PICKING UP THE REINS

I am about to renew posts in this blog.

I set up this blog in April 2013 with two key objectives in mind.

1. A campaigning blog

The original intention was to augment the campaign I was running in the New Law Journal (NLJ) and elsewhere (including the Journal of Personal Injury law)  in which I argue the case for an extensive reform of our national law provision on compulsory third party motor insurance and for extensive revisions to be made to the Motor Insurers' Bureau (MIB) schemes for compensating victims of uninsured and untraced drivers.  See 'Why the MIB Uninsured Drivers' Agreement 1999 needs to be scrapped', JPIL 2011.  See ‘On The Right Road?’ which the NLJ serialised throughout February 2013.

Achievements to date

This campaign has already succeeded in a number of ways.  These include:

1. Inducing the government to publish its 2013 consultation on reforming the MIB Agreements which allowed the the numerous infringements of EU law in this area to be raised and this facilitated a wider debate on the defective provisions  within the Road Traffic Act 1988 and the Rights Against Insurers Regulations 2002.  This step appears to have been triggered by my four-part feature in the New Law Journal (On the Right Road) that also attracted the Law Commission's interest.  When the Commission approached the Department for Transport the minister blocked their further involvement.  
2. In July 2015 the MIB were deprived of a number of oppressive procedural strike-out clauses many of which it introduced unopposed in 1999.  These clauses enabled it to evade its proper liability (imposed under Article 10 of Directive 2009/103/EC on motor insurance) by rejecting genuine claims for the least procedural infraction of mostly pointless and trivial notice provisions; regardless of the wider merits of the claim. The MIB had strenuously resisted numerous calls for their removal, since my meeting with them in 2009. Their removal from the Uninsured Drivers Agreement 2015 has taken much of the sting out of the tail resulting from the systematic misallocation of insured claims wrongly treated as uninsured claims following Ward LJ's erroneous judgment in EUI v Bristol Alliance Limited Partnership 2012. 
3. After publicly declaring in July 2015 that it refused to agree to any further changes to the Uninsured Drivers Agreement 2015, the MIB were finally forced (in late 2016) to concede that it is not entitled to reject passenger claims under the uninsured and untraced drivers schemes where the accident victim did not have actual knowledge that the vehicle they were travelling in was uninsured.  I had argued for years that EU law insisted on actual, not constructive, knowledge. Hitherto this clause had been relied on to exclude liability to credulous and impetuous teenagers who were unwise enough to agree to travel in a vehicle that a wiser passenger would have known was probably uninsured.
4. As recently as March 2017 the MIB was forced to remove further unlawful exclusions of liability within both schemes, one of which was the terrorist incident exclusion.  This was first introduced to the Untraced Drivers Agreement in 2003 (again unopposed) and then extended to victims uninsured drivers under the Uninsured Drivers Agreement 2015. Although I advised the government that these exclusions were illegal in 2013, in response to its own consultation on the MIB Agreements, it chose to do nothing. It only took action when this illegality was raised within the ongoing judicial review by RoadPeace.  Some of the victims of the London and Westminster bridge incidents will now be fully compensated by the insurers of the responsible vehicle. 
5. After alerting the Department for Transport, again in response to its 2013 consultation on the MIB Agreements, that the geographic scope of compulsory insurance and the technical definition of the vehicles subject to this requirement were too narrowly defined, the government was finally compelled to concede this point in 2016.  It is regrettable that it only did so after these discrepancies were cited as grounds of complaint within the ongoing judicial review by RoadPeace. Even so, the government has not taken any steps to remedy this illegality, other than to consult on the implications of the Court of Justice's ruling in Damijan Vnuk from September 2014 (which fully supports the earlier criticism).  However,  the fact that the government was made fully aware of this illegality back in the Spring of 2013 ought to make it much easier for victims affected by this long standing illegality to claim damages from the government under Francovich principles.
6. A number of other exclusions of liability in the Untraced Drivers Agreement 2003 have also been removed or modified to bring the scheme into closer conformity with Article 10 of Directive 2009/103/EC that it is supposed to implement.  These include unlawful property damage exclusions and preconditions as well as the illegal exclusion for not reporting the accident to the police.  Here again, these were only conceded in 2017 and as a result of these infringements being cited as grounds of complaint within the RoadPeace judicial review.
7. The government has also conceded, again in response to the same judicial review, that procedural measures should be introduced to protect minors and the mentally handicapped from unfair treatment and under-settlement of their claims of under the Untraced Drivers Scheme.  Unfortunately, the government has failed to live up to its promises by introducing suitable measures.  
8. My own infringement complaint to the European Commission, which anticipated the Court of Justice's rulings in Vnuk and Fidelidade rulings, has resulting in the Commission incepting a European wide review of the regulatory sufficiency of Directive 2009/103/EC, click here for the consultation.

Additional breaches of EU law

Although the reforms and concessions listed above represent probably the most significant reforms to the compensatory safeguards for motor accident victims since the MIB's inception in 1946, more needs to be done to close other unlawful loopholes.

• It should be noted that many additional irregularities in the UK's transposition of Directive 2009/103/EC on motor on insurance exist: where the protection afforded to motor accident victims falls below the minimum standard of protection required under EU law. 
• These have already been highlighted in earlier posts and they will be reviewed again in this post in due course
• A number of these additional infringements have been cited within the ongoing judicial review, R (on the application of RoadPeace v Secretary of State for Transport.  I have been closely involved in this challenge.  The Hon. Mr Justice Ouseley heard the case in mid February 2017 and his judgment is eagerly awaited.

2. Sharing expertise on European law and remedies

A second objective of this blog, pending the reforms I have been campaigning for, is to provide a know-how resource for legal practitioners and special interest groups representing individual victims affected by the government’s longstanding failure to fully implement the European law governing this facet of our affairs and which confers a higher standard of compensatory protection.

My published articles and blog entries aim:

• To explain the minimum standard of  compensatory protection required under EU law
• To identify where our legislation and extra-statutory provision fails to meet this standard
• To present a simple heuristic approach that allows practitioners to quickly identify inconsistent UK provisions 
• To clarify the EU law remedies that are available and how to deploy them.

The problem is acute because the UK transposition of this EU law is so defective that it is often impossible to determine a party's rights under the law from the ordinary meaning of the words used in the UK provision.  This is why I advise practitioners to apply the heuristic approach as a matter of routine, whenever a motor insurer seeks to deploy a defence based on its policy conditions.

This second objective has acquired a new urgency. 

This is partly due to the fact that the Court of Appeal has consistently shown itself to be unequal to the task of resolving the many serious conflicts of law that pepper our national law provision in this area.  Indeed two Court of Appeal compounded the problem in EUI Ltd v Bristol Alliance Ltd Partnership [2012] EWCA Civ 1267 and again in Sahin v Havard & Riverstone Insurance (UK) Ltd [2016] EWCA Civ 1202.  I was the first (only) practitioner and commentator to offer the heretical view that these unanimously derived and highly influential rulings were made per incuriam and so are bad law.

The prospect of Brexit adds to the urgency, since if the UK fully secedes from the EU,  then the EU law remedies will be extinguished and the opportunity for judicial led reform lost.

This is why I have decided that it is once more time to pick up the reigns and to blog on…