England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (BUCKLEY J)

		Royal Courts of Justice Strand, London, WC2A 2LL Thursday 18th January 2001

LORD JUSTICE ROBERT WALKER:

Introduction

1. Proceedings are pending in the Queen's Bench Division of the High Court in which Mr Samuel Evans is the claimant and the defendants are the Secretary of State for the Environment, Transport and the Regions and the Motor Insurers' Bureau ("the MIB"). On 17 March 2000, at the hearing of preliminary issues in the action, Buckley J ordered that five questions should be referred to the Court of Justice of the European Communities under Article 234 (formerly 177) of the Treaty. The principal issue on this appeal is whether the judge erred in referring two of those five questions. The appellant, the Secretary of State, contends, with the support of the MIB, those two of the questions are, in the circumstances of the case, hypothetical or academic, and that decisions on them are therefore not necessary to enable the High Court to give judgment. There is a secondary issue as to whether there should be summary judgment against Mr Evans, under CPR Pt 24, on part of his claim.
2. The principal issue is in the end quite a short point, but it takes some time to get to it, and this court has been faced with the weighty volumes of authorities which seem to be an inevitable concomitant of cases with a Community element. In order to explain how the issue arises it is necessary to say something about the MIB, about Council Directive 84/5/EEC of 30 December 1985 ("the Second Motor Insurance Directive" or "the Directive") and the course of the various proceedings which Mr Evans has pursued since he was injured by a hit-and-run driver on Christmas Day 1991.

The MIB

3. The MIB was incorporated in 1946 under the Companies Acts as a company limited by guarantee. Its position was described as follows by Hobhouse LJ in Evans v Motor Insurers' Bureau and associated cases [1999] 1 LLR 30, 40,

"Its members are private law insurance companies who have chosen for the time being to write motor insurance business. It is true that they have a statutory position in that it is compulsory for the user of a motor vehicle on the road to take out a policy with a company which is a member of the Bureau. (Section 145 of the Road Traffic Act, 1988). But the Motor Insurers' Bureau scheme has been in existence from a time earlier than the United Kingdom's membership of the European Communities (or Union) and agreements between the Bureau and the Secretary of State relating to uninsured drivers and untraced drivers have long formed part of that scheme."

4. The judge quoted this passage and also referred to a rather fuller description by Diplock LJ in Gurtner v Circuit [1968] 2 QB 587. Diplock LJ referred (at pp.598-9) to the gap in the protection provided by compulsory third party insurance,

" ... if (a) the defendant was not insured at the time of the accident or (b) his policy of insurance was avoided in the circumstances specified in section 10(3) of the [Road Traffic Act 1934] for non-disclosure or misrepresentation or (c) his insurer too was insolvent. To fill this gap the insurers transacting compulsory motor vehicle insurance business in Great Britain, acting in agreement with the Minister of Transport, formed a company, the Motor Insurers' Bureau, to assume liability to satisfy judgments of these three kinds. But instead of amending the legislation so as to impose upon the Motor Insurers' Bureau a statutory liability to the unsatisfied judgment creditor as had been done by the Road Traffic Act, 1934, in respect of the liability of insurers to satisfy judgments against defendants covered by a valid policy of insurance, the matter was dealt with by an agreement of June 17, 1946, between the Minister of Transport and the Motor Insurers' Bureau.

To this contract, for that is all that it is in law, no unsatisfied judgment creditor is a party. Although clearly intended by both parties to be for the benefit of such creditors, the Minister did not enter into it otherwise than as a principal. He was not purporting to act as agent so as to make it capable in law of ratification by those whom it was intended to benefit. Many of them were not born at the time when it was made. The only person entitled to enforce the contract is the Minister. I do not doubt that upon the principle accepted by the House of Lords in Beswick v Beswick [1968] AC 58 the Minister could enforce it by obtaining a judgment for specific performance which, once obtained, could be enforced against the bureau by the unsatisfied judgment creditor in whose favour the order for specific performance was made. But the Minister is the only party entitled to bring an action to enforce the contract. It confers no right of action against the Motor Insurers' Bureau upon any unsatisfied judgment creditor."

It should be noted that the Contracts (Rights of Third Parties) Act 1999 is now in force and might produce a different analysis if the existing agreements are renewed or replaced; but no submissions have been made to the court about that Act because it does not affect past contracts.

5. The agreements in force between the Secretary of State and the MIB at the relevant time were the Motor Insurers' Bureau (Victim of Uninsured Drivers) Agreement ("the uninsured drivers' agreement") entered into on 21 December 1988 and the Motor Insurers' Bureau (Victim of Untraced Drivers) Agreement entered into on 22 November 1972 as affected by a supplementary agreement of 7 December 1977 (together "the untraced drivers' agreement"). There are significant differences between the terms of the two agreements, which arise naturally from the different factual situations referred to in their respective titles. It is not necessary to attempt any comprehensive summary of the agreements; some particular provisions will be referred to later.

The Directive

6. The Second Motor Insurance Directive of 30 December 1983 varied and supplemented the original Council Directive 72/166/EEC. In particular, it imposed on Member States a new obligation to provide (in the words of one of the recitals in the Second Motor Insurance Directive)

"a body to guarantee that the victim will not remain without compensation where the vehicle which caused the accident is uninsured or unidentified."

7. That obligation was imposed by Article 1(4) of the Directive, which must be set out in full:

"Each Member State shall set up or authorize a body with the task of providing compensation, at least up to the limits of the insurance obligation for damage to property or personal injuries caused by an unidentified vehicle or a vehicle for which the insurance obligation provided for in paragraph 1 has not been satisfied. This provision shall be without prejudice to the right of the Member States to regard compensation by that body as subsidiary or non-subsidiary and the right to make provision for the settlement of claims between that body and the person or persons responsible for the accident and other insurers or social security bodies required to compensate the victim in respect of the same accident.

The victim may in any case apply directly to the body which, on the basis of information provided at its request by the victim, shall be obliged to give him a reasoned reply regarding the payment of any compensation.

However, Member States may exclude the payment of compensation by that body in respect of persons who voluntarily entered the vehicle which caused the damage or injury when the body can prove that they knew it was uninsured.

Member States may limit or exclude the payment of compensation by that body in the event of damage to property by an unidentified vehicle.

They may also authorize, in the case of damage to property caused by an uninsured vehicle an excess of not more than 500 ECU for which the victim may be responsible.

Furthermore, each Member State shall apply its laws, regulations and administrative provisions to the payment of compensation by this body, without prejudice to any other practice which is more favourable to the victim."

The insurance obligation referred to in Article 1(4) is contained in Article 1(2), which specifies the minimum level of cover against different types of loss.

8. The obligation to amend national provisions so as to comply with the Directive was (by Article 5) to be performed by 31 December 1987, subject to certain extensions which are not relevant to this case. The amended provisions had to have effect from 31 December 1988. Since the MIB had been in existence for many years, the United Kingdom might have been thought to be in a position to congratulate itself for being ahead of the field. After consultation with the MIB the government took the view that no new measures were required to implement Article 1(4) of the Directive as regards untraced drivers. The questions in the Article 234 reference raise various doubts as to the correctness of that view.
9. There is a witness statement of the MIB's Claims Manager, Mr Roger Snook, which gives a detailed account of the MIB's procedures. Until 1969 victims of untraced drivers could expect no more than an ex gratia payment. But since that year they have been covered by a formal agreement (now the untraced drivers' agreement) between the Secretary of State (or his predecessors) and the MIB. The procedure laid down in the agreement involves a number of different stages which (if fully implemented, as they were in Mr Evans' case) amount to (i) notification of claim; (ii) inquiries and investigations carried out on behalf of the MIB by one of its members, termed the investigating member; (iii) an informal offer by the MIB; (iv) formal adjudication by an MIB adjudication panel; (v) if the claimant wishes to appeal, formal readjudication, as a rehearing, by a different adjudication panel; and finally (vi) appeal to an independent arbitrator selected from a panel of Queen's Counsel appointed by the Lord Chancellor.
10. Mr Snook's witness statement also gives figures indicating the extensive and growing scale of the MIB's activities. In 1992 it received 34,445 claims resulting in payments of about £57m; in 1997 44,495 claims resulting in payments of about £120m; for 2000 the estimated figures are 50,000 claims and payments of about £215m.

Mr Evans' claims

11. Mr Evans (who is now 76 years of age) was injured during the early evening of Christmas Day, 1991, when he was standing by his parked car outside his sister's house in Upper Norwood. His injuries included a serious fracture of his left leg. The MIB took the view (later upheld by the independent arbitrator, Miss Diana Cotton QC) that he was partly to blame because it was dark and he was standing in the road, which was only about 24 feet wide, and was leaning into his car from the offside. His wife was also in the roadway but she was not injured.
12. Mr Evans made a claim which was received by the MIB on 11 June 1992. Mr Evans was represented by solicitors, Joseph Aaron & Co, either from the inception of his claim or soon after its inception. The investigation and adjudication of the claim took an exceptionally long time, for reasons which are explained in detail in Mr Snook's witness statement. Mr Evans was dissatisfied with the MIB's informal offer (of £50,000) and with the awards made by successive adjudication panels. The investigating member, NIG, suspected Mr Evans of having given the doctors a false account of his disabilities and it engaged agents to undertake surveillance and make video recordings. It is not necessary to go into all the details. The upshot was that on 27 August 1996 Miss Cotton made an award of £46,629 on the basis of 20 per cent contributory negligence, and ordered Mr Evans to pay her fee on the basis that he had been dishonest in his evidence and had no reasonable grounds for his appeal. This sum was paid, less interim payments and without interest, on 21 October 1996 (the untraced drivers' agreement made no provision for interest). The MIB also paid Joseph Aaron & Co disbursements of £770 and costs of £150 plus VAT, that being the standard sum agreed under a separate agreement (made in 1990) between the MIB and the Law Society.
13. Mr Evans sought to appeal from the arbitrator's award to the High Court, but received permission to appeal only on the issue of interest, and his appeal on that issue was unsuccessful. From the High Court he appealed to this court (the latter appeal being reported at [1999] 1 LLR 30, as already mentioned). This court (Hobhouse, Swinton Thomas and Schiemann LJJ) held (with Hobhouse LJ expressing doubt but not dissenting on the second point) that the MIB was not an emanation of the state for Community law purposes and that the Directive was not capable of having direct effect as it did not identify the body liable to provide the guarantee. Following that decision Mr Evans tried to appeal to the House of Lords, but his petition for leave was rejected in January 1999.
14. In the following month Mr Evans, having exhausted all possible remedies against the MIB, commenced the present proceedings against the Secretary of State for damages for an alleged failure to implement the Directive correctly. This claim is based on the principles in Francovich and Bonifaci v Italy [1991] ECR I - 5357 and Brasserie du Pecheur v Germany and R v Secretary of State for Transport ex parte Factortame [1996] ECR I - 1029. In December 1999, after the preliminary issues had been directed, the MIB was joined as a party on its own application.
15. Mr Evans' complaints as to how the untraced drivers' agreement fails to comply with the Directive are set out in twelve subparagraphs of particulars in paragraph 10 of his statement of claim. For present purposes the most important subparagraphs are (ii), (iii), (iv) and (vi), which refer respectively to non-recovery of interest, to non-recovery of substantial costs, to the absence of adjudication on the claim by a judge sitting in public in the ordinary court system (although that complaint has now rather dropped out of the picture) and to the absence of an unrestricted right of appeal. The other subparagraphs are mainly more general complaints of prejudice and inequality arising out of or connected with the same matters. Subparagraph (xii) asserts that neither the Secretary of State nor the United Kingdom has set up or authorised a body in accordance with Article 1(4) of the Directive. The statement of claim seeks general and special damages and (unspecified) declaratory relief.
16. These complaints made in Mr Evans' pleading are reflected in the preliminary issues ordered by Master Murray on 17 November 1999, and in the order for reference to the Court of Justice made by the judge. The preliminary issues ordered were as follows:

"(a) Whether the MIB is duly authorised by the 1st Defendant pursuant to the Second Directive.

(b) Whether the 1st Defendant is in breach of his obligations under the Second Directive in respect of:

i) the absence of any provision for the payment of interest;

ii) the absence of a provision for the payment of costs;

iii) the procedural methodology adopted in relation to claims by victims of unidentified drivers.

c) If the answer to (a) above, or to (b) above in respect to any of the three items is "Yes", whether the Claimant is a member of a class of persons intended to be protected or benefited by the Second Directive, and thereby entitled to bring an action against the 1st Defendant."

The order for reference

17. Mr Richard Plender QC (appearing in this court with Mr Donald Broatch for Mr Evans) described the form of the questions as the product of a "laborious compromise". They are quite lengthy and the first two can be summarised as raising the issues of interest and costs respectively. The third question (reflecting a narrowing of Mr Evans' case as originally pleaded) asked whether on the proper interpretation of the Directive

" ... if the victim's application for compensation is determined by a body that is not a court, must he have a full right to appeal against that determination to a court, on both the facts and the law, rather than an appeal to an independent arbitrator having the following principal characteristics: ... "

The characteristics which followed can be briefly summarised as: (i) an appeal to the arbitrator on law as well as fact; (ii) an opportunity to make further representations prior to appeal; (iii) disclosure of all material submitted to the arbitrator and an opportunity to add to it; (iv) the arbitrator's decision being given without an oral hearing but with written reasons; and (v) a limited right of appeal from the arbitrator to the court.

18. The fourth question (arising if any of the preceding questions was answered favourably to Mr Evans) was as follows:

" ... has a Member State duly authorised a body under Article 1(4) of the Directive when an existing body has the task of providing compensation to victims pursuant only to an agreement with the relevant authority of the Member State that does not correspond to the Directive in those respects, and:

a) that agreement creates a legal obligation owed to the relevant authority of the Member State to provide compensation to victims which is directly enforceable by the relevant authority and does not give such victims a directly enforceable legal right to claim against that body, but the victim may apply to the Court for an order that the authority should enforce the agreement if the authority were to fail to do so; and

b) that body carries out that obligation by accepting and paying claims from victims in accordance with that agreement; and

c) the Member State considered in good faith that the provisions of that agreement gave at least as good protection to victims as the requirements of the Directive?"
 


19. The fifth question (again, arising if any of the preceding answers was favourable to Mr Evans) was whether a failure to comply with the Directive in that respect constituted a sufficiently serious breach by the Member State as to give rise (if causation is established) to liability for damages as a matter of Community law.
20. There is little between the parties, except as a matter of emphasis, on the general issue of when a reference to the Court of Justice (otherwise than by a court of last resort) is permissible and appropriate. Mr Peter Roth QC (appearing with Ms Helen Davies for the Secretary of State) relied on the observations of Bingham J in Commissioners of Customs & Excise v Aps Samex [1983] 1 AER 1042, especially his observations at p.1055-6 that it is generally right for the court to find the facts before referring questions of law to the Court of Justice. Mr Plender pointed out that under Article 234 it is the national court's opinion (as to what is necessary to enable it to give judgment) which is important. He also referred to Stephenson LJ's adoption, in relation to a first-instance judge's decision whether or not to make a reference, of the well-known statement that an appellate tribunal should interfere only when the judge's decision "exceeds the generous ambit within which reasonable disagreement is possible": see Bulmer Ltd v Bollinger SA [1974] Ch 401, 431. Mr Plender also referred in his written submissions to a recent judgment of the Court of Justice in the case of Giancarlo Fornasar and others 22 June 2000 at para 27:

"Dismissal of a request from a national court is possible only where it is clear that the interpretation of Community law or the consideration of the validity of a Community rule requested by that court has no bearing on the real situation or on the subject-matter of the case."

A national court should however aim higher than merely avoiding obviously misconceived references to the Court of Justice, such as the almost ludicrous case of Mielicke v ADV/Orga [1992] ECR I - 4872.

Specific submissions

21. In his more specific written and oral submissions Mr Roth made the point (which is common ground) that Mr Evans' prospects of success in his complaints largely depend on invoking Article 6 of the European Convention on Human Rights as part of the fundamental principles of Community law. Mr Evans' case is that if he had received a full appeal hearing before a judge sitting in an ordinary court and hearing oral submissions he would have been able to meet and destroy the charges of contributory negligence and exaggeration of his injuries which (as he says) he could not properly meet under the MIB's procedures. Mr Roth accepted that whether or not Mr Evans' civil rights were being determined, within the meaning of Article 6, was a difficult issue with potentially wide implications. The Secretary of State's case was that the claim for compensation under Article 1(4) of the Directive did not involve the determination of civil rights, and that in any event Article 6 of the European Convention of Human Rights did not require total compliance with the 'fair trial' provisions at every stage of an adjudication, so long as there is "subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6(1)": see Albert and Le Compte v Belgium (1983) 5 EHRR 533, para 29. Mr Roth then deployed the argument on causation which is central to this appeal.
22. Mr Dermod O'Brien QC (appearing with Mr Fergus Randolph for the MIB) supported these submissions, emphasising the reference (in the last subparagraph of Article 1(4)) to each Member State applying its own laws, regulations and administrative provisions. The general thrust of Mr O'Brien's submissions was simply that regardless of legal structures and obligations, and despite Mr Plender's submissions about legal certainty, the MIB always had paid everything that it was liable to pay under successive versions of the two agreements. He also pointed out that in the thirteen years since the Directive was required to be implemented, no question or doubt as to its proper implementation by the United Kingdom has ever been raised by the Commission. Mr O'Brien and Mr Roth both repudiated Mr Plender's suggestion that many more claims similar to that of Mr Evans are waiting on the outcome of this case.
23. About half way through Mr O'Brien's oral submissions it became apparent that he was seeking to go a good deal further than Mr Roth, and to submit that it is acte clair that the MIB was duly authorised for the purposes of the Directive. I have to say that I would have felt some sympathy with that submission, if it had been raised (which it was not) in a respondent's notice or even in Mr O'Brien's skeleton argument. In the circumstances I consider that it was much too late to raise a point of such importance. Moreover Mr O'Brien put in the forefront of his argument a passage in Mr Evans' petition to the House of Lords (asserting that the MIB was an emanation of the state) which put forward a proposition which has been rejected by this court and on which the House of Lords did not grant permission to appeal. That is a very shaky foundation on which to build.
24. These summaries may not do full justice to all the arguments (other than those on causation) which were put forward on behalf of the Secretary of State and the MIB. But it is unnecessary to go further into the other arguments since (apart from Mr O'Brien's last-minute thoughts) this appeal is not concerned with whether the third and fourth questions in the reference are acte clair. It is concerned with an issue of causation which affects both those questions. It is said that the judge overlooked this point in his judgment, even though it had been put to him.
25. Reduced to its essentials the argument is as follows. Even if the third and fourth questions are seriously open to debate, they are academic in this case because Mr Evans' complaints about the MIB and its procedures are, on the facts of this case, bound to fail. It does not matter whether or not his claim was fairly adjudicated on by a duly authorised body, because any infringement of Community law (either in the authorisation of the MIB or in its adjudication procedures) was not causative of the loss pleaded in his statement of claim.
26. That appears to me to be a bold submission, although Mr Roth's skilful presentation concealed some of its boldness. It is particularly bold in a case in which there has been an order for the trial of preliminary issues, and no full fact-finding exercise has yet taken place. Mr O'Brien, in his arguments in support of Mr Roth, took the court to some documentary material (culminating in an exchange of letters in July 1996 between the MIB and Joseph Aaron & Co) in order to show that Mr Evans deliberately chose, at a time when he knew of the video evidence, not to make any further representations or to place any more material before the arbitrator. But the judge did not find as a fact, nor do I think that this court should find as a fact, that the outcome would inevitably have been the same if Mr Evans had had the right, at some stage in the procedure, to an oral hearing on the facts.
27. In his submissions on causation Mr Roth referred to the decision of the Court of Justice in Brinkmann Tabakfabriken v Skatterministeriet [1998] ECR I - 5257. That was a case as to whether a novel tobacco product manufactured by Brinkmann should be classified (under the directive as to taxes on manufactured tobacco) as a cigarette or as smoking tobacco. The Danish authorities did not formally transpose the directive by legislation, but their administrative organs did their best to apply its terms. However in doing so they made what the Court of Justice regarded as a venial error in relation to the interpretation of the directive in its application to an unique product. It was in that context, and in considering whether Denmark was guilty of a grave and manifest breach of Community law, that both Advocate-General Jacobs and the Court of Justice (at para 30 of his opinion and para 29 of the judgment respectively) drew attention to the absence of causal connection between lack of formal implementation and the error of classification. There is in my view no close parallel with the present case at this stage, although it may become more relevant if and when the national court has to make findings about the seriousness of the breach (unless indeed the Court of Justice can do so in answering the fifth question, as in Brinkmann and in R v Treasury ex parte British Telecommunications [1996] QB 615 [1996] ECR I - 1029).
28. Mr Roth's point on causation was therefore fairly fragile at the close of the argument in support of the appeal. Mr Plender in his opening submissions dealt it what I see as two decisive blows. First, he pointed out that the questions to be referred to the Court of Justice are essentially the same as those which were directed to be heard as preliminary issues, although that essential identity tends to be concealed by the elaboration and rearrrangement of the order of the questions, and by the fact that the judge did (in conscious exercise of his case-management powers) expand the scope of the fifth question. If the preliminary issues were thought necessary for the determination of the action, then the questions posed in the reference to the Court of Justice must equally be necessary.
29. Second, Mr Plender pointed out that in his action Mr Evans is claiming declaratory relief and general damages as well as specific sums (claimed either as special damages or as liquidated sums). The claims to damages will depend on the national court (or possibly the Court of Justice itself, as in Brinkmann and the British Telecommunications case) being satisfied that there has been a grave and manifest breach of Community law which has been causative of loss.
30. It would be difficult, if not impossible, for any court to decide that issue without having a complete picture of what breaches of Community law had been established. As the judge said, the particular breaches complained of by Mr Evans were 'part and parcel' of his more general complaint of the absence of due authorisation.

Conclusion

31. The judge had a difficult case-management decision to make. He must have been very well aware of how protracted the history of Mr Evans' claims has been, and of the danger of further delay occasioned by a more complex reference. He was clearly anxious that the reference which he was making should cover all the points which might be necessary to the determination of the action. His decision was within the generous ambit of his discretion. The secondary issue as to summary judgment does not arise.
32. I would therefore dismiss this appeal. But I fully share the concerns voiced by the other members of the court as to the huge expense of this litigation, all of which is (in one way or another) being conducted at public expense. The amount originally at stake was relatively quite small, although it has swollen with the costs of this protracted litigation; and there is not, it seems, any accumulation of other cases waiting on its outcome.

Lord Justice Judge:

33. It is now nine years since Mr Evans was struck and injured by a passing car with an untraced and unidentified driver at the wheel.
34. The consequent litigation has been protracted and expensive.
35. On 27th August 1996 Miss Diana Cotton QC, the arbitrator appointed under the provisions of the relevant Motor Insurers Bureau (MIB) Agreement 1972 held that Mr Evans had established liability, and she assessed damages at £58,286. She further concluded that he had contributed 20% towards the accident, so his damages were reduced to £46,629. The 1972 Agreement is no longer in force, and the subsequent 1996 Agreement which replaced it, is itself in the process of being redrafted.
36. The appeal before us was concerned with issues of costs and interests which Miss Cotton had no power to order, and the standard procedures adopted in the course of her arbitration. Mr Evans appealed under the provisions of the Arbitration Act 1950 to 1979. This process culminated in the dismissal by the House of Lords of his petition for leave to appeal the adverse decision of the Court of Appeal on 30 September 1998.
37. According to the pleaded case the costs on Mr Evans' side alone amounted to just under £55,000. He was also ordered to pay £22,000 of the costs of the MIB in the proceedings to the conclusion of the hearing at first instance. The costs incurred by the MIB in the Court of Appeal were agreed at £24,000 (again ordered against Mr Evans) and assuming that the costs of the application for leave to appeal to the House of Lords reasonably approximated to his own costs, something like £50,000 or so in costs was incurred by the MIB. £46,000 of the costs ordered to be paid by Mr Evans remain unpaid. So before the present proceedings began, the costs of both sides, incurred by Mr Evans, or his solicitor on a contingency fee basis, or ordered against him, amounted to something in excess of £100,000.
38. What, in money terms, is the litigation all about? On the face of it, just under £8,000 in relation to interest on damages, together with just over £8,000 for Mr Evans' costs of the hearing before the arbitrator was at stake. Even that does not tell the whole story. The MIB made an informal offer of £50,000 which, even allowing for interest up to the date of the award, on at least one reasonable calculation, marginally exceeded the amount awarded by Miss Cotton. So on that basis, even if interest were added to her award, the costs of the arbitration would probably fall on Mr Evans in any event. In fairness to him, he would argue that in addition to interest and costs of the hearing before the arbitrator, he would hope to recover the 20% deducted for his contributory negligence (an assessment which he regards as erroneous) and an increase in his general damages, which at least in part, and certainly not without apparent justification, was assessed on the basis that his evidence about the extent of his disability consequent on the accident was exaggerated. If so, the MIB's offer of £50,000 would not exceed the appropriate level of the award.
39. Mr Evans was already sixty seven years old at the date of the accident, in a very precarious business, and an allowance for his earnings was made for three years after the accident. So the assessment of the claim for loss of earnings was not ungenerous. In any event, the difference between the award made by the arbitrator, and the amount which Mr Evans could reasonably hope to recover assuming every stage in the litigation hereafter were decided favourably to him, would be relatively modest. The present claim, however, also includes the costs of the litigation incurred by both sides (that is, his own costs and those ordered against him) up to and including the petition for leave to appeal to the House of Lords. So in one sense the present litigation has very little to do with the merits, or otherwise, of the claim for interest and the costs of the arbitration, or even the decision of the arbitrator, or the decision making process. The real issue is the costs of litigation following her decision.
40. Into the equation we must now place the costs incurred by all three parties in the present proceedings before Buckley J and this court. We do not know the amount of these costs, but there is no reason to assume that the global sums will be modest, and they will be added to £100,000, or so, already expended.
41. The claimant has been legally aided since 1999, after the issue of the writ in the present proceedings. Indeed all the parties are directly or indirectly funded at public expense, the MIB by collecting premiums from insured drivers. If Mr Evans loses this litigation he will end up with nothing. So will the MIB, which will not seek any further order for costs against him. His success in his appeal to this court emphatically does not mean that he will necessarily be successful before the Court of Justice. And, in reality, unless he wins at every point, again he will end up with nothing. If the history of non-payment of the orders for costs already made against him is anything to go by, the likelihood is that the other parties to the litigation will become increasingly out of pocket, without any practical means of enforcing any orders for costs. And even if Mr Evans succeeds, the litigation will not necessarily be over. Further steps along this interminable nightmare are, at the very least, possible.
42. Throughout the argument I was, and for the reasons given in this judgment, I remain seriously troubled about the decision to request the Court of Justice, in accordance with Article 234, to provide the preliminary rulings identified by Buckley J's order. Nevertheless, although the overall costs of the litigation have become wholly disproportionate to the amounts in issue, if the litigation has to be pursued to a conclusion, the opinion of the Court is necessary to enable judgment to be given on a point of principle. Therefore, despite the disproportion between the costs expended on litigation arising from a simple road traffic accident in 1991 and the sums originally in issue when litigation began in the High Court, the reference cannot be stigmatised as merely theoretical, or hypothetical.
43. I see no alternative to the conclusion reached by Robert Walker LJ. For the reasons given in his judgment, I agree that these appeals should be dismissed. That said, although it is far too late for a proportionate correlation between the costs already incurred and the amount in issue to be restored, and despite the written observations by Mr Donald Broatch on the costs/legal aid issue received at the conclusion at the oral argument, I feel obliged to raise the question whether continuation of this litigation makes economic or practical sense. It is, of course, for the Legal Services Commission, not this court, to decide whether Mr Evans' claim should continue to be publicly funded. But as a matter of common sense, before a single further step in this litigation is taken, the history I have attempted to narrate should drive all the parties to reassess the practical advantages likely to accrue to them, and in particular, Mr Evans personally, (an aspect of the case which despite the further written material remains somewhat opaque) were the litigation to proceed to its inexorable conclusion, and whether these advantages (if any) would be proportionate to the inevitable outlay of additional costs.
44. I have studied the further material advanced on behalf of the Secretary of State on the issue of the "lost chance", canvassed during the course of submissions by Lord Woolf. In my judgment there is nothing in the further material to undermine either the reasoning or the conclusion that these appeals should be dismissed. It is therefore unnecessary to express any view whether the decision in R v Secretary of State for the Home Department, ex parte Gallagher [1996] 2 CMLR 951 would be directly applicable to this case, or to seek further submissions from Mr Richard Plender QC on behalf of Mr Evans.

Lord Chief Justice:

45. I agree with both judgments.