EWHC 781 (QB)
Judge refuses to set aside declaration in favour of motor insurer/decides service at last known address issue
The claimant was injured when he was a passenger in a car which overturned. The car was being driven by the first defendant, and the claimant was aware that the first defendant was not insured to drive the car. The insurers of the car obtained a declaration that they were entitled to avoid the policy due to misrepresentations made by the insured, the father of the first defendant. The claimant then issued proceedings against the first defendant and the insurers, seeking to set aside the declaration in favour of the insurers.
Section 152(2) of the Road Traffic Act 1988 provides, in relevant part, that an insurer is not liable "if, in an action commenced before, or within three months after, the commencement of the proceedings in which the judgment was given, he has obtained a declaration – (a) that, apart from any provision contained in the policy ... he is entitled to avoid it either under the consumer Insurance (Disclosure and Representations) Act 2012".
The judge accepted that, following recent EU caselaw, the claimant had a real prospect of success in arguing that section 152(2) is incompatible with the relevant EU Motor Directive. However, she further held that that incompatibility cannot be resolved by implying into section 152 a residual discretion on the part of the court to require the insurer to pay despite the declaration in its favour. Since the claimant was not a party to the proceedings in which the insurers were granted the declaration, he had no standing to bring a claim to have it set aside.
A separate application was made by the Motor Insurers' Bureau (the third defendant) to set aside an extension of time given for service on the first defendant. The claimant had instructed an enquiry agent in March 2018 and obtained an address for service. The claim form was then issued and served in June 2018 at that address. Although the first defendant had in fact moved from the address by then (and so the claim form was returned to the claimant), the judge held that service had been at the first defendant's last known address and the claimant had had reason to believe that he still resided there: "There was no evidence of any change over the relatively short period between March and June 2018 that required the Claimant to carry out an additional check". The judge also refused to set aside the extension of time: the claimant had not waited until "the eleventh hour" to serve and no prejudice had been suffered by the Motor Insurers' Bureau.
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