MOTOR CLAIMS UPDATE

Motor Claims: Extensive Reforms & Full Legal Update

On 15 June in London and 16 June in Manchester

I am delighted to be invited to present my full day of training for MBL again this year. See below for the details.

Please contact MBL Seminars direct to make a booking.

This course carries 6 CPD points and is APIL accredited.

'Excellent speaker, very enthusiastic and probably the best I've seen'

Lisa Mulgrew, Solicitor, PCJ Solicitors

This course covers the latest liability decision and delivers cutting-edge new thinking in response to several important developments that challenge several longstanding misconceptions about claimants' rights under national and European law.

It will explain the key principles and it will apply them through fun interactive sessions so as to make the training accessible to all levels of fee earner. it will take you through all the practical steps to ensure that your clients recover their full compensatory entitlement: whether from a contractual or statutory RTA insurer, an owner in breach of the statutory duty to insure or from the Motor Insurers Bureau.

Delegates will be left with a clear understanding of the core principles and how to apply and enforce the more generous level of compensatory protection afforded under Community law.

What You Will Learn
This course will cover the following:

• Compensation Recovery and why we cannot take our national law provision at face value
• Key provisions within the Road Traffic Act 1988, the EC Rights Against Insurers Regulations 2002 and the MIB Agreements
• Minister held liable for unlawful MIB exclusion clause
• Three very important Court of Appeal decisions that expose the flaws in UK implementation of the European Motor Insurance Directives
• Community Law - understanding the core principles and how to apply and enforce the more generous level of compensatory protection afforded under Community law
• What's wrong with the RTA 1988 and MIB Agreements - a fun interactive session where delegates identify for themselves flaws within the RTA 1988 and the MIB Agreements
• Update on the Delaney appeal and why this case is so important to every fee earner
• What is the legal standing of an Article 75 insurer?
• Liability Update
• The latest liability decisions
• Priority at a roundabout - is it just a question of who crosses the line first?
• Is there a duty to slow down to help an overtaking driver?
• Ex turpi causa defences and their proper use explained
• The relevance of the Highway Code
• New thinking on Highways Act claim
• Does the national road maintenance code set the standard?
• Why Bolam might be relevant to a Highways Act claim?
• Apportionment of liability and Contributory Negligence
• General principles/Seat belt update/Cycle helmets
• Appealing a first instance apportionment of liability
• Children cases/drunk pedestrians/drunk drivers and more
• Accidents abroad
• Overview of the rules for jurisdiction and applicable law
• New cases that make it easier to claim in the UK for an accident in the EU
• Damages
• Update on loss of use and credit hire
• Why reform is likely
• Law reform
• Why the European Commission is investigating the UK national law provision for RTA victims
• Latest on the sacking of the minister responsible for the flawed DfT review of the MIB Agreements
• Latest on the Competition Commission enquiry into dysfunctional insurer practices
• Latest on the MoJ proposals for whiplash claims

THIRD PARTY MOTOR INSURANCE LEGAL UPDATE

THIRD PARTY MOTOR INSURANCE - The Vnuk Ruling

Half day's training on Motor Insurance law on 20th March 2015, in Manchester

Last September the Court of Justice for the European Union delivered what is possibly the most important ruling on the true nature, scope and extent of the third party motor insurance requirement imposed under the European directives on motor insurance. The decision in Damijan Vnuk v Zavarovalnica Triglaw exposes fundamental defects in the UK national law provision for safeguarding the compensatory entitlement of motor accidents.

Vnuk has an immediate and retrospective effect which not only extends the geographic and technical scope of third party motor insurance but also opens up new litigation opportunities for victims who have already been wrongly refused or denied compensation either from a motor insurer or the MIB.

This course will cover the following:

Conflict of Laws

·                     1934 - 2014 The Road Traffic Act - Qualified cover and restrictive scope

·                     1973 - 1990 Three European Directive - Evolving provision

·                     1996 - 2014 Six Court of Justice rulings culminating in Vnuk

The New Overriding Comprehensive Protective Principle

·                     The insurance requirement

·                     The compensating body

·                     The direct right

European Law Basics

·                     Consistent interpretation of national law and its limits

·                     Basic European law principles

·                     Applying EU law, direct effect, indirect effect

Getting Stuck In

·                     Comparing UK and EU provision

o                  The duty to insure and scope of cover

o                  The permitted exclusions and restrictions

o                  The new role of the MIB, the canard that’s no swan

o                  Which leading authorities are not obsolete or plain wrong

·                     Imminent Reform

o                  Immediate and retrospective effect

o                  DfT Shambles and catch up on derogated vehicles

·                     Myth Busting

o                  Why we are no longer just RTA practitioners

o                  Why the MIB is more than a private contractor and why this matters more than ever before

o                  Why ‘article 75 insurers’ are a confidence trick

o                  Why many common policy restrictions in use are unlawful

·                     New Opportunities

o                  New types of claim

o                  Why we are all European lawyers now

o                  Better, more extensive, compensatory safeguards

o                  Spotting EU law breaches and selecting winners

o                  Remedies

Time Permitting: Foreign Accidents in the EU: Easier, Quicker, Simpler

·                     Jurisdiction and Brussels 1

·                     Applicable law and Rom II and the Hague Convention

·                     Procedural Innovation

·                     New Opportunities

All original cutting edge material all this within an amazing 3 hours!  APIL accredited with 3 CPD points.

To book your place, please contact MBL Seminars direct.

Recent feedback from delegates:

• 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
• Excellent speaker, very enthusiastic and probably the best I've seen
• Great materials, very knowledgeable, very detailed notes
• Enthusiasm of the speaker regarding the current application of EU law put a new perspective
• on how we look at this area of law and how this should be used to the clients advantage, very
• interesting!
• The speaker made a quite complicate subject very clear and easy to follow, taking time to
• explain points he thought needed more explanation H
• Course materials in vast quantity and detail - a good thing 
• Delivered with great enthusiasm 
• Fantastically knowledgeable speaker
• I found Nick Bevan one of the most knowledgeable and interesting speakers i have been on a course with in a long time
• Very enthusiastic and passionate speaker
• V passionate, much better than the other speakers in this area
• Extremely knowledgeable, very comprehensive

THE CASE FOR REFORM

Two years have passed since the Department for Transport's abortive review on reforming the Motor Insurance Bureau Agreements.  These are supposed to ensure that the compensatory entitlement of motor accident victims is not jeopardised by the driver at fault being under-insured, having no insurance at all or for failing to stop. 

The Motor Insurance Bureau (MIB) is supposed to compensate victims in an equivalent and effective way and to the same level that a victim would expect from a fully insured defendant motorist.  Unfortunately both arrangements as well as the statutory framework for the compulsory third party insurance requirement are badly flawed. Successive minsters have granted the motor insurers numerous concessions that allow insurers and the MIB to reduce or evade liability completely. This undermines the original Parliamentary intention at the time the initial scheme was set up in 1930 and it also defies common sense as it exposes law abiding citizens to the risk of recovering nothing and in the case of serious injury, forcing them to become a burden on their relatives, their local authority and on the State.

The minister's February 2013 consultation was abandoned after his deeply flawed proposals were revealed for what they in the consultation responses.  The minister was reminded that our entire national law provision in this area was riddled with loopholes that favoured motor insurer's commercial interests at the expense of the victims that the various schemes was supposed to protect. He was told that urgent and wide-spread reform was necessary.  More to the point, the minister was advised that the defects conflict with the minimum standards of compensatory safeguards required under European law. 

The minister's promised a detailed report that has never materialised, yet he cynically agreed the MIB's request to amend the Untraced Drivers Agreement 2003 within just 4 days of the consultation period expiring in April 2013, to excludes a victim's right to recover property damage unless the victim has been hospitalised for four or more days. This proposal, which was not mentioned in the ministers consultation paper, abolished the right to recovery property damage in an untraced driver claim in all but a tiny minority of cases.  This is inconsistent with European law. 

In my article, Changing Gear, published in the Association of Personal Injury Lawyers journal PI Focus, I argue the case for reform and urge personal injury lawyers to undertake an urgent audit of their know-how and case management software as much of our national law provision, including our case law, cannot be taken at face value as it conflicts with superior European law. 

Please click on the image below to access the full article.

Click on the image to read the article in full.

 

MOTOR LIABILITY UPDATE

Road Traffic and Motor Claims Update

I am presenting a full day of training on all aspects of motor liability for the Association of Personal Injury Lawyers on 4 June, 10 June and 12 June.

It used to be the case that nothing much happened in motor and road traffic liability law, now the so much has happened and in the process of happening that every text book on the topic is badly out of date.  What we used to term as road traffic practice now involves cutting edge new comparative law, European law , motor insurers liability and its remedies and a host of new and interesting liability and quantum decisions. If you handle any 'rta' claims, this is a course you cannot afford to miss.

To book your place, contact those lovely people at the APIL office: CONTACT APIL

This course attracts 6 CPD points.

Recent feedback on MIB, RTA and Motor Insurer Liability training delivered for APIL:

• ‘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’
• 'Very enthusiastic and passionate speaker'
• 'V passionate'  '
• 'Extremely knowledgeable, very comprehensive'

  APIL Delaney webinar feeback Sept 2014:
 'I found Nicholas Bevan engaging, enthusiastic, highly amusing and knowledgeable'

• 'Thank you for this enthusiastic presentation!'
• 'Speaker kept presentation style chatty and thus interesting'

MoJ MESO DECISION ANNULLED

R (on the application of Whitson) v Secretary of State for Justice [2014] EWHC 3044 (Admin)

On 2 October Mr Justice Davies ruled that the Lord Chancellor’s decision to abolish the entitlement of mesothelioma victims to recover their solicitors’ success fees and after the event insurance premiums from defending insurers was unlawful. 

Mesothelioma is a fatal disease which is caused by exposure to asbestos dust.  In 2011 it was responsible for 2,291 deaths in the UK, and the number of cases each year is expected to increase further.  Due to the difficulty in establishing liability, proving causation and the complications in identifying often numerous different employers and in tracing their insurers, these claims were exempted by section 48 of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) from sections 44 to 46 LASPO that abolished a successful claimant’s entitlement to recover these additional liabilities from a defendant. 

Section 48(1) of LASPO provided as follows:

‘Sections 44 and 46 may not be brought into force in relation to proceedings relating to a claim for damages in respect of diffuse mesothelioma until the Lord Chancellor has (a) carried out a review of the likely effect of those sections in relation to such proceedings, and (b) published a report of the conclusions of the review.‘

Rather than undertaking the proper and fair review required by section 48, the Lord Chancellor’s decided instead dispose of this duty by bolting on a question to the 2012 consultation dealing with procedural aspects of mesothelioma claims.  It invited consultees to comment on whether the exemption should be removed but this was predicated on various other proposals being implemented, which did not eventually happen.  This issue was never addressed directly and on its own and no proper attempt was made to research the likely consequences.

Mr Whitson of the Asbestos Victims Support Groups Forum UK brought a Judicial review of the decision to remove the exemption.  It disputed the assumptions made in the Government’s impact assessment and argued that for from being cost neutral to the victims affected the Government’s reforms would leave this particularly vulnerable class of victim loosing tens of thousands of pounds in unrecoverable costs; effectively denying them their full compensatory entitlement.

The judge concluded that the Lord Chancellor had failed to carry out the proper review that section 48 required.  He concluded that ‘no reasonable Lord Chancellor faced with the duty imposed on him by section 48 of the Act would have considered that the exercise in fact carried out fulfilled that duty’.  Accordingly, the Lord Chancellor’s decision of December 2013 to abolish the mesothelioma exemption was annulled. 

The appointment of Chris Grayling as Lord Chancellor in 2012 was controversial at the time as it broke with a long established convention that the head of the legal profession should come from one of the legal professions.  Instead we now have a Ministry of Justice department controlled by career politicians, with all that implies.

The Association of British Insurers, intervening, argued that the Lord Chancellor’s decision should be upheld as ‘the Lord Chancellor would be bound to make the same decision after a review as required by Section 48’.  This revealing statement illustrates the ABI’s role as the éminence grise behind much of the Governments policy making in this area.  In July 2014 a Parliamentary Justice Committee Report also considered the appropriateness of the Lord Chancellor’s decision to remove the mesothelioma exception.  It found that the outcome of the Chancellor’s flawed review had always been a foregone conclusion.  It brought to light the fact that the ABI had already reached a secret understanding with the Government in July 2012.  The committee expressed concerns that the Government had not been transparent or open about its true agenda, either with the committee itself or with other interested parties, and that it had not been even handed in its consultation.  

Any further consultation is likely prove to be a tendentious exercise, when such powerful interest groups continue to enjoy such extensive influence and control of government policy.

Further evidence of the insurance lobby unconstitutional influence can be found in last week’s New Law Journal opinion piece: Bad Law.

KEEP POSTED ON IMMANENT REFORM

Follow this blog to stay ahead

In February 2013 I explained why our national law in this area was defective and why it does not comply with European Law in a four-part series of New Law Journal articles, On the Right Road?; part 2; part 3 and part 4.  See also my article Minor Collision, why children can be hardest hit in APIL’s PI Focus, May 2014. 

I was the first to report on the recent ruling in Delaney v Secretary of State for Transport 2014 EWHC 1785 (QB), (see also my article in the Journal of Personal Injury Law, A World Turned Upside Down) in which Mr Justice Jay held that the minister was liable for a serious breach of European law that had wrongly denied an accident victim his proper compensatory entitlement.  

I was also the first to provide comment and analysis,  in this blog, of the European Court of Justice’s landmark decision in Damijan Vnuk (Case C-162/13), Vnuk Ruling: RTA 1988 Breaches EU law.  To date this is the only analysis of this ruling.  The Vnuk decision exposes the DfT to yet further judicial scrutiny for failing to implement European law minimum standards properly.

The Department for Transport's is responsible for the national law provision for ensuring that motor accident victims' compensatory entitlement is properly safeguarded.  Unfortunately it is in a state of shambles.  

Call for reform

The minister chose to do nothing after initiating a deeply flawed and badly informed consultation on revising the Uninsured and Untraced Drivers Agreement and on being informed of the numerous defects in our national law implementation of the European Directives on motor insurance, that was back in late February 2013.  Now, 19 months on, he may have no choice in the matter.  If he fails to fulfil his constitutional duty to initiate reform, he may well find that others will do this for him.  

BAD LAW

In my latest New Law Journal article, Bad Law (3 October 2014), I argue that the reason why -

• Part VI the Road Traffic Act 1988, and 
• The European Communities Rights Against Insurers Regulations 2002 as well as 
• The Uninsured Drivers Agreement 1999 and 
• The Untraced Drivers Agreement 2003 

- all fail to fully implement European law minimum standards of protection for motor accident victims is because the Department for Transport (DfT) has become overly dependent on the insurance sector for its policy in this area.

The DfT is responsible for providing the legal framework for ensuring that motor accident victims' compensatory entitlement is guaranteed and this is achieved through compulsory third party insurance.  The DfT is also responsible for regulating this statutorily enforced and lucrative market, one that law abiding members of the public finance through their expensive premiums.  

We rely on the Government to be even handed between the conflicting interests of powerful insurers and the vulnerable victims its policy is supposed to protect.  I argue the DfT has in recent years allowed itself to be browbeaten by the well resourced and highly influential insurance lobby and as a result it has failed to act in the best interests of accident victims.  Ministers come and go but insurers enjoy a permanent influence that affords them a significant advantage in the cat and mouse game of politics.  My article, Bad Law, considers some of the evidence that indicates that there are insufficient constitutional checks and controls on the ability of motor insurers to influence government policy.  To paraphrase George Orwell, whilst we are all equal under the law, it seems that some are more equal than others.

CLICK ON THIS IMAGE TO ACCESS THE NEW LAW JOURNAL ARTICLE IN FULL 

The minister must now step up to the breach and remedy these injustices.

To access my other New Law Journal articles, click here.