MIB - Exclusions

Hello and welcome to this webinar on M I B exclusions. We've got a new I might be agreement uninsured agreement on. We need to have a look at some off the key exclusions that are contained within that new agreement. The one I want to focus on today is lack of insurance. The claimants knowledge off lack of insurance. How does that actually work? Is the test different on How does it work in practice? My name's Niki Carter. Claimant work for me on Let's let's get started. Let's see what we're gonna talk about at first issue. As I say, we know we've got a new M I B uninsured agreement is what does the new agreement actually exclude? So what is he that's excluded on the 2015 agreement? We know that we had some changes made to that case lower. Actually, alter that position was new. What's new in the 2015 agreement in terms off things like lack of insurance. So what's the issue in terms of knowledge? Who on what are now excluded? It's important to know because of the m I b. Exclude your client from the process. The issue becomes How can I possibly recover any losses? The lack of insurance won't want to zoom in on really that knowledge on the part off the passenger in that vehicle. There is a new test. The last test on the old agreement in 1999 agreement was controversial. That's probably the fairest way to put it in that Lots of commentators argued that, in fact, the agreement was not in line with EU directives, which in fact it wasn't. The issue is. What's What's the test now what we now know about what needs to be in the claimants mind at the point of venturing vehicle, What's the issue on? You know, we need to update ourselves in relation to the ways in which Theo might be required climates to engage with the new agreement. I'm so hopefully the idea is update you on the latest issues. The case law, the tactics when dealing with there, might be in particular the New cause eight, which is the exclusions in what we now got. Those of you dump the older might be agreement will remember the exclusions used to be contained. Call six, actually, for what it's worth now, Clause eight is the exclusion area off the agreement, right? Let's let's sort out what's happening. The new and might be uninsured agreement we know came into force on First of August 2050. We know it did on applies to accidents occurring on or after that date. It is worth just adding just in terms of timing here that the 1999 agreement continues to apply toe accidents that occurred between First of October 1999 on the 31st of July 2050. So there will still be cases to which the older might be Agreement applies and you may have. We probably will up cases continuing in your files where in fact the old agreement is going to apply. I'm worth just being aware that in terms of even if even if it's the case that the old agreement applies, there is case law, which suggests actually some of those terms of the old agreement. One particular exclusion calls was actually invalid even then, even in the old agreement invalid. Of course, it didn't comply with EU directives, so okay, we know the dates worth just adding well, that's not the purpose of our weapon are today that the UN Trace drivers agreement has been updated long overdue on the new entry strike. This agreement is in force from the first of March 2017. In terms of the uninsured agreement, the agreements much simpler and the key requirements are to submit an application to the end might be in proper form on join the M. I B in the action at the beginning. So far, no change. We're familiar with that. There is a requirement. Isn't that, well, the claimant to give the M I B such information as it may reasonably require? So, of course, the M I B received court notices, except in the same way that a defendant does. We know that failure to comply with the notice requirements may well result in the m i B. Just simply refusing to indemnify the uninsured defendant. So it's important that those notice requirements are dear to anyone who deals with the M. I. B will be familiar with that. We know about that. Let's sort ourselves out with what the previous position wants. Under the 1999 agreement calls, six e was the relevant clause in relation to if they're essentially the list of exceptions. The circumstances in which the M I B would just simply not pay out course. 60 Reminding ourselves, um, the claimant, voluntarily allowing himself to be carried in the vehicle there is on your slide on either before the commencement off his journey in the vehicle or after such commencement. If he could reasonably have been expected to alighted from it, will focus in on that, actually, in a moment, a couple of cases on that business of reasonably being expected to be alighting from it on this is the key phrase knew or ought to have known. That's what the 1999 and agreement used to say that some to the vehicle was being used without there being enforced in relation to its use. Such a contract of insurance as will comply with Part six or the 1988. That's the RT a act. That's what it actually says. So we've got this new or alter have known requirement. I'm now both Section 51 51 of the Road Traffic Act ankle. Six of the agreement imposed constructive. Let's call it that, or deemed knowledge on the suggestion is that there's you ought to have known. In other words again, we got also to test the knowledge haven't seen Pay I. But this seems to suggest in the 1990 agreement that there is some kind of constructive or I would go as far as to say, deemed knowledge. However, where see wrong the House of Lords ruling in a case called White on White that actually, even under the 1999 agreement, let's call it a purpose. If interpretation off that cause means it requires actual knowledge. We're looking detail that because it's very important, I think very, very often the argument may well be, well, perhaps the claim and gave no thought perhaps to the fact that the vehicles are insured maybe already use the phrase turned a blind eye to the fact that it might not be insured. What about those cases on down? We'll look in detail of white on white in just a moment. What about the claimant who didn't even consider the possibility because it didn't occur to him that on it? But the driver might be uninsured, so we need to look at all those issues I think I mentioned in the note to your slide that the Mar Leasing principal you know, we know effectively what that is We're going to be up near with the Brexit situation. But for the moment of my releasing principal says, Well, you know, all judges, all courts need to interpret sections in the relevant act. In this case, Section 151 of the Road Traffic Act in line with EU directive. So, in other words, as if they comply with the EU directives. So the issue being will actually then the clause Section 151 in the Road Traffic Act complies. If it's interpreted properly with the EU, directive on Will will come to what the your director has to say on the topic. We can't go a lot further with this discussion without taking a look at the House of Lords decision in white on white. Um, yeah, we should just remind ourselves all the story. Young Mr White, who was injured traveling in a vehicle driven by his uninsured brother, appealed against the finding of the court appeal. That council directive the EU directive, which allowed member states to exclude the right to compensation only where a person knew the vehicles uninsured was not directly enforceable. The judge at first instance, had found that young Mr White was careless in not knowing that his brother was not insured. If those of you remember the case or even if you check out that the judgment you remember that story. Waas brother, driver of vehicle had never in fact passed a driving test which no, Mr White, the passenger knew perfectly well, but it didn't occur to him. The live in passed your driving test probably meant that you weren't insured either. Just didn't enter his head. So the court asked the questions in the white on white case. What is the nature off the knowledge test? Is it a subjective test? In other words, are we going to look at young Mr White on what was in his head? He knew more. He realized at the time of the journey. Or do we apply the objective test? What would a reasonable person and young Mr White shoes have concluded about the insurance situation? It's such an important issue this because so many of the tests that we come here with NPR involve a question of what kind of test is it? You know those of you deal with disease cases will be familiar with. Okay, we're looking at the knowledge test in relation to limitation. Section 14 George seems very harsh to May. That test is very, very much an objective test. Never mind what the claimant thought about the appropriate day to go to the doctor and start talking about Los appearing. What would a reasonable person in the claimant shoes have done? And it's a It's a much harder test to May, of course, in relation to Will. Actually would a reasonable person who knew their brother it never passed a driving test of concluded. That probably meant he hadn't gotten insurance, either. So it's a key pivotal, really toe whether or not these cases are going to succeed or no. Like I the decision, the decision was from the House of Lords point of view that the exception contained within motor insurers bear agreement should be very, very restrictive, Lee construed. So as with all exceptions to general principles under Easy Lord, we know this and again. If you deal with eel work, it'll will be very, very familiar with the attitude if you like in relation to the interpretation off E. U. Directives. The word we've already used purposes, carelessness or negligence on the part of the victim do not fall into permitted exceptions. They never dough actually, no carelessness or negligence on the part. The victim may well lead to a finding of contributory negligence, possibly, but not to an actual failing of liability. Let's look in detail at what the court had to say, because it's such a key point this it may well be vital. Particularly, I think I can go on to say, if you've got young people in a vehicle who perhaps just didn't give any thought to the realities about walk insurance position might have been on the vehicle. So the court said, for the purposes, the purpose off Article one sub four year directed new encompass actual knowledge that the driver was uninsured on the situation where the victim deliberately refrained from finding out whether insurance has been taken out. In other words, deliberately didn't ask the question because they suspected they knew the answer. In this case, that wasn't the case. Young White was careless, he was merely careless, and he could rely on Article one sub four to protect him, if you like from the M i B, turning him away. Secondly, the phrase knew or ought to have known in the M I B agreement was intended or should have been intended to mirror the exception permitted by the directive on was therefore, to be restrictive, Lee construed so as to exclude carelessness or negligence on the part of the victim. In other words, in accordance with my releasing, the court was prepared to interpret the I might be agreement a Ziff. It was in line with the U directive, um, allowing the appeal. And in fact, Lord Scott was the only one dissenting in Old Scott's comments. But the purpose of Article oneself before he thought that new should encompass actual knowledge that the driver was uninsured on the situation where the victim deliberately refrained from finding out whether insurance has been taken out. However, Mr White succeeds young, Mr White succeeds on the basis that simple carelessness simple, just not bothering to ask because he didn't occur to him is very, very different to deliberately not asking because you're afraid of the answer on White was successful. I think we can't talk about White without contrast ing Let's sail. Not quite contrasting, but looking at the situation in a case called Akers on the Metro Insurance Spirit from 2003 court appeal decision. Again, the court was tracks with looking at the way in which that exception in course 60 within the M I B agreement from 1999 would apply where a passenger had actual knowledge off the lack of insurance or if he had information from which he realized the driver may well not be insured. But I'm not going to ask because I think if I ask him, he'll confirm that in fact, he isn't insured. So I would deliberately refrained from asking the story. As you will remember in Akers, I'm sure. Was that sadly, a vehicle driven by Ah young man? Mr. Akers is a passenger in that vehicle driven by my uncle, Mr Thorne. Sadly, Akers was killed in the vehicle. No dispute the driver drove carelessly negligently, but the issue waas no insurance, of course. Did hackers know or ought to have known that the vehicle was not insured? The evidence before the judge was a group of people in that vehicle just before the accident occurred new thought was uninsured. And indeed, they were having a conversation about the fact just before they got into the vehicle, they argued. Or the argument from the claimant. Waas. Well, there's no evidence to show that young Mr Akers didn't hear the conversation, so we assumed they did hear it. Therefore, he must have been aware that Thorne was uninsured at the time. And thus, if you like the Newell to have known, would be interpreted in, ah, wider medium eso afraid it make enquiries. The passenger in this case had arguably actual knowledge or information from which he would have realized that the driver was not insured. Aunt had deliberately refrained from asking and cases suspicions might be confirmed. That's what the court decided happened in this case. Now it's interesting evidence about a conversation about the lack of insurance happened, of course. Very sadly, no one could check with Mr Akers whether he'd heard that conversation or hadn't heard it. And I think what we see in Eckerd's is the M Obey succeeding. To be honest in the argument that will actually, in the absence of any other information, there's almost an assumption that the Kleiman knew about the lack of insurance, and I think that's key on. I think when we come to look at what changes in the new Agreement 2015 agreement, what we will see, I think. Is they the difference, really, in the wording of the new agreement on Ask ourselves the question. Is their act deemed assumption? Is that really right? Or is it something that the defendant in this case, the M I b, are going to have the burden of proof on? You know they're going talk to obtain the evidence to show more likely than know that the claimant had that knowledge knew about it, deliberately refrained from asking because he was afraid of the answer on. And I think that's the purpose off our next discussion, which were just about to move to. Let's take a look at the situation where we talked already in Akers about the fundamental difference between the ACA's decision and the decision on White on White with a court took the view that young Mr Akers had deliberately, if you like, refrained from inquiry about the insured status of the vehicle because he knew or suspected that the answer would be No, actually, I'm not insured. And that made all difference that made the claim, If you like on behalf of Akers by his family. Unsuccessful. Now that's quite a key issue in relation to the 1999 agreement on. We saw this backed up in a case called Phillips on Refik in 2007. In the Court of Appeal. Ah, very, very important issue was highlighted. And actually, our problem was highlighted certainly for the M. I B in the wording of the 1999 agreement. The cut off for obvious reasons, the 1999 agreement came into force the old uninsured agreement on exactly the same time as the civil procedurals arrived. Now what's interesting is when that agreement was amended in 1999 What actually happened for on the wording front was that drafters went through the agreement and pricked team up to replaced the words plaintiff on injured person with the word climate. The New World that was created by the civil procedurals rules a problem correct in because in a case where the passenger in the vehicle armed with your perfect example, sadly in Akers on indeed, in this case Phillips the claimant. The person being carried in the uninsured vehicle dies in the accident. The issue is the claim isn't in fact, brought by that Kleinman. It's brought by the dependence of its fatal accidents that claim, well, The estate, if it's a lower for miscellaneous provisions Act claim now That's interesting, because the agreement, the exclusion says that if the claimant voluntarily allowed himself to be carried in uninsured vehicle with knowledge about the uninsured state, etcetera, etcetera, the argument Phillips and Rafiq family, Mr Phillips was well, actually, the claimant sauce, the claimants, the dependence. It was our relatives disease, Mr Phillips, who was being carried in the vehicle where the claimant we didn't allow ourselves to be carried in that vehicle. It's interesting, I think, that the court will able to focus in on the test on the words in the background toe. Any scheme. Compensate evictions off. Uninsured drivers must include the range of victims likely to be within the contemplation of the contracting parties. Victims would reasonably be within that contemplation include those self established property, those who die, those who injured those who suffer severe injury but survive on, and the dependence off the victims who were killed. It must have been appreciated. Set cool that the draftsman of the 99 Agreement. But the claim of the dependence under the Fatal Accidents Act was separate and distinct from the claim survived for the benefit of the estate. The U directive was relevant, as was indeed the 1988 group a previous agreement. Had the previous agreement applied in this case to the kinds claim the relative of Mr Phillips, the widow, she would not have been able to obtain satisfaction from the M I B. Because the wording waas, the person suffering death or bodily injury got in the car voluntarily. Well, knowing our that wording changed the formula used in the 1998 agreement 1988 agreement polities was not adopted in the 1999 agreement. While it was true in paragraph three of the notes to the agreement, the word passenger was used anonymously with claimant that didn't override the agreement itself. On the substitution of passenger for climate in called 6.1, he was something the court weren't prepared to do. Ah, huge loophole was revealed in the agreement. Yeah, if the person traveling in the vehicle whether they knew or didn't know the driver was uninsured happens to die in the accident. The claim is then bought by under the fatal accidents at the dependence. Consequently, the exclusion doesn't apply. It's a loophole. What else can you say? Consequently, there is that exception you can see on our next line calls eight for in the new agreement. Have we retained that loophole? Guess what? No, we haven't closed 84 off the new. The 2015 agreement provides specifically the M I B of Let's listen if the planet passenger dies and its dependence claim in their own right or on behalf the estate. The fact that they had no knowledge the vehicle been stolen unlawfully taken on use without insurance is irrelevant. It's covered. It's covered. What is relevant is the knowledge of the deceased. Again we saw in Akers and Thorne. How difficult that could be to establish the evidence on to establish. It is tricky because you no longer have that person in front of you no longer have that individual to ask. What did you know what was going in your head at the time? So the loophole has been closed. We need to look in a minute. I think how we think the new test actually works. But what is the new word? And is there some kind of deemed knowledge? Because that becomes vital? Well, look at that in just a moment. Firstly, let's look at one of the issues that we touched on when we looked at the wording off the claws. And there was this issue about whether or not there's an option. If you like to withdraw the consent to the uninsured journey, can the passenger at some point during the journey, perhaps when they find out the vic was uninsured? Say, Actually, that's it. I want to get out now. I want to leave the vehicle and does that then mean that they be possible. It's possible for them to claim would the exclusion still touch them? Pick it, And Roberts is a classic case in that Scenario Corp appeals case in Pickett are very briefly time of the accident car was being driven by young Miss Pickets boyfriend living together at the time, taking the dog out for a drive, traveling on a mounting track, and the boyfriend began to drive crazily handbrake turns that sort of thing. Picket asked him to stop. But, he continued. She was frightened. She was agitated. She asked him to stop the car, thinking he was slowing down so she and the dog could get out. John did a seat belt. He suddenly accelerated. Lost control pickets. Injuries were life changing. The issue of consent to being carried was not generally required to be judged the time of entering the vehicle, the court said the use of which gave rise to the liability had to be construed specifically in relation to facts at the time of the accident. But the person who voluntarily entered the vehicle could not withdraw her consent, Miss Pickett, except my unequivocal repudiation of the common venture to which she had consented on unequivocal request to be allowed to light was enough. But in her case, why did she want to get out? She didn't like the manner of the driving is no enough. It couldn't be concluded. The judge applied the right test of first instance at. Nor could it be hold on the evidence she done enough to withdraw her consent. At first instance, the court have been persuaded that she had, in fact, withdrawn her consent in the court of Pale. The Court of Appeal decided she absolutely hadn't shed no made sufficiently clear our objections to the use off the vehicle at the time the handbrake turns. Well, yes, that was clear, but she hadn't made it clear that have bruhth drawl, if you like of consent was based on the lack off insurance, which was exactly what what should have been done. It seems a very harsh decision, but I think it becomes really very important in terms of sorting out whether or not the claimant gets of the option. If you like off withdrawing that consent any point, picture the scene. Akers and Thorne had the conversation about the lack of insurance taken place during the journey on, Mr Akers said. Actually, I didn't realize you were uninsured. I no longer want to continue the journey. Please let me out. I have been refused leave to get out the vehicle. The decision in because I think would all have been very, very different. I think what we need now to look at is the new phrasing we've got a different phrase on. It's important. I think to look at The new clause calls 81 in the new 2015 agreement. What does it say? M. I b not liable for a claimant part of claim there is on your slide and respect too many relevant liability by a claimant who, at the time of the use giving rise to that liability, was voluntarily allowing himself to be a passenger in the vehicle on either before the start of the journey in the vehicle or after its star. If the claim it could have been expected to reasonably alighted from it knew or had reason to believe that the vehicle was being used without their big force, etcetera, etcetera, Ah, contact a contract of insurance. So what we got is we've got ah, change, if you like. In wording on, we need, I think, to focus on that change. What is what does it actually mean? The new term? No, the old agreement sort to include you'll see on the next slide. Some assumptions. Presumptions that use that word. Actually the old and is your driver's agreement had evidential Presumptions concerning the knowledge that climate my have had about the uninsured status off the vehicle on, you know, in a sense, following the House of Lords decision in white on white, which we looked at earlier. The argument is, well is that definition in line is the definition of knowledge. In line with the Road Traffic Act Section 143 on section 151 Evidential Presumptions What? All those evidential Presumptions? Well, Clause seven allows the M I b tow. Avoid liability. Damaged a vehicle where at the time of the damage being caused, it was the contract insurance in force on the claimant. New or all toe Have reason to believe that that was the case. It's interesting, I think, to try and work out. What is it that the climate knew or had reason to believe on? I think what we need to do is is look, firstly, the change in wording and second it what those Presumptions are. Let's look at the change in wording 99 agreement wording knew all toe have known New agreement 2050 Knew or had reason to believe there is an argument say Well, what's the difference? You know what? What's the difference? I think the difference actually is passengers who ought to know the driver is uninsured will not, for within the exception, if they've been careless or negligent in Northern Army, white and whites. The perfect example. Mr White probably ought to have known, but he certainly didn't know that due to his own carelessness or negligence. On the other hand, those have got some information pointing to a lack of insurance. But deliberately don't ask, though the questions for fear that the answer they will get is I haven't got any insurance. The new wording have reason to believe better reflects this position. And indeed, we know from the notes to the new agreement that that wording will be interpreted in line with the judgment in white on white. In other words, what we're going to see is we're going to see the court applying the test in a subjective manner. Someone is careless. Someone is reckless about. It will not necessarily be turned away by the Emily Bay. And where am I be? Have sort to argue. There is a presumption that the claimant has its knowledge under the old agreement. You no burden of proof is our question, isn't it? When might the emer be argued that in the absence of evidence to the contrary, the M I b prove any of the following things on the knowledge is made out well, three things that cook the M I B have sought to argue will give our presumption off knowledge is, firstly that the claim it was the owner or the registered keeper of the vehicle and it caused or permitted its use. Think of the picket case. Miss Pickett was her vehicle. She gave the keys to her boyfriend the assumption being she knew perfectly well he wasn't insured. Secondly, that the climate knew the vehicle was used by persons below minimum age of which a license could be growing. Student should be driving a vehicle and see the claimant knew that the person driving the vehicle was disqualified from holding or obtaining a driver's license. The issue is that grew bears. The burden of proof there might be would argue that any of those facts suggest the burden in ships to the claimant. However, the M I B typically will bear the burden of having to prove knowledge under Clause eight. However, in any of those circumstances that we just listed, the argument will be well that jobs made a lot easier for the M I B. If any of those things are in place. Drinking drugs close 85 Bay makes it clear that climate cannot say that his lack of knowledge was due to the self induced effects off drink or drugs. That's interesting. The claimants been drinking the claimants under the influence of drugs and says, Well, I couldn't make a decision about state the driver. The MRV have made that very clear. That orb itself will not be enough to allow the claimant to argue the knowledge wasn't in place. So, yes, we've said carelessness is okay. But if callousness includes your own drunken state, that would be enough to allow you to proceed with the M I B. Y. It's a pal. We saw that the judge in that particular case felt that claimants in an action for damages for piano after a road accident, all to have known the driver in the car they were traveling in was uninsured on thus the right to compensation walls excluded wild by to have known well, the argument waas that in Powell, the driver of the vehicle while in power, Mr Powell had previous driving qualifications were driving offenses. On that, the claimants had turned a blind eye to the issue of whether he was insured. The judge concluded that he didn't have, ah, full and truthful account of the evening an issue well, no surprises. That will often happened all the underlying relationships. And he determined that the appellants claimants all to have known that the vehicles being driven without insurance because they knew more than enough to arouse suspicions on didn't ask the appellants. The claimants said there was no material on which that judge could have made a finding that he did. I think it's interesting that the facts of this become really, really important. I think it's might chime in with cases that you have. It was a small local community theater parents would have known more about the driver. Then they would have admitted that they would have known he'd been to provision for driving offenses in the past. On the court, the judge assumed at first instance that that evidence existed on the basis of the evidence recorded, the court decided there was no basis for any inference that the appellants had information that the driver happened into prison while driving offenses, all that you might not be insured. Case law established failure to make enquiries that reasonable passenger life made would not be sufficient for within the exception. We know that from what and why. Even if one of the appellants have believed that the driver had been imprisoned for driving offenses and even if that would have caused a reasonable person to make enquiries, it wasn't enough to enable the M I b to rely on that exception. It just wasn't enough, Justice Lewis pointed out. Even if one of the climates have known about it, it wouldn't be enough to enable the M I B. To rely on the exception are in fact, the claimant genuinely but negligently fell to make enquiries. The AM RB still can't rely on the exception. That's really, really important, I think, because the evidence in these cases is often of a similar nature. Practice points burn the proof. Establishing knowledge is on the M I B. It's no enough for the M I t. To show the passenger fellas make enquiries. A reasonable person would have made the phrase New York to have known that appears in the current depend previously does not. Here in the new agreement on knowledge is very, very difficult. There might be to establish, simply often because off the it's state, frankly, off the evidence after an accident off this kind just last. Let's mention the crime explosion. We can't talk about stopping without reminding ourselves of it. Delaney Sector Estate for Transport Court Appeal 2015 This is the case where the court removed that crime exclusion. It was erroneously in the old uninsured drivers agreement. It was under course, 6.1 E three. It's gone on. The new agreement contains no such clause. It is no longer appropriate for the M I B to argue, because the vehicle was being using cause of furtherance of a crime, that the claimant is debarred from recovery. It's just simply gone calls seven deletion, of course, seven, which also talks about excluded liability for damage for a vehicle, which was also I'm insured, is also gone. Thank you so much for listening to the weapon. I hope it's been helpful. Andi, that's the end about presentation. Thank you very much.