Clause 13: unlucky for some?

Clause 13 of the MIB agreement poses fundamental problems for all those involved in road traffic litigation and requires immediate action writes Gordon Exall

The new MIB agreement came into force on the 1st October 1999. Because of the onerous procedural requirements many practitioners have delayed issuing proceedings. However there is a distinct possibility that claimants will not be able to recover from the MIB in the majority of actions issued.

Clause 13

Clause 13 is under the general heading of conditions precedent to the MIB’s liability. It states:

“MIB shall incur no liability under MIB’s obligation unless the claimant has as soon as reasonably practicable –

• demanded the information and, where appropriate, the particulars specified in section 154(1) of the 1998 Act, and
• if the person of whom the demand is made fails to comply with the provisions of that subsection:

1. made a formal complaint to a police officer in respect of such failure, and
2. used all reasonable endeavours to obtain the name and address of the registered keeper of the vehicle.

Or, if so required by MIB, has authorised MIB to take such steps on his behalf.”

In short if you don’t carry out these steps the MIB will not be liable to pay up (and you can assume won’t pay up).

Time to Worry

There are a number of points of concern here:

The request has to be made “as soon as reasonably practicable”.

There are many interesting discussions of this phrase in many reported cases in other contexts. However, the only safe assumption is that this means at once. That is on the same day that you receive instructions. If you want to go into the witness box and argue that it wasn’t reasonably practicable to send out a request until a day or two later, or that you had a backlog of typing then ignore this advice. However the risk is yours. It is a substantial risk. It is strongly arguable (and probably will be argued at some point) that it is always practicable for a solicitor to send out a letter, or standard form, on the day of instructions. The burden of showing that it was not “reasonably practicable” lies on the claimant.

You need to do this in all your road traffic cases

You will rarely know, on the day you are instructed, whether or not the defendant is insured. Since the requirement is to make a request “as soon as reasonably practicable” waiting several weeks (or even several days) to access whether or not the defendant is insured may be fatal. The only prudent course of action is to make the section 154 request in every single road traffic case. This should be done at once. It would be stupid to delay, for instance, on the grounds that further information was needed or you wanted to ensure you could comply with the protocol.

Remember non-insurance runs at around 5-8% of all drivers. There is a strong and distinct possibility that a percentage of all your road traffic cases will be MIB cases.

You need to follow up strongly

If there is no response to your section 154 letter you should make a formal complaint to a police officer and apply to Swansea for details of the registered keeper. Remember the requirement to make a formal complaint is mandatory. There is no mention of a complaint to a police officer in section 154 and most police forces will be bewildered. This doesn’t matter follow the requirements to the letter. If there is no response to the letter, make a complaint to a police officer seven days later.

You can’t pass responsibility to the client

Eventually the courts will have to construe this requirement. My guess is that the courts will be fairly kind to injured claimants who delay personally and far less kind to claimant solicitors. These solicitors, the argument will run, should know about the rules and make a request at once.

Further clause 2(5) of the argument states:

• “(a) a reference (however framed) to the doing of any act or thing by or the happening of any event in relation to the claimant includes a reference to the doing of that act or thing by or the happening of that event in relation to a solicitor or other person acting on his behalf…”

So once the claimant instructs you, it is your firm that is responsible for complying with the agreement.

You have to educate any referrers of work

The problem could be even more acute if you are receiving referrals from a trade union or a claims company. These referrers could, for a period, be an “other person” acting on the claimant’s ability to claim against the MIB could be dead before the papers arrive in your office. You must educate your referrers in relation to this obligation.

Ironically, if another insurer, such as the claimant’s own insurer, attempts to act for the claimant or writes a latter on his behalf, there is an argument that they should make the request at once.

In any event it is possible that there will be a sub-species of litigation against claims companies that have taken instructions and not complied with this obligation. Those companies that specialise in high-volume road traffic litigation are most at risk. They cannot pass responsibility onto the solicitor, since the requirement could, and probably would, have been breached by the time the papers arrive at the solicitor’s office.

You have to do something NOW

I have been writing and lecturing on this topic for over two years. In that time I have come across only one firm that has addressed the fundamental dangers posed by clause 13. This is extremely worrying. If the clause is construed strictly it is likely that the vast majority of potential MIB claims are already doomed to failure.

If you need further incentive, or persuasion

In the APIL Special Bulletin on the MIB several important points are made:

• The burden of showing that the clause has been satisfied is     upon the claimant.
• “The MIB have indicated that it is unlikely to agree to a general waiver of this clause.”

The guidance notes to the agreement states:

• “… a claimant has statutory rights under section 154 of the Road Traffic Act to obtain relevant particulars which he must take steps to exercise even if that involves incurring expense and MIB will insist that he does so.”

What are you going to do?

1. Have a standard form to send out on the day of instructions. If you decline instructions or cannot act at once have an alternative form and a strong explanatory leaflet explaining that it is important that the form is sent at once.
2. Do this in all road traffic cases whether acting for passenger, driver or pedestrian.
3. Buy the APIL Special Bulletin on MIB claims (by Tara Vindis and Andrew Ritchie). If you are doing any road traffic work it is madness not to have it to hand. On any rational analysis this book is going to save you thousands of pounds and lots of heartache.
4. Educate your referrers.

Contact APIL

Every practical political step has been taken to persuade the Government to amend the agreement. Political persuasion is still being tried. However until, or unless, the agreement changes then we are embarking on a campaign of education. Clause 13 is only one of the numerous onerous obligations imposed by the agreement. If you want to continue carrying out road traffic accident work then you must know all the obligations in detail.

Section 154 of the Road Traffic Act.

(1) A person against whom a claim is made in respect of any such liability is required to be covered by a policy of insurance under section 145 of this Act and must, on demand by or on behalf of the person making the claim -

a state whether or not, in respect of that liability–

• he was insured by a policy having effect for the purposes of this Part of this Act or had in force a security having effect for those purposes, or
• he would have been so insured or would have had in force such a security if the insurer or, as the case may be, the giver of the security had not avoided or cancelled the policy or security, and

a if he was or would have been so insured, or had or would have had in force such a security –

• give such particulars with respect to that policy or security as were specified in any certificate of insurance or security delivered in respect of that policy or security, as the case may be under section 147 of this Act, or
• where no such certificate was delivered under that section, give the following particulars, that is to say, the registration mark or other identifying particulars of the vehicle concerned, the number or other identifying particulars of the insurance policy issued in respect of the vehicle, the name of the insurer and the period of the insurance cover.

(2) If without reasonable excuse, a person fails to comply with the provisions of subsection (1) above, or wilfully makes a false statement in reply to any such demand as is referred to in that subsection, he is guilty of an offence.

This precedent is designed to give some indication of the type of request that should be made. It would be wise to check it against the requirements of the MIB Agreement and the Act so that you are personally sure that it meets the MIB requirements.* Although the precedent refers to the registration number of the car, I would recommend that the letter be sent as soon as you know the identity of the driver even if you do not have full details of the vehicle. It would be dangerous to delay sending out your request for any reason.

Gordon Exall, counsel, Zenith Chambers, Leeds. This article first appeared in the Association of Personal Injury Lawyers Bulletin