Practical Guide to Handling Motor Insurers' Bureau Claims

Nick Jervis

• Publisher: Routledge-Cavendish
• Year: 2013
• ISBN:
  9781135336714
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The 1999 Uninsured Drivers Agreement applies to accidents in which an uninsured driver was involved, which have occurred after 1 October 1999. Limitation periods for cases under the agreement will start to expire from 1 October 2002, after which procedural defects cannot be overcome by discontinuing and reissuing. To avoid satisfying any unpaid judgments, the Motor Insurers Bureau (MIB) will be able to act on any failure by claimants solicitors to comply with the strict terms of the Agreement. In order to prepare for this, those dealing with Motor Insurers Bureau claims must have watertight systems in place in order to avoid potential negligence claims. This book is an essential guide to preparing such procedures, and includes a series of standard letters, checklists and diary entries to guide a practitioner through each aspect of such a claim.The guide deals with the detailed provisions of the 1999 Agreement and the Revised Notes for Guidance (2002

). The difficult tasks of handling claims against uninsured drivers and dealing with the MIB are addressed in a practical manner. All relevant recent legislation is discussed, as well as claims against untraced drivers and methods of discovering road traffic insurers to prevent the necessity of involving the MIB. Guidance is also given regarding setting up a department to deal with MIB claims.

The book will be indispensable for any legal executive or solicitor dealing with MIB claims, particularly those handling road accident personal injury claims and all those managing teams of injury specialists.

To effectively handle Motor Insurers' Bureau claims, the letters and checklists in this book are essential. To save you time, all the documents (letters, checklists, questionnaires and forms) contained in the book are available as Word documents for a fee of 10. The complete package can be sent to you by email or on disk by post.

CHAPTER 1
CLAIMS AGAINST THE UNINSURED DRIVER: A BASIC OUTLINE

1.1 THE HISTORY OF THE MIB

It has long been recognised that innocent victims of road traffic accidents should be compensated; in practical terms, judgments against the offending driver could rarely be satisfied by that person, particularly given the medical advances which have led to many more people surviving accidents but facing a lifetime of needing medical treatment and care. Initially, this problem was dealt with by the government introducing compulsory insurance for all drivers. However, it became increasingly obvious that, due to non-compliance with these provisions, an anomaly was created whereby an innocent victim could obtain no compensation at all because they had the misfortune of having been injured by a penniless uninsured or untraced driver. By an agreement between the insurance companies and the government in 1945, provision was made for the establishment of a fund to satisfy judgments in certain cases; in 1946, the Motor Insurers’ Bureau (MIB) was born. Since that time, there have been various agreements dealing with untraced and uninsured drivers.

If the aim of the various agreements is to ensure that the innocent victim of an uninsured or untraced driver is placed in the same position as an innocent victim of an insured driver (and according to European Directives to which the UK government has agreed, that is the aim), then the agreements have significant failings. The MIB, ‘a novel piece of extra-statutory machinery’,¹ has consistently placed procedural hurdles in the way of innocent victims, and even in cases where it is accepted that there has been no prejudice caused to the MIB, has insisted on relying on minor procedural breaches (for instance, notices being served a couple of days late) in order to escape any liability to satisfy a judgment.

It is important that all claimant solicitors understand that the MIB has no common law liability to the claimant and the only way that such liability to satisfy the judgment arises is under the relevant Agreement. Thus, the court has no discretion to excuse any breach of a condition by the claimant and order the MIB to satisfy a judgment, even if the overriding objective and every principle of fairness dictates that it should. Further, there are certain exceptions and limitations imposed, particularly by the 1999 Uninsured Drivers Agreement, which prevent any compensation being awarded. Whilst the passenger who accepts a lift from an insured driver who he knows is drunk will recover the majority of his damages, if the drunk driver was (unbeknown to the passenger) uninsured, the passenger will recover nothing from the MIB.² Such compensation as may be awarded against the negligent driver may not always be paid in full by the MIB in any event; if the innocent victim is the beneficiary of a personal accident plan, which pays out in the event of an injury, the MIB can deduct such sums from the compensation it pays, notwithstanding the fact that the innocent victim of an insured driver would receive the full amount.

There are some circumstances in which, despite the fact that the driver was uninsured, an insurer rather than the MIB will have to satisfy the judgment; this places the claimant in a more advantageous position.

1.2 FINDING AN INSURER

1.2.1 Practical tips

Assuming that the driver does not provide insurance details despite requests,³ other action should be taken to trace a potential insurer.

1.2.1.1 The Motor Insurance Database

Run by the MIB’s sister company, the Motor Insurers’ Information Centre, this Database is designed to comply with the requirements of the Fourth Motor Insurance Directive. It records details of all insurance policies, including the date in force and the vehicles covered. There is not yet direct access for solicitors,⁴ although insurers do have access to the Database. A telephone call to the claimant’s insurer (or driver’s insurer if the claimant was the passenger) should be made to discover whether a search has been made and the results of such a search (or to request that such a search is made). The Database is not ‘live’. Some records are not entered onto the Database until many weeks after the policy is written. Therefore, it may be necessary to request the insurer concerned to search the Database again a few weeks after the accident.

Solicitors should continue to argue for direct access to the Database to avoid unnecessary delay in injury claims.

1.2.1.2 DVLA searches

If an insurer is not initially located, the solicitor should carry out a search for the registered keeper of the vehicle; this may be a different person from the driver of the vehicle at the time of the accident. The registered keeper may hold insurance which will cover the driver under the terms of the policy, or under the terms of the Road Traffic Act 1988 (see 1.2.2).⁵ Demands for insurance details pursuant to s 154 of the Road Traffic Act 1988 must then be made.⁶

1.2.1.3 Telephone enquiries

Any telephone numbers obtained at the scene of the accident should be called; it is important to spend time confirming the identity of the other driver (and the registered keeper if different) at the beginning of the claim, as well as attempting to obtain insurance details, as this will avoid the MIB arguing that the driver is actually untraced rather than uninsured.⁷ Telephone calls to discover if there is insurance should be made at different times of the day, including after office hours.

To support any future application for service by an alternative method,⁸ records of such attempted calls should be made and a letter should be sent in advance to the driver or registered keeper warning them that you will make the call at a certain time, to allow them every opportunity of being available when you call.

1.2.1.4 Internet enquiries

There are now many facilities available on the internet to locate people. 192.com is the internet directory enquiries and is reasonably cheap. There are others available and they should be used at the beginning of a claim to attempt to locate the driver or registered keeper in order to make contact and to discover whether any insurance exists.

1.2.1.5 Personal enquiries

Form F1

Although an expensive method, if it is successful in locating the driver or registered keeper and leads to the production of insurance details, it will avoid a significant amount of delay and expense. Instruct an enquiry agent to investigate the address, location and any insurance details.⁹

1.2.2 Driver uninsured but vehicle insured

Under s 151 of the Road Traffic Act 1988, where a judgment is obtained relating to a liability required to be covered by a policy of insurance,¹⁰ and that liability is covered by the terms of a policy, and judgment is obtained against the person insured under the policy or it is a liability which would be covered if the policy insured all persons, then the insurer has a duty to satisfy such a judgment.

The important points to consider differ depending on whether it is a person insured under the terms of the policy, or it is an identified person covered as a result of the provisions of s 152 of the Road Traffic Act 1988. If the former, the insurer may be able to avoid satisfying the claim where the policy excludes the use of the vehicle in certain circumstances (see example (3) in the table below). If the latter, there is less opportunity for the insurer to avoid the claim.

Practical examples

See Table

See 11.1 and 11.1.1.

1.2.2.1 Procedural requirements

In order for the claimant to be able to enforce judgment against the s 151 insurer, the insurer must have been given notice of the bringing of proceedings either before or within seven days of commencement of proceedings.¹⁷

1.3 THE UNTRACED DRIVERS AGREEMENT

Just as the government (and latterly the EU) decided that the innocent victims of uninsured drivers should be compensated, a similar decision was reached by both bodies in respect of the innocent victims of untraced drivers – to deal with those injured by ‘hit and run’ accidents or accidents where the driver either refused to give his details or gave a false name and/or details and was never found. Proceedings in these cases cannot be issued (as there is no defendant to issue against) and need to be dealt with under the 1996 Untraced Drivers Agreement. It is important to establish which type of Agreement applies. There is anecdotal evidence that the MIB has successfully argued, after the three year deadline for an application under the Untraced Drivers Agreement has expired in a particular case, that that Agreement, rather than the Uninsured Drivers Agreement then existing, was the correct Agreement to proceed under, as the lack of any contact with the named defendant suggested that the driver in question had in fact given false details and the defendant did not actually exist. It is therefore important to establish contact with the defendant at an early stage¹⁸ or, in the event of any doubt, proceed under both Agreements simultaneously.

1.4 THE CRIMINAL INJURIES COMPENSATION SCHEME

Victims of road traffic accidents cannot claim injury under the Criminal Injuries Compensation Scheme where ‘the injury is attributable to the use of a vehicle, except where the vehicle was used so as deliberately to inflict, or attempt to inflict, injury on any person’.¹⁹ Thus, the defendant’s subsequent conviction for dangerous driving will not assist the victim, unless it is found that the defendant deliberately drove into the victim in order to injure him.²⁰ Even if such a finding is made, it will be very rarely advisable for the victim to proceed under the Criminal Injuries Compensation Scheme unless neither an insurer nor the MIB would satisfy any judgment obtained against the defendant (which would arise if the act occurred on private land, for instance), as the compensation received from the civil courts would almost certainly be higher than that recovered under the Scheme, and the Criminal Injuries Compensation Authority would be entitled to deduct any damages recovered from the civil courts.

1.5 THE UNINSURED DRIVERS AGREEMENTS

As outlined above in 1.1, the government and latterly the EU have decided that innocent victims of uninsured motorists should recover compensation for their injuries. Since 1946, this has been achieved by the payment of unsatisfied judgments against uninsured defen...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Foreword
• Acknowledgments
• How to Use this Guide
• Precedent Document Index
• Table of Cases
• Table of Legislation
• Table of Directives
• Chapter 1: Claims Against the Uninsured Driver: A Basic Outline
• Chapter 2: The 1999 Uninsured Drivers Agreement
• Chapter 3: Managing MIB Claims within a Personal Injury Deparment
• Chapter 4: Receipt of Instructions
• Chapter 5: Pre-Issue Matters
• Chapter 6: Issuing Proceedings
• Chapter 7: Proceedings Post-Issue
• Chapter 8: Heads of Claim
• Chapter 9: Settlement and Costs
• Chapter 10: Apportionment of Damages
• ChapterR 11: Recovery Section – MIB Claims Going Wrong
• Chapter 12: The 1988 Uninsured Drivers Agreement
• Chapter 13: The Untraced Drivers Agreement 1996
• Chapter 14: Practical Steps in Making a Claim Under the Untraced Drivers Agreement
• Chapter 15: Appeals Under the Untraced Drivers Agreement
• Appendix A: The Uninsured Drivers Agreement 1999 and the Original Notes for Guidance
• Appendix B: The Revised Notes for Guidance 2002
• Appendix C: The Uninsured Drivers Agreement 1988
• Appendix D: The Uninsured Drivers Agreement 1988 Notes for Guidance
• Appendix E: The Untraced Drivers Agreement 1996
• Appendix F: The Motor Accident Solicitors Society