ASBESTOS DISEASE TRAINING IN JERSEY

It is a pleasure to have Daniel Easton join me in Jersey to co present on asbestos related disease claims for the Jersey Personal Injury and Medico Legal Society.  This is a fascinating area of the law and a really tricky area of practice and it will be very interesting to compare experiences in this very different jurisdiction.

We plan the following programme:

09.00	Registration
09.30	Introduction – scene setting Basics on asbestos and its uses The hazard presented / asbestos related diseases
10.45	Refreshment break
11.00	Establishing liability Developing knowledge of the hazard Evolving regulatory control Duty of Care: to whom is the duty owed? Foreseeability, just how much foresight? The significance of UK statutory duties Discussion: comparison with Jersey legislative and customary law
13.00	Lunch
14.00	Causation and Insurance issues Causation, but for test and divisibility and apportionment The special modified rule Contributory negligence Asymptomatic illnesses, pleural plaques, Johnston v NEI
14.45	Insurer liability, anomalies between public and employers liability The new equitable right of contribution, Zurich v IEG UKSC 2015 Tracing UK insurers, transfer of third party rights DMPS scheme and other state benefits
15.15	UK Procedural issues Jurisdiction and applicable law Limitation issues Disease and Illness Pre-action Protocol & Meso Practice Direction
15.45	Refreshment break
16.00	Implications for Jersey Discussion / Q&A around UK procedures and quantum issues
17.00	Close To book a place please download the application form from the JPIMS website. Link to JPIMS website

MOTOR LIABILITY TRAINING IN THE CHANNEL ISLES

It is wonderful to be invited by the Jersey Personal Injury and Medicolegal Society to return to Jersey to present a full day of comparative law analysis on motor liability issues.  This will take place on Friday 5 February 2016.

I plan the following programme:

Session 1: Third party cover as ‘made in Britain’                                       (9.30 to 11.00)

·         The social policy innovations of 1930 and 1945

o    The third party motor insurance requirement

o    The Motor Insurers Bureau

o    The MIB Agreements

·         New European law imports

o    Progressive imposition of consistent standards for third party cover

o    Three directives, 1972, 1985 and 1990

o    Five key European law cases

o    Three core EU law principles on motor insurance

o    Three core EU law principles on the compensating body

o    The engines of change: 3 European law remedies

·         Imperfect implementation: over 50 UK infringements of EU law

·         The new Uninsured Drivers Agreement 2015; a job half done...

·         More reform on the horizon

Session 2: Comparative law implications for Jersey                                 (11.15 – 12.00)

·         Motor Traffic (TPI) (Jersey) law 1948

·         Uninsured Drivers Agreement 2000

·         Untraced Drivers Agreement 2005

·         The indirect impact of European law on Jersey

Session 3: Case study workgroups                                                              (12.00 – 1.00)

·         An interactive case work session.

o    Case scenarios will be used to illustrate the different outcomes

Lunch break

Session 4: Update on the common law                                                       (14.00 – 15.30)

·         Contributory negligence and the Law Reform (MP)(Jersey) Law 1940

o    Important Supreme Court ruling

·         The criminality defence: ex turpi causa non orator actio

o    Further guidance from the Court of Appeal

·         General case law update on liability

Session 5: Delegates choice                                                                         (16.00 – 17.00)

o    More cases and news, or

o    A comparative law discussion on

§  Geographic and technical scope of third party cover

§  The amount and extent of third party cover

§  Exceptions and exclusions to third party cover

§  The civil justice reforms of 2013

To book a place please download the booking form from the JPIMS website.  Link

MOTOR LIABILITY TRAINING IN ENGLAND AND SCOTLAND

I am delighted to be presenting my public training on motor liability through the Association of Personal Injury Lawyers again this year.  This includes the following locations:

• Manchester on   8 December 2015
• London on         12 January   2015
• Edinburgh on     15 January   2015

Recent developments require a brand new course, and some fabulous cases,.  

The training will cover: 

Major reforms to motor insurers’ liability and MIB claims

·         The New Uninsured Drivers Agreement 2015: a job half done

o    Major beneficial procedural changes obscure numerous irregularities

o    Still plenty of unlawful exclusions and restrictions, some new

o    Gaps in cover

o    Restricted appeal procedure

o    Legacy challenges

·         The Untraced Drivers Agreement 2003

o    New changes to shore up a fundamentally flawed and unfair regime

o    Which provisions can be successfully challenged

o    MIB proposes new agreement

·         Motor Insurer’s liability

o    Part VI Road Traffic Act 1988 due for major rewrite

o    Flaws in the Rights Against Insurers Regulations 2002

o    Misuse of s152 declarations

o    The Deregulation Act 2015, making it easier to cancel policies

o    Insurance Act 2015, restricting insurers ability to avoid liability

o    Consumer Insurance (Disclosure and Representations) Act 2012

o    The case for wider reform

·         Why a working knowledge of European law is essential

o    EU law bright line standards of minimum compensatory protection made simple

o    Raising successful legal challenges

General liability update

o    Supreme Court clarification on contributory negligence

o    Standards of care: children, pedestrians, emergency vehicles

o    Continued use and misuse of ex turpi causa

o    Highways Act claims

o    Primary liability scenarios

o    Credit hire and repair claims

o    Accidents abroad in Europe

Feedback from previous MIB training

‘Nick is a brilliant and enthusiastic speaker’  ‘

Nick made a rather dry and technical subject understandable and, dare I say it, fun’  ‘In one hour Mr Bevan presented the best overview of the civil justice reforms that I have read or heard’ 

‘The course notes are superb’

Please click on the image below to book your place online through APIL

http://www.apil.org.uk/event-details.aspx?ID=2527

MOTOR LIABILITY IN NORTHERN IRELAND

I am thrilled to be invited back to present motor liability training for the Association of Personal Injury Lawyers in Belfast on 29 January 2016.

Major reforms to motor insurers’ liability and MIB claims

·         The New Uninsured Drivers Agreement 2015: a job half done

o    Uninsured Drivers Agreement (Northern Ireland) 2002 due to be replaced

o    Major beneficial procedural changes obscure numerous irregularities

o    Still plenty of unlawful exclusions and restrictions, new terrorism exclusion

o    Gaps in cover & worrying appeal procedure

o    Legacy challenges

·         The Untraced Drivers Agreement (Northern Ireland) 2004

o    Yet more revisions to shore up a fundamentally flawed and unfair regime

o    Which provisions can be successfully challenged

o    MIB plans for a new agreement

·         Motor Insurer’s liability

o    Part VIII Road Traffic (NI) Order 1981 due for major rewrite, post Vnuk

o    Flaws in the Rights Against Insurers Regulations 2002

o    Misuse of art 98A declarations

o    The Deregulation Act 2015, making it easier to cancel policies

o    Insurance Act 2015, restricting insurers ability to avoid liability

o    Consumer Insurance (Disclosure and Representations) Act 2012

o    The case for wider reform

·         Why a working knowledge of European law is essential

o    EU law bright line standards of minimum compensatory protection made simple

o    Raising successful legal challenges

General liability update

o    Supreme Court clarification on contributory negligence

o    Standards of care: children, pedestrians, emergency vehicles

o    Continued use and misuse of ex turpi causa

o    New test for sufficiency of inspections in claims against highway authorities

o    Primary liability scenarios

o    Credit hire and repair claims

o    Accidents abroad in Europe

Feedback from previous motor claims training

‘Nick is a brilliant and enthusiastic speaker’  ‘Nick made a rather dry and technical subject understandable and, dare I say it, fun’  ‘The course notes are superb’

Please click on the image below to book online using the APIL website

http://www.apil.org.uk/event-details.aspx?ID=2537

My reply to the Department for Transport

Dear Mr [name redacted],

Thank you for your letter of 30 July.

Your delay

I see that your letter was sent under cover of an email sent late in the evening of Friday 31 July.  It has not escaped me that this appears to have been timed to be transmitted precisely two and a half hours before this new scheme came into effect. 

Since your letter amounts to little more than a simple refutation of the contentions set out in my letter of 10 July, it would have been helpful to have received earlier notice.  The urgency is of your making, given that the minister’s decision to implement the new scheme so it came into effect within less than one month of his announcement on 3 July, a situation made all the more acute because this new agreement introduces new measures that were not raised in the consultation and which also happen to be unlawful. 

With all due respect your usual guidelines for correspondence are hardly relevant in this context.

Substantive response

As the legal profession is now in vacation any formal response, including a letter before action prior to the commencement of judicial review, is likely to deferred to mid to late September.  In the event that legal action is taken, it may well be necessary to abridge the usual notice period due to this unfortunate timing.  This should not result in any prejudice to your department, given the extensive consultation responses and subsequent correspondence highlighting and explaining the numerous breaches of European law that permeate the national law provision in this area.

Consultation on the scope of the third party insurance requirement

Thank you for agreeing to notify me when your minister consults on his proposals for implementing the Court of Justice’s judgment in Damijan Vnuk from September 2014. 

The concerns raised in April 2013

The final paragraph of your letter indicates that the conflict of laws issues that I drew to your department’s attention back in February 2013 were not shared by other respondents.  That hardly adds or detracts from their validity.

The fact remains that your minister, by approving this scheme, has acted ultra vires.  Leaving aside the injustice perpetrated on ordinary law abiding citizens, the minister does not have the discretionary power to authorise any exclusion or limitation in the protection afforded to third party victims of motor accidents save to the extent expressly conferred under European law.

If you are also seeking to imply that my views are unorthodox, whilst I accept that I may have been the first to raise the scale of the clear and obvious breaches of the consolidated EU Directive on motor insurance (2009/103/EC) throughout the relevant national law provision for which your department is responsible (in my published articles, legal commentaries and public lectures) I was certainly not alone in expressing these concerns in the 2013 consultation responses.  As you well know, a number of law firms and special interest groups joined me in calling for wide ranging reform.

You will have to forgive me if I do not take at face value your bald assertion that the new scheme complies with European law; we have been here before.  Similar sentiments were expressed in 2013 when I warned you (i) that the geographic and technical scope of the duty to insure and the third party motor insurance requirement were too restrictive, (ii) that the contractual restrictions on authorised use were also too restrictive in so far as they affect the entitlement of third party victims to be compensated by the insurer instead of MIB and (iii) that numerous exclusions and restrictions of third party liability permitted under the Road Traffic Act 1988 and both MIB agreements were unlawful.  You will appreciate that both the Court of Justice of the European Union and the Court of Appeal have since validated my position. 

Administrative convenience

I realise that your department may be encountering difficulties in persuading the MIB to collaborate and in particular to agree to abide by an arrangement that is fully compliant with European law.  However, and with all due respect, this does not excuse your department’s systemic and long standing failure to ensure that the compulsory third party motor insurance regime is fit for purpose and that it conforms at least to the minimum standards of compensatory protection required under European law. 

Your department has failed in its duty to the public by allowing the legal entitlements of law abiding citizens to be compromised purely to suit the commercial interests of the powerful motor insurance industry that operate in this lucrative and highly artificial market. 

I intend to refer to this correspondence in any subsequent legal action, including an application for judicial review.  I also plan to post your letter of 31 July and this reply on my blog.

I am on holiday but I anticipate writing to you again in September.

Yours sincerely, 

Department for Transport reject call to revise the Uninsured Drivers Agreement

I paste below the Department for Transport's reply to my open letter of 10 July 2015.

My reply follows in my next blog.

 

 

31 July 2015

Dear Mr Bevan,

Uninsured Drivers Agreement 2015

Thank you for your email of 10 July about the new Uninsured Drivers Agreement between the Secretary of State for Transport and the Motor Insurers Bureau (MIB).  I am responding within our usual guidelines for replying to members of the public which is 20 working days.

The new Agreement is the product of several years’ discussion, serious consideration and negotiation between this Department and the MIB. Turning to the substantive issues that you have raised: 

Your letter states that clauses 8 (1) (a) and 9 of the new Agreement “are clearly not permitted under European law”.  You add that our introduction of the phrase “knew or had reason to believe” in clause 8 is also a breach of EU law.  We take a different view on each of these points and regard them as consistent with the provisions of the consolidated EU Directive 2009/103/EC.  

You refer the arbitration procedure in clause 17 and consider it must have been unintentional that we set no timescale for a claimant initiating a reference to an arbitrator.  We do not agree that there is anything defective with clause 17 and again consider it consistent with the Directive.

You refer to the consultation which we undertook in 2013 with regard to EU law, the Vnuk judgment and the Court of Appeal judgment in the Delaney case.  We have examined the Vnuk judgment and are presently working on our implementation options.  We will consult before making any changes and will ensure that your name will be included in the list of consultees.  We did not consider it appropriate to delay the new Agreement following the Delaney judgment: we accepted that we were in breach of EU law and wanted to ensure that we were compliant as soon as reasonably possible in order to avoid infraction proceedings.    

Finally, I would like to reply to your point that we have ignored the advice given in response to our consultation.  Whilst we appreciate your comments, it is important to stress that you were just one of a number of respondents and we gave your response the same consideration we did for the others.  Our intention is to have an Agreement which is both in line with EU law and is workable for the MIB to implement.

Yours sincerely,

[Author’s name redacted]

Road User Licensing Insurance and Safety Division

Webinar on Uninsured Drivers Agreement 2015

Getting to grips with the Uninsured Drivers Agreement 2015

I will be presenting a webinar for the Association of Personal Injury Lawyers on the new Uninsured Drivers Agreement 2015.  The webinar will take place on Tuesday 15 September 2015 at 1 pm.

Yet again, the Minister for Transport has approved the Motor Insurers Bureau's proposals without undertaking a proper comparative law review and with inadequate consultation. Once again, accident victims are presented with a flawed scheme that fails to fully implement the minimum standards of compensatory protection required under European law.

The new scheme introduces the biggest procedural changes to the uninsured drivers claims scheme for 27 years and it comes into effect on 1 August 2015.

Please contact APIL to register for this webinar

Link to APIL's online registration

I will also be presenting a full day's training for APIL on motor liability issues later this year and early next.  This will focus on the numerous flaws in both MIB schemes, the Road Traffic Act 1988 and related legislation and give practical advise and insights on how to present legal challenges.

Free access to New Law Journal article

http://www.newlawjournal.co.uk/nlj/content/call-more-reform

The New Law Journal have generously promoted my most recent article to the front page of this week's issue.

In Call for (more) reform, I give credit where it is due but I also criticise the Department for Transport for its sham consultation and for letting down accident victims over nearly three decades by permitting the numerous long standing infringements of European law in its arrangements with the Motor Insurers Bureau.  These failings benefit the MIB and the motor insurance sector it represents at the expense of the accident victims the schemes are suppose to protect.  Whilst the Uninsured Drivers Agreement 2015 is a great improvement, it is a job half done.

My editor, the wonderful Jan Miller, has enabled the online version to be accessed by non subscribers free of charge. Thank you Jan! Please click on the link above to access the article.

I will be delivering a webinar on the new Uninsured Drivers Agreement 2015 for APIL on Tuesday 15 September at 1 pm and I will be presenting a full day of training for motor liability later in the year.  Please contact APIL for details.

Department For Transport in denial

The Department For Transport claims that the new Uninsured Drivers Agreement 2015 complies fully with European law.

In an interview with the insurance journal, Post, published as an online article on 14 July under the heading MIB and DfT dispute allegations of uninsured drivers' agreement 'shambles' an unnamed DfT official responded to my letter of complaint (see earlier post), as follows:

'The government believes the new agreement with the [MIB] on uninsured drivers is fully compliant with EU law. We are currently considering our response to Mr Bevan's letter and will respond in due course'

In the same Post article, MIB spokesperson, Mr Ryman-Tubb, is reported as asserting that the agreement was considered ‘very carefully’ by the MIB, the DfT and legal teams.  He went as far as to declare that the agreement would not be amended.  

With all due respect, evidently not ‘carefully’ enough!

A bodged job

The Uninsured Drivers Agreement 2015 does in fact contain many breaches of European law that that disadvantage, and in certain instances dis-entitle completely, accident victims’ legal entitlement to compensatory redress.  I will be providing detailed training on this shortly but the following three illustrations should suffice for present purposes:

·         In clause 6, in what appears to be a provision primarily intended to deflect liability for credit hire claims where the victims are already covered against the risk of non recovery the MIB is entitled to deduct any other sums received or receivable in compensation.  The express exclusion of refundable advances by employers and payments received from the Criminal Injuries Compensation Authority, and the detailed provisions that penalise a victim for not utilising their own insurance indicates, as under the current clause 17, that the MIB can deduct any accident insurance payments that victim’s of insured drivers would be entitled to receive in addition to their compensation, under our normal common law rules.  This is also a blatantly unlawful and is contrary to public policy as it discourages people from taking prudent steps to provide for exigencies. 

·         In clause 7 anyone who knew the driver might be uninsured is unable to claim any property damage loss.  This exclusion is not permitted by the European directives on motor insurance.  It is also unjust as it denies compensation to a near neighbour of an uninsured driver whose parked car is damaged in a housing estate where it is common knowledge that the defendant is uninsured or the owner of a car parked in a bowls club who is a mere acquaintance of the defendant but who overheard a conversation to the effect that defendant’s insurance had lapsed. In both cases the claimants are not at fault nor personally associated with the uninsured driving other than as a victim. 

·         The clause 9 exclusion of liability if the uninsured driver’s use is connected with an act of terrorism is another flagrant breach, as it is clearly not permitted under European law.  It also inconsistent to pay out on a claim by a hapless victim of a hit and run accident caused by the get-away driver of a bank heist but not where the same unfortunate individual happens to be hit by a fleeing animal liberationist or anti-abortionist fanatic.

This is by no means an exhaustive list.  This is why I have described the Uninsured Drivers Agreement 2015 as a bodged job.

An empty consultation

The DfT signed off the Uninsured Drivers Agreement on 3 July.  It then presented this to the world as a fait accompli in its email dated 6 July, announcing its coming into force in less than a month.  This came as quite a surprise to many of us who participated the DfT’s February 2013 consultation on Review of the uninsured and untraced drivers' agreements, in which it put forward is proposals, which to all intents and purposes, is substantially what we see in the new scheme. 

I was not alone in criticising the proposals as being flawed, too limited in scope and in places even suggesting unlawful provisions, nor in calling for both of the MIB schemes to be cured of the numerous defects that breached the minimum standard of compensatory protection required under European law. 

The DfT’s consultation process closed in April 2013.  Then after some delay, the minister announced that he would provide a full response but delayed to the Autumn of 2013, which I and others naturally assumed would address our concerns.  Then we heard nothing more, for nearly two years!  Then, finally, instead of responding in full to the consultations, the DfT simply went ahead and announced the new agreement in the terms originally proposed.  This surely makes a mockery of the consultation process. 

Government fails to undertake a comparative law review

To access my article in Claims Media online magazine exposing the government's failure to properly implement the minimum compensatory guarantees for accident victims under European law, the sham consultation exercise in February 2013 and the badly flawed Uninsured Drivers Agreement 2015 -  click on this link or the logo below.  .

Open letter to the Department for Transport expressing dismay at the Uninsured Drivers Agreement 2015

From: Nicholas Bevan [mailto:mail@nicholasbevan.com]
Sent: 10 July 2015 18:34
To: 'redacted'
Subject: RE: Revision of the Drivers Agreements Government response - Uninsured drivers Agreement 2015

Dear Mr [redacted]

Thank you for your email and supplying me with links to the new Uninsured Drivers Agreement 2015 that the minister has entered into with the MIB.

It is unfortunate that no one thought to circulate a draft of the agreement to the individuals who responded to the minister’s consultation back in February 2013, as we would have been able to point out a number of serious drafting errors.

It is also regrettable that the minister has chosen to ignore the extensive advice he received from so many quarters in the consultation responses. It makes one question the point of that exercise.

It is not my role to second guess the minister’s intentions, still less those of the MIB, but I doubt that it can have intended that there should be no time limit on a claimant initiating a reference to an arbitrator under clause 17, especially when clause 17(3) sets such clear time limits thereafter.

I doubt also that in providing such explicit provision for appointing arbitrators to deal with disputes as to the reasonableness of an MIB rejection of a claim under clauses 12 and 14 that could it have been intended to prevent the arbitrator from considering the European law context.  I am sure you do not need me to remind you that your minister has a constitutional duty to give effect to European law.  My understanding is that the combined effect of clause 17 and section 46 Arbitration Act 1996 is that the arbitrator will be required to determine the issues in dispute by applying the literal meaning of the agreement (defective as it is).  This excludes any possibility of motor accident victims attaining a remedy through a European law consistent interpretation of the agreement that takes into account the aims and objectives of the European directives on motor insurers that this agreement is supposed to implement. Incidentally, I note that the former references in the 1999 Agreement to the European directives has been stripped out of the 2015 Agreement, as if to make such an outcome that much more certain.  If my understanding is correct, clause 17 constitutes a serious breach of European law that may necessitate judicial review unless the minister can provide suitable clarification or amend the document. 

I am surprised and dismayed to see, particularly after Mr Justice Jay’s explicit comments in Delaney v Secretary of State for Transport 2014, that whomever drafted this agreement has failed to undertake a comprehensive comparative law review to ensure that it complies with the minimum standards of compensatory protection required under European law.  It contains a number of serious infractions.  Take for example the  two unlawful exclusions of liability in clause 8(1)(a) and 9  that are clearly not permitted under European law.  The fact that your department has chosen to ignore the plain and obvious implications of the Court of Justice’s judgment in Bernaldez 1996,  when your department had direct knowledge from its unsuccessful intervention in that case, only serves to compound the seriousness of these failings.  The substitution of ‘knew or ought to have known’ in clause 6 of the current agreement with the synonymous phrase ‘knew or had reason to believe’ in clause 8 of the new agreement is unlikely to fool anyone. Clearly and obviously it carries precisely the same meaning that encompasses negligently acquired knowledge.  This flies in the face of the House of Lords ruling in White v White & MIB [2001] UKHL 9 (see Lord Nicholls judgment at paragraphs 12 to 17, Lord Cook’s judgement at paragraphs 34 to 36 and even Lord Scott’s dissenting judgment at paragraph 35). To include so many provisions that are so patently incompatible with such clearly articulated and well established  European law minima, must risks criticism and even censure. But these are not the only infractions, as you should well know.

In my consultation submission of April 2013 I took the trouble to explain in great detail not only why the limited consultation was flawed but to identify numerous instances where our national law provision for implementing the European Directives on motor insurance fails to fully implement the minimum standards of compensatory protection for motor accident victims. I am not going to repeat that exercise here and anyway, since that time further infractions have come to my notice.  Even so I think it fair to point out that some of my warnings have since been vindicated in the Court of Justice’s judgment in Damijan Vnuk 2014 and more recently by the Court of Appeal in Delaney.

The point of this open letter is to emphasise that we have reached a watershed, any further obfuscation or delay in the proper discharge of the minister’s duty to  implement European law is unlikely to be construed as unintended, still less excusable.  The 2015 Agreement is a bodged job that needs to be remedied immediately.  With all due respect, the minister needs to take decisive action to remedy a shambles for which he bears the ultimate responsibility.

I should be grateful to hear from you with a full response to the substantive issues I have raised within the next fortnight.  

Yours sincerely,

Nicholas Bevan

07968 427134

mail@nicholasbevan.com

The Uninsured Drivers Agreement 2015

Don't be fooled, its business as usual 

After a delay of over two years the Department for Transport finally announced last week that it had agreed the terms of a new Uninsured Drivers Agreement with the Motor Insurers Bureau.  The 2015 version, which comes into force on 1 August and can be downloaded from the MIB Website.

The new agreement reflects the DfT’s original proposals that were set out in its consultation paper from 28 February 2013.  One notable beneficial innovation is the excision of two unlawful passenger exclusion clauses that it was warned about in the consultation responses, defects later confirmed by the Court of Appeal ruling in Delaney v Secretary of State for Transport 2015 EWCA Civ 172. 

Some welcome changes

Other welcome changes include the removal of the MIB’s ability to strike out valid claims for trivial procedural infractions and the simplification of the claims process, which are both positive steps and they make the agreement that much shorter.  However, these unjust provisions should never have been permitted in the first place and nothing has been done to revoke their application in the thousands of claims left to run under the current discredited regime that remains in force for all accidents predating 1 August 2015.

Serious flaws

Unfortunately the Uninsured Drivers Agreement 2015 contains a number of serious flaws.  The minister has failed to act on the advice received from a number of respondents to his own consultation that he must ensure that the new agreement complies with the minimum standards of compensatory protection required under European law; it doesn’t.  The new agreement contains a number of exclusions and restrictions to the MIB’s liability to compensate that are not permitted under European law.  There are also concerns that by removing the right to appeal MIB decisions to the Secretary of State for Transport and substituting this with a paper appeal process to an arbitrator whose decision will be final, the agreement effectively prevents the arbitrator from considering the European law context.   

We have been here before

  The present much discredited Uninsured Drivers Agreement was introduced in 1999 without proper consultation and that agreement contained numerous clauses that conflicted with the minimum standards of protection required under the European directives on motor insurance.   See my earlier blogs.  That agreement needed immediate rectification and a number of its provisions were later successfully challenge and either amended by the courts applying a European law consistent interpretation or they were the subject of a award in damages against the Secretary of State for Transport under Francovich principles.

Now it seems that history has repeated itself.  The minister has approved an agreement in which the Motor Insurers’ Bureau has given itself powers to exclude claims and to restrict its liability in circumstances that clearly contravene European law.

Ignoring advice

I am concerned that the minister should has chosen to ignore the advice he received from myself and others by approving the new Uninsured Drivers Agreement 2015 in this form and then presenting it, as in 1999, as a fait accompli.  As his department have declined to answer or even to acknowledge my earlier correspondence seeking clarification, I have decided to express my dismay in an open letter, a copy of which is posted separately.

DfT claim new agreement is fully compliant

I understand from an insurance journal that a DfT spokesman who has commented on my letter, asserts that the new agreement is fully compliant with European law and that the minister has no plans to amend it. 

The challenge 

It is therefore down to the legal profession to challenge the infractions in the present Uninsured Drivers Agreement, the new 2015 Agreement as well as the numerous breaches of European law in Part VI of the Road Traffic Act 1988, the EC Rights Against Insurers Regulations 2002 and the Untraced Drivers Agreement 2003.  

Training

I will be presenting a webinar for APIL on the Uninsured Drivers Agreement 2015 on Tuesday 15 September. Please apply to APIL direct if you wish to subscribe. I will also provide detailed in-house training and workshops on MIB claims, motor insurers liability and RTA liability generally. Please contact me at mail@nicholasbevan.com or on 07968 427134.