Dr Nicholas Bevan

Dr Nicholas Bevan

Monday, 19 September 2016


The House of Lords Science and Technology Committee consults on the future uses of driverless vehicles

In a surprise development, just days after the Department for Transport's deadline  expired on its Pathway to Driverless Cars consultation, we are presented with another.

Click here for the House of Lords select committee's call for evidence.

Friday, 16 September 2016


Moreno v Motor Insurers' Bureau [2016] UKSC 52

  •          Lord Mance's Supreme Court ruling in Moreno brings the applicable law for foreign EEA untraced and uninsured driver claims into line with Rome II
  •           Local standards and local law of the accident location apply
  •           Jacobs v MIB [2010] EWCA Civ 1208 and Bloy v MIB 2013] EWCA Civ 1543 are overturned
      This is an extract from my PI Focus article: Impact Assessment.

The accident

On 17 May 2011 Tiffany Moreno, a UK resident, sustained grievous injuries to her legs when she was hit from behind by an uninsured driver whilst holidaying on the island of Zakynthos in Greece.  One of her legs was amputated through the tibia.  She needs a wheelchair and continues to suffer pain and psychological problems.  She has an extensive claim that includes future loss of earnings and handicap in the labour market. 

The issue

The only issue in this case was which applicable law should be used to quantify Ms Moreno’s claim: was it the more generous UK common law or was it to be determined by the less generous standards of the Greek Civil Code?

The Supreme Court ruling

The Supreme Court upheld the MIB’s appeal, ruling that Ms Moreno’s compensation should be assessed by reference to the Greek Civil Code.
It had been open to the Supreme Court to distinguish the present claim, whose accident post-dated the coming into force of Rome II, from the Jacobs and Bloy decisions, which preceded its implementation.  However, Lord Mance, who delivered the only reasoned opinion, chose a different route. 
As the Sixth Directive was not in force when the 2003 Regulations were in place his judgment refers to its predecessors, which have been incorporated into the Sixth almost word for word.  His analysis of what are now articles 3, 10, 24 and 25 of the Sixth Directive [that respectively impose (i) the third party insurance requirement, (ii) the MIB’s compensatory role for UK accidents involving uninsured and unidentified vehicles, (iii) the MIB’s role as a guarantee fund for foreign EEA accidents where either the foreign insurer or representative is not identified or fails to respond or (iv) where the foreign vehicle responsible is uninsured or unidentified] revealed no legislative discretion for member states to choose the applicable law.  The clear and consistent intention was that the applicable law should be determined by reference the country in which the accident happened.  This is to be applied uniformly, whichever of the compensatory routes were followed: identified insured, insurer not cooperating or where the vehicle is uninsured or unidentified.  By way of example, the clear implication of what is now Article 25 (2) was that the compensating body would recover its full reimbursement from its foreign counterpart.
His analysis of the 2003 Regulations opened with a restatement of the Marleasing principle, namely that they should be interpreted in a sense which is not in any way inconsistent with the Directives.  He found no indication in these regulations that their general intent was to do anything other than fully implement or give effect to the directives.  Furthermore, on the specific issue as to whether Regulation 13 intended to prescribe any particular approach to the applicable law for quantifying the damages, he found that the Court of Appeal had construed the wording too narrowly.  Viewed holistically, ‘it can be seen to be a scheme of which the constant aim has been to improve the prospects and ease with which injured parties can recover the compensation to which they are “entitled” in respect of any loss or damage caused by vehicles’ [paragraph 30].  He also considered the Green Card scheme, that applies the law of the state where the accident occurred, and the 2002 Agreement between the Bureaux whose reimbursement scheme is set at the level of award set by the same uniform rule of applicable law.
This Supreme Court judgment provides a good illustration of the potent effect that a European law consistent construction of inconsistent UK provisions can have where they fail to properly implement European law.  It will be recalled that in Churchill v Wilkinson [2012] EWCA Civ 1166 the Court of Appeal added an extensive passage of ‘notional’ wording to section 151 (8) Road Traffic Act 1988, in order to bring its defective wording into line with the Sixth Directive.   Unless and until the government decides to remedy the numerous breaches of the Sixth Directive RTA practitioners need to be alert to the fact that our national law implementation is systemically defective and that its wording cannot be taken at face value.  This applies equally to the Part VI of the Road Traffic Act 1988, the 2002 and 2003 Regulations as to both MIB Agreements.  

Nicholas Bevan, Impact Assessment, PI Focus article on Moreno v MIB

To access my full article on Moreno, Impact Assessment, which was published in the September 2016 issue of PI Focus, CLICK HERE.

Monday, 12 September 2016


Motor Insurers Bureau claims update, NICHOLAS BEVAN, NICK BEVAN

MIB UPDATE WEBINAR: 15 SEPTEMBER 2016 AT 13.00 - 14.00

 New insights into Motor Insurance Bureau claims

Don’t miss this essential know-how update for all fee earners handing RTA claims.

If …
  • you are not familiar with the ground breaking research that establishes the MIB’s direct liability to compensate victims of motor accidents:

o   On private property
o   Caused by vehicles not intended for road use
o   Caused by driverless/ automated vehicles
  • you don’t know which established House of Lords and Court of Appeal dicta are no longer good law and why…
  • you don’t fully appreciate the legal significance to your clients of the MIB agreements being more than mere private law agreements
  • you think that Francovich actions are a preferred solution

your competitors will know better - by the end of next Thursday’s webinar. 

Join Thursday’s cutting edge webinar to stay ahead of the game.

Feedback from Nicholas’s 2014 webinar on the Court of Justice’s judgment in Damijan Vnuk:

·         Nicholas Bevan's enthusiasm is infectious
·         Interesting topic delivered with enthusiasm
·         A thoroughly rivetting seminar by Nicholas Bevan , who has an outstanding understanding of his subject
·         and an unbridled enthusiasm to make his knowledge work for the benefit of accident victims.
·         A very entertaining speaker!

OR CONTACT: Anthony Lord at APIL on: 0115 958 0585

Monday, 5 September 2016


The Association of Personal Injury Lawyers are hosting the second Accidents Abroad Conference.  I have been invited to join two panel sessions as a speaker at this event.

The Conference will take place on Thursday 3 November 2016 at the Law Society, in London.

Developments in the field of international personal injury have continued at a rapid pace over the past year, making the second APIL Accidents Abroad conference a must for both established and aspiring experts in this area of law, including solicitors, barristers, foreign lawyers, medical and non-medical experts.
With the legal world still grappling with the shake-up brought about by Brexit, the conference will consider the impact Britain leaving the EU will have for those dealing with cross border personal injury claims; including important questions about solvency arrangements and financial guarantees for both domestic and foreign insurers – vital not only when it comes to protecting client damages but also recoverability of costs.
In addition, the conference will look at developments in other key areas, including claims against the MIB (where the Supreme Court has changed the approach to assessing damages), service of proceedings, collective redress and considerations relating to rehabilitation provision for those injured abroad or returning overseas following an accident.
The conference has previously attracted lawyers and experts from across Europe and beyond and is set to be another unmissable legal update and networking event this year.
Topics will cover:
  • The impact of Brexit on cross-border claims followed by a panel session on this subject featuring speakers from England, France, Spain and the Netherlands
  • Presentation of evidence in US cases
  • Class actions and collective redress
  • A panel session on claims against the MIB and Foreign Guarantee Funds, with panellists from England, France, Spain and the Netherlands
  • Serving proceedings in cross-border PI cases
  • Periodical payment orders and security of funding in the international claims context
  • Rehabilitation, care and case management – the challenge of service provision in cross-border cases


Click here to book a place on Mastering MIB Claims

Mastering Motor Insurers' Bureau Claims

A brand new course!

Approximately 5% of RTA accidents involve an at fault driver who is either uninsured, unidentified or whose insurance cover is potentially vitiated through policy breaches, misrepresentation or non-disclosure of a material fact. 

The need to present an MIB claim is a regular, if somewhat disconcerting, phenomenon due to the special rules that apply to such claims.

This brand new full day of essential training provides busy practitioners with an all-you-need-to-know guidance on running these claims.

Both of the current compensatory schemes (for victims of uninsured and untraced drivers) contain numerous unlawful provisions that conflict with the more generous minimum standards of compensatory protection required by the European directive 2009/103 on motor insurance.

In 2015 the government announced a new Uninsured Drivers Agreement that included illegal provisions which even the government now admits must be revised.  It failed to revoke the earlier 1999 Agreement, that continues to apply to accident before 1 August 2015.  The Untraced Drivers Agreement 2003, amended five times in separate supplemental agreements, has even more defects.
These and many other unlawful provisions are the subject of an ongoing judicial review.

This full day of training covers:

  • All practical and procedural aspects of running an MIB claim
  • The Uninsured Drivers Agreement 2015
  • The Uninsured Drivers Agreement 1999
  • The Untraced Drivers Agreement 2003 and the five revisions
  • The MIB’s role
  • Ground breaking new research and insights
  • Why the MIB is an emanation of the state and why this matters
  • Why the MIB is liable to compensate victims affected by the government’s defective provision in the Road Traffic Act 1988
  • The relevant European law and European remedies distilled into a quick reference nutshell

Click here to book a place on the course

Friday, 2 September 2016


Apply to APIL for details and to reserve your place

Announcing a brand new full-day RTA liability update course in two parts
If you handle RTA claims then this is something you cannot afford to miss

In the morning:

We will focus is still on the third party motor cover that our clients depend on for full compensatory redress.  This is a rapidly evolving area of the law has been long neglected by Parliament and widely misunderstood by the judiciary. It is badly flawed, often inconsistent. It is also in a state of flux, particularly in anticipation of a Brexit and the government’s proposals for introducing driverless cars. 
  • Ground breaking research, new insights and ongoing developments combine to create exciting opportunities for successful legal challenges.  
  • Why product liability law is now essential for RTA practice and other implications of automated driver assistance schemes. 
  • What does this new RTA landscape mean for RTA practitioners?

In the afternoon:

This will consist of a lively general RTA liability case law update:
  • numerous interesting driver liability case authorities and scenarios
  • reviewing contributory negligence (what are the must know authorities? When can you safely challenge a first instance allocation?), and the criminal complicity defence – with new insights
  • RTA’s abroad in the European Union, the Supreme Court decision in Moreno and post Brexit

RTA Update training in Manchester: 24 November 2016

RTA Update training in London: 1 December 2016

Please apply to APIL for details and booking information.

Click here to book a place on this course


Proposals for reform

The government is keen to encourage the commercial opportunities presented by rapidly developing automotive technologies. It believes that within 2 - 4 years we could see the introduction on our roads of vehicles equipped with autonomous advanced driver assistance systems.

It is consulting on its proposals for reforming:

  • the scope of motor third party insurance cover
  • construction and use regulations
  • the Highway Code


In my New Law Journal article, The road ahead, I alert RTA practitioners to some shortcomings in the governments’ paper: Pathway to Driverless Cars.

In my view the proposals overlook the fact that the existing third party motor insurance requirement should already include product liability cover.  This is clearly required by the European Directive 2009/103 on motor insurance that Part VI of the Road Traffic Act 1988 is intended to fully implement.  In my view the problem lies elsewhere:  in the empirical development of our legislation over the past 85 years (since the first Road Traffic Act 1930 introduced the concept of compulsory insurance) whereby additional provisions have been grafted on in a piecemeal fashion to the existing provisions without any proper consideration being given to their effect on the original Parliamentary intention; in the confusing and eclectic mix of legislative and extra-statutory provision; in the basic non-conformity of much of our national law provision with the European law that is clearer, shorter and superior in the degree of compensatory protection it affords to third party victims and the government’s failure to regulate the terms of third party cover provided to the public.

These failings are the subject of an ongoing judicial review by RoadPeace against the Secretary of State for Transport.

Consultation Response

I have been consulted by the Association of Personal Injury Lawyers and RoadPeace on the issues raised by the Pathway to Driverless Cars consultation paper.

I have also been working in collaboration with Professor Robert Merkin QC, Lloyds professor of commercial law at the University of Exeter, to prepare our own consultation response.  Readers can access the Merkin / Bevan consultation response here: CONSULTATION RESPONSE.

We argue that the entire corpus of national law provision for guaranteeing the compensatory entitlement of third party victims should be codified in the government’s proposed Modern Transport Bill.  This provision needs to be brought into line with the minimum standards of compensatory protection required under European law.  Welding on new product liability provisions to an already defective structure will only compound the problem. 

Third party motor cover must include product liability for defective mechanical and technical systems, if it is to provide effective and prompt compensatory provision for victims and in order to conform with European law minimum standards.  We propose strict liability being imposed on producers and suppliers of autonomous vehicle systems in favour of all third parties affected thereby with the state of the art defence (under section 4 (1) (e) Consumer Protection Act 1987) being excluded in this context. We also argue for a first point of contact role for motor insurers and that they should have an absolute duty to compensate third party victims promptly even where a product defect caused or contributed to the accident, subject to a subrogated right to recover their outlay from the producer, supplier, retailer, owner, servicer etc.

9 September deadline

The deadline is fast approaching.  Law firms and interested parties have until 9 September in which to respond to this important consultation.  


The New Law Journal has just published my article on the government's proposals for reforming motor insurance and other regulatory aspects of motor transport to accommodate new automated vehicle technologies.  See my earlier post GOVERNMENT CONSULTS ON DRIVERLESS CARS.

My New Law Journal article, The Road Ahead, whilst welcoming the initiative, points out that the proposals contain some inaccuracies that need to be addressed. Just as with the Department for Transport's flawed 2013 consultation on reforming the MIB Agreements, this paper fails to fully appreciate the importance of European law in this area and this leads its authors to fall into error. 

Law firms with a significant RTA practice would be wise to study the government's proposals and to respond to this consultation.  The consultation ends on 9 September.

The road ahead, driverless vehicles, UK, motor insurance