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,