Lawyers reveal major concessions following legal threat over reforms on compensation for victims of uninsured drivers

Lawyers on behalf of the road victims’ charity RoadPeace have revealed that, following the threat of legal action, the Secretary of State for Transport has made important concessions over controversial changes to his arrangements with the Motor Insurance Bureau (MIB) for compensating innocent victims injured or killed by uninsured and/or untraceable drivers as well as the primary legislation imposing third party motor insurance .

According to the MIB website, uninsured and untraced drivers injure approximately 26,500 people every year and kill around 130. In 2014 alone, 13,483 claims for untraced drivers were made to the the Motor insurers bureau (MIB) which compensates the victims of negligent uninsured and untraced motorists.

Every insurer providing motor insurance is obliged to contribute to its funding.RoadPeace, a national charity for road crash victims, working with Nicholas Bevan, solicitor and law reform campaigner, argued the case for reform when responding to the Minister’s public consultation in 2013 but its warning was ignored.

Then in July 2015 he published revisions to both MIB compensation schemes that both RoadPeace and Nicholas Bevan warned were not far reaching enough and that some of his new provisions were unlawful because they also breach the minimum standards of compensatory protection required under EU law.

The compulsory third party motor insurance requirement is set out in the Road Traffic Act 1988. Compensation for victims of road crashes involving uninsured or untraced drivers are governed by two ministerial schemes negotiated with the MIB: the Uninsured Drivers Agreement (UDA) and the Untraced Drivers Agreement (UtDA).

According to Leigh Day, the lawyers for RoadPeace, extensive reform is necessary to bring the UK legislation and extra statutory provision into line with the minimum standards of protection for crash victims as the current provision unlawfully excludes some victims from any protection and/or unlawfully restricted the amount of compensation they are entitled to.

In a letter sent in September 2015, Leigh Day threatened the Government with legal action unless it looked again at the legislation, claiming that it was unlawful and fell short of EU Directive 2009/103/EEC which establishes the principles of ‘equivalence and effectiveness’ to these types of legal claims across EU member states.

Specifically, RoadPeace argued that the MIB should compensate victims of uninsured and untraceable drivers injured anywhere, not just on roads or in a public place as suggested by the revised legislation.

The changes to the ‘geographic limit’ proposed by the Government in the legislation which would have seen access to compensation from the MIB denied to those injured on private drives, farmyards and similar private land.

RoadPeace also argued against the Introduction of a Terrorism exception (a matter which had not been consulted upon) which would see those injured through an act of terrorism unable to make a claim through the MIB regardless of their injuries.

Further, the untraced Driver’s Agreement provides no protection for a child, under the age of eighteen, to have an approval of the award by the court, to make sure that they are receiving an appropriate level of damages, and no mechanism for the award to be held in court to protect a child.

In the letter RoadPeace identified numerous additional breaches of the EU directive and common law which it said it would challenge in the High Court if the Secretary of State did not address their concerns.

Following the issue of Judicial Review proceedings by Leigh Day, lawyers for the Government responded on 29 October 2015 stating that the Secretary of State accepted a number of the grounds presented by Roadpeace.

It accepted that the ‘geographic limit’ should be extended to ensure that the MIB should cover those injured ‘other than on roads or public places.’

In relation to the terrorism extension proposed, the letter stated: ‘The Secretary of State has reconsidered the lawfulness of the terrorism exception, and agrees that it is not permitted by the [EU Directive].’ And that: ‘The Secretary of State agrees that suitable safeguards need to be put in place to protect minors. The Secretary of State will give further consideration to the precise nature of the safeguards to be put in place.’

Leigh Day are in the process of particularising the numerous additional infractions of EU law outlined in their original letter and they have reiterated their intention to take the Government to the High Court over these if not satisfactorily resolved.

Christine Tallon from the personal injury team at Leigh Day, who represented Roadpeace, said:

“It is disappointing that Judicial Review proceedings have been necessary to force the MIB to recognise that the agreements are not in line with the EU Directive.

"Whilst the concessions made are not yet a complete answer to the concerns we have, over who can claim compensation from the MIB and the manner in which they are recompensed, we are pleased to see that the Secretary of State has expressed a willingness to rectify the position in relation to victims of terrorism, children and those injured on private land. We hope that they will make similar concessions in relation to the remaining issues.

“We will now be looking for the Secretary of State to reconsider the further areas where we believe the current legislation is unlawful."

RoadPeace CEO Beccie D’Cunha said: “This is a matter of basic fairness. No-one chooses to be hit by an uninsured driver. RoadPeace campaigns to end the discrimination against road crash victims — within our criminal justice system and our civil justice system. Victims of uninsured and untraced drivers should not be compensated any differently than those harmed by licensed identified drivers. We expect our government to correct these inconsistencies without further delay.”