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