THE UNTRACED DRIVERS AGREEMENT 2017

The MIB's new Untraced Drivers Agreement 2017

Key points to note about the new Untraced Drivers Agreement (UtDA)

• First agreed on 10 January 2017 but later substituted
• Substituted on 2 March by an agreement backdated to 28 February 2017
• Not retrospective: only applies only to incidents on or after 1 March 2017
• Legacy claims: UtDA 2003 continues to apply pre 28 February 2017
• Removes some provisions in the UtDA 2003 that conflict with EU law
• Still not completely compliant with Article 10 of EC Directive 2009/103/EC on motor insurance
• Applies to claims where driver and insurer cannot be traced
• If vehicle identified and an insurer can be traced, it is now possible to sue the uninsured driver by description, see Cameron v Hussain & MIB 2017
• Normal Limitation Act 1980 deadlines apply to the submission of the claim form but it is always best to submit the claim as soon as possible.
• Does not involve a civil action as no party to serve.
• There is a strictly enforced 6 week time limit for appealing an MIB decision by way of arbitration.
• MIB is supposed to undertake the investigation of the claim.  In significantly complicated or serious injury claims, the initiative and conduct of the investigation should not be left to the MIB and should be carefully managed by the client’s legal representatives.

Routine EU law compliance check

As with the Uninsured Drivers Agreements 1999 and 2015 and the UtDA 2003, the benchmark standard of compensatory protection is set by Article 10 of the Directive.

The same basic understanding and application of European Law using the FIVE -STEP approach is required here if one is to accurately interpret a client’s proper legal entitlement to compensatory protection.  Here, as elsewhere in this area of practice, our domestic law simply cannot be taken at face value.

 

Key changes and comparison with the UtDA 2003

• Removed: illegal police reporting conditions precedent (5 and 14 days, c4 UtDa 2003) but there is a new, not unreasonable requirement to make a report when reasonably requested to do so by the MIB as soon as reasonable.
• Removed: illegal terrorism exclusion (c5(f) UtDA 2003)
• Removed: illegal property damage exclusions of uninsured vehicle (cl 5(d) UtDA 2003
• Changed: illegal definition of ‘significant injury’ for property damage criteria – (c1 UtDA 2003) less onerous in c7(2) but arguably still not EU law compliant
• Changed: illegal definition of passengers' guilty knowledge exclusion (c5(1)(c) UtDA 2003)–constructive knowledge rephrased but still not compliant in c8.
• Changed: illegal definition of geographic and mechanical scope (c4 UtDA 2003)– still not compliant in c3.
• Changed: illegal exclusion of derogated vehicles (c5(b) UtDA 2003)– still not fully compliant in some situations in c5.
• Changed: property damage excess up by a third, to £400 in c1 is compliant
• New: provisions for interest on damages and periodical payments orders – arguably not compliant, see c11
• New: limited protection for minors and mentally handicapped – arguably still not compliant, see c14
• New: service requirements relevant to any appeal, c24.
• New: obligations on claimants and evidence requirements, c10
• New: fixed costs, c21
• New: illegal provision for arbitral wasted costs order against solicitors, c22(3).
• Missing: lack of accountability or controls on the MIB’s investigation of claims
• Missing: no adequate protection for minors and mentally handicapped claimants
• Removed on 2 March 2017, unconstitutional provision entitling the MIB to reject an entire claim if the claimant has independent legal representation, c10 now substantially revised by substituted agreement backdated to 28 Feb 2017

Link to online pdf of the 28 February version of the UtDA 2017

Link to my lecture slides from February 2017 and based on the 1 January 2017 version of the UtDA