The Department of Transport has published a review on the uninsured and untraced drivers’ agreements. At present, the present scheme for the compensation of victims and uninsured and untraced drivers is made up of the following agreements.
· The 1999 Uninsured Drivers Agreement
· The 2003 Untraced Drivers Agreement
There are also three supplementary agreements, one for the 1999 Agreement and two for the 2003 Untraced Drivers Agreement.
There are two Memoranda of Understanding, the first dealing with the effect of Byrne (A Minor) v The Motor Insurers Bureau and the Secretary Of State for Transport [2008] EWCA Civ 574 on claims under the Untraced Drivers Agreement and the second following the implementation of the Fifth Motor Insurance Directive, which removes the excess payable by the claimant under the 1999 Uninsured Drivers’ Agreement.
The Criminal Injuries Compensation Scheme may also have a part to play in a road traffic accident, where a vehicle is used as a weapon.
There has been discussion about replacing this rather confusing mixture of agreements, memoranda and scheme with one single document. Finally the government has set out its plans, which can be seen here.
Very briefly, the proposals are:-
· To remove the cumbersome notice requirements in Clauses 8 to 12 of the 1999 Uninsured Drivers Agreement. These require Claimants to notify the MIB of the issue of proceedings with a certain period of time and have long been a trap for unwary practitioners. Consequently this proposal makes sense. The government now propose that the MIB be added to the proceedings from the outset (which is recommended practice at present) and that the claim form be delivered to the Bureau within a reasonable time.
· Clause 13 of the 1999 Agreement is going. This is the clause that requires Claimants to obtain insurance details from the Defendant by lodging a complaint. This clause caused particular difficulty because it requires a Claimant to report formally an accident to the police. It was quite easy to fall foul of the clause, as happened in the unreported case, Shapoor v Promo Designs Unreported Romford County Court 1st May 2009 where the MIB took the point (ultimately unsuccessfully) that the Claimant in that case had not complied properly with Clause 13 of the 1999 Agreement. The abolition of Clause 13 is to be welcomed.
· Expansion of the service methods in Clause 29 of the 2003 Agreement – at present the MIB stipulate rather peculiar and restrictive methods of service in Untraced Drivers Cases. The consultation document recommends importing the CPR methods of service. Again this is a good idea.
· Approval of settlements for children and patients under the 2003 Agreement – there will be a process whereby an arbitrator can approval settlements for these classes of person. The absence of any such provision in the old 2003 Agreement has long been a source of disquiet.
· Relaxation of the time limits for submitting appeals under the 2003 Agreement and automatic right to an oral hearing – the present arrangements for appealing to an arbitrator under the 2003 Agreement have been criticised by too inflexible. The government have also asked whether an arbitrator should have the right to award costs in an appeal.
· The right to request information – at present under the 1999 Agreement, the MIB have the right to request information from a Claimant. There is a fear that this may frustrate a valid claim, but the Agreement provides no mechanism for disputing that requirement save for a referral to the Secretary of State. The MIB propose importing a QC arbitrator to resolve any such dispute.
· The costs regime under the 2003 Agreement – the present agreement provides for fixed costs, which are very low. The MIB wishes to retain the old costs regime, but build in some flexibility for exceptionally complex cases. However for very small claims, the MIB are seeking to reduce the costs available under the 2003 Agreement.
· Interest on damages under the 2003 Agreement – the MIB propose to alter the present interest arrangements, so that interest on special damages would run from the date they are incurred, and interest on general damages would run from the date of the first formal award. At present the interest runs from the date the MIB receive the police report, or should have received the police report, which was entirely arbitrary.
· Knowledge of no insurance – the MIB propose minor amendments to the Clauses in the 1999 and 2003 Agreements. This is a great pity because the “knowledge” provisions in these Agreement do not comply with the European Directives that should have shaped them. (See White v. White [2001] UKHL 9 and Candolin v Vahinkovakuutusosakeyhtio Pohjola – Case C-537/03 [2006] R.T.R 1)
It appears that there are no plans to merge the Uninsured and Untraced Drivers Agreements, although the real need is to consolidate the existing documents.
This is progress at last from the government and the MIB, and most of it is helpful, but there remains a sense that the MIB are determined to hang on to their interpretation of EU law and old practices.
Malcolm Johnson is an Associate Solicitor at Blake Lapthorn. He is a co-author of “Claims against the MIB” published by the Law Society in 2012 and a contributor to the section on the Motor Insurers Bureau in the Encyclopaedia of Insurance Law, published by Thomson Reuters.
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