case both the deceased and the defendant were guilty of dangerous driving as principals. But liability as a party to a joint enterprise was not made out for lack of proof of the mental element, namely an intention to assist or encourage the commission of the crime.

XX v Whittington Hospital NHS Trust [2018] EWCA Civ 2832

Significance: Claims for commercial surrogacy in foreign jurisdictions, in which commercial surrogacy is legal, will no longer be barred on public policy grounds.

Facts: The defendant NHS trust had failed to detect signs of cancer from smear tests carried out on X in 2008 and 2012, or from biopsies performed in 2012 and 2013. The delay in her cancer diagnosis meant X was unable to have surgery that would have prevented the need for chemo-radiotherapy treatment. Said treatment left her with complete loss of fertility and severe radiation damage to her bladder, bowel and vagina. The trust admitted negligence.

X’s subsequent claim for damages included the cost of four pregnancies using her own cryopreserved eggs and/or donor eggs and her partner’s sperm through surrogacy in California (where commercial surrogacy was lawful). The expert evidence was that she would probably achieve one or two live births from her eggs, and that using donor eggs gave a slightly lower prospect of success.

Following Briody v St Helens and Knowsley AHA (Claim for Damages and Costs) [2001] EWCA Civ 1010 the first instance judge held that the claim for the expenses of Californian surrogacy failed because commercial surrogacy arrangements were illegal in the UK under the Surrogacy Arrangements Act 1985 and thus contrary to public policy. X’s claim was further confined to the use of her own eggs. It was held that the loss suffered by her was the inability to have “her” child, not “a” child. Damages were therefore limited to expenses of surrogacy in the UK, using X’s own eggs, to lead to two children. £160,000 was awarded for PSLA.

X appealed against the rejection of her damages claim for recoverability of the cost of US commercial surrogacy arrangements and of UK surrogacy arrangements using donor eggs. The trust cross-appealed against the allowance of her claim for the recoverability of reasonable UK surrogacy expenses and the level of damages awarded for PSLA.

Held: X was entitled to recover the cost of commercial surrogacy arrangements in California. X intended to enter into an arrangement which was lawful by the law of the place where it was made and, in making such an arrangement, she would not be guilty of any criminal offence, either in the UK or abroad. Section 2(1) of the Act banned commercial surrogacy in the UK only; it did not have extraterritorial effect. It could not now be said that surrogacy as such was contrary to English public policy.

X was also entitled to recover the cost of surrogacy using her own eggs and/or donor eggs. Social changes in the years since Briody had led to the current acceptance of an infinite variety of forms of family life. The distinction between “own egg” surrogacy and “donor egg” surrogacy, employing the partner’s sperm, would be entirely artificial and could not be maintained.

PSLA was reduced to £150,000 to reflect the fact that an additional award of £15,000 had been made in respect of the loss of X’s claim for surrogacy in California and provisional damages for psychological sequelae.

Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6

Significance: Subject to any contrary statutory provision, it is an essential requirement for any form of alternative service that it could reasonably be expected to bring proceedings to the defendant’s attention. Without adequate service on a named or otherwise identifiable driver, the claimant cannot pursue a claim directly against an insurer.

Facts: Following a road traffic accident the claimant issued proceedings against the registered keeper of the car at fault. It transpired that the insurance policy for the car covered one named individual, and not the registered keeper. The registered keeper refused to reveal the name of the insured individual.

The insured individual was established to be a Mr Nissar Bahadur, whom the defendant insurer believes to be fictitious. Consequently neither the registered keeper nor the driver on the day of the accident was insured under the policy to drive the car.

The claimant added the insurer as a defendant, seeking a declaration under the Road Traffic Act 1988 s.151 that it was obliged to satisfy any unsatisfied judgment against the keeper. The insurer denied liability, arguing that the policy did not cover the keeper and the driver had not been identified.

The motorist applied for permission to substitute the first defendant from the registered keeper to “the person unknown driving vehicle [registration number] who collided with vehicle [registration number] on [date of accident]”. The district judge dismissed the application and granted summary judgment in favour of the insurer, a decision that was reversed by the Court of Appeal.

The insurer appealed against a decision that the respondent motorist could bring proceedings following injury in a hit-and-run collision against “the person unknown” who had been the driver of the car at fault.

Held: The legitimacy of issuing or amending a claim form could be tested by asking whether it was conceptually, not just practically, possible to serve it. Generally, service is the act by which the defendant is subjected to the court’s jurisdiction. An identifiable but anonymous defendant could be served, if necessary by alternative service under CPR r.6.15, because it was possible to locate or communicate with the defendant and identify them as the person described in the claim form. However mere reference to something a person had done was not sufficient identification.

It was a fundamental principle that a person could not be made subject to the court’s jurisdiction without having such notice of the proceedings as would enable them to be heard. Subject to any contrary statutory provision, it was an essential requirement for any form of alternative service that it could reasonably be expected to bring the proceedings to the defendant’s attention. No exception to that principle of natural justice could be justified in the context of the compulsory insurance of motorists.

That result was not inconsistent with Directive 2009/103. The motorist was not trying to assert a direct right against the insurer for the underlying wrong. Her claim against the insurer was for a declaration that it was liable to meet any judgment against the other driver. Her claim against the driver was for damages, but the right that she asserted against him on the instant appeal was a right to sue him without identifying him or observing rules of court designed to ensure that he was aware of the proceedings. Nothing in the Directive required the UK to recognise such a right.