UPDATE - Wilkinson -v- Fitzgerald - 7th September 2011
14/9/2011
Following the landmark hearing held at the European Court of Justice on the 8th July 2011, the Advocate General has now submitted his Opinion, which favours Potter Rees' argument.
In summary, the Advocate General's Opinion is:
1. The liability of Fitzgerald for the accident is clearly established under English law and so the real issue is whether insurers can effectively withhold compensation payable.
2. European Directives and case law establish that "victims of accidents are always entitled to be compensated by the insurer" unless one of the exceptions laid down by the Directives is applicable, and there is no exception here.
3. Specifically, it is irrelevant what the passenger victim knew about the driver's lack of insurance. As a consequence, passenger victims were potentially in a better position if the vehicle were insured rather than uninsured but did not consider that this should entitle insurers to withhold compensation.
4. Section 151(8) of the Road Traffic Act 1988 is incompatible with European Law. The unacceptable practical effect is to allow insurers to withhold compensation in each and every case irrespective of any fault on the part of the authorising passenger victim.
This favourable Opinion is of course excellent progress for Potter Rees' client. The subsequent ECJ Judgment is hoped to be received some time in December.
Hugh Potter is acting for the Claimant
