Dr Nicholas Bevan

Dr Nicholas Bevan

Tuesday, 14 July 2015

Open letter to the Department for Transport expressing dismay at the Uninsured Drivers Agreement 2015

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

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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