Uninsured drivers - changes to case rules

The Law Society, APIL and MASS offer the latest guidance on dealing with drivers who do not have valid insurance

If you do work for victims of accidents caused by drivers who do not have valid insurance, you will be used to dealing with cases under the Uninsured Drivers Agreement 1999.

This agreement applies to all accidents involving uninsured drivers which occurred on or after 1 October 1999.

You will also be aware of some of the difficulties that the agreement causes when representing accident victims, particularly the series of notice requirements with onerous time limits to trip up the unsuspecting practitioner.

The Law Society, Association of Personal Injury Lawyers (APIL), and Motor Accident Solicitors Society (MASS) have conducted a series of negotiations with the Motor Insurers Bureau (MIB) and with the minister for transport, voicing concern about the terms of the 1999 agreement, particularly the potential impact on accident victims when the three-year limitation period expires in October 2002.

MASS also launched a judicial review in 1999, requesting that the minister withdraw the 1999 agreement.

Unfortunately, the minister has not agreed to alter the terms of the agreement, but the Society, MASS and APIL have managed to negotiate a series of concessions to the more Draconian clauses, which the Department for Transport, Local Government and the Regions has agreed to include in the notes for guidance to the agreement.

The MIB has confirmed that the revised notes for guidance take effect from 15 April 2002 and will be published shortly, along with the agreement.

In the meantime, the text of the revised notes for guidance is available on the Law Society Web site.

Visit: www.

lawsoc.org.uk/dcs/pdf/civillitigation_motorinsurersbureau.pdf

List of concessions

Persons under a disability or children (clause 3)

The agreement provides that unless an application form is lodged within three years of the incident date, no claim can be made against the MIB regardless of the applicant's capacity.

In the revised notes for guidance, the MIB agrees that the 1999 agreement does not alter the special limitation provisions which are applicable to those particular classes of claimant.

Claims brought for the benefit of another (clause 6(1)(c))

The wording of the clause in the 1999 agreement gives rise to concerns that claims made by the claimant for gratuitous provision of care and assistance, and travel expenses of family and friends will be avoided.

The revised notes for guidance confirm that this is not the intention of this clause.

Method of giving notice to the MIB (clause 8)

The 1999 agreement provides that notice can only be given to the MIB by fax or by registered post/ recorded delivery.

The revised notes for guidance confirm that any method of service allowed under the Civil Procedure Rules will be accepted by the MIB, but the onus is on the solicitor to prove that service has been effected.

Start of proceedings

The 1999 agreement contains a number of seven-day notice requirements.

The revised notes for guidance confirm that if the MIB is added as a defendant to the proceedings - to which they will agree in most cases 'unless there is good reason not to do so' - the majority of the seven-day notices do not need to be given, although notices of issue and service should still be provided.

You should obtain confirmation in writing that the MIB wishes to be added as a defendant; you should use the wording at section 5.3 in the revised notes to add the MIB as a second defendant.

Even though the period for notice of issue has been extended to 14 days, solicitors should not allow the court to issue and serve.

It is no defence to a negligence claim that the court failed to serve within the 14-day period.

Other requirements

If the MIB is not added as a defendant to the proceedings, the agreement provides that all the other notices after notice of issue must be given within seven days.

The revised notes for guidance provide that the period is extended from seven to 14 days (excluding the notice of judgment, which remains at 35 days).

The future

There is no certainty at this stage how the courts will interpret the revised notes, which commence by: 'They are not part of the agreement, their purpose being to deal in ordinary language with the situations which most readily occur.

They are not in any way a substitute for reading and applying the terms of this or any other relevant agreement'.

However, the revised notes state: 'Any application made under this agreement after this date (unless proceedings have already been issued) will be handled by MIB in accordance with these notes.'

In addition, the MIB has written to the Society confirming that it will deal with claims under the agreement after the specified date (unless proceedings have already been issued) in accordance with the concessions set out in the revised notes for guidance.

In view of this, it is hoped that the MIB will adhere to the terms contained in the revised notes for guidance, but failing this claimants would have a strong argument for stating that the MIB was estopped from relying on the terms of the 1999 agreement where they differ from the concessions in the revised notes for guidance.

Whether you choose to follow the terms of the revised notes for guidance or adhere strictly to the wording of the 1999 agreement is a decision for you.

If you experience any difficulties with these issues, please let the Society, MASS or APIL know.

Contact details

The Law Society: Anna Rowland at anna.rowland@lawsociety.org.uk; MASS: technical queries - Nick Jervis at njervis@davidgist.co.uk;other queries - Jane Loney at jane@mass.org.uk; APIL: Helen Blundell at helen@apil.com

This article has been produced by MASS, APIL and the Law Society