As Sorcha Dervin explains below, Brexit continues to throw up interesting issues for the courts and Greenaway v (1) Parrish (2) Covea Insurance (3) MIB (“Greenaway”) is one example. The question was how the English court was to approach the meaning of the word “stolen” in relation to the Road Traffic Act 1988 and Directive 2009/103/ EC in circumstances where it has ceased to be possible to make a referral to the European Court of Justice. Had a referral been possible, the ECJ would have considered the definition of the word in other EU languages.
The solution in Greenaway was for expert evidence on the issue in the English court. This presents a practical solution to the problem, and supplements the decisive and clear guidance of Green LJ in Lipton v BA City Flyer Ltd  EWCA Civ 454 at paras 52 to 70 on the approach to be taken to construing EU regulations, the principles of EU law and the relevance of judgments of the CJEU post-Brexit.
Why does the definition of the word “stolen” matter? On account of MIB v Lewis  EWCA Civ 909 the MIB is an emanation of the state against whom an action can be brought if no insurer has to meet the claim. If s.151(4) is non-compliant, the MIB will have to meet the judgment, in contradistinction, if compliant Covea will have to do so.
In an appeal from a case management decision, the High Court granted permission for an insurer defendant to obtain factual expert evidence relating to the translation and interpretation in other languages of the word “stolen” in the Sixth Motor Insurance Directive (Directive 2009/103/EC).
The case arose out of a road traffic accident involving four sixteen-year-olds. The Claimants were passengers in a car driven by the First Defendant who was too young to be driving and was not insured. The car in fact belonged to the fourth passenger’s father who was covered by a policy of insurance issued by Covea, the Second Defendant. For the purposes of the appeal, it was assumed that the (lead) Claimant knew when he got into the car that it belonged to his friend’s father, that it had been taken without consent, and that the First Defendant did not have permission to drive the car and was not himself covered by insurance.
The issues centre on s.151 of the Road Traffic Act 1988 (‘the Act’). The Claimant claims that the Second Defendant is obliged to provide an indemnity by virtue of s.151(5). This states that an insurer is liable for any sum payable under a judgment in respect of liability for death and bodily injury, notwithstanding that the insurer may be entitled to or may have in fact avoided or cancelled the policy of insurance (subject to the provisions of that section). However, s.151(4) of the Act excludes liability in respect of inter alia death and bodily injury of any person who, at the time of the accident, was allowing himself to be carried in a vehicle when he knew or had reason to believe that the vehicle had been “stolen or unlawfully taken”.
Section 151(4) is significant insofar as it would, in principle, allow the Second and Third Defendants to escape their obligations to indemnify the First Defendant. The Claimant asserts in response that s.151(4) is not compliant with the requirements of Article 13 of EU Directive 2009/103/EC (‘the Directive’) because s.151(4) includes the additional words “unlawfully taken”. The Article 13 exclusion encompasses “persons who voluntarily entered the vehicle which caused the damage or injury, when the insurer can prove that they knew the vehicle was stolen” but makes no reference to vehicles “unlawfully taken”.
The domestic distinction between “stolen” and “unlawfully taken” was deliberate. It was imported from the Theft Act 1968, in which dishonest appropriation of another’s property with the intention to permanently deprive them of it (s.1, Theft Act 1968) is a separate offence to taking and driving away or taking a vehicle without consent (s.12, ibid.). The meat of the dispute is whether, notwithstanding the domestic distinction, the use of the word “stolen” in Article 13 is wide enough to extend to vehicles “unlawfully taken”, thereby extinguishing the Claimant’s argument that s.151(4) is non-compliant.
The case came before Master McCloud for a directions’ hearing on 20th August 2020, during which the Second Defendant applied for permission to call expert evidence on how the Directive was implemented in EU member states. This application had come to the fore since, owing to Brexit, there would no longer be the option of a reference to the European Court of Justice after 31st December 2020 for matters such as this to be resolved (per s.6(1)(b), European Union (Withdrawal) Act 2018).
In an extempore judgment, Master McCloud refused the Second Defendant’s application for expert evidence, noting that the issue concerned EU law, both in its various languages and how other states have implemented it, which Master McCloud regarded as a question of law for domestic courts to determine, carrying out the exercise the European Court of Justice might have carried out. Master McCloud did not consider expert evidence of foreign law was reasonably required because she was ‘not persuaded at [that] moment one need treat EU law as a foreign species of law’. Permission to appeal was granted by the Master.
European Union (Withdrawal) Act 2018
It is helpful to pause at this stage to consider the European Union (Withdrawal) Act 2018 (‘EUWA 2018’). In short, the EUWA 2018 converted EU law as it previously applied into domestic law so that it continued to take effect after 31st December 2020. There are five categories of ‘retained EU law’ although this article will not delve into analysis of each. The key points are: (1) the Directive continues to confer a right on the Claimant (the Road Traffic Act 1988 being an example of retained, EU-derived domestic legislation (s.2, EUWA 2018)); and (2) any question as to the meaning or effect of any retained (unmodified) EU law is to be decided in accordance with any retained case law and any retained general principles of EU law (s.6(3), ibid.). The net effect of that being, (in the High Court’s view at least): the English court ‘stands in the shoes of the European Court of Justice and must decide the issue as to the correct meaning of “stolen” in the Directive in accordance with retained general principles of EU Law’ (§21).
The Second Defendant’s / Appellant’s submissions can be summarised as follows:
a. To discern the true meaning of the word “stolen” in the Directive, the Court should consider the meaning of the Directive in all its language forms (Cilfit v Ministero Della Sanita  C283 / 81 ECR 3417).
b. The meaning of the word “stolen” cannot be considered in isolation; it should be interpreted in light of the versions existing in other official languages (R v The Commissioners of Customs and Excise, ex parte EMU Tabac  C296 / 95 ECR 1629).
c. Given the UK courts can no longer make a reference to the European Court, the Second Defendant should be allowed to adduce evidence of:
– the Second Defendant submits such evidence would be part of the wider context, assisting the domestic court in its interpretation of the word “stolen”.
The Claimant’s / Respondent’s submissions can be summarised as follows:
a. Each member state has authority over form and methods of implementation (providing the aim of the Directive is achieved) and the choice of such form and methods cannot determine the substantive scope or meaning of the Directive.
b. Tabac is concerned with the language of the Directive and there is nothing in that case which suggests the implementation of the Directive in member states is relevant to interpretation.
c. The function of the court when interpreting the word “stolen” is to look at the context and the objectives of the Directive, which is to provide compensation for those injured as a result of vehicles and ensure that insurance cover is provided; exceptions to that general principle should be narrowly applied.
d. The court would not be assisted by evidence of how the Directive is implemented in other jurisdictions and should instead adopt a purposive approach, looking at the objectives of the Directive to infer meaning.
Mr Justice Spencer referred to the ‘nightmare position’ in which the court finds itself, faced with translations of the Directive in multiple different languages. He considered that the English court was effectively being asked to supplant the position of the European Court of Justice ‘with one or both hands tied behind its back’ (§45). That is to say, without access to a pool of information on the various language versions and without the ability to invite submissions from member states as to the interpretation of the Directive in their jurisdiction.
Absent those resources, Mr Justice Spencer held that the UK court would require ‘some assistance’ and accordingly granted permission for the Second Defendant to adduce evidence from four experts in relation to:
a. Translations of the word “stolen” in ‘at least some other jurisdictions’ (§48).
b. An explanation of how the word is used and interpreted in the particular member state in order to inform the court as to the potential correct interpretation of the word in the Directive (§50).
c. ‘…some evidence of how the Directive has been implemented…’ to illustrate and explain the use of the translation and the word used in the particular jurisdiction is not excluded (§50).
Mr Justice Spencer further commented that damages in this case are liable ‘to be measured in millions’ and he considered it necessary and within the bounds of proportionality for expert evidence to be adduced.
In this case the appropriateness of expert evidence turns on whether interpreting the word “stolen” in the Directive is to be considered a question of law or a question of fact. Master McCloud appeared of the view that whilst the UK may or may not gradually evolve away from EU law, until such time, domestic courts cannot treat EU law as a ‘foreign species of law’. Master McCloud considered this issue should be approached as a matter of domestic law, not a matter of foreign law requiring the assistance of expert evidence.
As outlined above, the Road Traffic Act 1988 is EU-derived domestic legislation and must still be read in accordance with the relevant Motor Insurance Directive. EU-derived though it may be, since the UK’s departure from the EU, that law is now English law. Accordingly, the issue in the index case should be approached as a matter of domestic law, albeit interpreted by reference to retained EU law and domestic law generally.
It would seem, therefore, that the issue regarding the meaning of the word “stolen” is one of law and not fact. This appears to be supported by Schedule 5 of the EUWA 2018 which provides: where it is necessary for the purpose of interpreting retained EU law in legal proceedings, to decide a question as to the meaning or effect in EU law of any EU instrument, ‘the question is to be treated for that purpose as a question of law’ (Part 2, §3(1)).
Mr Justice Spencer’s ruling raises additional practical considerations. In this case, the court is to be assisted by four experts out of a possible 27 members states across which there are 22 languages, which could be unhelpfully selective.
Nevertheless, the case raises an important procedural point which will undoubtedly resurface. As it stands, it appears parties will be able to adduce expert evidence as to the translation and interpretation of EU law (to the extent that it is retained EU law) by other member states, providing it is necessary and proportionate to do so.
Article by Sorcha Dervin, a Pupil at Farrar’s Building.