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.

MIB powers curbed under new Uninsured Drivers Agreement

Click on the image below to access the New Law Journal's news item in which I give my first impressions of the good and bad points in the new Uninsured Drivers Agreement 2015.

A more detailed New Law Journal feature is to follow.

Click on this image to access the news item

Three must know decisions on asbestos related disease

http://www.apil.org.uk/event-details.aspx?ID=2520