Colley v Shuker: Considering Service At Last Known Address

[2019] 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...