Wilkinson v Fitzgerald & Anor [2009] EWHC 1297 (QB) (11 June 2009)

Wilkinson v Fitzgerald & Anor [2009] EWHC 1297 (QB) (11 June 2009)

Section 151(8) of the Road Traffic Act 1988, which allows the insurer to recover from a person insured by the policy who caused or permitted the use of the vehicle, is not incompatible with the Second Motor Insurance Directive. The right of recovery does not constitute an exclusion of liability to the victim under Article 2 of the Directive, but is a separate statutory right. The insurer is obliged to satisfy the judgment in favour of the victim but may recover the amount from the insured who permitted the uninsured use. The statute cannot be interpreted to exclude such recovery without conflicting with its clear wording and purpose.

Citation
[2009] EWHC 1297
Parties
Claimant: Benjamin Wilkinson (by his father and Litigation Friend Stephen Wilkinson); First Defendant: Kieran Thomas Fitzgerald; Second Defendant: Churchill Insurance Company Limited
Jurisdiction
England and Wales
Judgment Date
11 June 2009
Procedural Posture
Trial of Preliminary Issue / High Court, Queen's Bench Division, Manchester District Registry
Outcome
For the insurer. The insurer must satisfy the judgment against the First Defendant but is entitled to recover the amount from the Claimant under s.151(8) RTA 1988.
Legal Topics
Motor Insurance Liability, Right of Recovery by Insurer, Implementation of EU Directives, Compulsory Insurance, Victim Compensation, Interpretation of Road Traffic Act 1988
Insurance Law European Union Law Personal Injury Motor Insurance Liability Right of Recovery by Insurer Implementation of EU Directives Compulsory Insurance Victim Compensation +1 more

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Parties

Benjamin Wilkinson (by his father and Litigation Friend Stephen Wilkinson)

Claimant

Kieran Thomas Fitzgerald

First Defendant

Churchill Insurance Company Limited

Second Defendant

Procedural Posture

Trial of Preliminary Issue / High Court, Queen's Bench Division, Manchester District Registry

Legal Issues

  1. 1 Whether the insurer must indemnify the First Defendant in respect of the Claimant's claim
  2. 2 Whether the insurer has a right to recover such amount from the Claimant under Section 151(8) of the Road Traffic Act 1988
  3. 3 Whether the right of recovery is compatible with EC/EU Motor Insurance Directives

Ratio Decidendi

Section 151(8) of the Road Traffic Act 1988, which allows the insurer to recover from a person insured by the policy who caused or permitted the use of the vehicle, is not incompatible with the Second Motor Insurance Directive. The right of recovery does not constitute an exclusion of liability to the victim under Article 2 of the Directive, but is a separate statutory right. The insurer is obliged to satisfy the judgment in favour of the victim but may recover the amount from the insured who permitted the uninsured use. The statute cannot be interpreted to exclude such recovery without conflicting with its clear wording and purpose.

Court Disposition

For the insurer. The insurer must satisfy the judgment against the First Defendant but is entitled to recover the amount from the Claimant under s.151(8) RTA 1988.

Orders

  • The insurer is liable to satisfy the Claimant's judgment against the First Defendant.
  • The insurer is entitled to recover from the Claimant any sum it is thereby liable to pay to him.