Failure to MOT, ex turpi causa and Hire claims
21/09/20 16:05
Whether a Claimant who failed to MOT their own vehicle might have a hire claim dismissed on the basis of ex turpi causa has been a battleground in a number of recent cases. Claimants tend to favour the robust Judgment of HHJ Freedman in Jack v Dorys on Appeal in Newcastle County Court. It would be fair to say that HHJ Freedman was unimpressed by the Defendant’s ex turpi argument stating at paragraph 4 that
“Failure to have an MOT certificate due to an oversight could possibly give rise to a fine, but that is not what one would describe as criminal behaviour, in the true sense of the word. I am staggered that it was pleaded. I am even more staggered that it was argued before the District Judge. The District Judge would have none of it, however, and said that ex turpi causa had no part to play in this case. He was unquestionably right about that.”
In the Jack case the Claimant’s MOT was 4 ½ months out of date and the Claimant stated in his evidence that he had not been aware that it did not have a valid MOT, that it was due to an oversight on his part, and had it been brought to his attention he would have remedied the matter straight away. This evidence appears to have been accepted by the Court.
A similar issue was raised in a recent case in which I had involvement, Owusu v Greencore before HHJ Brown in Canterbury County Court. To put my cards on the table at the outset, I was Counsel for the Claimant and ended up very much on the wrong end of it! The Defendant relied on the cases of Agheampong -v- Allied Manufacturing London Limited [2009] Lloyd’s Rep IR 379 and the Northern Irish High Court case of Morgan v Bryson Recycling [2018] NIQB 12. As most readers will be aware, Agheampong deals with a case of an uninsured driver bringing a hire claim and essentially decided that a failure to insure does fall within the ambit of ex turpi causa and therefore the hire claim was dismissed. Morgan is more closely on point as it relates to a failure to MOT where an insurance policy was in place (albeit the insurance was invalidated by the failure to MOT, as is standard for most policies of insurance). The Northern Irish Court was persuaded that the failure to MOT did satisfy ex turpi causa and dismissed the hire claim. A little surprisingly Morgan appears not to have been referred to, or at least is not mentioned in HHJ Freedman’s judgment, in Jack v Dorys.
In Owusu the Court was referred to paragraph 120 of Lord Toulson’s Judgment in Patel v Mirza [2016] UKSC 42 which, although a very different type of case, both Counsel accepted as a concise general summary of the ex turpi causa principle and is set out below for ease of reference;
[120] The essential rationale of the illegality doctrine is that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system (or, possibly, certain aspects of public morality, the boundaries of which have never been made entirely clear and which do not arise for consideration in this case). In assessing whether the public interest would be harmed in that way, it is necessary a) to consider the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim, b) to consider any other relevant public policy on which the denial of the claim may have an impact and c) to consider whether denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment is a matter for the criminal courts. Within that framework, various factors may be relevant, but it would be a mistake to suggest that the court is free to decide a case in an undisciplined way. The public interest is best served by a principled and transparent assessment of the considerations identified, rather by than the application of a formal approach capable of producing results which may appear arbitrary, unjust or disproportionate.
Applying the above caselaw to the case before her HHJ Brown preferred the reasoning of HHJ Dean in Agheampong and followed the decision of the Northern Irish Court in Morgan. The Claimant sought permission to appeal but permission was refused.
On the face of it therefore we have 2 Circuit Judges, HHJ Freedman and HHJ Brown, reaching diametrically opposed conclusions on the same point. The conflict may seem even more dramatic when one considers that in Owusu the MOT had expired only 2 weeks prior to the accident as opposed to 4½ months in Jack. However the difficulty for the Claimant in Owusu, and a point which caused particular concern for the Judge, was that on his vehicle being returned to him following repair, the Claimant had continued to drive the vehicle without an MOT for several months and only got round to getting an MOT nearly a year after expiry. In contrast to HHJ Freedman’s finding that the failure to get the MOT in Jack was ‘an oversight’ (on the face of it a fairly generous finding given that the MOT was 4½ months overdue) the failure to renew the MOT for nearly a year in Owusu suggested a more flagrant disregard for the legal duty to keep the vehicle with a valid MOT.
This is likely to be a battle which will run on. My own opinion is that the position on failure to MOT is unlikely to be resolved in a such a clear cut way as the decision in Agheompong which leaves no doubt that a failure to insure engages ex turpi causa. On any reasonable view a failure to MOT is a less serious offence than failure to insure. In my opinion where a Claimant can show that the failure to MOT was a mere oversight then it is unlikely that the Defendant will succeed in an ex turpi causa argument. The length of time that the MOT was overdue and whether the Claimant can point to a record of compliance with their duty to MOT are relevant considerations. Where a Judge forms the view that the Claimant’s failure to get their vehicle MOT’d goes beyond an oversight and shows a more serious disregard for the duty to MOT then a hire claim is likely to be in some jeopardy from an ex turpi causa argument. Of course, there will be many cases in the middle of this spectrum and therefore, do not fear, there is much for the lawyers to continue to argue about!
A further consideration is whether a failure to MOT which is sufficiently serious to engage ex turpi affects just the hire claim or other heads of loss as well. The Claimant in Owusu brought the full constellation of claims which might arise from a road traffic accident to include personal injury, physiotherapy, and loss of earnings as well as hire. He succeeded in recovering his losses other than hire. It seems to me that this must be correct and that, whilst there is a sufficient nexus between vehicle related losses and failure to MOT, depriving a Claimant of their damages for injury and other consequential loss would be disproportionate in a case of a failure to MOT. However, if ex turpi applies to a hire claim then I can see a strong argument that it should also apply to other vehicle related losses such as repairs / PAV and storage. This argument will no doubt be raised when a suitable case comes along.
“Failure to have an MOT certificate due to an oversight could possibly give rise to a fine, but that is not what one would describe as criminal behaviour, in the true sense of the word. I am staggered that it was pleaded. I am even more staggered that it was argued before the District Judge. The District Judge would have none of it, however, and said that ex turpi causa had no part to play in this case. He was unquestionably right about that.”
In the Jack case the Claimant’s MOT was 4 ½ months out of date and the Claimant stated in his evidence that he had not been aware that it did not have a valid MOT, that it was due to an oversight on his part, and had it been brought to his attention he would have remedied the matter straight away. This evidence appears to have been accepted by the Court.
A similar issue was raised in a recent case in which I had involvement, Owusu v Greencore before HHJ Brown in Canterbury County Court. To put my cards on the table at the outset, I was Counsel for the Claimant and ended up very much on the wrong end of it! The Defendant relied on the cases of Agheampong -v- Allied Manufacturing London Limited [2009] Lloyd’s Rep IR 379 and the Northern Irish High Court case of Morgan v Bryson Recycling [2018] NIQB 12. As most readers will be aware, Agheampong deals with a case of an uninsured driver bringing a hire claim and essentially decided that a failure to insure does fall within the ambit of ex turpi causa and therefore the hire claim was dismissed. Morgan is more closely on point as it relates to a failure to MOT where an insurance policy was in place (albeit the insurance was invalidated by the failure to MOT, as is standard for most policies of insurance). The Northern Irish Court was persuaded that the failure to MOT did satisfy ex turpi causa and dismissed the hire claim. A little surprisingly Morgan appears not to have been referred to, or at least is not mentioned in HHJ Freedman’s judgment, in Jack v Dorys.
In Owusu the Court was referred to paragraph 120 of Lord Toulson’s Judgment in Patel v Mirza [2016] UKSC 42 which, although a very different type of case, both Counsel accepted as a concise general summary of the ex turpi causa principle and is set out below for ease of reference;
[120] The essential rationale of the illegality doctrine is that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system (or, possibly, certain aspects of public morality, the boundaries of which have never been made entirely clear and which do not arise for consideration in this case). In assessing whether the public interest would be harmed in that way, it is necessary a) to consider the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim, b) to consider any other relevant public policy on which the denial of the claim may have an impact and c) to consider whether denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment is a matter for the criminal courts. Within that framework, various factors may be relevant, but it would be a mistake to suggest that the court is free to decide a case in an undisciplined way. The public interest is best served by a principled and transparent assessment of the considerations identified, rather by than the application of a formal approach capable of producing results which may appear arbitrary, unjust or disproportionate.
Applying the above caselaw to the case before her HHJ Brown preferred the reasoning of HHJ Dean in Agheampong and followed the decision of the Northern Irish Court in Morgan. The Claimant sought permission to appeal but permission was refused.
On the face of it therefore we have 2 Circuit Judges, HHJ Freedman and HHJ Brown, reaching diametrically opposed conclusions on the same point. The conflict may seem even more dramatic when one considers that in Owusu the MOT had expired only 2 weeks prior to the accident as opposed to 4½ months in Jack. However the difficulty for the Claimant in Owusu, and a point which caused particular concern for the Judge, was that on his vehicle being returned to him following repair, the Claimant had continued to drive the vehicle without an MOT for several months and only got round to getting an MOT nearly a year after expiry. In contrast to HHJ Freedman’s finding that the failure to get the MOT in Jack was ‘an oversight’ (on the face of it a fairly generous finding given that the MOT was 4½ months overdue) the failure to renew the MOT for nearly a year in Owusu suggested a more flagrant disregard for the legal duty to keep the vehicle with a valid MOT.
This is likely to be a battle which will run on. My own opinion is that the position on failure to MOT is unlikely to be resolved in a such a clear cut way as the decision in Agheompong which leaves no doubt that a failure to insure engages ex turpi causa. On any reasonable view a failure to MOT is a less serious offence than failure to insure. In my opinion where a Claimant can show that the failure to MOT was a mere oversight then it is unlikely that the Defendant will succeed in an ex turpi causa argument. The length of time that the MOT was overdue and whether the Claimant can point to a record of compliance with their duty to MOT are relevant considerations. Where a Judge forms the view that the Claimant’s failure to get their vehicle MOT’d goes beyond an oversight and shows a more serious disregard for the duty to MOT then a hire claim is likely to be in some jeopardy from an ex turpi causa argument. Of course, there will be many cases in the middle of this spectrum and therefore, do not fear, there is much for the lawyers to continue to argue about!
A further consideration is whether a failure to MOT which is sufficiently serious to engage ex turpi affects just the hire claim or other heads of loss as well. The Claimant in Owusu brought the full constellation of claims which might arise from a road traffic accident to include personal injury, physiotherapy, and loss of earnings as well as hire. He succeeded in recovering his losses other than hire. It seems to me that this must be correct and that, whilst there is a sufficient nexus between vehicle related losses and failure to MOT, depriving a Claimant of their damages for injury and other consequential loss would be disproportionate in a case of a failure to MOT. However, if ex turpi applies to a hire claim then I can see a strong argument that it should also apply to other vehicle related losses such as repairs / PAV and storage. This argument will no doubt be raised when a suitable case comes along.
