Wilkinson v Fitzgerald & Anor

Wilkinson v Fitzgerald & Anor

On a true interpretation of s.151(8) Road Traffic Act 1988, applying the Marleasing principle and the aims of the Motor Insurance Directives, the insurer's right of recovery cannot be exercised so as to negate the obligation to compensate a victim entitled to judgment. The statute must be interpreted to prevent recovery from such victims, as otherwise it impermissibly creates an excluded class contrary to EU law.

Parties
Claimant: Benjamin Wilkinson; 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
Civil / Trial of Preliminary Issue
Outcome
Preliminary issue determined in favour of the claimant.
Legal Topics
Statutory Insurer Liability, Right of Recovery, Motor Insurance Directives, Interpretation of Domestic Law in Light of EU Directives, Compensation for Accident Victims
Insurance Law European Union Law Personal Injury Statutory Insurer Liability Right of Recovery Motor Insurance Directives Interpretation of Domestic Law in Light of EU Directives Compensation for Accident Victims

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Parties

Benjamin Wilkinson

Claimant

Stephen Wilkinson

Litigation Friend

Kieran Thomas Fitzgerald

First Defendant

Churchill Insurance Company Limited

Second Defendant

Procedural Posture

Civil / Trial of Preliminary Issue

Legal Issues

  1. 1 Whether the insurer's statutory right of recovery under s.151(8) Road Traffic Act 1988 is compatible with the Second Motor Insurance Directive (84/5/EEC)
  2. 2 Whether the insurer can recover from the victim who is insured under the policy and permitted the use of the vehicle by an uninsured driver

Ratio Decidendi

On a true interpretation of s.151(8) Road Traffic Act 1988, applying the Marleasing principle and the aims of the Motor Insurance Directives, the insurer's right of recovery cannot be exercised so as to negate the obligation to compensate a victim entitled to judgment. The statute must be interpreted to prevent recovery from such victims, as otherwise it impermissibly creates an excluded class contrary to EU law.

Court Disposition

Preliminary issue determined in favour of the claimant.

Orders

  • The Second Defendant must indemnify the First Defendant in respect of the Claimant’s claim.
  • The Second Defendant does not have the right to recover such amount from the Claimant pursuant to section 151(8) Road Traffic Act 1988.