Dr Nicholas Bevan

Dr Nicholas Bevan

Tuesday, 30 April 2013


It has been really encouraging to receive so many messages of endorsement about the three simple principles that underscore our campaign for reform:

  • That Part IV of the Road Traffic Act 1988 should be revised so as to restore the original 1930 concept: that a compulsory third party motor insurance policy should be good for any use and untainted by breaches of policy term or any contractual restrictions or exclusions - in so far as a motor insurer's statutory indemnity affects a third party victim's claim;
  • That our statutory and extra statutory provision for guaranteeing that victims of motor vehicle incidents recover compensatory entitlement should conform at least to the minimum standards required under Community law;
  • That the extra statutory provision for victims of motor vehicle use should be codified in simple clear and just terms.
I am grateful to all the law firms that have voiced their support as well as to Road Peace and the Motor Accident Solicitors Society.  Most recently, the Edwina Hart MBE, Welsh Minister for Economy Science and Transport has rallied to the cause. 

Onwards and upwards!

Monday, 29 April 2013

FULL VERSION of DfT consultation response

Click on the link below to access a full version of my consultation response. This was submitted on 22 April 2013.

 MIB Consultation 2013 response by Nick Bevan

Friday, 26 April 2013

ALEA IACTA EST, the die are cast

Today is the final day for submitting a response to the Department for Transport’s Consultation Paper: Review of the Uninsured and Untraced Drivers Agreements.

I should like to thank everyone for their contributions to date in this ongoing campaign to reform the United Kingdom’s provision for ensuring that those unfortunate enough to be injured or suffer loss due to the negligent or reckless use of motor vehicles actually recover their full compensatory entitlement. 

The challenge remains.  The compensatory guarantee provided under our national law is still flawed by a plethora of loopholes and anomalies that undermine what should be a simple and straight forward principle.  Although our work has only just begun, I think we have taken a decisive step by articulating what is wrong and by contributing our own suggestions for remedying these defects.  In this sense at least, my hope is that by stating our case as clearly and impartially as we have, the reformist dice have been well and truly cast.

I should like to extend my thanks to Andrew Ritchie QC, whose great successes representing victims of uninsured and untraced drivers was my first inspiration; to Muiris Lyons, Nigel Tomkins and, Lindsay Emerson, of the Journal of Personal Injury Law (Thompson Reuters) for publishing my case commentaries and voluminous articles; to Jan Miller, Editor, of the New Law Journal (Lexis Nexis) for publishing my four part critique of this regime in February this year and for committing the NLJ to this campaign; to Stephen Hammond MP Under Secretary of State for Transport for contributing to the debate by publishing his review of the MIB Agreements on 27 February, to the Motor Insurers Bureau CEO, Ashton West, and his team, for their open handed approach in their discussions over the years; to Malcolm Johnston whose expertise in this field is profound; and to all those with whom I have conferred with in the lead up to today’s final submission deadline: the Motor Accident Solicitors Society, the Association of Personal Injury Lawyers; the Federation of Insurance Lawyers, various worthy charities and special interest groups, as well as all those law firms that have somehow managed to find the time to respond in the very midst of a crisis due to the veritable whirlwind of change ushered in under the LASPO reforms.  My especial thanks to John Spencer of Spencers Solicitors for his abiding interest and moral support, and to the three wise men: Kerry Underwood, Dominic Regan and Andrew Twambley, who have helped boost the visibility of this blog – extending its reach via their fan clubs from the western shores of Alaska to the eastern coast of Australia - truly!

Now the really hard work begins!  I sense that there is a general determination to put matters right: one that transcends the usual partisan divide.  I am hopeful that this will be achieved through dialogue.  I think that most of us are looking for an outcome that is workable both from the perspective of the insurers, who in large part fund our tort law compensatory system, and the victims, who for the most part pay the insurance premiums that fund the insurers.  This ecosystem of different but shared interests has far more to gain from a collaborative approach than a confrontational one.

So ‘onward and upward’!

Thursday, 25 April 2013


Extract from Nicholas Bevan’s response to
the Department of Transport’s Review
of the Uninsured and Untraced Drivers Agreements.


The Author

Nicholas Bevan is a founding director and co-owner of Enable Law Ltd, a legal management, regulatory compliance and training consultancy.  He is a non practicing solicitor.  Nicholas has over twenty years experience of defending road traffic claims on behalf of insurers acting as agents representing the Motor Insurers Bureau.  He has also represented many individual applicants.  Nicholas has been consulted by APIL to advise on the need for reform in this area since 2007, when he met with the MIB to argue the case for reforming the 1999 Agreement.  In 2008 he received the top award for ‘Outstanding Achievement’ at the Barker Brooks Personal Injury Awards.  He is a nationally recognised legal trainer and speaker on claims involving the MIB and he is also widely published[1].  Nicholas was recently senior counsel at commercial law firm Bond Pearce LLP.

The limited scope of the review

The Department for Transport’s review is welcome as are many of its proposals, in so far as they mitigate some of the defects in the MIB Agreements.  Unfortunately, the review confines its proposals to handful of issues, which are mostly procedural in nature.  It does not tackle the imperative for substantive reform right across the UK’s statutory and extra-statutory provision for victims of insured, insufficiently insured, uninsured and unidentified drivers.  Any comprehensive review of the MIB Uninsured and Untraced Drivers Agreements should have as its starting point the minimum standards of protection imposed under the Sixth Motor Insurance Directive.  It should also embrace the UK’s statutory provision as the statutory and extra statutory schemes are closely interrelated. 

This response

The wider issues

One of the primary objectives of the Road Traffic Act 1930[2] was to ensure that victims injured or sustaining loss caused by the use of motor vehicles could be confident that they would recover their full compensatory entitlement, regardless of the responsible party’s ability to satisfy the claim.  Rather than opt for a state managed no-fault compensatory regime, the government of the day determined on legislating to ensure that all road users purchased insurance cover that would indemnify them against any third party claim.  This policy drove extensive new and profitable business to a nascent motor insurance market that has developed into a sophisticated multi-billion pound industry. 

Almost immediately it became apparent that the legislative objective was being undermined by motor insurers conflicting business interests that incentivised them to hedge their liabilities by restricting the terms and scope of cover within their policies.  A number of legal challenges resulted and the reforms introduced under the 1934 Act reflected Parliament’s intention both to restrict the ability of insurers to hedge their liabilities in this way and to compel them to satisfy relevant judgments against their policyholders[3].  Unfortunately, as this paper seeks to demonstrate, the simplicity of the original parliamentary objective has been compromised over the years, exposing third party victims to a number of loopholes in the compensatory protection afforded under our national law. 

There are sound pragmatic reasons why our national law provision for third party motor insurance cover should be as comprehensive and as effective as possible. One need only consider how few private individuals could possibly expect to satisfy even a relatively modest judgment, of say £300,000, from their own resources; let alone a multi-million pound catastrophic injury claim featuring extensive future loss.  It is a commonplace that motor vehicles are potentially lethal weapons and so it is not an unreasonable expectation in a modern state that their use should be made conditional on the user having full indemnity insurance in place.  Whilst our national law provision achieves this for the most part[4], its effectiveness is marred by the ability of authorised insurers to equivocate on the terms of cover they provide.  If one takes into account the relative vulnerability of individual claimants, the ability of insurance actuaries to set appropriate premium rates that deliver the necessary insurance indemnity and the legislative objective underscoring the compulsory insurance regime, there is surely a strong case to argue that authorised motor insurers who choose to operate in this market should be required to provide comprehensive and unqualified indemnity cover to all third party victims (without prejudice, of course, to any contractual right against their policyholder for breach of contract or misrepresentation).

Compulsory insurance also reduces the extent to which our hard pressed NHS, social services and local authorities are exposed to funding the seemingly ever increasing cost of medical treatment, rehabilitation, long term care, special accommodation and equipment needs of seriously injured road accident victims.
This paper puts the case for amending the statutory provision in this area to remove any anomalies and to bring our national law provision in line with the minimum standards imposed by the Sixth Motor Insurance Directive[5].  It cannot be right that motor insurers, who enjoy a captive market under this legislation, should be permitted to evade their statutory responsibility to indemnify genuine third party claims or to effectively deflect potentially costly long term care costs to our state funded services. 

Clarifying the scope and extent of the duty to insure and the statutory indemnity would also have the benefit of avoiding costly litigation.  It will be observed that there has been a recent spate of trials in which the Court of Appeal[6] has failed to adopt a consistent approach to the interpretation of Part VI Road Traffic Act 1988.

It is contended that the Uninsured and Untraced Drivers Agreements are part of our national law.  However, the historical reasons for the dichotomy between the legislative and non-legislative provision for victims of motor vehicle use, no longer pertain.  This paper makes the case for doing away with this inconsistent approach and for codifying the compensatory guarantee scheme within new subordinate legislation approved and maintained by the Civil Justice Council. 

It is clear from the Government’s online hyperlinks to the MIB website[7] that it wishes to encourage applicants to apply for compensation from the MIB direct.  Unfortunately the cumbersome format of both the Uninsured and Untraced Drivers Agreements; their excessive use archaic technical terms, compounded by the inaccurate and in places self contradicting representations of legal entitlement, make them wholly unsuited to this purpose.  Furthermore the agreements impose arbitrary and draconian strike out clauses that far exceed any sanction imposed on claimants pursuing insured defendants in our civil courts.  They arrogate special evidential rules for which there is no legal or constitutional precedent and they entitle the MIB to make deductions from victims’ lawful entitlement that conflict with Community law[8].  The extensive defects in these anachronistic arrangements are their own best advocate for their replacement.

This paper recognises the Motor Insurers Bureau’s expertise and proficiency in administering claims and the important role is has played over many years in compensating road accident victims[9].  However it suggests a number of discrete reforms to make it more accountable and less prone to undue influence from the insurance interests that comprise its board.[10]


[The main body of the consultation response follows, including the itemisation of over 30 instances where our statute law and the MIB Agreements fail to properly implement the higher standards of compensatory protection afforded to victims of road use.  All this material is excluded from this excerpt]



A detailed response to The Department of Transport’s review is set out above.  This paper argues that extensive and wide ranging reform of the UK’s statutory and extra-statutory compensatory protection for victims of motor incidents is necessary.  A patch and mend approach to part of the UK’s extra statutory provision, is insufficient.  This paper recommends that the Minister:

·         Restore the original legislative objective of the Road Traffic Act 1930 (as amended by the 1934 Act) to ensure that all victims of insured motor vehicle users who under our national law are entitled to compensation for their loss or injury are to be automatically entitled to recover compensation from the vehicle’s motor insurers direct. 
o   This should apply wherever the accident occurs in the UK and whatever the circumstances of the incident. 
o   A third party victim’s right to compensation should be guaranteed and free from any policy term or other restriction in liability between the insurer and policyholder.  It follows that authorised motor insurers operating in this market should be compelled by law to offer third party cover that is good for any use made of the vehicle and sufficient to address the legislative objective set out above.
·         Codify and consolidate both the statutory extra-statutory provision for victims of uninsured and unidentified drivers so that they provide a consistent, clearly articulated, fair and just compensatory regime for third party victims of insured, insufficiently insured, uninsured or unidentified drivers alike.
·         Adhere to the minimum standards of protection for victims of motor vehicle users imposed by the Sixth Motor Insurance Directive and Community law (which incidentally requires the full and comprehensive third party compensatory protection, save where expressly provided for[11]).
However, the writer responds to the specific questions raised in the Department’s consultation paper as follows:


Question 1

Answer:  Some but not all of these suggestions are agreed. 
I agree that the MIB should be joined as a party in any proceedings.  Paragraph 5 of the Amended MIB Guidance already requires this. 
I agree that the oppressive and largely unnecessary procedural requirements as well as the disproportionate sanctions set out in clauses 8 to 12 should all be removed.  These provisions contravene the Community law principles of equivalence and effectiveness as they have no equivalent under the statutory provision within Part VI Road Traffic Act 1988.  Their removal should not be dependent upon the imposition of any new notice requirement that differs in any material respect to the notice provisions for insured claims. 
Applicants should be encouraged to submit a claim form within a reasonable time.  However, the MIB should not be entitled to any superior rights (in respect of the sanctions it can impose in respect of pre action disclosure, notice or provision of information) over and above those enjoyed by any other party in our civil justice system.
The MIB is entitled to the same notice requirements and information on the commencement of proceedings as is conferred on an authorised motor insurer under s152 (1) Road Traffic Act 1988; and no more.  The subtle but often fatal differences in the notice requirements in the current version of clause 9 should be removed as this is as unnecessary as it is confusing for litigants in person and has resulted in costly satellite litigation.
To recapitulate, the MIB is entitled to the same information, notices and remedies conferred on any other litigant under the Civil Procedure Rules and no more.

Question 2:

Answer:  I agree that clause 13 must be removed. It is an unlawful restriction on the right to compensatory recovery as it is not an exception or limitation expressly provided for under the Directive.

Question 3:

Answer:  3 years from the date of the accident or from the applicant’s attainment of majority or cessation of disability.  The MIB should not enjoy any superior notice or other privileges to those conferred on other defendants in this jurisdiction.

Question 4:

Answer:   I agree.  The standards and terminology employed within the Civil Procedure Rules should be adopted as closely as possible to avoid unnecessary confusion. The Community law principle of equivalence also requires this.

Question 5:

Answer:  I agree.
The arbitrators should consist of barristers and solicitors with at least 10 years post qualification experience who can prove that their competence in handling road traffic accident personal injury claims that feature catastrophic and other serious injury claims involving significant future loss.  My concern is that many practitioners are insufficient aware of the benefits of periodical payments.

Question 6:

Answer:  Agreed. 

Question 7:

Answer:   Ill health, mental health problems, lack of communication of the award, lack of understanding of the information letter, lack of capacity or minority. The constructive knowledge provisions within s14 Limitation Act 1980 might also be employed.  However none of this would be required if the compensatory regime was codified, as recommended, and made subject to normal limitation of action principles.  The MIB should not enjoy any superior privileges to those conferred on other defendants in this jurisdiction.

Question 8:

Answer:  Agreed.

Question 9:

Answer:  The MIB should not enjoy any superior notice or other privileges to those conferred on other defendants in this jurisdiction.  Suitable provision for recoverable legal costs is made to ensure that a claimant is properly represented and the outcome is fair. Note Andrews v MIB [2012] EWHC unreported.  Appeals from arbitration is already provided for under the Arbitration Act 1996.  Furthermore there can be no bar to a Francovich action for breach of Community law.

Question 10:

Answer:  Agreed, subject to the usual strike out rules. 
Section 61 of the Arbitration Act 1996 should apply but amended to adapt the qualified one way costs rule in the claimant / applicant’s favour.  

Question 11:

Answer:. Section 61(2) of the 1996 Act already makes suitable provision. Our national law principles of natural justice, equality before the law and the Community law principle of equivalence preclude any significantly enhanced penalties that favour the MIB over any other litigant in our civil justice system. The MIB should not enjoy any superior privileges to those conferred on other defendants in this jurisdiction.

Question 12:

Answer:  The Secretary of State for Transport should continue to be involved, whilst this compensatory provision remains in its present anachronistic form.  He is ultimately responsible for any departures from the full compensatory principle, for any injustices perpetrated by those who operate the scheme and for any departures from the minimum standards imposed under Community law. 
I have seen the PIBA response to this particular question and I endorse its observations on the unsatisfactory experience of some claimants. 
PIBA response:
‘This is vital but does not go far enough. 
Our members have personal experience of the MIB taking up to 12.5 years to make a decision in Untraced Drivers cases (see Auld v MIB 2012).   There are appalling delays in some very large cases leaving victims uncompensated for the delay period and there is no method of forcing the MIB to fulfill their responsibilities. 
What is needed is a clause which requires the MIB to act within a reasonable time scale and the victim should have the right to apply to the arbitrator to force the MIB to investigate and make a decision within a reasonable time scale.  The maximum time from application to decision should be 3 years and the average time should be 1.5 years.’
I would add the case of Moore v SS for T & MIB [2008] EWCA as another example where the MIB’s incompetent investigation of a genuine untraced driver claim arguably resulted in a substantial undersettlement and the resulting delay prevented the claimant’s Francovich claim.
I argue elsewhere that the current agreements should be codified and that the MIB should operate under a separate service level agreement[12].  The MIB should be contractually obliged under that agreement to compensate applicants (on a sliding scale to reflect the value of the claim and the length of delay) for any unreasonable delay.  Any factual disputes should be referred to an arbitrator.  The MIB should be obliged to publish full claims handling statistics and list all the infractions that result in a penalty on its website. 

Question 13:

Answer:  I agree with PIBA response in so far as they propose a sensible level of disbursements for the provision of an expert legal opinion on the quantum of higher value claims and, I would add, extended to include any unusually complicated claims. 
The quantification of high value claims, often involving detailed consideration of the respective merits of a lump sum or periodical payments or a mix, requires specialist expertise.  It is important that a victim has independent advice, either from a solicitor or barrister with sufficient experience to provide a specialist opinion. 
The case of Moore v SS for T & MIB [2008] EWCA also demonstrates the need for independent advice and representation from an independent legal representative in order to ensure that suitable experts are appointed and properly instructed and that the claim is properly investigated. The tort law full compensation principle requires that the cost of preparing and advising in complicated or high value claims should be fully recoverable. The present fee matrix is insufficient to achieve this.
The principle within Part 1 of the Civil Procedure Rules of ensuring that the parties are on an equal footing requires that a claimant should have access to expert independent advice and representation from the outset of a serious or complicated claim and that this cost should be recoverable.
My recommendation would be:
·         That in claims whose general and special damages combined are valued at less £10,000 the current fee matrix should prevail.
·         That in claims valued at £10,000 and above:
o   No additional cost of establishing liability should be allowed, save in exceptional or unusually complicated cases,
o   However, inter parties costs on the appropriate standard basis (or where appropriate: the portal or fast track fixed costs, where these apply) should be allowed to every applicant but limited to work and expenditure incurred relevant to the investigation, preparation, quantification (and where necessary representation) of the applicant’s assessment of damages.

PIBA response:
‘Yes.   It makes no sense to allow access to advice from a specialist barrister only for a person who is a protected party.  All persons with claims valued at more than £10,000 should be entitled to an advice on liability and quantum.  The fees should be fixed as follows:

Value of claim               Advice on liability and quantum from barrister
£10,000 - £25,000          advice on Liability and quantum after the MIB’s decision has been communicated:  £500 + VAT.
£25,000 - £100,000:                   £750 + VAT.
£100,000 - £300,000:                  £1,500 + VAT
£300,000 upwards:                    to be assessed or agreed depending on the work involved.’

Question 14:

Answer:  I agree that a claimant should be entitled to appeal to an arbitrator to challenge a refusal to award supplementary costs in claims valued over £10,000 and in complicated cases where the claimant can demonstrate the costs incurred were necessary and proportionate.

Question 15:

Answer:   By removing that element of the costs that are attributable to investigating liability issues.  See the answer to Question 13 above.  It is anticipated that APIL, MASS, FOIL,the CJC and representative bodies for costs draftsmen will be better placed to advise the Minister on the details.

Question 16:

Answer:  Yes.  This is required by the Community law principle of equivalence.

Question 17:

Answer: Yes.  These evidential presumptions have no basis in law anyway, at least in so far as they apply to claims under the 1999 Agreement as the rules of evidence in any contentious civil matter fall within the province of the Civil Procedure Rules, The Civil Evidence Act and the judiciary; not the MIB or the Minister. 
Furthermore I argue in my paper that clause 6 requires extensive revision and that in its present form it fails to implement the minimum standards imposed under the Sixth Motor Insurance Directive.  This also extends to the wrongful exclusions of liability and to the wrongful deductions from claimants’ compensatory entitlement (here and under clause 17). 

Question 18:

Answer:  No.
I respectfully refer the Minister to my paper and more significantly to numerous rulings by the European Court of Justice in which it has repeatedly stated that any exceptions within the Motor Insurance Directives to the cover imposed under article 3 (and by implication article 10) are to be construed restrictively.  The only lawful exclusions of passenger liability are those provided for (i) in the second subparagraph of article 10.2 and (ii) in the second subparagraph of article 13.  Any extension in the scope of these exclusions is a breach of Community law. 
I am unable to provide assistance in drafting a clause that is inherently unlawful.

Question 19:

Answer:  None that I am aware of.

[1] See list of publications in the Appendix
[2] The concept of compulsory third party motor insurance was first introduced in Part II of the Road Traffic Act 1930, sections 35 to 40.
[3] Section 10 of the 1934 Act introduced the statutory indemnity and Section 12 specified policy restrictions that were void as against a third party claimant.
[4] This paper will demonstrate that there are geographic and other limitations on the duty to insure imposed under s143 Road Traffic Act 1988.
[5] 2009/103 EC
[6] Discussed under Inconsistencies between UK and Community law below.
[7] See the discussion under the Procedural issues heading.
[8] See the discussion under the Substantive issues heading.
[9] See under The Motor Insurers Bureau heading.
[10] See under Proposals for Extra Statutory Reform.
[11] As under article 10.2 and article 13.1 of the Sixth Motor Insurance Directive.
[12] See Proposals for Extra Statutory Reform

Tuesday, 23 April 2013


The scope of the statutory duty to insure

The legislative principle
That all victims suffering injury or loss caused by the use of a motor vehicle within the United Kingdom should be covered by third party motor insurance. The legislative objectives of the 1930 Act require this and article 3 of the Sixth Motor Insurance Directive (the Directive) insists upon it.

National law implementation
The duty to insure imposed by sections 143 and 145 Road Traffic Act 1988 only extends to public roads and places.  Furthermore it only applies to vehicles intended or adapted for use on a road.  In France, for example, the duty to ensure covers all motorised vehicles, whether on private or public land.

  • A child playing in a private forecourt that leads onto a public highway, or in a private campsite, or on a private lane leading to a hamlet or cul de sac would not be covered by the compulsory insurance provision of the 1988 Act.  As the Uninsured Drivers Agreement only applies where there is a duty to insure, the victim would be unlikely to receive the majority of any significant compensatory award.

  • A pedestrian knocked down by a scrambler bike taking a short cut home from an off road competition would neither be covered under the 1988 Act nor under the Uninsured Drivers Agreement. 

  • Someone injured through the unauthorised use of a vehicle exempted from the duty to insure by section 144 of the 1988 Act  (such as those owned by the Ministry of Defense, the Police and local authorities).   Whilst there are good reasons or exempting institutions that are effectively self-insuring, our national law makes no provision to guarantee the compensatory entitlement of victims where unauthorised use has been made of such vehicles. Take for example a local authority employee who lends a works’ van to a friend for the day, without obtaining the employers’ permission.  Any loss sustained by that driver’s negligent driving would leave its victim unable to recover any compensation from the local authority nor indeed from the Motor Insurers Bureau under the Uninsured Drivers Agreement, because the incident was did not arise out of an insurable event. Article 5 of the Directive requires specific provision to ensure that victims are not left empty handed.

The extent of the insurers statutory duty to indemnify its policyholder

The legislative principle
This is imposed on motor insurers under section 151 Road Traffic Act 1988. The principal objective of imposing a duty to insure motor vehicles is premised on the assumption the insurance cover is fit for purpose.  Accordingly it follows that motor insurance policies issued under the 1988 Act should provide third party cover that extends to any use of the vehicle and an insurer should not be able to raise potential or actual breaches of policy term by its policyholder as an excuse for not satisfying genuine third party claims. 

In other words, an innocent victim’s compensatory guarantee should be inviolate. This is what is required by article 3 of the Directive.  Article 13 goes on to provide the only exception to this blanket requirement.  This applies where a victim is a voluntary passenger in a stolen vehicle and knows that is so. Few of would argue with that.

National law implementation
Section 148 of the Road Traffic Act 1988 lists a handful of instances of policy exclusions that are void as against a third party claimant but this opens the door to insurers to successfully argue that all other exclusions are enforceable against an innocent third party victim.

According to a recent Court of Appeal ruling, whilst the user of a vehicle has a duty to ensure that any use made of the vehicle on a road or public place is covered by a suitable third party insurance policy; an insurer is free to impose any restrictions it likes, save where expressly precluded by statute.

  • An insured driver of good repute suffers from an acute bout of depression and attempts to commit suicide by crashing his car into a large department store.  In doing so, he unintentionally injures another driver as his car loses control before crashing into the targeted building.  According to the Court of Appeal the driver’s use of the vehicle fell outside the scope of his insurance cover making him an uninsured driver. This contrast with Community law which requires that motor insurance cover for third party victims should be good for any use made of the vehicle; notwithstanding any breach of contract by the policyholder.  The Court also opined that the extensive property damage is not covered by the Uninsured Drivers Agreement, whereas in our respectful opinion article 10 of the Directive requires such loss to be covered by that scheme. This left the property owners without any recompense for the hundreds of thousands of pounds of damage to the building;

  • Most private motor insurance policies restrict the use of the vehicles in various ways, such as to ‘social and domestic purposes’.  What then of someone with such a policy who gives a colleague a lift to visit a client or customer in their own car during office hours? Under our national law they would be treated as uninsured and subjected to all the procedural trips and taps within the Uninsured Drivers Agreement as well as the risk of suffering a wrongful deduction to their compensatory entitlement.  This contrast with Community law as indicated above.

The compensatory guarantee for victims of uninsured and untraced drivers

The legislative principle
It is no coincidence that the first Uninsured Drivers Agreement dates back to the formation of the National Health Service in 1946.  The Government of the day was concerned to ensure that road users insurance policies should also cover uninsured driving. It achieved this by mutualising the risk presented by uninsured and untraced drivers through the agency of the Motor Insurers Bureau (MIB), which was incepted at the same time. From 1946, every motor insurer underwriting business in this profitable market was required to pay a levy into a compensatory fund managed by the MIB.  The MIB was then obliged to compensate victims of uninsured drivers (later expanded to include untraced driver claims) on a like for like basis as though the claim were one against an insured driver. Under community law the MIB is required to offer an equivalent and effective compensatory regime to that afforded to victims of identified and insured drivers.

National law implementation
Hitherto the Department for transport has decided, rather than to codify the compensatory scheme in modern subordinate legislation,  to continue with its antiquated private law Agreements with the Motor Insurers Bureau. The Uninsured Drivers and Untraced Drivers Agreements share many defects in common.
Some of the most significant defects in the Uninsured Drivers Agreement are:

  • The unjustified exclusions of liability under clause 6.  These include exclusions of certain types of loss otherwise permitted under normal civil law damages assessment rules.  It also excludes liability altogether in certain accident scenarios on the ground that a claimant is partly responsible for their own loss.  The latter provisions have no regard to the Law Reform Contributory Negligence Act 1945 that empowers a court to reduce an award to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.   

  • The requirement, imposed as a condition precedent of any liability, that all claimants should complete the MIB’s own very detailed claim notification form, when the form itself has recently been changed so as to require applicants to supply unwarranted and wide ranging mandate that provides access to highly personal and privileged information in breach of article 8 of the Human Rights Convention; clause 7;

  • The imposition of numerous disproportionate and heavy handed procedural requirements imposed as conditions precedent to any liability within clauses 7 to 12.  These run a coach and horses through the overriding objective of Article 10 of the Directive.  To its credit, the Department for Transport’s review paper makes proposals for mitigating or removing most of these;

  • A bizarre penalty imposed on an innocent victim should he or she fail to request the other driver’s insurance details or to pursue a formal complaint to the Police, where there are in fact no insurance details to disclose in the first place, under clause 13.  Here again, the review paper sensibly proposes this provision be discarded;

  • The power to deduct from the compensation any other sums received by a claimant as a result of the accident, clause 17;

Leaving to one side the numerous procedural strike-out clauses that have blighted the prospects of many claims over past decades, and which the Department for Transport now accepts should be removed, I list just a few instances of the kind of injustices permitted under the Uninsured Drivers Agreement:

  • The refusal to reimburse sick pay advanced to an injured employee;

  • The rejection of credit hire charge claims;

  • The refusal to reimburse medical and treatment costs funded through a health insurance plan;

  • The deduction of any sums received gratuitously or coincidentally under a personal accident or health insurance scheme;

It should be noted that under the normal civil law rules, such sums are properly recoverable.

In other instances the MIB has sought denied any liability to compensate in circumstances where:

  • The victim reasonably but mistakenly thought the defendant driver was insured and that the insurance details provided were valid and who thus failed to report the drivers failure to provide his insurance details,
  • Teenagers who have unwisely accepted lifts from friends in circumstances where a wiser older person would have enquired whether the driver was insured.

This is by no means intended as an exhaustive list.

It should be evident from the above that any proper review of the Uninsured and Untraced Drivers Agreements must also take into account the statutory context in which they operate (which is itself defective in that it fails to adhere to the original legislative objectives or to comply with superior Community law). This is why the DfT's review needs to be widened.

Monday, 22 April 2013


From: Nicholas Bevan [mailto:mail@nicholasbevan.com]
Sent: 22 April 2013 10:13
To: 'drivers.agreements@dft.gsi.gov.uk'
Subject: Review of the Uninsured and Untraced Driver' Agreements

Dear Mr Curzon

Please find attached my response to the Secretary of States’ consultation paper.

I believe that the approach adopted is flawed.  In my opinion any proper review of the MIB Agreements cannot be undertaken in isolation from  their statutory context.  I explain my reasoning in my paper, where I also advance the following key recommendations:

·         Restore the original legislative objective of the Road Traffic Act 1930 to ensure that all victims of motor vehicle users, who under our national law are entitled to compensation for their loss or injury, are automatically entitled to recover compensation from the responsible vehicle’s motor insurers, direct; wherever the accident occurs in the UK and whatever the circumstances of the incident. A victim’s right to compensation should be guaranteed and free from any policy term or other restriction in liability, which are issues that should be confined to the insurer / policyholder relationship.

·         Our national law provision should adhere to the minimum standards of protection for victims of motor vehicle users imposed by the Sixth Motor Insurance Directive and Community law (which incidentally requires the full and comprehensive third party cover set out above).

·         Codify the current mix of statutory and extra-statutory provision into one integrated body of rules (contained in primary and subordinate legislation) for victims of uninsured and unidentified drivers so that they provide a consistent, clearly articulated, fair and just compensatory regime for victims of insured, insufficiently insured, uninsured or unidentified drivers alike. The time for discarding the present anachronistic and highly partial arrangements has long since passed.

Please will you acknowledge safe receipt and confirm that my paper will be put before the Minister.

Yours sincerely,

Nicholas Bevan
Office    01823 325365
Mobile  07968 427134
Web       nicholasbevan.com
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Friday, 19 April 2013

NEW LAW JOURNAL backs call for reform

The New Law Journal's wonderful editor, Jan Miller, is putting the full weight of the UK's premier weekly law journal behind the campaign to persuade the Secretary of State for Transport, Rt Hon Stephen Hammond M P, to widen the scope of his review of the Uninsured and Untraced Drivers Agreements

Jan has promoted this cause to front cover status in the 19 April 2013 issue along with a robust editorial feature of her own.

The Problem

Our current national law provision for guaranteeing road accident victims their full compensatory entitlement is a hotch potch of different statutory and extra-statutory provisions that fail to deliver a consistent or adequate level of protection.  This very British muddle provides loopholes that both motor insurers and the Motor Insurers Bureau can exploit to escape their responsibility to compensate victims.

This affects all of us, because each one of us is exposed in our daily lives to the risk of serious injury or loss as consequence of careless or reckless drivers.  We have the right to expect that our Government will ensure that the compulsory third party motor insurance we are obliged to purchase is fit for purpose.  Unfortunately it is not.

An already badly flawed compensatory regime took a turn for the worse last year when the Court of Appeal ruled, in EUI v Bristol Alliance Ltd Partnership [2012] EWCA Civ 1267 11/10/12, that whilst the Road Traffic Act 1988 requires road users to have insurance that covers any use they make of their motor vehicle, the insurers are free to hedge their liabilities by limiting the scope of cover they provide. How confident are you that the small print of your third party motor insurance policy covers every use you make of your car?  
Accidents happen, even to the most careful of drivers. If your motor insurance does not fully indemnify you, you could face financial ruin and expose the victim to the risks inherent in seeking compensation from the Motor Insurers Bureau (see below). This defeats the legislative purpose behind the compulsory third party insurance provisions. It also conflicts with the minimum standards of cover imposed by the Sixth Motor Insurance Directive (2009/103/EC) which our Government has failed to fully implement. Successive Ministers in the Department for Transport have effectively been driving this important facet of Government policy whilst asleep at the wheel. 

Mr Hammond’s review presents each one of us with an opportunity to make a difference by responding to this review and calling wide ranging reform, not just to the Uninsured and Untraced Drivers Agreements but also to the Road Traffic Act 1988 and the EC Rights Against Insurers Regulations 2002.

The Motor Insurers Bureau, who also represent motor insurance industry, have presided for decades over two schemes that are not only  blatantly unfair from a procedural view point (take for example the numerous procedural strike out clauses for the most trivial reasons that leave victims empty handed in clauses 7 to 13 of the Uninsured Drivers Agreement) but they are in places substantively illegal (take for example the unlawful entitlement to reduce victims compensatory entitlement, in Clauses 6 and 17, which conflict with our common law and the minimum standards imposed by the Sixth Motor Insurance Directive).  

The Bureau has had long enough to put itself in order and to correct these injustices.  There are obvious conflicts of interests at play; its independence and objectivity as a compensatory body has been found wanting. Now is surely the time to do away with these appallingly badly drafted anachronistic quasi legal schemes and to codify them instead: creating a statutory compensatory right; one that ordinary citizens can read and understand.

What you can do

All you have to do is to write a short note to Christopher Curson, Road User Licensing, Insurance and Safety Division, Department for Transport, Zone 3/21, Great Minster House, London SW1P 4DR or email him at drivers.agreements@dft.gsi.gov.uk.  

I have identified over 30 instances where our national law provision for motor vehicle victims fails to conform to the minimum standards of protection required by European Community law.  I will address all these issues in my full consultation response. Fortunately, there is no need for other respondents to do so.

All you need to do is:
  • Provide your name and address
  • Say you are responding to the Minister’s review of the Uninsured and Untraced Drivers Agreements
  • You may well share my view that most of the proposals for improving these Agreements are to be welcomed, with the exception of Question 18 which is illegal as it conflicts with Community law (see my articles).  You can safely ignore the 19 Questions in the review paper if you like, as these are largely of peripheral concern.  However the key points to make are:
  • The proposals don’t go nearly far enough. 
  • The Minister needs to:
    • Restore the original legislative objective of the Road Traffic Act 1930 (as amended by the 1934 Act) to ensure that all victims of motor vehicle users who under our national law are entitled to compensation for their loss or injury are to be automatically entitled to recover compensation from the vehicle’s motor insurers direct, wherever the accident occurs in the UK and whatever the circumstances of the incident.  The victims right to compensation should be guaranteed and free from any policy term or other restriction in liability between the insurer and policyholder.
    • Adhere to the minimum standards of protection for victims of motor vehicle users required by the Sixth Motor Insurance Directive and Community law (which incidentally requires the full and comprehensive third party cover set out above).
    • Codify the statutory and extra-statutory provision for victims of uninsured and unidentified drivers so that they provide a consistent, clearly articulated, fair and just compensatory regime for victims of insured, insufficiently insured, uninsured or unidentified drivers alike.

It is as simple and straightforward as that!  Don't delay, post your email today!

If you want to submit a more detailed response, then see my earlier post Call For Reform

Do this by 26 April 2013 (the deadline) and you will contribute to writing a page in legal history.

Isn't it lovely to be campaigning for victims rights and not lawyers fees for a change!

I will post a copy of my full consultation response on this blog shortly.