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APIL Guide to MIB Claims: Uninsured and Untraced Drivers 4th edition

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ISBN/ISSN: 9781784732059
Published: March 31, 2016
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Why should you buy APIL Guide to MIB Claims


APIL Guide to MIB Claims: Uninsured and Untraced Drivers provides the practical advice that all personal injury litigators handling RTA cases need to advise clients whose claims involve untraced and uninsured drivers. These cases have always been fraught with procedural difficulties and the technical nature of the Uninsured Drivers' Agreement 1999 has increased the risks of default by claimants and solicitors.

Featured Authors

Table of contents

Contents

About the Authors
Foreword to the First Edition
Preface
Association of Personal Injury Lawyers (APIL)
Table of Cases
Table of Statutes
Table of Statutory Instruments


Liability for Uninsured Drivers who cause Road Traffic Accidents – the Motor Insurers Bureau
Part 1 – Uninsured Driving and the MIB
•Uninsured driving – is there much going on?
•The MIB levy
•The sums paid out by the MIB
•Compensation – why is it needed?
•Liability for compensation for uninsured driving
•The MIB’s history
•The activities of the MIB
Part 2 – The MIB’s Perspective
•MIB – an overview
•Values

The Uninsured Driver’s Liability

The Passenger’s Liability
•Introduction
•Joint enterprise
•Negligence of the passenger

The Owner’s Liability
•Introduction
•The owner who is a passenger
•The owner who asks the driver to make the journey
•The owner who has abandoned control
•The owner’s liability where no one owns up to being the driver

The Insurer’s Liability under a Contract of Insurance
•The need for compulsory insurance
•The required terms of the policy
•Liability which an RTA policy is not required to cover•Liability to employees
•Property damage over £1,000,000
•Comprehensive cover
•Trailers and goods hired
•Personal property

•The exclusion of claims by employees
•Bodies excluded from the requirement for RTA insurance
•The insurance certificate
•The insurer’s contractual liability
•Issuing proceedings against the insurer
•The insurer’s solvency
•Definition of a motor vehicle
•The definition of ‘use or arising from the use’
•The private land defence: the definition of ‘road or other public place’ and Francovich damages
•The criminal offence of ‘no insurance’
•Battery with a car
•The excess under the policy

The Insurer’s Liability under the Road Traffic Act 1988, s 151 49
•Section 151 of the Road Traffic Act 1988
•Section 151 applies only if the insurer can avoid contractual liability
•The Motor Insurance Database of insurance certificates
•The liability covered by s 151
•Damages, interest and costs
•All drivers are covered
•Drivers with no driving licence are covered
•Type of use – inside or outside the terms of the RTA policy
•Section 151 covers shared journey costs
•The insurers right of indemnity from the blameworthy insured
•Excluded liability: passengers with guilty knowledge of theft
•The s 151 notice requirement
•Cancellation: s 152
•Non-disclosure

The MIB’s Liability under the 2015 and the 1999 Uninsured Drivers’Agreements
•Introduction•The 1999 Agreement
•The 2015 Agreement

•The history of the uninsured drivers’ agreements
•Article 75 agents
•Pre-action protocols
•Judicial review of the 1999 Agreement
•The amended guidance notes to the 1999 Agreement
•European law, the 1999 Agreement and Francovich damages
•The new Uninsured Drivers’ Agreement 2015
•Privity of contract
•CFAs and the MIB’s approach
•The 1999 and 2015 Uninsured Drivers’ Agreements in summary
•MIB involvement in any legal claim
•Comparison between the 1999 and the 2015 Agreements
•Interpretation of the Agreements and definitions
•Computation of time•The 1999 Agreement
•The 2015 Agreement

•Claimant’s agents and MIB agents•The 1999 Agreement
•The 2015 Agreement

•Child claimants and claimants not of full capacity•The 1999 Agreement
•The 2015 Agreement

•Coming into force•The 1999 Agreement
•The 2015 Agreement

•MIB’s obligation to satisfy compensation claims•The 1999 Agreement
•The 2015 Agreement

•What liability is covered? RTA Liability
•MIB’s standard defences to claims•Defence 1 – the off road vehicle defence
•Defence 2 – the not RTA use defence
•Defence 3 – the off road accident defence
•Defence 4 – the driver cannot recover
•Defence 5 – owners who do not have to take out insurance – excluded vehicles•Crown vehicles
•Local council, police and NHS vehicles
•Stolen police cars
•Other exempt vehicles – the NHS

•Defence 6 – the guilty knowledge defence: the passenger exception•Historical development of the guilty knowledge exception
•Fatal accidents
•Guilty knowledge of the car being used in furtherance of a crime
•Guilty knowledge of lack of insurance of the driver
•Guilty knowledge of the car being stolen
•Constructive knowledge
•Drink and drugs – more constructive knowledge

•Defence 7 – the indemnity defence•Recovery under a contract of insurance or s 151(8) of an indemnity from the insured or any other person

•Defence 8 – conditions precedent to recovery from the MIB•The application form – a precondition
•Other procedural conditions precedent to the MIB’s liability
•Service of proceedings
•Method of service of notices
•Notice of issue of relevant proceedings
•RTA notice
•Discontinue and reissue
•Service of documents to accompany notice of issue
•Notice of service of proceedings
•Notice of other steps in the action
•Providing other information
•Notice of intention to apply for judgment
•Complying with s 154 of the Road Traffic Act 1988
•Suing other potential defendants
•Consenting to the MIB’s application to join the action
•Interim payments by the MIB
•Damages and MIB deductions: the CICA, subrogated and assigned claims
•Limitations on the MIB’s liability for property damage
•Deduction of sums received from Policyholders Protection Board and the CICA
•Reasoned replies and notifications of decisions by the
MIB
•Arbitration and reference of disputes to the Secretary of State
•Assignment of judgment and undertakings
•Apportionment of damages recovered by the MIB from the defendant

•Defence 9 – this is an untraced driver’s case


Practical Guidance on the Uninsured Drivers’ Agreements 1999 and 2015
•Failure to comply with European Law
•The Amended Guidance Notes to the 1999 Agreement
•Joining the MIB as a defendant
•The motor insurance database
•A summary of the practical steps to be taken from accident to satisfaction•First interview checklist•(a) The basic questions
•(b) Additional questions where the client is a passenger in an uninsured vehicle

•Post-meeting checklist
•Pre-issue checklist
•Issuing proceedings
•Post-issue checklist

•MIB contact information

The Green Card System – Accidents Involving Overseas Vehicles
•History
•Membership
•Charges
•The functions of national Green Card Bureaux
•Information
•The Green Card Internal Regulations
•Local agents
•Accidents suffered abroad
•Applicability
•The claim handler
•The governing law
•What if the motorist was uninsured or cannot be traced?

The Untraced Drivers’ Agreement 2003
•Introduction
•A clean version of the much amended 2003 Agreement
•Inherent unfairness under the Untraced Drivers’ Agreement?
•History
•Comparison with the old Agreements
•The Untraced Agreements in breach of EC Directives and Francovich claims
•The Untraced Drivers’ Agreement 2003•Duration (clause 3)
•Unidentified drivers (clause 4)
•False name given

•Interpretation and definitions
•Time limits and notices
•Agents, solicitors etc
•Capacity, children and protected parties
•The application form (clauses 4 and 11)
•The MIB’s liability (clause 4)
•Use of a motor vehicle on a road or other public place; RTA compulsory insurance requirement
•Limitation (clause 4(3)(a))•Injury claims limitation period
•Property damage claims limitation period where just the driver is unidentified and the vehicle identified

•Property damage claims where the vehicle and the driver are untraced and unidentified (clause 5(1) and (3))
•Significant injuries
•Latent damage (clause 4(3)(b))
•Reporting to the police – pre-condition (clause 4)
•Cooperation with police – pre-condition (clause 4(3)(e))
•Exceptions relating to bodies exempted from the requirement to insure (clause 5(1)(b))
•Guilty knowledge of passenger exceptions•The EC Directives
•Presumptions of knowledge (clause 5(2))
•Constructive knowledge and passengers who have taken drink and drugs (clause 5(4)(b))
•Uninsured driver victims cannot recover for damage to their own car (clause 5(1)(f))
•Interviewing the victim
•The investigation (clause 7) and forcing the MIB so to do
•The Evidence
•Causation (clause 7(6))

•Compensation•Property damage cap
•Deduction for compensation received from other sources (clause 6)
•Payment from the CICA
•The MIB Report and the award (clauses 7(2) and 26)
•Notification of decision (clause 16)
•Enforcement (clause 32)
•Deliberate acts and CICA awards
•Interest (clause 9)
•Costs (clause 10)
•Further assistance (clause 11)
•Suing third parties (clauses 11 and 12)
•Settlements (clause 13)
•Acceptance of decision and awards (clause 17)
•Appeals and Arbitrations (clauses 18 and 19)

•Second investigation by MIB and delay of arbitration
•Third investigation by the MIB
•Arbitration procedure
•Preliminary decision on paper
•Oral hearings and final decisions
•Costs of the arbitration•Arbitration of disputes over the Untraced Drivers’ Agreement (clause 28)


Appendix 1
The Uninsured Drivers’ Agreement 1999 with Guidance Notes
•The Uninsured Drivers’ Agreement 1999
•The Guidance Notes to the Uninsured Drivers’ Agreement 1999

Appendix 2
The Uninsured Drivers’ Agreement 2015 and Guidance Notes
•The MIB Uninsured Agreement
•Notes for Guidance: MIB Uninsured Agreement (2015)

Appendix 3
The Untraced Drivers’ Agreement 2003 and Supplementary Untraced Drivers’ Agreements
•The Untraced Drivers’ Agreement Department of Transport Motor Insurers’ Bureau (Compensation of Victims of Untraced Drivers)
•1st Supplementary Untraced Drivers’ Agreement 30 December 2008
•2nd Supplementary Untraced Drivers’ Agreement 2011
•3rd Supplementary Untraced Drivers’ Agreement 2013
•4th Supplementary Untraced Drivers’ Agreement 2015
•5th Supplementary Untraced Drivers’ Agreement 2015
•The Untraced Drivers’ Agreement 2003 (Incorporating Supplementary Agreements)

Appendix 4
MIB Guidance and Forms
•MIB booklet: Making a claim – A brief guide
•Guide to making a motor insurers’ bureau claim (2015)
•Application form

Appendix 5
MIB Conditional Assignment Form


Appendix 6
Particulars of Claim


Appendix 7
MIB Articles of Association


Appendix 8
Road Traffic Act 1988, Part VI Third-Party Liabilities



Appendix 9
The Motor Vehicles (Third Party Risks) (Amendment) Regulations 2001 (SI 2001/2266)


Appendix 10
The European Communities (Rights Against Insurers) Regulations 2002 (SI 2002/3061)


Appendix 11
Motor Insurance Directives
•Council Directive (72/166/EEC)
•Second Council Directive (84/5/EEC)
•Third Council Directive (90/232/EEC)
•Fourth Council Directive (2000/26/EC)
•Fifth Council Directive (2005/14/EC)
•Sixth Council Directive (2009/103/EC)

Appendix 12
Andrews v MIB
•Award
•Ruling on costs

Index

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