NEW MIB UNTRACED DRIVERS SCHEME: INSURERS AT IT AGAIN

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