Davindra Maharaj and the Motor Insurance Bureau Association of Trinidad and Tobago v The Minister of Finance, the Board of Inland Revenue and the Attorney General

• Jurisdiction: Trinidad & Tobago
• Judge: Mr. Justice R. Rahim
• Judgment Date: 14 March 2018
• Neutral Citation: TT 2018 HC 39
• Docket Number: CV2017-00213
• Court: High Court (Trinidad and Tobago)
• Date: 14 March 2018

IN THE HIGH COURT OF JUSTICE

Before

the Honourable Mr. Justice R. Rahim

CV2017-00213

Between

Davindra Maharaj

First Claimant

The Motor Insurance Bureau Association of Trinidad and Tobago

Second Claimant

and

The Minister of Finance

First Defendant

The Board of Inland Revenue

Second Defendant

The Attorney General of Trinidad and Tobago

Third Defendant

Appearances:

Mr. Y. Ali, A. Hosein and R. A. Ramoutar for the Claimants

Mr. M. Quamina instructed by Ms. J. Joseph for the First Defendant

Mr. M. Quamina instructed by Ms. A. Duncan and Ms. L. Singh-Dan for the Second Defendant

Mr. C. Denbow S.C., Ms. M. Smith and Ms. T. Ramlogan instructed by Ms. J. Joseph for the Third Defendant

Judicial review - Decision by first defendant to permit the levy of motor insurance premium taxes to compensate motor vehicle accident victims of uninsured drivers — Capacity to institute claim — Unlawfulness — Illegality — Legitimate expectation — Whether imposition of tax amounted to unjust enrichment — Unreasonableness.

1 In the Republic of Trinidad and Tobago there is no legislation that provides a scheme for compensation to victims of motor vehicle collisions in the event that the culpable party is uninsured. This issue provides the backdrop for the instant claim for judicial review.

2 Both claimants seek relief by way of judicial review on different grounds. The first claimant asks for two declarations, firstly, that the decision and direction of the first defendant to permit the levy of motor insurance premium taxes from him for the purpose of compensating motor accident victims of uninsured drivers was and continues to be done contrary to the purpose and mischief for which the Miscellaneous Taxes Act Chap 77:01 as amended (hereinafter referred to as “the said Act”) was intended and amounts to a breach of his legitimate expectation to be taxed in accordance with the said Act.

3 Secondly, he seeks a declaration that the second and/or all of the defendants have been enriched by him through payment of motor insurance premium taxes and that such enrichment was unjust, the taxes having been collected by the second defendant for the purpose set out in the said Act only.

4 He also seeks an order for the return of the sum of $5, 456.21 as restitution for the unjust enrichment of the defendants.

5 The second claimant seeks one declaration, namely, that the failure of the first defendant and/or the state to establish a Motor Insurance Bureau for the purpose of the disbursal of funds to compensate victims of motor vehicle accidents who suffer injuries caused by drivers who are insured despite having allocated funds thereto is unreasonable.

6 The second claimant also seeks an order from the court that the funds set aside thus far be paid into court to be administered and disbursed by the court at the discretion of the court for the purpose of compensating the victims of uninsured drivers.

7 The first claimant brings the claim in his private capacity as a citizen in respect of whom an Insurance Premium Tax is levied pursuant to the said Act. The second claimant is a non-incorporated, non-profit organization whose objective is that of promoting the establishment of a Motor Insurance Bureau in order to facilitate compensation to its membership and other victims of collisions in which the liable party is uninsured. They both assert that they are persons whose interests are adversely affected by the failure of the defendants to establish a Motor Insurance Bureau. In particular the second claimant avers that it is a group of persons whose claim is justifiable in the public interest. A challenge to the capacity of the second defendant to institute this claim has been made by the defendants and this issue shall be dealt with later on in this judgment.

8 The first defendant is the ministry of government responsible for facilitation of revenue collection and revenue management; budget planning, preparation and management; the formulation and promotion of national fiscal and economic policy; trade facilitation and border control; debt management; and the management of the State Enterprises sector. The annual fiscal budget is read and the finance bill for any given year piloted through the Parliament by the Minister of Finance.

9 The second defendant is the authority responsible for the collection and remittance of taxes levied pursuant to the provisions of the Miscellaneous Taxes Act.

10 The third defendant is sued pursuant to the provisions of the State Liability and Proceedings Act Chap 8:02 and is responsible for the administration of legal affairs. See section 76(2) of the Constitution.

11 The evidence before the court consists of three affidavits of Davindra Maharaj, two in support and one in reply and an affidavit of Vishnu Dhanpaul filed on behalf of the defendants. Mr. Dhanpaul was the Permanent Secretary of the Ministry of Finance from 2007 to 2010 and July 2013 to November 2015. He resumed said duties from January 2017. He is an economist by profession. His evidence in this claim has been invaluable and the details provided are largely unchallenged.

The uncontested facts

12 For over thirty-five years, there have been clarion calls by several persons and entities including the courts of Trinidad and Tobago, for the establishment of a scheme to compensate those victims of motor vehicle collisions who would have sustained injury through the fault of uninsured drivers. This call has been endorsed by Their Lordships of the Privy Council on several occasions. In essence, the call recognizes the unfairness and injustice which accrues to a successful claimant who, having been injured in a motor vehicle collision has no hope of obtaining the fruits of his judgment as the liable driver was uninsured at the time of the collision. The suggestion of the establishment of a Motor Vehicle Insurer's Bureau to administer a scheme of compensation is not a new one. This suggestion has found fertile ground in several quarters including but not limited to successive governments. Equally, as indicated to this court with candour by Learned Senior Counsel for the third defendants, the third defendant accepts not only that there has been a clarion call for such a scheme over many years but that such a scheme remains as relevant today as it was many years ago and that as a consequence matters have progressed some way towards its establishment. The court shall return to this later on in this decision.

13 For the sake of completeness, the court is of the view that it ought to list for the record some of the several cases in which such a call has been made or at the least discussed over the years. The list is taken from the submission of the claimants who have helpfully set out the relevant dicta in their submissions. They are as follows; Velma Germaine Eligon v N.E.M. (West Indies) Ltd. HCA 686 of 1974, judgement of Edoo J; Capital Insurance Ltd v Rajendra Seeraj [1986] UKPC 42 (30 ^th July 1986); Presidential Insurance Company Ltd v Resha St. Hill [2012] UKPC 33 (16 ^th August 2012); Presidential Insurance Company Ltd v Mohammed & Ors [2015] UKPC 4 (3 ^rd February 2015). These authorities are well known and the court readily accepts that they represent a call for the institution of a structure to provide for compensation to victims who are not only victims of personal injury but who suffer by virtue of the fact that the liable party is uninsured and so the victim remains uncompensated.

14 All parties to this claim also agree that if such a scheme is to be instituted and administered, the appropriate vehicle could only be that of legislation. So that it is a matter for Parliamentary intervention. It is for the legislature, if they so determine, to pass the relevant law to provide for the structure and implementation of such a scheme. Indeed this was the position articulated by Their Lordships of the Privy Council in the Bahamian case of Insurance Company of the Bahamas Ltd v Antonio [2015] UKPC 47 delivered on the 7 ^th December 2015, when Lord Mance set out as follows;

• “1. Whether a victim of negligent driving can look to insurers of the negligent driver can be vitally important for the victim. But it is a matter over which the victim has commonly no control. It depends upon whether insurance has been arranged by or on behalf of the driver or driver's employer, and it also depends upon the terms of that insurance, subject to limited statutory qualifications to ensure that these cannot always be relied upon as against a third party victim. There are as a result cases including the present — as the Board will humbly advise Her Majesty for reasons which will appear — in which the victim has no insurer to which to look.

• 2. That is a problem which could only partially be addressed by extended statutory Resha St Hill [2012] UKPC 33 , para 31 andThe Presidential Insurance Co Ltd v Mohammed [2015] UKPC 4. Any complete solution, covering in particular situations where no relevant insurance cover exists at all, requires more wide-ranging arrangements, such as the long-established extra-statutory Motor Insurers' Bureau in the United Kingdom and the other national insurers' bureau now required throughout the European Union under Directive 2009/103/EC of 16 September 2009.

• 3. The solution is not for courts to impose on insurers liabilities which they are not required to bear either under the insurance cover which they have properly issued or under current legislation. Insurance is based on an assessment of the risks undertaken and of the premiums appropriate to cover such risks. Named driver policies are a means by which insureds and insurers identify the cover required and define and limit the premiums payable. They are permissible under current law in The Bahamas. To impose on insurers liability for accidents caused by other drivers not named on the relevant policy is to...