Kerry Underwood

NEW MIB UNINSURED DRIVERS’ AGREEMENT

with 3 comments


NEW MIB UNINSURED DRIVERS’ AGREEMENT

I am grateful to Nicholas Bevan for some of the material in this piece.

The new MIB Uninsured Drivers’ Agreement came into force on 1 August 2015 and applies to accidents occurring on or after that date; the 1999 agreement continues to apply to accidents occurring between 1 October 1999 and 31 July 2015.

The Untraced Drivers’ Agreement has not been changed. It is currently the subject of consultation and a new scheme is expected by 2017.

The new agreement is much simpler and the key requirements are to submit an application to the MIB in the proper form and to join the MIB in the action at the beginning.

There is a requirement for the claimant to give the MIB such information as it may reasonably require. Consequently the MIB should receive court notices etc. in the same way that a defendant does.

Arbitration

Independent arbitrators have now been appointed replacing the rarely used provision that any dispute be arbitrated by the Secretary of State.

Notifying police

The requirement that a claimant pursue insurance details of the driver and lodge a complaint with the police has been scrapped.

Knowing vehicle not insured

The new agreement still does not cover those who enter a vehicle knowing that it is not insured. However the evidential presumption that the claimant knew that the vehicle was uninsured has been removed.

Crime

The crime exclusion has been removed following the Court of Appeal’s decision in: –

Delaney v Secretary of State for Transport [2015] EWCA Civ 172.

Exclusions

The main existing exclusions continue: –

  • Crown vehicles;
  • vehicles exempt from insurance;
  • where someone else, apart from the Criminal Injuries Compensation Authority, is liable;
  • passengers who knew or had reason to believe that the vehicle had been stolen or unlawfully taken or is being used without insurance;
  • terrorism.

Limit on compensation

Compensation in relation to property damage is limited to one million pounds.

Nicholas Bevan’s View

Nicholas Bevan is undoubtedly the expert in this field and he has this to say about the new agreement:-

“The new agreement contains a number of exclusions and restrictions to the MIB’s liability to compensate which are not permitted under European law; some of which have been retained from the UDA 1999 or reframed so they have a wider effect, yet others are entirely new.

Leaving to one side the fact that the UDA conspicuously fails to implement the wider geographic and technical scope of the insurance requirement required following the CJEU’s ruling in Damijan Vnuk 2014 Case C 162/13; now one year past, the following examples suffice:

The complete failure to compensate unauthorised use of vehicles derogated from the duty to insure under s 144 of the Road Traffic Act 1988 (RTA 1988).

In clauses 7 and 8, the deliberate flouting of the House of Lords ruling in

White v White [2001] UKHL 9 by the reintroduction of constructive knowledge in its exclusion of liability for guilty knowledge, in circumstances where the CJEU has expressly stipulated that actual knowledge is required.

In clause 7 the unlawful exclusion of property damage claims for any victim who knew or had reason to believe the driver was uninsured.

In clause 6 the widely scoped provision that purports to give the MIB the right to offset sums received from other sources, which appears to be intended to catch health or life insurance policy payments that are ignored under the common law for sound public policy reasons.

In clause 9 the bizarre terrorism exclusion that not only fails to address its presumed objective (of excluding liability for car bombs, since the CJEU ruling in Vnuk confirms that such functional misuse is incapable of falling within the third-party insurance requirement) but it is drafted in such a way as to produce absurd anomalies. So that clause 9 seeks to deny any compensation for a hapless running down victim of a fleeing anti-GM crop fanatic who has just committed an act of arson but not a bank robber making his get-away from a heist where he murdered a bank clerk.

There are also concerns about the new clause 17 which removes the right to appeal against the MIB’s arbitrary rejection of a claim to the Secretary of State for Transport and substituting this with a paper appeal process to an arbitrator whose decision will be final. This appears to prevent the arbitrator considering the European law context. There is also no time limit for making an appeal and it seems that the appeal process itself can only be initiated by the MIB.”

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Written by kerryunderwood

September 4, 2015 at 10:46 am

Posted in Uncategorized

3 Responses

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  1. Here’s an interesting question about the affect of Part 45.29E on the MIB that I was discussing with a colleague. Scenario: an uninsured Defendant is provided with a CNF before 31 July 2013, but the MIB is not provided with a CNF until after 31 July 2013 (because the insurance position is unknown before 31 July). The matter is litigate. Do the MIB face costs on the standard basis because a CNF was submitted before 31 July (albeit not to them), or do they face fixed costs only? I’d say costs on the standard basis, for what it’s worth…

    Simon Green

    September 7, 2015 at 9:03 am

    • I’d say that once the matter has entered the portal and been removed, it cannot re-enter the portal. So in essence, it should never have been re-entered in the first place.

      Anonymous

      September 16, 2015 at 4:59 pm

    • Simon

      Don’t understand the question I am afraid. CPR 45.29E deals with the EL/PL portal. Unless it is an industrial disease case – and I cannot see how the MIB would then be involved – the ability to enter it on to the portal depends on the date of the cause of action, not the date of the CNF. How could there have been a CNF before 31 July 2013 ? The EL/PL portal did not exist then. In any event a pre 31 July 2013 EL/PL case cannot go on to the portal or Fixed Recoverable Costs unless it is an industrial disease claim.

      Even if it were then such case, which can go on to the portal, exit to standard costs, not fixed costs, so any which way the answer seems to be standard costs.

      Kerry

      kerryunderwood

      September 18, 2015 at 4:31 pm


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