Kerry Underwood

NEW MIB UNTRACED DRIVERS SCHEME: INSURERS AT IT AGAIN

with 13 comments


This blog has been updated as of 7 March 2017 to take into account the dramatic developments following the publication of this blog

Last week I wrote a blog about the new Motor Insurers Bureau (MIB) Untraced Drivers Scheme in the context of its Fixed Recoverable Costs Scheme.

It is dated 10 January 2017 and was due to be effective from 1 March 2017.

However, following publication of the blog set out below the new scheme was scrapped before it ever came into force and was replaced by a new new scheme dated 28 February 2017 and did indeed come into force on 1 March 2017 and can be accessed here.

The key change is that the words in brackets – (and no other person) have now been removed from clause 10(1).

I set out the original text below.

Here I look at some disturbing aspects of the scheme itself in its treatment of solicitors and its failure to engage with modern technology.

Although the scheme itself provides for a system of fixed costs for solicitors, the new agreement, which remember is between the Government through the Secretary of State for Transport and insurance companies through the Motor Insurers Bureau, seeks to exclude solicitors from the process, especially at the crucial early stage.

Clause 10(1) reads:

“The claimant (and no other person) shall comply with the requirements of this clause failing which MIB shall be entitled to reject the claim (or the relevant part of the claim) and, for the purposes of this clause, reference to the claimant shall include an authorised person.”

The definition section 1(5) specifically states:

““authorised person” means a person acting on the claimant’s behalf who is recognised in law as having authority so to act but this does not include a solicitor or other legal representative of the claimant, unless appointed as the claimant’s Guardian or Deputy or a person authorised under an Intervention Order pursuant to section 53 of the Adults Incapacity (Scotland) Act 2000;”  (my bold).

That could not be clearer – a deliberate exclusion of solicitors from the process at the beginning.

As the claim form, which the lay client must complete and submit, contains an onerous disclosure mandate, this is particularly serious.

Clause 10 discourages and obstructs the involvement of lawyers, and it is those lawyers who will be able to determine which private records are relevant to the case and which ones are not.

There is no constitutional justification for this clause, which I trust a court will find illegal.

To add to the lay claimant’s misery clause 25 insists that service is by fax or Recorded Delivery – no other method of service is allowed.

I was not aware that fax machines were still being made and I cannot remember the last time anyone used Recorded Delivery. No-one under about 35 will have heard of either.

Service by way of Recorded Delivery will be rather difficult. It has been abolished.

On the assumption that there are only about 15 fax machines left in the United Kingdom, how on earth can anyone actually now engage in the MIB Untraced Drivers process?

In an electronic age when the courts are moving to an online system, this is absurd, but perhaps a cynical move to make it more difficult for anyone to claim.

Clause 22 then goes on to allow the arbitrator to make a costs order against the solicitor under clause 22(3), even though the conventional court system now has a full system of Qualified One-Way Costs Shifting in place in relation to personal injury matters and solicitors are barred from the process at the beginning.

With a traced driver the claimant enjoys full protection against an adverse costs order, and recovers costs, but if the driver is untraced, then the claimant’s solicitor is at risk of paying costs.

There are many in the personal injury sector who think that the Government is the puppet of insurance companies.

This document will do nothing to change that view.

Given that road traffic insurance is compulsory, surely it is time that that aspect of insurance was run by the state and by the state only in the same way that the collection of car tax is.

This could either be done by a fresh state body, or by the nationalisation, with compensation, of the road traffic insurance industry.

I am very grateful to Nicholas Bevan for bringing my attention to these matters and for his work in this field generally.

Please see my related blog:

MIB UNTRACED DRIVERS AGREEMENT FIXED COSTS SCHEME: THE SHAPE OF THINGS TO COME

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Written by kerryunderwood

February 8, 2017 at 8:42 am

Posted in Uncategorized

13 Responses

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  1. I’m just imagining the looks on the faces of the CEOs of the insurers if motor insurance were nationalised! Can’t imagine anything much funnier right now.

    Keep up the good work.

    David van der Burg
    Senior Litigation Executive
    Michael W Halsall Solicitors Ltd

    • Email: david.vanderburg@halsalls.com
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    [Save a Tree]

    David Van Der Burg

    February 8, 2017 at 9:00 am

    • David
      Many thanks! Well- insurers keep saying that they don’t make any money on motor insurance, so surely they would welcome nationalisation. 😄😃

      Kerry

      kerryunderwood

      February 8, 2017 at 9:54 am

  2. I didn’t think recorded delivery was still available — signed for now ?

    Douglas Green

    February 8, 2017 at 10:12 am

  3. Thank you Kerry for broadcasting the concerns I raised with you about the Untraced Drivers Agreement 2017.

    I think it is important that as many people as possible are aware about the cynical way in which motor insurers exploit their political influence to their commercial advantage and the blatant illegality that permeates much of our national law provision in this area.

    The 2017 Untraced Drivers Scheme is better than the 2003 Scheme (despite its obvious failings) but only because the road safety charity RoadPeace decided to do something about the unlawful exclusions introduced into the Uninsured Drivers Agreement 2015 and to challenge the systemic illegality elsewhere that the Department for Transport has permitted by refusing to bring the compensatory protection for accident victims up to the minimum standard of required under EU law. Their wide-ranging judicial review receives its first airing in court next week. It has met with considerable success already, thanks to Leigh Day solicitors, Jeremy Hyam QC and Hannah Noyce and others in the RoadPeace legal team.

    One major concern with the 2017 Untraced Scheme is that it still fails to provide adequate protection for minors and mentally incapacitated victims. I say ‘still’ as the DfT has been fully aware of this deficiency since early 2013, when my concerns in this regard were shared in a number of written responses to its own consultation on the MIB Agreements in February 2013. This class of particularly vulnerable victim requires independent legal representation from the outset and also a written opinion on the sufficiency of the MIB’s proposed award in all but the most simple of cases, in keeping with CPR 21 and Hale LJ’s ratio in Dunhill v Bergin. The arbitrators appointed under the MIB schemes are a very mixed bunch. I altered the DfT to this long ago and its indifference is as disappointing as it is reprehensible.

    Personal injury solicitors should exert pressure on the Law Society and other representative bodies to actually do something to protect the legal rights of accident victims from these unlawful incursions.

    Nicholas Bevan

    February 8, 2017 at 10:33 am

    • Thank you very much for drawing it to my attention and thank you for all the work that you do in this field.

      Kerry

      kerryunderwood

      February 8, 2017 at 11:12 am

  4. Thanks Kerry, Small fry compared to your extraordinary contribution over many years. Thanks to you, the deficiencies of this latest MIB scheme is getting wide notice. I am delighted!

    Nicholas Bevan

    February 8, 2017 at 12:15 pm

  5. Kerry, interesting article which lacks accuracy. It’s a pity you have neither read the Agreement properly, nor had the courtesy of contacting us directly about your concerns. We have had a professional exchange with others, including APIL and have responded to their satisfaction. You may wish to do the same.

    Paul

    Paul Ryman-Tubb

    February 24, 2017 at 12:23 pm

    • Paul

      What specifically do you say is inaccurate?

      Kerry

      kerryunderwood

      February 24, 2017 at 12:51 pm

      • Kerry

        As I have said, you can contact us directly.

        Paul

        Paul Ryman-Tubb

        February 24, 2017 at 1:24 pm

      • Paul

        I have written a public blog. You publicly say it is inaccurate. Fine- but how can I respond if you do not say what it is that is inaccurate?

        Kerry

        kerryunderwood

        February 24, 2017 at 2:41 pm


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