Dr Nicholas Bevan

Dr Nicholas Bevan
www.nicholasbevan.com

Wednesday, 8 October 2014

MoJ MESO DECISION ANNULLED

R (on the application of Whitson) v Secretary of State for Justice [2014] EWHC 3044 (Admin)


On 2 October Mr Justice Davies ruled that the Lord Chancellor’s decision to abolish the entitlement of mesothelioma victims to recover their solicitors’ success fees and after the event insurance premiums from defending insurers was unlawful. 

Mesothelioma is a fatal disease which is caused by exposure to asbestos dust.  In 2011 it was responsible for 2,291 deaths in the UK, and the number of cases each year is expected to increase further.  Due to the difficulty in establishing liability, proving causation and the complications in identifying often numerous different employers and in tracing their insurers, these claims were exempted by section 48 of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) from sections 44 to 46 LASPO that abolished a successful claimant’s entitlement to recover these additional liabilities from a defendant. 

Section 48(1) of LASPO provided as follows:
‘Sections 44 and 46 may not be brought into force in relation to proceedings relating to a claim for damages in respect of diffuse mesothelioma until the Lord Chancellor has (a) carried out a review of the likely effect of those sections in relation to such proceedings, and (b) published a report of the conclusions of the review.‘

Rather than undertaking the proper and fair review required by section 48, the Lord Chancellor’s decided instead dispose of this duty by bolting on a question to the 2012 consultation dealing with procedural aspects of mesothelioma claims.  It invited consultees to comment on whether the exemption should be removed but this was predicated on various other proposals being implemented, which did not eventually happen.  This issue was never addressed directly and on its own and no proper attempt was made to research the likely consequences.

Mr Whitson of the Asbestos Victims Support Groups Forum UK brought a Judicial review of the decision to remove the exemption.  It disputed the assumptions made in the Government’s impact assessment and argued that for from being cost neutral to the victims affected the Government’s reforms would leave this particularly vulnerable class of victim loosing tens of thousands of pounds in unrecoverable costs; effectively denying them their full compensatory entitlement.

The judge concluded that the Lord Chancellor had failed to carry out the proper review that section 48 required.  He concluded that ‘no reasonable Lord Chancellor faced with the duty imposed on him by section 48 of the Act would have considered that the exercise in fact carried out fulfilled that duty’.  Accordingly, the Lord Chancellor’s decision of December 2013 to abolish the mesothelioma exemption was annulled. 

The appointment of Chris Grayling as Lord Chancellor in 2012 was controversial at the time as it broke with a long established convention that the head of the legal profession should come from one of the legal professions.  Instead we now have a Ministry of Justice department controlled by career politicians, with all that implies.

The Association of British Insurers, intervening, argued that the Lord Chancellor’s decision should be upheld as ‘the Lord Chancellor would be bound to make the same decision after a review as required by Section 48’.  This revealing statement illustrates the ABI’s role as the éminence grise behind much of the Governments policy making in this area.  In July 2014 a Parliamentary Justice Committee Report also considered the appropriateness of the Lord Chancellor’s decision to remove the mesothelioma exception.  It found that the outcome of the Chancellor’s flawed review had always been a foregone conclusion.  It brought to light the fact that the ABI had already reached a secret understanding with the Government in July 2012.  The committee expressed concerns that the Government had not been transparent or open about its true agenda, either with the committee itself or with other interested parties, and that it had not been even handed in its consultation.  

Any further consultation is likely prove to be a tendentious exercise, when such powerful interest groups continue to enjoy such extensive influence and control of government policy.


Further evidence of the insurance lobby unconstitutional influence can be found in last week’s New Law Journal opinion piece: Bad Law.

Saturday, 4 October 2014

KEEP POSTED ON IMMANENT REFORM

Follow this blog to stay ahead

In February 2013 I explained why our national law in this area was defective and why it does not comply with European Law in a four-part series of New Law Journal articles, On the Right Road?; part 2; part 3 and part 4.  See also my article Minor Collision, why children can be hardest hit in APIL’s PI Focus, May 2014. 

I was the first to report on the recent ruling in Delaney v Secretary of State for Transport 2014 EWHC 1785 (QB), (see also my article in the Journal of Personal Injury Law, A World Turned Upside Down) in which Mr Justice Jay held that the minister was liable for a serious breach of European law that had wrongly denied an accident victim his proper compensatory entitlement.  

I was also the first to provide comment and analysis,  in this blog, of the European Court of Justice’s landmark decision in Damijan Vnuk (Case C-162/13), Vnuk Ruling: RTA 1988 Breaches EU law.  To date this is the only analysis of this ruling.  The Vnuk decision exposes the DfT to yet further judicial scrutiny for failing to implement European law minimum standards properly.

The Department for Transport's is responsible for the national law provision for ensuring that motor accident victims' compensatory entitlement is properly safeguarded.  Unfortunately it is in a state of shambles.  

Call for reform

The minister chose to do nothing after initiating a deeply flawed and badly informed consultation on revising the Uninsured and Untraced Drivers Agreement and on being informed of the numerous defects in our national law implementation of the European Directives on motor insurance, that was back in late February 2013.  Now, 19 months on, he may have no choice in the matter.  If he fails to fulfil his constitutional duty to initiate reform, he may well find that others will do this for him.  

BAD LAW

In my latest New Law Journal article, Bad Law (3 October 2014), I argue that the reason why -
  • Part VI the Road Traffic Act 1988, and 
  • The European Communities Rights Against Insurers Regulations 2002 as well as 
  • The Uninsured Drivers Agreement 1999 and 
  • The Untraced Drivers Agreement 2003 

- all fail to fully implement European law minimum standards of protection for motor accident victims is because the Department for Transport (DfT) has become overly dependent on the insurance sector for its policy in this area.

The DfT is responsible for providing the legal framework for ensuring that motor accident victims' compensatory entitlement is guaranteed and this is achieved through compulsory third party insurance.  The DfT is also responsible for regulating this statutorily enforced and lucrative market, one that law abiding members of the public finance through their expensive premiums.  

We rely on the Government to be even handed between the conflicting interests of powerful insurers and the vulnerable victims its policy is supposed to protect.  I argue the DfT has in recent years allowed itself to be browbeaten by the well resourced and highly influential insurance lobby and as a result it has failed to act in the best interests of accident victims.  Ministers come and go but insurers enjoy a permanent influence that affords them a significant advantage in the cat and mouse game of politics.  My article, Bad Law, considers some of the evidence that indicates that there are insufficient constitutional checks and controls on the ability of motor insurers to influence government policy.  To paraphrase George Orwell, whilst we are all equal under the law, it seems that some are more equal than others.

 Nicholas Bevan, Bad Law, New Law Journal article 3 October 2014
CLICK ON THIS IMAGE TO ACCESS THE NEW LAW JOURNAL ARTICLE IN FULL 

The minister must now step up to the breach and remedy these injustices.

To access my other New Law Journal articles, click here.

Monday, 15 September 2014

BARON HILL NOMINATED FOR EC ROLE

The Prime Minister, who campaigned unsuccessfully against the election of Jean-Claude Juncker as European Commission President has nominated Jonathan Hill, Baron Hill of Oareford as the British European Commissioner with responsibility for the Financial Stability, Financial Services and Capital Markets Union.  
Baron Hill nominated to European Commission

If Baron Hill’s appointment is confirmed, his portfolio would extend to the European Commission’s current investigation into the UK’s failure to properly implement the European Directives on motor insurance (Council Directives 72/166/EC; 84/5/EC; 90/232/EEC; 2000/26/EC; 2005/14/EC and 2009/103/EC).  Given that the European Commission has an unfettered discretion on whether to bring infringement proceedings and given the hostile political climate and the increasingly Euro-sceptic stance of the UK administration, it is possible that the European Commission may decide against pursuing an infringement action against the United Kingdom, notwithstanding the numerous defects in our national law transposition of these Directives.

For those of us arguing for wide-spread reform in this area, Baron Hill’s appointment might be viewed as a serious setback.  However it is conceivable that the Jonathan Hill might, on being properly briefed, realise that the UK national law provision is so obviously flawed in a way that unjustly confers windfalls to the motor insurance industry at the expense of the innocent victims whom the scheme is supposed to protect, that he will encourage a wide-scale review within the DfT of its defective implementation of these Directives.  

He would be wise to do so, as EU law provides other remedies that are capable of delivering the same outcome. 

There is a growing awareness amongst the road traffic accident practitioner fraternity that where a UK national law provision fails to provide the minimum standard of compensatory protection required under EU law, then it is possible to obtain redress through the courts. 

The doctrine of direct effect may now extend to injured victims wrongly refused full compensation by the Motor Insurers Bureau on the basis that were the MIB's true status examined by a properly informed court it would be held to be an emanation of state. 

Furthermore an aggrieved party can also rely on the indirect effect of a directive.  See the following exceprt from the Court of Justice in Bernhard Pfeiffer and others v Deutsches Rotes Kreuz, and others CJEU 2004 Case C-297/01 that some view as having blurred the boundary between direct and indirect effect:

111  It is the responsibility of the national courts in particular to provide the legal protection which individuals derive from the rules of Community law and to ensure that those rules are fully effective.

112  That is a fortiori the case when the national court is seised of a dispute concerning the application of domestic provisions which, as here, have been specifically enacted for the purpose of transposing a directive intended to confer rights on individuals. The national court must, in the light of the third paragraph of Article 249 EC[LINK to excerpt] , presume that the Member State, following its exercise of the discretion afforded it under that provision, had the intention of fulfilling entirely the obligations arising from the directive concerned (see Case C 334/92 Wagner Miret [1993] ECR I-6911, paragraph 20).

113  Thus, when it applies domestic law, and in particular legislative provisions specifically adopted for the purpose of implementing the requirements of a directive, the national court is bound to interpret national law, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive and consequently comply with the third paragraph of Article 249 EC (see to that effect, inter alia, the judgments cited above in Von Colson and Kamann, paragraph 26; Marleasing, paragraph 8, and Faccini Dori, paragraph 26; see also Case C 63/97 BMW [1999] ECR I 905, paragraph 22; Joined Cases C 240/98 to C 244/98 Océano Grupo Editorial and Salvat Editores [2000] ECR I-4941, paragraph 30; and Case C 408/01 Adidas-Salomon and Adidas Benelux [2003] ECR I-0000, paragraph 21).


As Mr Justice Jay’s ruling in Delaney v Secretary of State for Transport 2014 makes clear, the language of the directives is clear, unambiguous and it leaves the UK with very little discretion as to how its obligations are transposed into UK law, so that a failure to fully implement them is likely to be deemed sufficiently serious to warrant a Francovich award against the UK.

The DfT were fully briefed in February 2013 on the numerous infractions of EU law in its statutory and extra-statutory provision.  We were promised detailed proposals initially in July, then in the Autumn of last year but nothing has been heard from them since.

So it is to be hoped that if Baron Hill is appointed to this post, he will see the merit in conceding with grace what can (and will eventually) be secured independently of the Executive through the courts by a consistent interpretation of our national law.  What insurers and claimant representatives require is a clearly articulated policy that complies with EU minimum standards of compensatory protection, ideally in a codified form that is consistent with rule of law and legal certainty principles.





Wednesday, 10 September 2014

DAMIJAN VNUK European Court of Justice, 4 Sept 2014, Case C-162/13

For those interested, I supply links to the judgment of the Court of Justice of the European Union and to the Advocate General's opinion:

CJEU Judgment in Damijan Vnuk of 4 September 2014, case C-162/13

Click here 

Opinion of Advocate General Mengozzi, 6 February 2014

Click here 

See my earlier post commenting on the case.

VNUK RULING: ROAD TRAFFIC ACT 1988 BREACHES EU LAW



European Court of Justice ruling in Damijan Vnuk
A recent European Court of Justice ruling has wide-ranging implications for all motorists, their insurers and above all for the compensatory entitlement of accident victims.  
Unlawful restrictions with wide implications
EU member states cannot restrict the scope of their national law provision imposing the duty to insure against third party risk from motor vehicle use, the Court ruled.  This has immediate consequences not only for motor insurers, whose long established policy has been to restrict their contractual indemnity to claims arising out of accidents that occur ‘on roads or other public places’, but also for the premium paying public and motor accident victims.  
Damijan Vnuk

Road Traffic Act 1988 is defective: 
 the duty to insure should extend to farmyards and private property


In Damijan Vnuk v Zavarovalnica Triglav C-162/13, a Slovenian farmworker was knocked off a ladder by a reversing tractor and trailer, whilst he was stacking bales of hay in a barn loft.  The incident occurred in a farm yard on private property. 
His claim against the driver’s motor insurers failed at first instance and when he appealed the Slovenian Supreme Court referred the case to the Court of Justice of the European Union to determine whether the duty to insure ‘the use of vehicles’ within the meaning of Article 3(1) of the First Directive on motor insurance (72/166/EEC) covered the accident circumstances.
A number of member states intervened in the proceedings, including the UK, and they argued that the compulsory insurance requirement should not apply. 
Different emphasises
In Vnuk, the Court noted the subtle variations of emphasis within the different language editions of the motor insurance directives, the different the ways in which individual member states have implemented the compulsory third party insurance requirement and the importance of a consistent approach.  It noted that ‘where there is divergence between the language versions of a European Union text, the provision in question must be interpreted by reference to the general scheme and purpose of the rules’.  
EU law policy objective of protecting victims
The Court made an important observation on policy that impacts not only how one should interpret the motor insurance directives but also on the prospects of Francovich damages being awarded where an individual has sustained loss caused by a member state’s infringement of a directive.  It stated that the objective of protecting accident victims was of equal importance to the dual aim of freeing the movement of persons and goods with a view to achieving the internal market.  Hitherto, the social aim of providing compensatory protection was widely considered to be subordinate to the wider objective of encouraging free movement within the EC.
Court of Justice ruling
As to the facts of the Vnuk case, the Court ruled that the accident circumstances were capable of falling within the scope of insurance cover required under the directives.  It referred Mr Vnuk's case back to the Slovenian courts to make the necessary factual findings.  
Vehicles
On the specific issue as to whether a reversing trailer propelled by a tractor was required to be covered by the article 3 insurance ‘use of vehicles’ requirement, it ruled that it was.  Motor vehicle use covers ‘any use of a vehicle that is consistent with the normal function of that vehicle’ [59].  Compare that with the much narrower definition within section 185 below.
When one considers the definition of ‘vehicle’ provided in what is now article 1.1 of the sixth consolidating directive on motor insurance (2009/103/EC ) in the light of this new interpretation, it suggests that many vehicles which are currently considered under our national law to be exempted from the third party insurance obligation, such as ride along mowing machines and airport tugs (on the basis that they are not intended or adapted for road use) are in fact capable of falling within the definition.  

However it should be noted that article 5.2 of the sixth directive provides a safety clause that allows member states to devise a list of vehicle types that are to be derogated from the insurance requirement but they must also be covered by the compensatory guarantee scheme under what is now article 10. The minister must now act promptly not only devise a list of motor vehicles that are to be exempted from the compulsory insurance requirement, but he will need to notify the European Commission, incept regulatory provision for these vehicles to be ‘plated’ and to ensure that the MIB Uninsured Drivers Agreement encompasses these claims. As the MIB's liability for such vehicles can be subordinated to other existing cover, where it exists (such as under a household or public liability policy) then the financial impact of this extended scope will be mitigated.
The Court also ruled that ‘the fact that a tractor, possibly with a trailer attached, may, in certain circumstances, by used as an agricultural machine has no effect on the finding that such a vehicle corresponds to the concept of 'vehicle' in Article 1(1) of the First Directive.’  The Vnuk ruling opens the way to arguments that third party cover extends to the use of a stationary tractor or other motor vehicle generating electricity or powering machinery, provided this is a ‘normal use’.  Compare that with the much narrower definition within section 185 below.

Accident locations
Although the Court’s characteristically elliptical judgment did not expressly rule that the geographic scope of the duty to insure extended to private property, such as the farm yard where Mr Vnuk was injured, this is the inescapable conclusion to be drawn from the Court’s judgment.  It appears to have subsumed considerations as to the location of the accident within a broader concept that any motor vehicle use must be covered by insurance.  This is clear from its concluding paragraph where it ruled that ‘the concept of 'use of vehicles' in that article [viz article 3] covers any use of a vehicle that is consistent with the normal function of that vehicle. That concept may therefore cover the manoeuvre of a tractor in the courtyard of a farm in order to bring the trailer attached to that tractor into a barn, as in the case in the main proceedings, which is a matter for the referring court to determine.’
Flawed UK statutory and extra statutory provision
It will be readily appreciated that sections 143 and 145 of the Road Traffic Act 1988 restrict the duty to take out third party motor insurance and the scope of cover to be provided by authorised motor insurers in the United Kingdom to the ‘use of a motor vehicle on a road or other public place’.  Section 185 restricts the definition of ‘motor vehicle’ to ‘a mechanically propelled vehicle intended or adapted for use on roads’.  These restrictions conflict with the wider scope required by the motor insurance directives.  
These same restrictions in the scope of the duty to insure also impact on the Uninsured Drivers Agreement 1999 or the Untraced Drivers Agreement 2003.  This is because these agreements inherit the same defective restrictions in geographic and technical scope that are grafted on directly from the Road Traffic Act 1988. 
Gaps in protection
Under UK law those injured by motor vehicles in private lanes and car parks, gated communities and private caravan sites are excluded from the compensatory guarantee provided under the various schemes for which the Secretary of State for Transport is responsible.  The same applies to anyone injured on a public road by a motorised vehicle not intended or adapted for road use.  
The UK’s current national law provision is not only unlawful but it is also lacks common sense.  When the life-time compensatory needs of a chronically injured victim can amount to many millions of pounds, what possible good is served by exposing these motor accident victims to these arbitrary restrictions?  One way or another, the tax payer always funds the bill.  
Remedies
It is trite law that although a European directive does not have direct effect between individuals, it is still possible to benefit from provisions that conform to the three conditions set out in Francovich as developed by Brasserie du Pecheur:


  •          the rule of law infringed must be intended to confer rights on individuals;
  •          the breach must be sufficiently serious, and
  •          there must be a direct causal link between the breach of the obligation and the damage sustained by the injured parties
Accident victims denied compensation due to the currently flawed restrictions contained in Part VI of the Road Traffic Act 1988 or under either of the Uninsured Drivers Agreement 1999 or the Untraced Drivers Agreement 2003 have two principal means of redress.

  •          The first is to cite the relevant European law  when presenting their claim and to require a Community law compliant interpretation of sections 143, 145 and 151 of the Road Traffic Act 1988 and / or the MIB Agreements.  
  •          If the court considers that the contra legem rule prevents it from delivering an EU law consistent interpretation, then the victim may be entitled to Francovich damages against the Secretary of State for Transport.  However the right to compensation is not automatic: a party affected by an infringement of a directive will have to satisfy the multi-factored test expounded by Lord Clyde in  R v Secretary of State for Transport, ex parte Factortame Ltd and others [1999] 4 All ER 906.
In fairness to the Government, the Vnuk ruling will probably come as something of a nasty surprise to a number other member states.  This is likely to have a significant bearing on any Francovich claim featuring a historical breach by the UK of the geographic and technical scope of the insurance requirement under article 3.  Looking forwards, the Vnuk ruling does not seem to permit member states any appreciable discretion on the geographic scope.  Technical arguments on what constitutes a motor vehicle may well prove to be a fertile ground for litigation.
Failings at the Department for Transport
Early last year, the Secretary of State for Transport was warned (in the responses to his own consultation on the MIB Agreements) that the UK statutory and extra-statutory provision for road accident victims contained a large number of defects that breached the minimum standards of protection required under EU law.  These included a detailed explanation as to why the geographic and technical scope of the insurance obligation within the Road Traffic Act 1988 was too narrowly confined.  The minister chose to do nothing. The Vnuk ruling confirms that these warnings were correct.
The minister's inaction is unacceptable not only for those unfortunate enough to be motor accident victims but also for the motor insurers that underwrite the cost of compensating these victims.  The Minister needs to discharge his constitutional duty to implement European law and this involves articulating a clear and Community law compliant policy that will confer proper compensatory safeguards and enable insurers to revise the terms of their policies and to set appropriate reserves. 
Time’s up
Hitherto, successive holders of the office of the Secretary of State for Transport have chosen to ignore the numerous deficiencies in the compensatory schemes their department is responsible for.  After Vnuk, the incumbent minster has little choice if he is to avoid the embarrassment of an infringement action, judicial review or further Francovich rulings.  He must take decisive action: first by undertaking an EU law compliant review of the entire UK statutory and extra-statutory provision for victims of motor accidents and then by rectifying the numerous defects that such an exercise will inevitably reveal. 

His department has recently incurred a substantial liability for Francovich damages in Delaney v Secretary of State for Transport 2014 EWHC QB (currently listed for appeal in February 2015) for a blatantly unlawful exclusion of liability clause within the Uninsured Drivers Agreement. A similar outcome is in prospect as and when other defects are challenged.  The European Commission is also actively investigating the United Kingdom's defective transposition of the motor insurance directives.

Mr McLoughlin, time's up!