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1. The Plaintiff, Philip Bowes, is a sales representative and resides at Malahide, County Dublin. On 25th November, 1993 he was driving a Rover Estate car, the property of the Wrigley Company Limited on the public highway near Lismullen, Navan, County Meath. He was accompanied by his fellow sales representative, Andrew Hart. A motorcycle, the property of and driven by Darby J. Kennedy of Navan, County Meath came around a bend and collided with the car in which the Plaintiffs were travelling. The motorcyclist was fatally injured in the collision. Apparently neither the motorcycle nor the motorcyclist were covered by insurance.

2. On 22nd July, 1994 the Motor Insurers' Bureau of Ireland (M.I.B.I.) was put on notice of the Plaintiffs' claim. On 3rd August, 1994 M.I.B.I. sought information from the Plaintiffs' Solicitor and a completed questionnaire together with a copy of the Garda report and witnesses' statements were sent to M.I.B.I. on 12th August, 1994. On 14th September, 1994 the Plaintiffs' Solicitor wrote to M.I.B.I. with a request that they nominate a solicitor to accept service of proceedings. On 30th September, 1994 M.I.B.I. wrote to the Plaintiffs' Solicitor advising him that they were making enquiries with their counterpart in the U.K. An explanation was given on the telephone on the same day that the motorcycle was of English registration and this involved the complication of a visiting motorist's case and accordingly the M.I.B.I. in the meantime could not appoint a handling office. On 15th November, 1994 the Plaintiffs' Solicitor wrote a reminder to the M.I.B.I. and on 30th November, 1994 the M.I.B.I. nominated the Cornhill Insurance Company as "handling agent" . On 20th December, 1994 the Cornhill Insurance Company wrote confirming that they had been nominated as handling office of the M.I.B.I. and were unable to comment on liability at that stage as their investigations were continuing. They sought a medical examination and enquired whether the Plaintiffs' Solicitor would share his medical report. On 8th February, 1995 a fax confirming the time of a medical examination by Mr. Niall Mulvihill was sent to the Plaintiffs' Solicitor. In each case on 15th February, 1996 a plenary summons was issued suing M.I.B.I. only and apparently at no stage has either Plaintiff instituted proceedings against the estate of the late Darby Kennedy. The Defendant contends that since the road traffic accident took place on 25th November, 1993 any claim against the estate of the late Darby Kennedy would by now be statute-barred, assuming that the estate were to raise the statute in its defence. Section 9 (2) of the Civil Liability Act, 1961 provides that no proceedings which have survived against the estate of a deceased person shall be maintainable unless proceedings were instituted within the relevant period of limitation and were pending at the date of death, or were commenced within the relevant period or within the period of two years after the death whichever period first expired. The late Darby J. Kennedy died as a result of his injuries at the time of the collision and accordingly the period which first expired was the period of two years after his death rather than the usual three year period in respect of personal injury or death caused by a tort. For the sake of completeness, I set out Section 9 of the Civil Liability Act, 1961:-

3. A Statement of Claim in each case was delivered on 20th February, 1996 and "sues the Defendant as a corporation in respect of public duty under agreement with the State effective the 1st day of January 1989 in respect of the negligence, breach of duty, and breach of statutory duty of one Darby J. Kennedy, deceased, ... in and about the driving, care, maintenance and control of a motorcycle the property of and then driven by the said deceased....". The Statement of Claim is framed as an ordinary claim in negligence and breach of duty for personal injury, loss and damage in a running down action, including "particulars of wrong" and particulars of injury. A defence was delivered on 25th February, 1997 and I quote the first three paragraphs thereof:-

4. The defence also contains the usual traverses and a plea of contributory negligence.

5. The Defendant's Solicitor moved by way of Motion for a preliminary issue to be heard as to whether the claim against the M.I.B.I. arising from the negligence and breach of duty of Darby Kennedy deceased was maintainable. In his Affidavit sworn on 30th October, 1997 the Plaintiffs' Solicitor averred at paragraph 11:-

6. By Order dated 3rd November, 1997 it was ordered that a preliminary issue should be tried before a Judge without a jury. A Statement of Claim of the Defendant upon the issue was duly delivered on 14th November, 1997. This pleading stressed the salient features of the M.I.B.I. Agreement as being that by an agreement entered into on 21st December, 1988 between the Minister for the Environment of the one part and the M.I.B.I. of the other part it was agreed, inter alia, that if judgment in respect of any liability for injury to person or damage to property which is required to be covered by an approved policy of insurance under Section 56 of the Road Traffic Act, 1961 as amended is obtained against any person or persons in any Court established under the Courts (Establishment and Constitution) Act, 1961 (No. 38 of 1961), whether or not such person or persons be in fact covered by an approved policy of insurance, and any such judgment is not satisfied in full within 28 days after the date upon which the person or persons in whose favour such judgment is given becomes entitled to enforce it, then M.I.B.I. will, so far as such judgment relates to injury to person or damage to property, subject to the provisions of the said Agreement, pay or cause to be paid to the person or persons in whose favour such judgment was given any sum payable or remaining payable thereunder in respect of the aforesaid liability, including taxed costs (or such proportion thereof as is attributable to the relevant liability) or satisfy or cause to be satisfied such judgment whatever may be the cause of the failure of the judgment debtor to satisfy the same.

7. The history of the matter, as already set out above, is then related and the nub of the matter is set out in paragraph 9 to the effect that the M.I.B.I. in its defence had maintained that the Plaintiffs' claim was misconceived since M.I.B.I. had neither refused compensation to the Plaintiffs nor had offered compensation which the claimants considered to be inadequate and further denied that it had any liability to the Plaintiffs arising from the negligence or breach of duty, including breach of statutory duty, of Darby Kennedy deceased as any claim against the said Darby Kennedy deceased was statute-barred by virtue of the provisions of Section 9 (2) of the Civil Liability Act, 1961, proceedings not having been instituted within two years of his death. It continued:-

8. A defence upon the issue was put in by the Plaintiffs on 14th January, 1998 contending that

9. Clause 3(1)(a) and (b) provide for the establishment of a separate and distinct cause of

10. The Memorandum of Agreement dated 21st December, 1988 between the Minister for the Environment and M.I.B.I. extends the scheme of compensation originally provided for in the principal Agreement made on 10th March, 1955 which was amended by an addendum made on 12th March, 1962 and extended by a further Agreement dated 30th December, 1964. The Bureau (M.I.B.I.) is a body established by the insurance industry to provide a source of compensation where the obligations of the user or owner of a vehicle to insure have not been fulfilled. These agreements imposed a liability on the M.I.B.I., subject to certain prerequisites, to meet unsatisfied judgments but they did not confer upon a claimant a right to sue M.I.B.I. or to apply directly to it for compensation. Nor did M.I.B.I. cover claims in respect of damage to property nor claims for personal injuries from persons injured by unidentified or untraced drivers. They also excluded claims for personal injury in respect of certain passengers who were in stolen vehicles or vehicles used without authority. The thinking was that the claimant should be an innocent third party victim of an accident in a public place caused by the use of a mechanically propelled vehicle where there was not an approved policy of insurance in force in respect of the use of the vehicle or there was a policy in force but it was ineffective in respect of the particular accident, where, for example, a vehicle was being used outside the limitations as to use or being driven by a person who was not a permitted driver under the policy, or the vehicle had been stolen or was being used without lawful authority, or the driver of the vehicle could not be traced or identified. The new 1988 Agreement was influenced by E.C. Directives in relation to insurance and was intended to improve a claimant's position with regard to some of these problematic areas. All the M.I.B.I. Agreements set out procedures for enforcement of the Agreement and also stipulate conditions precedent which must be complied with before the M.I.B.I. will accept liability.

11. Counsel have referred me to the various M.I.B.I. agreements, the relevant Council Directives and a number of Irish cases. The kernel of the matter is whether the Court, in the circumstances of this case, accepts that the 1988 M.I.B.I. Agreement created a direct cause of action against the M.I.B.I. in respect of damages for the personal injury, loss and damage sustained by each of the Plaintiffs in the road traffic accident on 25th November, 1993.

12. The Plaintiffs say that they are entitled to sue the M.I.B.I. directly and accordingly a plenary summons was issued in time as there would be a three year period in respect of this tortfeasor as opposed to the two year period under Section 9 of the Civil Liability Act, 1961, in respect of a claim against the estate of a deceased person.

13. Both parties agreed to hand in to Court the entire of the Government publication containing the M.I.B.I. Agreement dated 21st December, 1988 in respect of compensation of uninsured road accident victims including the Minister's foreword and an introduction containing questions and answers about the (1988) M.I.B.I. Agreement. No doubt the history and contents of previous M.I.B.I. Agreements and relevant E.C. Directives assist in the construction of the text of the 1988 Agreement but the contents of the foreword and the introduction must be read with a certain caution and scepticism. Perhaps they can be taken as some indication of what the Minister and his officials thought was the meaning of the Agreement which was being entered into by the Minister. The Plaintiffs pointed out that in the foreword the Minister wrote:-

14. In the introductory questions and answers at question 12:-

15. The reply is given:-

16. The clauses of the Agreement particularly material to the opposing contentions are clause 2 which provides:-

17. Clause 3 deals with conditions precedent to M.I.B.I.'s liability. Attention has been drawn to the following parts of Clause 3:-

18. There are nine conditions precedent and Clause 3(7) was relied on to show that M.I.B.I. is

19. Clause 4(3) is relied upon to show that the Motor Insurers Bureau's of Ireland liability is not

20. Counsel referred to the Second Council Directive of 30th December, 1983 on

21. He then went on to cite Article 4:-

22. The Third Council Directive of 14th May, 1990 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles by Article 3 thereof added to the first sub-paragraph of Article 1 (4) of Council Directive 84/5/EEC:-

23. The Plaintiffs submit that on the basis of Clause 2(1) the Plaintiffs are entitled to sue the M.I.B.I. directly and that Clause 3(7) is to insure that the M.I.B.I. can require the Plaintiffs to bring in the estate of the deceased.

24. The Defendant contends that the M.I.B.I. is not a wrongdoer and does not have any vicarious liability for the wrongdoing of the uninsured driver. The liability of M.I.B.I. to compensate any victim of an uninsured motorist's driving arises solely by reason of the contractually assumed liability by virtue of the M.I.B.I. Agreement; this liability assumed by the M.I.B.I. is only as follows:-

25. Since the late Darby Kennedy, the uninsured driver in this case, was neither unidentified nor untraced, Clause 6 does not apply. Accordingly, if there is a liability on the part of M.I.B.I. to compensate the Plaintiffs, then this arises solely from Clause 4(1) which provides for the obligation to satisfy a judgment in respect of any liability for injury to person or damage to property which is required to be covered by an approved policy of insurance under Section 56 of the Road Traffic Act, 1961 where such judgment is not satisfied in full within 28 days from the date on which the person in whose favour such judgment is given becomes entitled to enforce it. There is no such judgment against any person whose liability for injury to person or damage to property was required to be covered by an approved policy of insurance and consequently there is no liability upon M.I.B.I.

26. Clause 2 of the Agreement dated 21st December, 1988 provides the enforcement procedure through which a claimant may pursue a claim against M.I.B.I. It does not purport to create the liability of M.I.B.I. The liabilities of M.I.B.I. are solely those set forth at Clauses 4 and 6.

27. M.I.B.I. can be named as a sole Defendant in proceedings only where :-

28. This is not an unidentified or untraced driver case and so Clause 2(2) does not apply. Clause 2(3) does not apply because

29. The enforcement procedure applicable where the driver and owner of the vehicle is identified as in the present case is that provided for at Clause 2(2) which requires the claimant to cite M.I.B.I. as co-Defendant in any proceedings against the owner or user. The purpose of joinder of the M.I.B.I. as co-Defendant is solely to permit M.I.B.I. to participate in the defence of the proceedings as of right and without the necessity of having a mandate executed by the uninsured driver authorising M.I.B.I. to act on his behalf, or an Order of the Court permitting M.I.B.I. to be joined as a party to the proceedings as was the former practice under the 1964 M.I.B.I.Agreement.

30. The 1988 M.I.B.I. Agreement extends the scheme of compensation originally provided for in the principal Agreement made on the 10th March, 1955, which was amended by an addendum made on 12th March, 1962 and then extended by an Agreement dated 30th December 1964. These Agreements imposed a liability on the M.I.B.I. to satisfy unsatisfied judgments but did not confer upon a claimant a right to sue M.I.B.I. directly. The 1988 Agreement re-enacts the provisions with regard to the satisfaction of judgments provided for in the earlier Agreements but extends the scope of M.I.B.I.'s liability so as to allow a claimant to make a claim directly to M.I.B.I. for compensation which may be settled with or without admission of liability (Clause 2(1)). The making of a claim as provided for in Clause 2(1) is distinct from the institution of legal proceedings.

31. The procedure for enforcement by legal proceedings is as provided by Clause 2(2) and Clause 2(3). Clause 3 of the Agreement does not seek to define the liability of M.I.B.I. to compensate claimants but provides for nine conditions which are precedent to M.I.B.I.'s liability. The failure of a claimant to comply with any one of the pre-conditions relieves M.I.B.I. of its contractual liability. The clause is not intended, nor does it attempt to impose obligations or duties upon M.I.B.I. in relation to its liabilities which are as set forth at Clauses 4 and 6 nor does it set up periods of limitation on the right of a claimant to enforce the Agreement. It does provide for certain notice periods to be complied with by a claimant but does not create a right to bring proceedings within such periods or attempt to vary or remove its entitlement to rely upon the Statute of Limitations or any other time bar to legal proceedings.

32. As for the Second Council Directive of 30th December, 1983, this does not impose on Member States an obligation to introduce legislation to provide that the victims of uninsured motorists should have a direct cause of action against the body set up to guarantee that the victim will not remain without compensation. It does require that provision should be made so as to allow the victim to apply directly to that body as a first point of contact. (See the Sixth Recital and Article 1(4)). The obligations imposed by the Second Council Directive are fully implemented by the making of the Agreement of the 21st December, 1988 between the Minister and M.I.B.I. and all of the rights of a claimant and the liabilities of M.I.B.I. are to be found within the text of the Agreement. The text of the Agreement does not allow for a Plaintiff to bring proceedings solely against M.I.B.I. where the uninsured driver is neither unidentified nor untraced and consequently the present proceedings are misconceived insofar as they have failed to join the estate of the deceased uninsured driver citing M.I.B.I. as co-Defendants.

33. The tenor of successive M.I.B.I. Agreements is in line with the Defendant's contentions. This view is supported by a consideration of the proposal for a European Parliament and Council Directive on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles and amending Directives 73/239/EEC and 92/49/EEC (Fourth Motor Insurance Directive) (presented by the Commission) and dated Brussels 10.10.1997. Article 2 of this proposed Directive provides for a direct right of action in that each Member State shall ensure that victims of accidents as defined in Article 1 of this Directive enjoy a direct right of action against the insurer covering the other party against civil liability. While this is dealing with victims of accidents caused by a vehicle which is insured, nevertheless it does indicate that the Commission is not shy about referring to a direct right of action where this is applicable. The use of the phrase a "direct right of action" can be usefully compared with the phrase in Article 1(4) of the Second Council Directive of 30th December, 1983 which uses the phrase "apply directly to" ; and it is noteworthy that in the Sixth Recital of the same second Directive the phrase that is used is "to provide that the victim of such an accident should be able to apply directly to that body as a first point of contact". It does not use the phrase "a direct right of action" for such a category of victims.

34. The Plaintiffs have suffered nasty injuries. For this reason it is regrettable that the conclusion is coercive that the Defendant's contention is correct that the Plaintiffs' claim in this instance against M.I.B.I. is misconceived. It is disquieting that the steps which should be taken by an injured Plaintiff involved in a road traffic accident with an uninsured deceased prospective defendant are not clearly outlined in the official introduction to the M.I.B.I. Agreement, together with a timely warning that it can take some time to obtain a nominated defendant or to operate the procedures under Section 27(4) of the Succession Act, 1965 or under Order 15 Rule 37 of the Rules of the Superior Courts. The basic cause of action is against the estate of the deceased uninsured driver or vehicle owner. No question of estoppel arises in these circumstances. The point was made in the course of argument that the Statute of Limitations is a shield and not a sword and that the shield need not necessarily be raised by the defence. This seems a somewhat forlorn hope in the circumstances but is not before this Court at present. In the circumstances of the facts in the present case, the preliminary issue is determined by the decision that the Plaintiffs do not have a direct right of action against M.I.B.I. arising out of the alleged negligence and breach of duty of the late Darby Kennedy deceased. I will hear Counsel as to the appropriate Order to be made on foot of these findings.