Aviva Insurance Ltd & Anor, R (On the Application Of) v The Secretary of State for Work and Pensions

Aviva Insurance Ltd & Anor, R (On the Application Of) v The Secretary of State for Work and Pensions

The 1997 Act, as currently applied, is incompatible with A1P1 to the extent that it requires insurers to pay the State for benefits not corresponding to the insured’s real contribution to the injury, including where liability is imposed for 100% of recoverable benefits despite contributory negligence, divisible...

Source-derived case information.

Parties
Claimant: Aviva Insurance Limited; Claimant: Swiss Reinsurance Company Limited; Defendant: Secretary of State for Work and Pensions
Jurisdiction
England and Wales
Judgment Date
20 November 2020
Procedural Posture
Judicial Review / Judgment After Full Hearing
Outcome
Claim succeeds in part
Legal Topics
Article 1 Protocol 1 ECHR (a1 P1), Retrospective Legislation, Social Security (recovery of Benefits) Act 1997, Liability Insurance, Proportionality, Fair Balance, Judicial Review, Statutory Interpretation
Human Rights Law Insurance Law Administrative Law Article 1 Protocol 1 ECHR (a1 P1) Retrospective Legislation Social Security (recovery of Benefits) Act 1997 Liability Insurance Proportionality +3 more

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Summary, issues, holding and outcome

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Parties

Aviva Insurance Limited

Claimant

Swiss Reinsurance Company Limited

Claimant

Secretary of State for Work and Pensions

Defendant

Procedural Posture

Judicial Review / Judgment After Full Hearing

Legal Issues

  1. 1 Whether the Social Security (Recovery of Benefits) Act 1997, as applied, is incompatible with the claimants’ rights under Article 1 of the First Protocol to the ECHR (A1P1)
  2. 2 Whether the retrospective imposition of liability on insurers to repay state benefits strikes a fair balance under A1P1
  3. 3 Whether the failure to make regulations under section 22(4) of the 1997 Act is unlawful

Ratio Decidendi

The 1997 Act, as currently applied, is incompatible with A1P1 to the extent that it requires insurers to pay the State for benefits not corresponding to the insured’s real contribution to the injury, including where liability is imposed for 100% of recoverable benefits despite contributory negligence, divisible disease, or partial responsibility. These features impose an excessive and individual burden, lack special justification for their retrospective effect, and fail to strike a fair balance. The claimants are 'victims' for HRA purposes. The claim succeeds in part.

Court Disposition

Claim succeeds in part

Orders

  • Declaration that the 1997 Act is incompatible with A1P1 to the extent identified in the judgment
  • Further submissions to be made on remedies