From: Nicholas Bevan [mailto:mail@nicholasbevan.com]
Sent: 10 July 2015 18:34
To: 'redacted'
Subject: RE: Revision of the Drivers Agreements Government response - Uninsured drivers Agreement 2015
Sent: 10 July 2015 18:34
To: 'redacted'
Subject: RE: Revision of the Drivers Agreements Government response - Uninsured drivers Agreement 2015
Dear Mr [redacted]
Thank you for your email and supplying me with links to the
new Uninsured Drivers Agreement 2015 that the minister has entered into with
the MIB.
It is unfortunate that no one thought to circulate a draft
of the agreement to the individuals who responded to the minister’s consultation
back in February 2013, as we would have been able to point out a number of
serious drafting errors.
It is also regrettable that the minister has chosen to
ignore the extensive advice he received from so many quarters in the
consultation responses. It makes one question the point of that exercise.
It is not my role to second guess the minister’s intentions,
still less those of the MIB, but I doubt that it can have intended that there
should be no time limit on a claimant initiating a reference to an arbitrator
under clause 17, especially when clause 17(3) sets such clear time limits
thereafter.
I doubt also that in providing such explicit provision for
appointing arbitrators to deal with disputes as to the reasonableness of an MIB
rejection of a claim under clauses 12 and 14 that could it have been intended
to prevent the arbitrator from considering the European law context. I am
sure you do not need me to remind you that your minister has a constitutional
duty to give effect to European law. My understanding is that the
combined effect of clause 17 and section 46 Arbitration Act 1996 is that the
arbitrator will be required to determine the issues in dispute by applying the
literal meaning of the agreement (defective as it is). This excludes any
possibility of motor accident victims attaining a remedy through a European law
consistent interpretation of the agreement that takes into account the aims and
objectives of the European directives on motor insurers that this agreement is
supposed to implement. Incidentally, I note that the former references in the
1999 Agreement to the European directives has been stripped out of the 2015
Agreement, as if to make such an outcome that much more certain. If my
understanding is correct, clause 17 constitutes a serious breach of European
law that may necessitate judicial review unless the minister can provide
suitable clarification or amend the document.
I am surprised and dismayed to see, particularly after Mr
Justice Jay’s explicit comments in Delaney v Secretary of State for
Transport 2014, that whomever drafted this agreement has failed to
undertake a comprehensive comparative law review to ensure that it complies
with the minimum standards of compensatory protection required under European
law. It contains a number of serious infractions. Take for example
the two unlawful exclusions of liability in clause 8(1)(a) and 9
that are clearly not permitted under European law. The fact that
your department has chosen to ignore the plain and obvious implications of the
Court of Justice’s judgment in Bernaldez 1996, when your
department had direct knowledge from its unsuccessful intervention in that
case, only serves to compound the seriousness of these failings. The
substitution of ‘knew or ought to have known’ in clause 6 of the current
agreement with the synonymous phrase ‘knew or had reason to believe’ in
clause 8 of the new agreement is unlikely to fool anyone. Clearly and
obviously it carries precisely the same meaning that encompasses negligently
acquired knowledge. This flies in the face of the House of Lords ruling
in White v White & MIB [2001] UKHL 9 (see Lord Nicholls judgment at
paragraphs 12 to 17, Lord Cook’s judgement at paragraphs 34 to 36 and even Lord
Scott’s dissenting judgment at paragraph 35). To include so many provisions
that are so patently incompatible with such clearly articulated and well
established European law minima, must risks criticism and even censure.
But these are not the only infractions, as you should well know.
In my consultation submission of April 2013 I took the
trouble to explain in great detail not only why the limited consultation was
flawed but to identify numerous instances where our national law provision for
implementing the European Directives on motor insurance fails to fully
implement the minimum standards of compensatory protection for motor accident
victims. I am not going to repeat that exercise here and anyway, since that
time further infractions have come to my notice. Even so I think it fair
to point out that some of my warnings have since been vindicated in the Court
of Justice’s judgment in Damijan Vnuk 2014 and more recently by the
Court of Appeal in Delaney.
The point of this open letter is to emphasise that we have
reached a watershed, any further obfuscation or delay in the proper discharge
of the minister’s duty to implement European law is unlikely to be
construed as unintended, still less excusable. The 2015 Agreement is a
bodged job that needs to be remedied immediately. With all due respect, the
minister needs to take decisive action to remedy a shambles for which he bears
the ultimate responsibility.
I should be grateful to hear from you with a full response
to the substantive issues I have raised within the next fortnight.
Yours sincerely,
Nicholas Bevan
07968 427134
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