Delaney v. Secretary of State for Transport, Jay J, 3 June 2014 – read judgment
Many readers may be wondering how it comes about that a drug-dealer is entitled to compensation against Her Majesty’s Government in circumstances where he was injured during the course of a criminal joint enterprise. The understandable reaction might be: there must be some rule of public policy, reflecting public revulsion, which bars such a claim. The short answer is that there is not.
Well put by the judge. Because as well as being the innocent victim of bad driving, the Claimant happened to have 240g of cannabis on him, and the negligent driver was found to have a smaller quantity. We are back in the familiar territory of ascertaining and applying a rule of law designed to compensate the injured without letting any free-floating moral disapproval get in the way of deciding what that law is. If, by contrast, you feel like a good dose of outrage, just click here for a link to a certain tabloid well-versed in all that.
The problem for the Secretary of State for Transport was, as the judge found, European Law required victims to be compensated in the circumstances, even if the driver’s insurance did not cover the claim. And there was no warrant for a domestic rule preventing such liabilities being paid by the Motor Insurers Bureau (MIB) or insurers whose job it was to provide compensation in accordance with European law.The judge therefore awarded Francovich damages (see below) against the UK for its breach in not conforming to EU law.
In 2006 Delaney was a front-seat passenger in a Mercedes 500SL, and was severely injured in the accident. The driver’s insurers went to court and got an order that the driver’s car insurance was invalidated because the driver had not told them that he was (a) diabetic (b) depressive and (c) an habitual cannabis user. Delaney then sued the driver and insurers for his injured, relying on the 1999 Uninsured Drivers Agreement. The judge dismissed this claim on two grounds, firstly on the grounds of public policy, and secondly relying on a domestic exception (cl.6(3)(iii)) contained in the Uninsured Drivers Agreement between the MIB and the SoS which applied where
(iii) the vehicle was being used in the course or furtherance of a crime
In 2011, the Court of Appeal (see judgment here) allowed the appeal on the first public policy ground – what we lawyers call ex turpi causa – you cannot sue in respect of criminal conduct – because the joint criminality between driver and passenger was only the occasion, and not the cause of the accident. But this did not get Delaney his damages, because the CA concluded that recovery at domestic law was excluded by cl.6(3)(iii).
So Delaney had another go, this time suing the SoS for wrongly having cl.6(3)(iii) as part of domestic law. In Euro-law, a bit like section 3 of the Human Rights Act and the ECHR, the Court must try and interpret the domestic provision in accordance with the higher law – but if you cannot do that, then your only remedy is to sue the member state for what is known as Francovich damages.
The first step in Jay J’s judgment was to dismiss the SoS’s argument that cl.6(3)(iii) could be read compatibly with the EU rule. The problem was the EU rule (contained in Article 1(4) of Directive 84/5/EEC, known as the Second Directive) provided for possible exclusions of compensation where the passenger knew that the vehicle was uninsured or where there had been property damage caused by an unidentified vehicle. It did not, as the judge found, allow the member state to exclude other cases.
The second step (the 5th issue in the judgment) was to dismiss the SoS’s contention that Delaney must have known that the driver was uninsured when he allowed himself to be a passenger.
Member state liability
The third, and main, issue was that of member state or Francovich liability for damages. Jay J’s judgment contains a valuable summary of the cases on their availability. The starting point was a three-fold test; the EU provision must be intended to confer rights on individuals, the breach by the member state must be ‘sufficiently serious”, and there must be a direct causal link between the breach and the damage. The issue in this case was “sufficiently serious”. The cases sought to draw a distinction between instances where the rule conferred a wide margin of discretion on member states when implementing EU policies, and those where this margin was constrained by the terms of the EU rule.
Jay J drew the threads together on the law:
…..In such circumstances, the test remains – is the breach sufficiently serious? But, it will be much easier to establish this if the margin of discretion open to a Member State is considerably reduced. It will be even easier to establish this if there is no discretion at all.
 ……….. (i) irrespective of the breadth of the discretion, the sufficiently serious breach test is always applicable, and (ii) in a little or no discretion type of case, the Member State’s failure to take any of the measures necessary to achieve the result prescribed by a directive within the relevant time-frame will, almost by definition, constitute a manifest and grave disregard by that Member State of the limits, such as they are, on its discretion. It may be seen that in this way the test that Community law imposes is a unitary one, but the factors which fall to be taken into account in ascertaining breach will vary according to the context.
He referred to an asylum Reception Directive case, Negassi  EWCA Civ 15, where Maurice Kay LJ said this:
The evaluation of the seriousness of the breach in the present case seems to me to be quite finely balanced. I have come to the conclusion that, notwithstanding the points in Mr Negassi’s favour (the most striking of which was the total exclusion of the subset of applicants for asylum of which he was one), the breach was not sufficiently serious to satisfy the test. It was not deliberate. It was the result of a misunderstanding of new provisions in an area of recent EU concern. It was not a cynical or egregious misunderstanding. It was not confined to the Secretary of State. It was shared, as a matter of first impression, by a number of judges …
The facts on “sufficiently serious breach”
The SoS started quite a few points down because it could not produce any document explaining why it was decided to bring in the crime exception in cl.6(c)(iii), and indeed the Ministerial submission about the draft Uninsured Drivers Agreement was completely silent on this. The judge was sorely tempted to draw an adverse inference from this omission, regarding it as “remarkable” that there was no such document, but refrained from doing so.
In the end, he decided that this was a “little or no margin of discretion” case. He did not conclude that the SoS possessed a deliberate intention to infringe in the sense that it knew that it was acting in breach of Community law. But his favoured approach  was that the SoS Defendant must be taken to have decided deliberately to run the risk. And ()
In short, to conclude that the Defendant acted inadvertently, or excusably, would entail my drawing the sort of favourable inferences which I cannot accept should fairly be drawn in these circumstances.
Jay J therefore decided that the SoS
is guilty of a serious breach of Community law in circumstances where its room for manoeuvre under the Directives was closely circumscribed. It did not have a wide discretion. Its obligations under the Directives, and their relevant confines, were quite clear, and – in the absence of knowing the actual reason for this policy decision – the best that may be said is that the Defendant decided to run the risk, which was significant, knowing of its existence
At root, the judge decided that, despite the SoS’s protestations, the position was not all that complicated. The Directive allowed specific and inapplicable exceptions to be made to the rule that victims should be compensated. This gave little room for the SoS to manoeuvre. The other trouble was that the SoS could not show how in fact he had reached the decision he did. Taking this altogether, he must have appreciated that the new rules posed a risk of being in breach of the EU Directive. And the tabloid response summarised by the judge at the top of this post simply was not going to get the SoS off the hook.
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