Brexit Means Brexit: What Does It Mean for the Protection of Third-Party Victims and the Road Traffic Act?

Brexit Means Brexit: What Does It Mean for the Protection of Third-Party Victims and the Road... Abstract The UK’s referendum decision of 23 June 2016, where voters elected to leave the European Union (EU), will fundamentally change aspects of national law. Much debate has focused on the constitutional implications of the decision and the procedure by which the government seeks to facilitate the exit. Further, issues of substance including the part played by immigration and the control of the UK’s borders have also dominated legal and political commentary. Yet there has been no critical examination of the effects it will have on motor vehicle insurance law. The statute governing much of the law (the Road Traffic Act 1988), along with the extra-statutory agreements providing protection for the third-party victims of negligent uninsured drivers and untraced vehicles, is each profoundly influenced by EU directives. Given the Brexit decision and the resolution of the government to facilitate the UK’s exit of the Union, we argue that the protective rights for such victims of motor accidents are likely to be reduced. Further, the advancement of the law, developed through the jurisprudence of the Court of Justice, will be lost. 1. INTRODUCTION The law relating to motor vehicle insurance is subject to governance from both national and European Union (EU) law. Nationally, and at a statutory level, the Road Traffic Act 1988 (RTA88) regulates (inter alia) much of the requirements relating to compulsory third-party insurance. This requires that motor vehicles used on a road or other public place1 are subject to a minimum of compulsory insurance to protect third-party victims of a negligent driver. In the event that the victim suffers damage and/or loss due to the actions of an uninsured driver or an untraced vehicle, extra-statutory arrangements2 (established between the Secretary of State for Transport and the Motor Insurers’ Bureau (MIB)) take effect. Since 1972, the EU has issued six directives on motor vehicle insurance law with the aim, initially, of facilitating the free movement of goods, services, and people through a system of comparable minimum standards for motor insurance. Collectively they create a legal framework for ensuring that individuals injured by motor vehicles registered anywhere in the EU are guaranteed compensation and receive comparable treatment.3 As outlined in the first motor vehicle insurance directive (MVID), member states were to ‘ensure that civil liability in respect of the use of vehicles normally based in its territory is covered by insurance’.4 There were problems inherent in the use of broad terminology in the first MVID and specifically in its reference to ‘civil liability…covered by insurance’. Such an inclusion provided member states with significant discretion in its implementation in national law and led to a series of (permissible) exclusions being applied. For example, exclusions of liability to passengers5; family members6; third-party cover in the event of the driver being intoxicated7; and the insurance requirements applied to the seating area of vehicles8 were each included in the national law of some member states. Subsequent MVIDs9 removed some of the worst offending aspects of the first directive, as did the activism of the Court of Justice of the European Union (CJEU). The second MVID extended the protection afforded to the victims of motor vehicle accidents by requiring member states to establish a national compensatory guarantee scheme tasked with providing compensation to the victims of uninsured drivers and untraced vehicles.10 Further, it imposed restrictions on member states’ discretion to permit contractual exclusion clauses or restrictions of liability. Here member states were required to ensure third-party motor vehicle insurance covered property damage and personal injury, it removed the ability of insurance policies to exclude members of the driver’s family from third-party cover, and it imposed minimum amounts in compensation for property and personal injury claims. The third MVID11 sought to remove the uncertainty as to the geographic scope of insurance policies as articulated in the first MVID,12 thereby removing the existing disparities between the law of member states. It also introduced the concept of mandatory protection to cover all passengers. The aim was to provide ‘a high level of consumer protection’—hence viewing individuals in the member states not only in terms of them being potential accident victims but also as consumers purchasing insurance cover as required by EU law. The fourth MVID13 required the creation of national information centres with responsibility for maintaining relevant information on motor vehicles, insurance policies, the green card scheme, and so on. The fifth MVID14 offered revisions to minimum compensation levels and the identification of cyclists and pedestrians as special categories of accident victims who, along with other non-motorized road users, were to be included in the coverage of all insurance policies. Most recently, the sixth MVID15 was introduced and consolidated the previous five MVIDs. Further, it abolished boarder checks on insurance, requires all motor vehicles in the EU to be covered by third-party insurance, prescribes minimum third-party liability insurance cover, and provides for the prompt settlement of claims arising from accidents occurring outside of the victim’s country of residence. As such, the MVIDs place significant obligations on member states in terms of the provision of motor vehicle insurance to be regulated in their jurisdiction. It does not, however, cover all aspects of motor insurance. It places no obligations on ‘comprehensive’ motor policies (focusing instead on third-party/liability cover). Matters of civil liability and the calculation of compensation awards are determined in accordance with national law, and other significant issues are also out of scope, for example problems associated with the insolvency of an insurer.16 As such they are subject to national law, not the law and jurisprudence of the EU. 2. BREXIT MEANS BREXIT The certainty of the law on motor vehicle insurance and the relationship between United Kingdom and EU law will be fundamentally affected by the referendum decision of 23 June 2016. The British exit of the EU (commonly referred to as Brexit) was announced on 24 June and has already led to numerous issues affecting the future legal and political relationship between the United Kingdom and the EU. It is trite comment, but this unprecedented step means that there will be no new EU laws to be transposed and interpreted, no references made by national courts to the CJEU,17 no discussions needed as to the compatibility between the two sources, no enforcement mechanisms compelling damages payments for the consequences of the UK’s breach of its obligations,18 and no requirements for national law to comply with fundamental principles of EU law.19 Of course, until the United Kingdom triggers the official exit mechanism and formally leaves, EU law including the MVIDs, applies to national law in its application and its (broad) interpretation.20 As such, the areas in which the United Kingdom is in breach21 of the MVIDs must still be remedied and the United Kingdom continues to be subject to enforcement actions at both EU and national levels for any failures to correctly transpose and apply the law. Following the appointment of Teresa May to the position of Prime Minister in July 2016, she has continued to issue the mantra of ‘Brexit means Brexit’ when referring to comments on her position regarding the intention of the government to exit the EU. During her premiership, May has insisted that the will of the electorate has to be respected and that an exit of the EU is the intention of the government. However, she has also cautioned that the exit negotiations are not to be rushed and the details will not be determined until the government’s objectives are clear. One of the key issues that will define the scope and content of those negotiations with the EU will be the restriction of immigration, indeed it has been referred to as a ‘red line’ in any negotiated deal.22 Yet, important questions remain unanswered in the announcements since the referendum result and despite the government’s white paper23 published on 2 February 2017. There is little detail on the basis on which the UK’s withdrawal negotiations will take place24; the level of accountability those negotiating the deal will have to the electorate and Parliament; the deal which the United Kingdom is seeking (and the one which it will accept); and what the precise implications will be, following Brexit, for individuals (and citizens of the EU) living here and abroad,25 and also for the businesses whose trade is dependent upon access to the Single Market. On 2 October 2016, the Prime Minister announced at the Conservative conference in Brighton that a ‘Great Repeal Bill’ will lead to the formal repeal of the European Communities Act 1972.26 Further, and in the face of questions regarding the uncertainty with which this leaves the country, three further details were added in her speech. The first was that the Article 50 of the Treaty on European Union (TEU) procedure will be triggered by the end of March 201727 (and will therefore pre-empt the passage through Parliament of the Great Repeal Bill).28 Secondly, all present EU-based29 or inspired laws will become national law and hence will remain unless and until they are formally withdrawn according to reviews undertaken by the relevant Secretary of State30 (but will lead to the loss of the primacy of EU-based law). And thirdly, of particular interest in relation to the future of the UK’s relationship with the EU, the Prime Minister remarked that the CJEU will no longer have jurisdiction in relation to legal issues arising in the United Kingdom. This, along with a requirement that the United Kingdom once again has the power to control immigration (and therefore restrict one of the central pillars of the European project—the free movement of people), in practical terms suggests the United Kingdom will pursue a ‘hard Brexit’, leaving the United Kingdom without a formal relationship with the EU and outside of the Single Market.31 This is, of course, as yet uncertain as the negotiations of the UK’s withdrawal have not started. What is clear is that these aspirations suggest that a prolonged period of negotiation is inevitable if both the United Kingdom and the EU do wish to continue some post-Brexit relationship. The mechanism of triggering the Brexit procedure and the legal route required to be taken were immediate questions to be addressed. Initially, the government had insisted it held a prerogative power to invoke Article 50 TEU without the consent of Parliament.32 Arguments were soon presented that, in the absence of legislative action in the first instance, this position may be constitutionally unsound. Prerogative powers cannot be used to change UK statute33 as, while the royal prerogative may be used to create and accede to treaties, it may not be used to alter the law or to remove rights to which individuals enjoy in domestic law (in the absence of parliamentary intervention).34 In R (Miller) v. Secretary of State for Exiting the European Union,35 the Supreme Court was required to identify whether an Act of Parliament was required prior to the government triggering Article 50 TEU and whether the devolved governments could prevent Brexit. In answering these questions, the Supreme Court (by a majority 8-3) has clarified the need for an Act of Parliament to enable the triggering of Article 50 TEU. Consequently, on 26 January 2017, the government tabled its Brexit Bill.36 While brief,37 the Bill is progressing through the House of Commons prior to being debated by the House of Lords.38 Further, the Supreme Court held (unanimously) that the government did not have to seek permission from the devolved governments prior to triggering Article 50 TEU. It did not address the issue of the constitutional convention (known as the Sewel Convention)39 whereby changes to the powers of a devolved institution require its consent prior to the enactment of such legislative measures. This was a matter to be determined within the political world and the Supreme Court was ‘neither the parents nor the guardians of political conventions; they are merely observers’.40 The uniqueness of a member state leaving the EU through it invoking a Treaty Article poses interesting questions for the United Kingdom. Article 50 TEU is the lex specialis for member states to withdraw from the EU. It is also considered preferable to Article 48 TEU as it merely requires a qualified majority decision of the 27 member states rather than the vote of unanimity required by that provision.41 As a matter of public international law,42 Article 54 of the Vienna Convention of the Law of Treaties 1969 would also enable exit.43 However, the Vienna Convention is of more interest in relation to the aftermath of the triggering of the Article 50 TEU mechanism. While Article 50 TEU is silent on the matter of whether the application for withdrawal may be reversed (revoking the application), the Vienna Convention allows for such action unless this is specifically denied. The ‘point of no return’ occurs two years after the notification under Article 50 TEU, and therefore, it may be possible for further challenges to the process and terms of the UK’s withdrawal. Hence, the Supreme Court decision remains, of course, highly significant, but it should not necessarily be seen as an end to legal proceedings on Brexit. Article 50 TEU envisages that once a declaration is formally made, the process of withdrawal will take up to a period of two years to complete.44 It is quite possible that this time period could be extended given the short time frame of two years, the complexity of any future relationship between the United Kingdom and EU,45 and the current lack of pre-Article 50 TEU negotiations with the EU. The time frame is designed to facilitate the conclusion of a new arrangement for the (leaving) member state to continue a relationship with the EU. The UK’s position is that it will leave the EU, but wishes to continue a trading relationship and also to have access to the Single Market,46 yet not to be a member of it.47 This position was confirmed by the Prime Minister in her Brexit speech issued on 17 January 2017.48 Whether such an agreement can be made on these terms remains questionable. For instance, the United Kingdom could attempt to conclude a future agreement on the basis of a European Free Trade Association49 (EFTA) model.50 Membership of the EFTA removes the requirement to follow rulings of the CJEU (delivered after 1991), yet it would be subject to the EFTA Court (albeit this court often produces rulings of a non-binding nature and its jurisdiction is significantly smaller than that of the CJEU). Alternative mechanisms to continue a relationship with the EU has included associate membership or as a customs union,51 as a member of the World Trade Organization52 or via a free-trade arrangement and so on.53 Brexit appears to lead the way for a separation of EU law from national law. Those favourable to the idea of the UK remaining a trading partner with the EU may have hoped for a ‘soft Brexit’ with its light-touch of EU law, although it is questionable whether this would appease the majority of voters who wished for the United Kingdom to exit the EU. Given the recent statements by the Prime Minister and the Secretary of State for Exiting the EU, and in particular the hard line the United Kingdom is adopting in seeking full control over immigration and associated policies (as per the Government’s white paper),54 it appears unlikely that such an agreement can be concluded on these terms. Consequently, the analysis in this article is taken from the perspective of a hard Brexit, and the implications this will have on the RTA88. Beyond the detail of the MVIDs and their effect on the RTA88, the application of key principles of EU law, including equivalence and effectiveness, appears in jeopardy. 3. BREXIT: THE CONSEQUENCES FOR RTA88 The interaction between national law and EU law, and the decades of case law that have developed within this relationship, is based on a system of the UK’s surrendered sovereignty in specific areas of EU competence, and the primacy of EU law over inconsistent national provisions. The MVIDs have sought to harmonize minimum standards for motor insurance across the member states and in so doing have significantly increased the protection of third-party victims of motor vehicle accidents,55 while simplifying the process of claims and making the awards of compensation consistent.56 If we begin by assuming that the United Kingdom will simply withdraw from the EU and leave the Single Market, thereby not being bound by EU law, the United Kingdom will be free of the interference of the CJEU and will no longer have to transpose future MVIDs or give effect to the existing MVIDs (save for those elements already transposed into national law after ‘Brexit day’). Thereafter, the United Kingdom will revert to the scope and national mechanisms of statutory construction in RTA88 without the need for interpretation with the MVIDs57 or guidance from the jurisprudence of the CJEU. This would simplify the process of interpreting national law in this area (including both the extra-statutory and statutory provisions), but would not create, in the medium-term at least,58 any clarity, or roadmap to legal certainty without express direction as to the foundations of judicial interpretation to be applied in the post-Brexit era.59 History has demonstrated that courts in the United Kingdom have often been reluctant to provide a purposive and broad interpretation of national law to ensure compliance with the MVIDs. In Clarke v. Kato and Cutter v. Eagle Star Insurance Ltd,60 the House of Lords was charged with interpreting section 192 RTA88. Section 192 provides the definition of ‘road’ as ‘any highway and any other road to which the public has access’. This was pertinent as the cases involved injuries sustained by the claimants caused by motor vehicles in car parks. The claimants argued that in providing an interpretation of section 192 consistent with the MVIDs required the courts to extend the meaning of the word ‘road’ to include a car park. The Lords unanimously refused. Lord Clyde, providing the only judgment, held it was theoretically possible to offer a consistent interpretation of the RTA88 with the MVID but chose not to.61 However, following intervention by the European Commission, despite this judgment, the Department for Transport was required to enact the Motor Vehicles (Compulsory Insurance) Regulations 2000 No. 726 to broaden the meaning of the word road by adding ‘or other public place’.62 Further, in White v. White & MIB63 the Lords, while ultimately providing a purposive interpretation of the (extra-statutory) Uninsured Drivers Agreement (UDA), argued that as the UDA was established between the Secretary of State and the MIB (a private company), this was nothing more than a private law agreement and hence was not susceptible to a Marleasing-compliant64 interpretation. These cases are presented as examples of the national courts adopting a narrow and restrictive application of statutes which seek to protect vulnerable third-party victims of motor vehicle accidents. The judiciary had the benefit of guidance from the CJEU (through the reference procedure) to assist them achieve a consistent application of EU law, yet decided against this. Even when theorizing whether a broader application of national law to comply with an EU law with primacy should be adopted, in each aspect the judiciary decided, rather, to provide a very restrictive and literal interpretation.65 The EU has developed the MVIDs to offer increased protection to third-party victims and this is reflected also in the jurisprudence of the CJEU. On the contrary, even though the victims in the cases above were seeking compensation and had a route available to them through EU directives, the national judiciary decided against applying the law consistently. With regards to the current interpretation and scope of the RTA88, sections 143,66 145,67 148,68 150,69 151(4),70 152,71 185,72 and 19273 are at present in breach of EU law. How will Brexit affect the future of these transgressions? Section 143 is a requirement for insurance against third-party risks and that such insurance must comply with minimum standards. At section 143(1)(a) this requires that ‘a person must not use a motor vehicle on a road [or other public place] unless there is in force…such a policy of insurance…as complies with the requirements of this part of the Act’.74 As noted above, while this part of the RTA88 was extended to include vehicles on a road or other public place, the use of the term ‘public’ is problematic with regards to EU law. Essentially, it refers to places where the public can be expected to be and to which they have access. Hence, a private road leading to a group of buildings, where the public at large would not be invited (although social visitors, tradespeople, and so on would be) is not within the scope of the section.75 Campsites and caravan parks,76 pay and display car parks,77 and even dockyards78 have been held to satisfy the definition of a ‘road’, but the problem exists in relation to the use of the word ‘public’ and the inherent restrictions this creates. In the recent case of Vnuk,79 the CJEU has highlighted the incompatibility between RTA88 section 143 (and section 185)80 and the MVIDs. Here an individual on a farm in Slovakia was injured by a driver of a tractor and trailer. As the vehicle was never taken from the private land on which the farm was situated, no insurance policy was held to cover for any accidents associated with this vehicle. The CJEU was tasked with identifying whether the MVIDs extended to requiring insurance to be held merely for road registered vehicles or to all motor vehicles, properly used, regardless of the fact that national law did not require compulsory motor insurance to be held. Advocate-General Mengozzi identified the MVIDs as seeking to protect individual victims of accidents on public and private land, and the CJEU’s judgment confirmed the need for insurance of motor vehicles in such a location.81 Yet, the United Kingdom still maintains the ‘black-hole’ that currently exists in national motor insurance law as regards the protection of third-party victims of non-road registered vehicles (such as quad-bikes or vehicles used in purely agricultural, construction, industrial, motor sports, or fairground activities). There is no requirement under the RTA88 for such vehicles to be subject to insurance and therefore the third-party victim would be unable to claim from a contractual insurer, no statutory insurer would exist, and the MIB would also be unwilling to settle the claim. The MIB only has a responsibility to act as insurer of last resort in cases of no insurance, but only where the vehicle was legally required to be subject to an insurance policy (and evidently these classes of vehicle are not so required under the current interpretation of national law). Further, the definition of ‘motor vehicle’ provided in section 185 is, following the implications of Vnuk,82 too restrictive to comply with the MVIDs.83 In interpreting that term (and as a result determining the circumstances in which motor vehicle insurance is compulsory), a court would revert to the current national interpretation (although at the time of writing it would be more accurate to refer to the content of sections 143 and 185 as remaining (rather than reverting) due to the continued inaction of the United Kingdom and which is unacceptable until a formal UK withdrawal from the EU).84 Unless either Parliament chooses to change the law, the judiciary hear a case which offers an opportunity to provide a consistent interpretation (and they take that route), or a successful enforcement action is taken against the state by a third-party victim, it is more likely that the national law in this area will not be changed and a gap in the protection of victims will remain. A proposed seventh MVID may be established by the European Parliament85 to clarify the implications of the Vnuk86 ruling, but given the time frame for the creation and required transposition of directives, it is unlikely to affect the law in the UK, although presumably the UK may contribute to the consultation process while still a member state. Section 148 RTA88,87 providing the statutory restriction on exclusion clauses in motor insurance policies, was subject to interpretation by the Court of Appeal in EUI v. Bristol Alliance Partnership.88 Here, the driver of a motor vehicle attempted to commit suicide by driving his car into a department store and in so doing struck another motorist’s vehicle and caused damage to the building.89 The contractual insurance policy included a clause excluding the insurer’s liability for any action taken by the driver with the intention of causing deliberate damage. As such, the driver was considered to be ostensibly uninsured therefore leaving the owner of the building (and of the other vehicle) unable to recover its losses from the driver’s insurers. Further, the extra-statutory protection offered through the UDA 1999 was ineffective as it, at that time, it excluded subrogated claims.90 The reason the insurer was permitted to avoid the policy was that such an action was not expressly excluded by the RTA88. At section 148(2) eight ‘matters’91 (exclusions) are listed, which, if used by an insurer to avoid a policyholder’s claim under that policy would be held as void. Therefore, if the insurer’s attempt to exclude its liability on the policy was for a reason (or ‘matter’) included in this section of the Act, the insurer would still have to satisfy a third party’s claim for damage or loss suffered as a consequence of the accident. The eight ‘matters’ did not expressly prevent the use of an exclusion of liability for the consequences of deliberate damage and hence the Court of Appeal had to determine whether the list of matters in section 148(2) was illustrative or exhaustive. The Court of Appeal considered the compatibility between section 148(2) and the MVID Article 5 even though, at an EU level, the issue was clear.92 Section 148(2) RTA88, as held by the Court of Appeal, contained an exhaustive list and thus the clause prevented the insurers for the damaged building from recovering damages from the driver’s insurers. It is difficult to see how this conclusion can be justified since consistent case law from the CJEU in Bernaldez,93Correia Ferreira v. Companhia de Seguros Mundial Confiança SA,94Candolin v. Vahinkovakuutusosakeyhtio Pohjola,95Farrell v. Whitty,96 and Churchill v. Wilkinson and Tracey Evans97 identifies the exclusions as merely illustrative. On the face of it, the decision in EUI appears to be wrong, and therefore constitutes a breach of EU law. The MVIDs’ permitted exclusions refer to the very restrictive ‘right’ of insurers to cancel insurance policies, and ultimately, given the nature of the driver’s actions in EUI v. Bristol Alliance Partnership,98 while motorists are required to ensure that any use of motor vehicles is covered by a minimum of third-party cover, insurance companies are seemingly not required to provide the same. This facilitates the insurers in evading liability, it enables insurers to benefit from using the ‘Article 75 procedure’99 to handle claims on poorer terms for the victim of an accident than would be available through a contractual claim, and following Brexit will enable the industry to continue this practice without questions of compatibility with a higher source of law being raised. Until Brexit, the United Kingdom should delete the ‘matters’ from the section 148(2) RTA88 as their existence (wrongly) implies that other exclusions are permitted. The RTA88 holds that in the unauthorized or non-contractual use of the vehicle, no third-party cover is provided in the policy (with the exception of the eight ‘matters’ specified in section 148 RTA88). Consequently, where the insurance policy restricts the use of the vehicle to social and domestic purposes only, it correspondingly does not provide contractual cover where the vehicle is used for commercial purposes. Section 150 provides that a policy restricted to social, domestic and non-commercial use will however cover a fare paying passenger if criteria are met. This has led to a series of unfortunate incidents, and required the national courts to be creative in ensuring the protection of the third party when section 150 RTA88 was breached.100 Again, the MVIDs, as part of their broad social policy remit, requires for the protection of passengers and third-party victims, and that they be compensated according to comprehensive application of the MVIDs.101 A conundrum exists between RTA88 section 151(5),102 which obliges the insurer to fulfil the coverage required under a policy of motor insurance, regardless of a breach by the policyholder, and section 151(8), providing the insurer with a right to recover sums paid out to the third-party victim under the policy from the policyholder.103 The interaction between these sections of the RTA88, and the breach of the MVIDs, was demonstrated in Churchill Insurance v. Wilkinson and Tracey Evans.104 The victim was also the policyholder and subject to the insurer’s award of compensatory payments as a result of the accident (section 151(5)). She was also subject to a clawback of the award under section 151(8). It is in the automatic application of section 151(5) where the statutory provision breaches Article 13 of the sixth MVID. Given that the drafting of RTA88 included the coexistence and application of these sections for the protection of insurers, the Brexit result would enable a decision based purely on English law, and there would be no further need (requirement or indeed availability), as occurred here, for a reference to the CJEU to assist in the consistent interpretation of national law with an EU parent directive. How far post-Brexit judicial interpretation would follow previous case law determined in conformity with the MVIDs, and how many decisions would be made exclusively on the basis of national legislative instruments is difficult to determine at present. It will be interesting (if not also adding a further element of unwanted uncertainty) to see whether courts, free from the requirement of exercising a purposive statutory interpretation, will continue to follow the orthodoxy already established in statutory interpretation. The RTA88, at section 151(4) breaches the MVIDs by imposing what is termed ‘constructive knowledge’ on a third-party victim of a motor vehicle accident. Here, motor insurers may exclude liability in respect of the death of, or bodily injury to, or damage to the property of any person who, at the time of the use which gave rise to the liability, was allowing himself to be carried in or upon the vehicle and knew or had reason to believe that the vehicle had been stolen or unlawfully taken. (Authors’ emphasis) The MVIDs require that insurers, seeking to exclude liability to third-party victims, prove knowledge rather than impose it constructively through the wording ‘had reason to believe’. National courts continue to interpret the wording of the statute giving effect to constructive knowledge,105 and even where the CJEU has held contrary to this, national courts may now ignore its previous rulings as being part of a paradigm of compliance with EU law which no longer exists. It is to be hoped that in the negotiation stage of the UK’s withdrawal from the EU, definitive instruction on this matter will be issued to provide much needed certainty on the future application of motor vehicle insurance law. In each of the issues outlined above, either the national law (in transpositional deficit) or the (incorrect) interpretation of the law provided in national courts delivers weaker protection for third-party victims than is available through the EU directives. 4. CONSEQUENCES FOR ENFORCEMENT AND THE PRINCIPLE OF EQUIVALENCE A ‘hard’ Brexit would remove the areas of breach outlined above. As the conflicts between national and EU law occur on the basis of non-transposition and incorrect interpretation, by ‘converting’ all EU law currently transposed into national law, such problems would be removed. The United Kingdom would also be free to establish agreements with the MIB on the terms of its choosing. Until this happens (not expected to be concluded before the end of 2019), the United Kingdom is obliged to give effect to EU law and its rights and protections afforded to individuals in member states. The CJEU respects the national procedural law of member states and seeks to have as little interference with their operation as possible. Of course, this approach must be tempered with regard to legitimate expectations and the underlying principle of primacy through which the EU operates and is underpinned through effectiveness106 and equivalence (as articulated in Rewe).107 In relation specifically to the equivalence between national law (here the MIB agreements) and the sixth MVID, it was in Carswell v. Secretary of State for Transport and MIB108 where the High Court held109 that equivalence does not require a perfect copy of the national civil procedures. While true, the CJEU has also repeated on several occasions that ‘measures liable to seriously compromise the attainment of the result proscribed by [a] directive’110 are to be prohibited, and if the disconnect between the EU law and the implementing national law is sufficiently significant, national judges have not merely the power, but the duty, to set aside the offending national provisions.111 Similar conclusions as to transpositional measures, which ‘constitute a substantial procedural defect, render a technical regulation adopted in breach [of either the articles of the directive in question] inapplicable’.112 Further, the CJEU allow member states to determine their own procedural rules when applying/providing access to EU rules, insofar as they correspond with principles of EU law. Ultimately, the onus is placed on member states to ensure that the EU rights of individuals are safeguarded at a national level. However, such a simple premise is frequently lost in the complexity of national provisions and requires the invoking of the primacy of EU law113 to ensure conflicting national provisions are set aside.114 For example, it will be remembered that Mangold115 and Kücükdeveci116 impose on the national courts of member states powers to disapply conflicting national legislation (this in relation to anti-discrimination law amounting to a general principle of EU law). In other respects, where a national court was faced with conflicting EU and national law, and no consistent interpretation was possible without adopting a contra legem interpretation, the domestic court would apply the national law.117 Beyond this position, providing a consistent interpretation of EU law, first established in Marleasing,118 has progressed to impose this binding duty on all the authorities of member states (including their courts).119 In Pfeiffer,120 the CJEU held national courts must operate under the presumption that the ‘member state…intended entirely to fulfil the obligations arising from the directive concerned’.121 In relation to the MVIDs, while their remit has expanded during the development of the directives, the first MVID was enacted to facilitate the free movement of persons and goods (similarly a general principle of EU law). The third MVID122 has been held in Farrell v. Whitty123 to be directly effective, and it could be argued that if given this interpretation, the national courts would be required to follow the Mangold124 and Kücükdeveci125 authorities and disapply conflicting principles contained in the RTA88, the UDA 2015 and the Untraced Drivers Agreement (UtDA) 2003 (as amended). Had the government intended to negotiate Brexit on the basis of maintaining access to the Single Market, this would have required adherence to the free-movement principles upon which it is based and the MVIDs would have continued in force (even following a review of existing legislation as part of the powers expected to be contained in the Great Repeal Bill). It would have also been difficult for the United Kingdom to restrict the obligations to provide effectiveness and equivalence of EU law when these sources would have continued to be part of the national legal system. However, it appears that the current approach taken by the government will see the end of each of these requirements and impositions. With the removal of the free-movement principles,126 the United Kingdom will be free of the requirements to provide enforcement mechanisms to challenge the state for losses associated with breach of EU law. That enforcement, so linked with legal certainty in relation to the application of directives where the national law lacks clarity, precision, and an unequivocal legal framework,127 is removed and will greatly reduce individuals’ ability to hold the state to account.128 Despite a general lack of effectiveness of state liability since Francovich,129 in motor insurance the success of several cases130 has demonstrated not only the sufficiently serious nature of the UK’s transgressions,131 but also how such cases can highlight the breaches and compel changes in the conflicting law.132 The UK’s procedural rules will be able to continue the application of harsh strike-out provisions replete in the UDA133 and UtDA 2003 (as amended).134 By subsuming EU-based law into the national law, comparisons with an EU parent directive will be voided as will the principles of equivalence and effectiveness, and the powers derived from Mangold135 and Kücükdeveci136 will be lost in the ability to review primary legislation. 5. IMPLICATIONS AND CONCLUSIONS It must be remembered that, at the time of writing and until the United Kingdom formally exits the EU (on Brexit day when the Great Repeal Bill commences), the MVIDs and the jurisprudence of the CJEU have primacy over national law. They oblige the United Kingdom to not only transpose any new provisions of these sources of law, but they also inform the scope and application of the UK’s statutory and extra-statutory provisions relating to motor vehicle insurance. That is the theory and underlying acquis on which the EU is based. Brexit seems likely to change this relationship and revert the United Kingdom back to its pre-1973 legal position. Despite the MVIDs becoming fully national law following the enactment of the Great Repeal Bill, given the history of the conflict between national and EU law on the matter of motor vehicle insurance, the reluctance of the Secretary of State to admit to problems with the transposition of the MVIDs and the rulings of the CJEU, and the liability being imposed on the State for the consequences of its breaches of EU law, it is probable that offending aspects of the (EU-based) law will be removed. The parts of the MVIDs which are currently missing from national law are unlikely to be transposed prior to Brexit. This will have negative consequences for those innocent third-party victims of negligent and uninsured/untraced drivers. Decades of previous case law advancing the rights of victims will be put in jeopardy. As noted above, much statutory interpretation, from the higher courts in particular, has been based on a purposive/teleological method, and this incorporates both reference to EU law in the form of the MVIDs and the interpretations provided by the CJEU. The changes to the wording of the RTA88 and interpretation provided by the judiciary (both domestically and by the CJEU) are embedded and entwined with national law. To separate EU law from the RTA88 would likely necessitate a new Act and a comprehensive review of existing laws and liaison with interested parties (in particular, the insurance industry that has such a marked impact on the UDA and UtDA). Existing restrictions on executive discretion and reviews of the agreements concluded between the Secretary of State and the MIB will no longer be subject to external scrutiny (and enforceable correction). Brexit will certainly facilitate the continuation of a conservative, austerity-based ethos to prevail which will lead to contractual relationships being the primary source of protection with the state being a begrudging and reluctant safety net. Beyond these fundamental principles being changed, practical problems will also be created. A ‘hard’ Brexit will require individuals based in the UK driving to the EU (or even simply visiting and being involved in a vehicular accident) to have in place bespoke insurance cover. They will be unable to rely on an (EU regulated) central guarantee fund body facilitating their claim for compensation for accidents occurring in another member state.137 Such contractual relationships will change. Currently, the MVIDs provide a comprehensive and inclusive package of safety features and guarantees regarding social policy requirements for victims of accidents. The national law, conversely, offers restricted cover and the application of permissible contractual exclusions. The fourth MVID138 enabled extensive provision for cross-border claims and direct rights of action which are also likely to be lost following Brexit. Brexit may mean Brexit, but it marks a fundamental shift in the rights of third-party victims of negligent driving and the development of statutory protections. Given the disparity between the United Kingdom and the EU in this area, this does not bode well for the protective rights currently accessible to injured motorists, passengers, and pedestrians. The authors would like to express their sincere thanks for comments on previous drafts of this paper from Nicholas Bevan, Michael Jefferson, Robert Merkin, and the anonymous reviewers. Omissions and errors remain our own. Footnotes 1 RTA88 section 143. 2 The Uninsured Drivers Agreement (UDA) 2015 and the Untraced Drivers Agreement (UtDA) 2003 (as amended). 3 As underlined in the recitals to the first and second MVID. 4 Art. 3(1) (The First Directive) Council Directive 72/166/EEC on the approximation of the laws of Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability [1972] OJ L103/1. 5 See McMinn v. McMinn and anr [2005] EWHC 827 (QB) with reference to liability under the RTA88 (section 151(4)) and Akers v. Motor Insurers Bureau [2003] EWCA Civ 18 with reference to liability under the MIB agreements. 6 See Case C-348/98 Vitor Manuel Mendes Ferreira and Maria Clara Delgado Correia Ferreira v. Companhia de Seguros Mundial Confiança SA [2000] ECLI:EU:C:2000:442. 7 Case C-129/94 Rafael Ruiz Bernáldez [1996] ECR I-1829. 8 See Case C-356/05 Elaine Farrell v. Alan Whitty [2007] ECR I-3067. 9 For instance, the Second Council Directive 84/5/EEC on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles [1984] OJ LL8/17 in Art. 2(1) resulted in specific exclusions of liability being held as void as against a third-party claimant. This was a significant advancement as demonstrated in its application in Case C-129/94 Rafael Ruiz Bernáldez [1996] ECR I-1829. 10 At Art. 1.4 Council Directive 84/5/EEC. 11 (The) Third Council Directive 90/232/EEC on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles [1990] OJ L129/33. 12 At Art. 3 Council Directive 72/166/EEC. 13 Directive 2000/26/EC on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles and amending Council Directives 73/239/EEC and 88/357/EEC (the Fourth Motor Insurance Directive) [2000] OJ L181/65. 14 (The Fifth Directive) Directive 2005/14/EC amending Council Directives 72/166/EEC, 84/5/EEC, 88/357/EEC, and 90/232/EEC and Directive 2000/26/EC of the European Parliament and of the Council relating to insurance against civil liability in respect of the use of motor vehicles [2005] OJ L149/14. 15 (The Sixth Directive) Directive 2009/103/EC relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability [2009] OJ L263/11. 16 For instance, in Case C-409/11 Csonka v. Magyar Allam [2013] EUECJ (11 July 2013), a claimant failed to recover compensation from the guarantee fund of Hungary where the negligent driver’s insurers became insolvent (although in the UK such an instance would enable the claimant to recover from the Financial Conduct Authority). 17 Via Article 267 of the Treaty on the Functioning of the EU (TFEU). 18 Either at a national level through a claim of state liability (non-contractual tortious liability) or at an EU level through the Commission’s action against the member state for failure to fulfil an obligation under the Treaties (Article 258 TFEU). 19 Such as ensuring equivalence and effectiveness of national law with EU law. 20 Per Sir Andrew Morrit C’s judgment in Vodaphone 2 v. Revenue and Customs Commissioners [2010] EWCA Civ 446 at [37]: ‘In summary, the obligation on the English courts to construe domestic legislation consistently with Community law obligations is both broad and far-reaching. In particular: (a) It is not constrained by conventional rules of construction; (b) It does not require ambiguity in the legislative language; (c) It is not an exercise in semantics or linguistics; (d) It permits departure from the strict and literal application of the words which the legislature has elected to use; (e) It permits the implication of words necessary to comply with Community law obligations; and (f) The precise form of the words to be implied does not matter’. 21 For examples of breaches of the extra-statutory Uninsured Drivers’ Agreement, see J Marson and K Ferris ‘The Uninsured Drivers’ Agreement 2015 as a Legitimate Source of Authority’ [2016] Statute Law Review. DOI: 10.1093/slr/hmw043. 22 https://www.theguardian.com/politics/2016/aug/31/restricting-immigration-will-be-at-heart-of-brexit-deal-theresa-may-says (accessed 2 October 2016). 23 HM Government ‘The United Kingdom’s Exit from and New Partnership with the European Union’ (2017) Cm 9417. 24 It is also worth remembering that the terms of Brexit must be agreed with by the other 27 member states of the EU. This mechanism is not designed simply to allow a member state to unilaterally decide to leave and on which terms it wishes to continue any relationship. 25 At present, the government’s position appears to be no more strategic than ‘tit for tat’ arguments regarding reciprocal arrangements with the EU and individual states. https://www.theguardian.com/politics/2016/jul/28/theresa-may-on-brexit-tour-of-eastern-europe (accessed 4 October 2016). Further, on 7 October 2016, The Telegraph reported that the Home Office (after discovering five in six EU nationals currently living in the United Kingdom could not be legally deported) will, prior to the UK’s withdrawal, issue 80% of the 3.6 million EU citizens living in the United Kingdom with permanent residency rights. The remaining 600,000 individuals will be offered ‘amnesty’ to remain. http://www.telegraph.co.uk/news/2016/10/07/every-eu-migrant-can-stay-after-brexit-600000-will-be-given-amne/?utm_source=dlvr.it&utm_medium=twitter (accessed 8 October 2016). This is reiterated in the white paper (n 23) where at Para. 6.4, p. 30 ‘The UK remains ready to give people the certainty they want and reach a reciprocal deal with our European partners at the earliest opportunity. It is the right and fair thing to do’. 26 The Bill will replace the European Communities Act 1972 but its commencement date will be on ‘Brexit day’. 27 ‘There will be no unnecessary delays in invoking Art. 50. We will invoke it when we are ready. And we will be ready soon. We will invoke Art. 50 no later than the end of March next year’. http://www.bbc.co.uk/news/uk-politics-37532364 (accessed 2 October 2016). 28 Likely to be announced in the Queen’s speech in May 2017. 29 Which, interestingly, conflates Directives and Regulations (a distinction that has led to considerable debate and analysis in academic literature and judicial pronouncements). 30 The Prime Minister announced on 17 January 2017 that such legislation will only be changed following ‘full scrutiny and proper Parliamentary debate’, yet a commitment to the creation of a full Act of Parliament is missing. It is quite possible that Statutory Instruments, and the limitations for Parliamentary interventions such instruments allow, will be the mechanism selected to facilitate reviews of this source of law. 31 The point being reiterated in the white paper (n 23) where the fifth of the 12 principles, which will guide the government in exiting the EU is ‘controlling immigration’ (pp. 5, 7, and 25). Further, at Para. 5.4, the Government ‘will design our immigration system to ensure that we are able to control the numbers of people who come here from the EU. In future, therefore, the Free Movement Directive [Directive 2004/38/EC] will no longer apply and the migration of EU nationals will be subject to UK law’ (p. 25). This suggests a future agreement where the UK remains part of the European Economic Area (EEA) is ruled out. 32 The government’s view was the conduct of foreign relations, which included accession to and withdrawal from international treaties, was a matter falling within its prerogative. 33 R (On The Application of Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61 at [44]. 34 See Lord Oliver comments, JH Rayner (Mincing Lane) Ltd v. Department of Trade and Industry [1990] 2 AC 418 at [499F-500C]. 35 R (Miller) v. Secretary of State for Exiting the European Union [2017] UKSC 5. 36 The European Union (Notification of Withdrawal) Bill. 37 The Bill, brief at merely 133 words and allocating five days of debate, has already created controversy and may lead to further legal challenge even beyond the triggering of Art. 50 TEU. It is a ‘Bill to confer power on the Prime Minister to notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU’. 38 It is anticipated that the Bill will finish its passage through the House of Lords by 7 March 2017. A European Council meeting takes place two days later where it is possible the UK will formally invoke Art. 50 TEU. 39 Despite the inclusion and acknowledgement of the Sewel Convention in the Scotland Act 2016, this did not elevate its status to that of law. It remains a political convention and thus not a matter for the Court. 40 At Para. [146]. 41 Art. 48 TEU allows for the changing of the treaties and could be used to alter existing treaties to remove the United Kingdom from their scope. 42 Reliance on principles of international law would seem contrary to the sui generis legal orthodoxy of EU law. 43 Art. 54 allows for the withdrawal, by a party to an international treaty, on satisfaction that the withdrawal is in conformity with the terms of the particular treaty or at any time with the consent of the other parties (e.g. member states). Given the existence of Art. 50 TEU, this route would now be very unlikely and unnecessary. 44 Art. 50(3) TEU. 45 For instance, in the Prime Minister’s Brexit speech 17 January 2017, she indicated the United Kingdom wishes for a bespoke deal with access to the customs union and comprehensive free trade, but without the necessity of membership of the EU. 46 As identified by the C Emmerson, P Johnson and I Mitchell ‘The EU Single Market: The Value of Membership Versus Access to the UK’ (2016) Institute for Fiscal Studies Report R119, 10 August: ‘Maintaining membership of the Single Market as part of the EEA could be worth potentially 4% on GDP—adding almost two years of trend GDP growth—relative to World Trade Organization (WTO) membership alone’. https://www.ifs.org.uk/publications/8411 (accessed 4 October 2016). 47 As reported on 29 September 2016, the International Trade Secretary Liam Fox announced that he wants Britain to become a full independent member of the WTO. In the article, he is paraphrased as remarking ‘Britain is instead expected to pursue a deal which will “maximise access” to the Single Market while retaining the ability to make free trade deals’. http://www.telegraph.co.uk/news/2016/09/29/liam-fox-signals-britain-will-leave-the-single-market-in-hard-br/ (accessed 4 October 2016). Ultimately, the greater the access that non-member states have to the EU, the more they must adhere to market rules and the greater the financial contribution expected of them. 48 The United Kingdom will not seek to remain a member of the Single Market but will seek a free-trade deal with the EU, and the legal jurisdiction of the CJEU over the UK will end. 49 Which has four member countries—Iceland, Liechtenstein, Norway, and Switzerland. 50 Which would allow participation in the single market (not, however, with regards the Common Agricultural and the Fisheries Policies) but do so based on the application of the fundamental freedoms of EU law. It would require a continued, albeit reduced, financial contribution to the EU budget but without the contribution to the formation of EU law, and it would release the UK from the direct scope of CJEU rulings, but this may be a pyrrhic victory as the EFTA Court follows the CJEU. 51 Which would allow very limited access to the single market, but would mean no financial contribution to the EU budget, no requirement to apply the fundamental freedoms of EU law, not being subject to CJEU rulings, and no contribution to the formation and conclusion of future EU law. 52 Which would allow no direct access to the single market, would mean no financial contribution to the EU budget, no requirement to apply the fundamental freedoms of EU law, not being subject to CJEU rulings, and no contribution to the formation and conclusion of future EU law. 53 Such by concluding a relationship based on an EFTA and bilateral trade agreement (per Switzerland), a WTO and Free Trade Agreement etc. 54 n 23. 55 See, for instance, Byrne (A Minor) v. The Motor Insurers Bureau and the Secretary of State for Transport [2008] EWCA Civ 574 where the national law restricted the rights of a child victim of an untraced driver by requiring that a claim for compensation through the MIB had to be made within three years of the accident. For the victims of a traced driver (and hence a claim against the tortfeasor or his insurers), the period for the lodging of the claim did not begin until the child reached majority. The Court of Appeal changed the law to remove this defect by applying the requirements in the MVID. 56 See Moreno v. The Motor Insurers’ Bureau [2016] UKSC 52. 57 Or indeed, unless enacted and with a transposition date within this time frame, a potential seventh MVID—on 8 June 2016, the European Commission published its ‘Inception Impact Assessment’ proposing the ‘adaptation of the scope of Directive 2009/103/EC on motor insurance’. This will possibly lead to the European Parliament enacting a (seventh) directive to amend the sixth MVID. See http://ec.europa.eu/smart-regulation/roadmaps/docs/2016_fisma_030_motor_insurance_en.pdf (accessed 5 October 2016). 58 In February 2016, the government presented a report to Parliament ‘The Process for Withdrawing from the European Union’ Cm 9216 where it concluded that withdrawal from the EU could ‘…lead to up to a decade or more of uncertainty’ (Para. 2.9). 59 Indeed, it may be necessary, via the branch of the civil service dedicated to facilitating Brexit, for a new method of statutory interpretation to be developed to aid with consistency and determinacy. 60 Clarke v. Kato and Cutter v. Eagle Star Insurance Ltd [1988] All ER (D) 481. 61 Largely because the distinction between a road and a car park, reflected as it is in the ordinary use of words, was reinforced when considered in light of the language of the RTA88. To provide a consistent interpretation with the MVID would have meant a strained construction of the Act. 62 This change had practical effects for the geographic scope of sections 143, 145, 146, 165, and 170 RTA88. 63 White v. White & MIB [2001] UKHL 9. 64 Case C-106/89 Marleasing SA v. La Comercial Internacional de Alimentacion SA [1990] ECJ. 65 Most recently, the Court of Appeal was charged with interpreting sections 145, 143(1)(a), and 143(1)(b) RTA88 in respect of a third-party victim of an insured driver who, argued the claimant, had ‘caused or permitted’ an unidentified and uninsured driver to use a motor vehicle. In Sahin v. Havard and Riverstone Insurance (UK) Ltd [2016] EWCA Civ 1202 the Court of Appeal disregarded EU jurisprudence and a national decision held weeks before its judgment (Allen v. Mohammed and Allianz Insurance (2016), Lawtel, LTL 25/10/2016) to erroneously (we argue) provide a restrictive interpretation of the RTA88. The second MVID provided the required protection to the claimant and it is likely a case to the Supreme Court will be made to ensure the correct purposive interpretation of the RTA88 is provided. For commentary on the case, see J Marson and K Ferris ‘Misunderstanding and Misapplication of Motor Insurance Law. Will the Supreme Court come to the Rescue?’ [2017] European Journal of Current Legal Issues 22 (forthcoming). 66 The duty to insure. This section of the RTA88 breaches Arts 1 and 3 of the sixth MVID. 67 The requirement of third-party insurance cover. This section of the RTA88 breaches Arts 1 and 3 of the sixth MVID. 68 Limitations on certain exclusions within the holder’s insurance policy. This section of the RTA88 breaches Art. 3 of the sixth MVID. 69 The private use of a vehicle. This section of the RTA88 breaches Arts 3 and 12(1) of the sixth MVID. 70 The (constructive) knowledge of theft or unlawful taking. This section of the RTA88 breaches Art. 13.1 of the sixth MVID. 71 Exceptions to indemnity under section 151. This section of the RTA88 breaches recital 15 of the sixth MVID. 72 The definition of a motor vehicle. This section of the RTA88 breaches Arts 1 and 3 of the sixth MVID. 73 The definition of road or other public place. This section of the RTA88 breaches Arts 1 and 3 of the sixth MVID. 74 Similar requirements are placed on authorized insurers at section 145 RTA88. 75 Harrison v. Hill 1932 JC 13; 1931 SLT 598. 76 DPP v. Vivier [1991] 4 All ER 18. 77 Montgomery v. Loney [1959] NI 171. 78 Buchanan v. MIB [1955] 1 All ER 607. 79 Case C-162/13 Damijan Vnuk v. Zavarovalnica Triglav [2014] Judgment 4 September. 80 Which should, following Vnuk, adopt the definition provided in Art. 1 of the sixth MVID. 81 Case C-162/13 Damijan Vnuk v. Zavarovalnica Triglav ECLI:EU:C:2014:106 Opinion of Advocate General Mengozzi delivered on 26 February 2014 at [43]. 82 Case C-162/13 Damijan Vnuk v. Zavarovalnica Triglav [2014] Judgment 4 September. 83 It breaches Arts 1 and 3 of the sixth MVID. For commentary, see N Bevan ‘Ignore at Your Peril’ [2014] New Law Journal 164, 7. 84 It was expected that changes would be made to the RTA88 before the end of 2016 to comply with the implications of the Vnuk ruling (see http://www.ajginternational.com/news-insights/articles/insights/motor-fleet-insurance/, accessed 8 October 2016). 85 http://ec.europa.eu/smart-regulation/roadmaps/docs/2016_fisma_030_motor_insurance_en.pdf (accessed 5 October 2016). 86 Case C-162/13 Damijan Vnuk v. Zavarovalnica Triglav [2014] Judgment 4 September. 87 Interestingly, there is no equivalent provision to this section of the Act in the Road Traffic (Northern Ireland) Order 1981. 88 [2012] EWCA Civ 1267. 89 EUI v. Bristol Alliance Partnership [2012] EWCA Civ 1267. 90 UDA 1999 cl 6(1)(c)(ii). 91 The eight matters include the age or physical/mental condition of persons driving the vehicle; the condition of the vehicle (e.g. a car’s illegally worn (bald) tyres); the number of persons that the vehicle carries; the weight/physical characteristics of the goods which the vehicle carries; the time at which/areas within which a vehicle is used; the horsepower/cylinder capacity or value of the vehicle; the carrying on the vehicle of particular apparatus; or the carrying on the vehicle of any particular means of identification other than that required by law. 92 At Recital 15 of the sixth MVID, it is required that (subject to one exception) an insurer’s liability to compensate third-party victims of motor vehicle accidents is and remains independent of the contract. Any contractual restrictions therein exist as between the insurer and the policyholder only. 93 Case C-129/94 Rafael Ruiz Bernáldez [1996] ECR I-1829. 94 Case C-348/98 Vitor Manuel Mendes Ferreira and Maria Clara Delgado Correia Ferreira v. Companhia de Seguros Mundial Confiança SA [2000] ECR 1-6711. 95 Case C-537/03 Katja Candolin, Jari-Antero Viljaniemi and Veli-Matti Paananen v. Vahinkovakuutusosakeyhti&ouml Pohjola and Jarno Ruokoranta [2005] ECR I-5745. 96 Case C-356/05 Elaine Farrell v. Alan Whitty [2007] ECR I-3067. 97 Case C-442/10 Churchill Insurance Company Limited v. Benjamin Wilkinson and Tracy Evans v. Equity Claims Limited [2011] ECR I-00000. 98 EUI v. Bristol Alliance Partnership [2012] EWCA Civ 1267. 99 Art. 75 (of the MIB’s Articles of Association) is an intra-insurer protocol. It applies where the insurer asserts it has the right to repudiate or to avoid the contract (such as when the policyholder misrepresents facts or fails to disclose). Here, the insurer applies to the court for a declaration under RTA88 section 152(2) that the insurance contract is void. It gives effect to third-party victims of insufficiently insured drivers seeking access to compensation where the contractual insurer becomes a statutorily required insurer (standing in place of the MIB). The insurer here operates under the UDA and consequently the third-party victim suffers from access to poorer terms than would be available through claims against the insurer on a contractual basis. Art. 75 insurers have no liability to meet subrogated claims (a subrogated claim is one where another party should have been responsible for settling) and, as demonstrated in EUI the distinction between the rights guaranteed under statute and those available under the UDA are sufficiently different to place victims seeking redress under the latter arrangement at a disadvantage. 100 See for instance Seddon v. Binions [1978] RTR 163 and Keeley v. Pashen [2004] EWCA Civ 1491. 101 As noted in Churchill v. Wilkinson [2012] EWCA Civ 1166 and Case C-409/11 Csonka v. Magyar Allam [2013] EUECJ (11 July 2013). 102 Section 151 RTA88, which imposes the duty on insurers to satisfy judgments against persons insured or secured against third-party risks, is qualified against section 152 RTA88. Section 152 RTA88 outlines exclusions from liability and imposes procedural obstacles prior to the insurer being liable for any sum awarded. 103 In the event that he caused or permitted the use of the vehicle, which gave rise to the liability. 104 Case C-442/10 Churchill Insurance Company Limited v. Benjamin Wilkinson and Tracy Evans v. Equity Claims Limited [2011] ECR I-00000. 105 Found in RTA88 151(4) and UDA 2015 cll 7 and 8. 106 The principle establishes a worthy and appropriate ideal, nonetheless it is in its application that the state gains an advantage for internal systems which may fall short of ‘complete’ effectiveness, yet will not breach EU law. The test is that the national law or provision does not render it impossible or excessively difficult in practice to access the right. Even with the current deficiencies, it could be argued that the collectively the RTA88, UDA 2015 and the Untraced Drivers Agreement 2003 (as amended) satisfy this broad objective. 107 Case 33/76 Rewe-Zentralfinanz eG and Rewe-Zentral AG v. Landwirtschaftskammer für das Saarland [1976] ECR 1989 at [5]. 108 [2010] EWHC 3230 (QB). 109 At [15]–[18]. 110 Case C-129/96 Inter-Environnement Wallonie ASBL v. Région Wallonne [1997] ECR I/7411. 111 Case C-555/07 [2010] Kücükdeveci v. Swedex GmbH & Co KG ECLI:EU:C:2010:21. 112 Case C-443/98 Unilever Italia SpA v. Central Food SpA [2010] ECR I-7535 at [50]. 113 Case 106/77 Amministrazione delle Finanze dello Stato v. Simmenthal SpA [1978] ECR 629 and Case C-213/89 The Queen v. Secretary of State for Transport, ex parte: Factortame Ltd and others [1990] ECR I-2433. 114 In R v. Secretary of State for Transport, ex p Factortame (No 2) [1990] UKHL 13, famously the requirement of injunctive relief to prevent the application of incompatible national legislation was required of ‘any legislative, administrative or judicial practice which might impair the effectiveness of Community law’ at [20]. However, in Joined Cases 10/97 and 22/97 Ministero delle Finanze v. IN. CO. GE/90 Srl and Others [1998] ECR I-6307, the CJEU preferred the rendering of the national provision as inapplicable. 115 Case C-144/04 Werner Mangold v. Rüdiger Helm [2005] ECR I-9981. 116 Case C-555/07 Seda Kücükdeveci v. Swedex GmbH & Co. KG Judgment of 19 January 2010. 117 Case C-334/92 Miret v. Fondo de Garantia Salarial [1995] 2 CMLR 49. 118 Case C-106/89 Marleasing SA v. La Comercial Internacional de Alimentacion SA [1990] ECJ. 119 Case C-397/01 to C-403/01 Bernhard Pfeiffer et al v. Deutsches Rotes Kreuz, Kreisverband Walshut eV [2004] ECR I-8835. 120 Ibid. 121 At [119]. 122 Council Directive 90/232. 123 Case C-356/05 Elaine Farrell v. Alan Whitty [2007] ECR I-3067. 124 Case C-144/04 Werner Mangold v. Rüdiger Helm [2005] ECR I-9981. 125 Case C-555/07 Seda Kücükdeveci v. Swedex GmbH & Co. KG Judgment of 19 January 2010. 126 Enshrined in the fundamental premise of free movement of people and largely equated with immigration (but frequently (and incorrectly) conflated with the migrant crises in the Middle East). 127 Case C-87/14 European Commission v. Ireland [2015] ECLI:EU:C:2015:449 at [41]. 128 J Marson and K Ferris ‘Collective Redress: Broadening EU Enforcement Through State Liability?’ [2016] European Business Law Review 27, 3, 325. 129 Joined Cases C-6/90 and C-9/90 Francovich and Bonifaci and others v. Italy [1991] ECR I-5357. 130 Moore v. Byrne v. Secretary of State for Transport & MIB [2007] EWHC 879 (QB); Secretary of State for Transport & MIB [2008] EWCA Civ 574; Carswell v. Secretary of State for Transport & MIB [2010] EWHC; and Delaney v. Secretary of State for Transport [2015] EWCA Civ 172. 131 Going beyond mere technical breaches. 132 N Bevan ‘No Through Road’ [2015] New Law Journal 165, 7. 133 For example, see cll 12–13 UDA 2015; cll 7–12 in UDA 1999. 134 See for instance cl 2 which imposes a binding authority on the representatives of child/mentally incapacitated claimants to conclude agreements as if these claimants had capacity. This disadvantages the claimant compared with protections available under the Civil Procedure rules. See N Bevan ‘An Untidy Arrangement’ [2014] New Law Journal 164. http://www.newlawjournal.co.uk/content/untidy-arrangement (accessed 9 October 2016). 135 Case C-144/04 Werner Mangold v. Rüdiger Helm [2005] ECR I-9981. 136 Case C-555/07 Seda Kücükdeveci v. Swedex GmbH & Co. KG Judgment of 19 January 2010. 137 N Bevan ‘Where to Sue?’ [2014] New Law Journal 164, 14. 138 Council Directive 2000/26/EC on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles and amending Council Directives 73/239/EEC and 88/357/EEC (the Fourth Motor Insurance Directive) [2000] OJ L181/65. © The Author(s) 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Statute Law Review Oxford University Press

Brexit Means Brexit: What Does It Mean for the Protection of Third-Party Victims and the Road Traffic Act?

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Abstract

Abstract The UK’s referendum decision of 23 June 2016, where voters elected to leave the European Union (EU), will fundamentally change aspects of national law. Much debate has focused on the constitutional implications of the decision and the procedure by which the government seeks to facilitate the exit. Further, issues of substance including the part played by immigration and the control of the UK’s borders have also dominated legal and political commentary. Yet there has been no critical examination of the effects it will have on motor vehicle insurance law. The statute governing much of the law (the Road Traffic Act 1988), along with the extra-statutory agreements providing protection for the third-party victims of negligent uninsured drivers and untraced vehicles, is each profoundly influenced by EU directives. Given the Brexit decision and the resolution of the government to facilitate the UK’s exit of the Union, we argue that the protective rights for such victims of motor accidents are likely to be reduced. Further, the advancement of the law, developed through the jurisprudence of the Court of Justice, will be lost. 1. INTRODUCTION The law relating to motor vehicle insurance is subject to governance from both national and European Union (EU) law. Nationally, and at a statutory level, the Road Traffic Act 1988 (RTA88) regulates (inter alia) much of the requirements relating to compulsory third-party insurance. This requires that motor vehicles used on a road or other public place1 are subject to a minimum of compulsory insurance to protect third-party victims of a negligent driver. In the event that the victim suffers damage and/or loss due to the actions of an uninsured driver or an untraced vehicle, extra-statutory arrangements2 (established between the Secretary of State for Transport and the Motor Insurers’ Bureau (MIB)) take effect. Since 1972, the EU has issued six directives on motor vehicle insurance law with the aim, initially, of facilitating the free movement of goods, services, and people through a system of comparable minimum standards for motor insurance. Collectively they create a legal framework for ensuring that individuals injured by motor vehicles registered anywhere in the EU are guaranteed compensation and receive comparable treatment.3 As outlined in the first motor vehicle insurance directive (MVID), member states were to ‘ensure that civil liability in respect of the use of vehicles normally based in its territory is covered by insurance’.4 There were problems inherent in the use of broad terminology in the first MVID and specifically in its reference to ‘civil liability…covered by insurance’. Such an inclusion provided member states with significant discretion in its implementation in national law and led to a series of (permissible) exclusions being applied. For example, exclusions of liability to passengers5; family members6; third-party cover in the event of the driver being intoxicated7; and the insurance requirements applied to the seating area of vehicles8 were each included in the national law of some member states. Subsequent MVIDs9 removed some of the worst offending aspects of the first directive, as did the activism of the Court of Justice of the European Union (CJEU). The second MVID extended the protection afforded to the victims of motor vehicle accidents by requiring member states to establish a national compensatory guarantee scheme tasked with providing compensation to the victims of uninsured drivers and untraced vehicles.10 Further, it imposed restrictions on member states’ discretion to permit contractual exclusion clauses or restrictions of liability. Here member states were required to ensure third-party motor vehicle insurance covered property damage and personal injury, it removed the ability of insurance policies to exclude members of the driver’s family from third-party cover, and it imposed minimum amounts in compensation for property and personal injury claims. The third MVID11 sought to remove the uncertainty as to the geographic scope of insurance policies as articulated in the first MVID,12 thereby removing the existing disparities between the law of member states. It also introduced the concept of mandatory protection to cover all passengers. The aim was to provide ‘a high level of consumer protection’—hence viewing individuals in the member states not only in terms of them being potential accident victims but also as consumers purchasing insurance cover as required by EU law. The fourth MVID13 required the creation of national information centres with responsibility for maintaining relevant information on motor vehicles, insurance policies, the green card scheme, and so on. The fifth MVID14 offered revisions to minimum compensation levels and the identification of cyclists and pedestrians as special categories of accident victims who, along with other non-motorized road users, were to be included in the coverage of all insurance policies. Most recently, the sixth MVID15 was introduced and consolidated the previous five MVIDs. Further, it abolished boarder checks on insurance, requires all motor vehicles in the EU to be covered by third-party insurance, prescribes minimum third-party liability insurance cover, and provides for the prompt settlement of claims arising from accidents occurring outside of the victim’s country of residence. As such, the MVIDs place significant obligations on member states in terms of the provision of motor vehicle insurance to be regulated in their jurisdiction. It does not, however, cover all aspects of motor insurance. It places no obligations on ‘comprehensive’ motor policies (focusing instead on third-party/liability cover). Matters of civil liability and the calculation of compensation awards are determined in accordance with national law, and other significant issues are also out of scope, for example problems associated with the insolvency of an insurer.16 As such they are subject to national law, not the law and jurisprudence of the EU. 2. BREXIT MEANS BREXIT The certainty of the law on motor vehicle insurance and the relationship between United Kingdom and EU law will be fundamentally affected by the referendum decision of 23 June 2016. The British exit of the EU (commonly referred to as Brexit) was announced on 24 June and has already led to numerous issues affecting the future legal and political relationship between the United Kingdom and the EU. It is trite comment, but this unprecedented step means that there will be no new EU laws to be transposed and interpreted, no references made by national courts to the CJEU,17 no discussions needed as to the compatibility between the two sources, no enforcement mechanisms compelling damages payments for the consequences of the UK’s breach of its obligations,18 and no requirements for national law to comply with fundamental principles of EU law.19 Of course, until the United Kingdom triggers the official exit mechanism and formally leaves, EU law including the MVIDs, applies to national law in its application and its (broad) interpretation.20 As such, the areas in which the United Kingdom is in breach21 of the MVIDs must still be remedied and the United Kingdom continues to be subject to enforcement actions at both EU and national levels for any failures to correctly transpose and apply the law. Following the appointment of Teresa May to the position of Prime Minister in July 2016, she has continued to issue the mantra of ‘Brexit means Brexit’ when referring to comments on her position regarding the intention of the government to exit the EU. During her premiership, May has insisted that the will of the electorate has to be respected and that an exit of the EU is the intention of the government. However, she has also cautioned that the exit negotiations are not to be rushed and the details will not be determined until the government’s objectives are clear. One of the key issues that will define the scope and content of those negotiations with the EU will be the restriction of immigration, indeed it has been referred to as a ‘red line’ in any negotiated deal.22 Yet, important questions remain unanswered in the announcements since the referendum result and despite the government’s white paper23 published on 2 February 2017. There is little detail on the basis on which the UK’s withdrawal negotiations will take place24; the level of accountability those negotiating the deal will have to the electorate and Parliament; the deal which the United Kingdom is seeking (and the one which it will accept); and what the precise implications will be, following Brexit, for individuals (and citizens of the EU) living here and abroad,25 and also for the businesses whose trade is dependent upon access to the Single Market. On 2 October 2016, the Prime Minister announced at the Conservative conference in Brighton that a ‘Great Repeal Bill’ will lead to the formal repeal of the European Communities Act 1972.26 Further, and in the face of questions regarding the uncertainty with which this leaves the country, three further details were added in her speech. The first was that the Article 50 of the Treaty on European Union (TEU) procedure will be triggered by the end of March 201727 (and will therefore pre-empt the passage through Parliament of the Great Repeal Bill).28 Secondly, all present EU-based29 or inspired laws will become national law and hence will remain unless and until they are formally withdrawn according to reviews undertaken by the relevant Secretary of State30 (but will lead to the loss of the primacy of EU-based law). And thirdly, of particular interest in relation to the future of the UK’s relationship with the EU, the Prime Minister remarked that the CJEU will no longer have jurisdiction in relation to legal issues arising in the United Kingdom. This, along with a requirement that the United Kingdom once again has the power to control immigration (and therefore restrict one of the central pillars of the European project—the free movement of people), in practical terms suggests the United Kingdom will pursue a ‘hard Brexit’, leaving the United Kingdom without a formal relationship with the EU and outside of the Single Market.31 This is, of course, as yet uncertain as the negotiations of the UK’s withdrawal have not started. What is clear is that these aspirations suggest that a prolonged period of negotiation is inevitable if both the United Kingdom and the EU do wish to continue some post-Brexit relationship. The mechanism of triggering the Brexit procedure and the legal route required to be taken were immediate questions to be addressed. Initially, the government had insisted it held a prerogative power to invoke Article 50 TEU without the consent of Parliament.32 Arguments were soon presented that, in the absence of legislative action in the first instance, this position may be constitutionally unsound. Prerogative powers cannot be used to change UK statute33 as, while the royal prerogative may be used to create and accede to treaties, it may not be used to alter the law or to remove rights to which individuals enjoy in domestic law (in the absence of parliamentary intervention).34 In R (Miller) v. Secretary of State for Exiting the European Union,35 the Supreme Court was required to identify whether an Act of Parliament was required prior to the government triggering Article 50 TEU and whether the devolved governments could prevent Brexit. In answering these questions, the Supreme Court (by a majority 8-3) has clarified the need for an Act of Parliament to enable the triggering of Article 50 TEU. Consequently, on 26 January 2017, the government tabled its Brexit Bill.36 While brief,37 the Bill is progressing through the House of Commons prior to being debated by the House of Lords.38 Further, the Supreme Court held (unanimously) that the government did not have to seek permission from the devolved governments prior to triggering Article 50 TEU. It did not address the issue of the constitutional convention (known as the Sewel Convention)39 whereby changes to the powers of a devolved institution require its consent prior to the enactment of such legislative measures. This was a matter to be determined within the political world and the Supreme Court was ‘neither the parents nor the guardians of political conventions; they are merely observers’.40 The uniqueness of a member state leaving the EU through it invoking a Treaty Article poses interesting questions for the United Kingdom. Article 50 TEU is the lex specialis for member states to withdraw from the EU. It is also considered preferable to Article 48 TEU as it merely requires a qualified majority decision of the 27 member states rather than the vote of unanimity required by that provision.41 As a matter of public international law,42 Article 54 of the Vienna Convention of the Law of Treaties 1969 would also enable exit.43 However, the Vienna Convention is of more interest in relation to the aftermath of the triggering of the Article 50 TEU mechanism. While Article 50 TEU is silent on the matter of whether the application for withdrawal may be reversed (revoking the application), the Vienna Convention allows for such action unless this is specifically denied. The ‘point of no return’ occurs two years after the notification under Article 50 TEU, and therefore, it may be possible for further challenges to the process and terms of the UK’s withdrawal. Hence, the Supreme Court decision remains, of course, highly significant, but it should not necessarily be seen as an end to legal proceedings on Brexit. Article 50 TEU envisages that once a declaration is formally made, the process of withdrawal will take up to a period of two years to complete.44 It is quite possible that this time period could be extended given the short time frame of two years, the complexity of any future relationship between the United Kingdom and EU,45 and the current lack of pre-Article 50 TEU negotiations with the EU. The time frame is designed to facilitate the conclusion of a new arrangement for the (leaving) member state to continue a relationship with the EU. The UK’s position is that it will leave the EU, but wishes to continue a trading relationship and also to have access to the Single Market,46 yet not to be a member of it.47 This position was confirmed by the Prime Minister in her Brexit speech issued on 17 January 2017.48 Whether such an agreement can be made on these terms remains questionable. For instance, the United Kingdom could attempt to conclude a future agreement on the basis of a European Free Trade Association49 (EFTA) model.50 Membership of the EFTA removes the requirement to follow rulings of the CJEU (delivered after 1991), yet it would be subject to the EFTA Court (albeit this court often produces rulings of a non-binding nature and its jurisdiction is significantly smaller than that of the CJEU). Alternative mechanisms to continue a relationship with the EU has included associate membership or as a customs union,51 as a member of the World Trade Organization52 or via a free-trade arrangement and so on.53 Brexit appears to lead the way for a separation of EU law from national law. Those favourable to the idea of the UK remaining a trading partner with the EU may have hoped for a ‘soft Brexit’ with its light-touch of EU law, although it is questionable whether this would appease the majority of voters who wished for the United Kingdom to exit the EU. Given the recent statements by the Prime Minister and the Secretary of State for Exiting the EU, and in particular the hard line the United Kingdom is adopting in seeking full control over immigration and associated policies (as per the Government’s white paper),54 it appears unlikely that such an agreement can be concluded on these terms. Consequently, the analysis in this article is taken from the perspective of a hard Brexit, and the implications this will have on the RTA88. Beyond the detail of the MVIDs and their effect on the RTA88, the application of key principles of EU law, including equivalence and effectiveness, appears in jeopardy. 3. BREXIT: THE CONSEQUENCES FOR RTA88 The interaction between national law and EU law, and the decades of case law that have developed within this relationship, is based on a system of the UK’s surrendered sovereignty in specific areas of EU competence, and the primacy of EU law over inconsistent national provisions. The MVIDs have sought to harmonize minimum standards for motor insurance across the member states and in so doing have significantly increased the protection of third-party victims of motor vehicle accidents,55 while simplifying the process of claims and making the awards of compensation consistent.56 If we begin by assuming that the United Kingdom will simply withdraw from the EU and leave the Single Market, thereby not being bound by EU law, the United Kingdom will be free of the interference of the CJEU and will no longer have to transpose future MVIDs or give effect to the existing MVIDs (save for those elements already transposed into national law after ‘Brexit day’). Thereafter, the United Kingdom will revert to the scope and national mechanisms of statutory construction in RTA88 without the need for interpretation with the MVIDs57 or guidance from the jurisprudence of the CJEU. This would simplify the process of interpreting national law in this area (including both the extra-statutory and statutory provisions), but would not create, in the medium-term at least,58 any clarity, or roadmap to legal certainty without express direction as to the foundations of judicial interpretation to be applied in the post-Brexit era.59 History has demonstrated that courts in the United Kingdom have often been reluctant to provide a purposive and broad interpretation of national law to ensure compliance with the MVIDs. In Clarke v. Kato and Cutter v. Eagle Star Insurance Ltd,60 the House of Lords was charged with interpreting section 192 RTA88. Section 192 provides the definition of ‘road’ as ‘any highway and any other road to which the public has access’. This was pertinent as the cases involved injuries sustained by the claimants caused by motor vehicles in car parks. The claimants argued that in providing an interpretation of section 192 consistent with the MVIDs required the courts to extend the meaning of the word ‘road’ to include a car park. The Lords unanimously refused. Lord Clyde, providing the only judgment, held it was theoretically possible to offer a consistent interpretation of the RTA88 with the MVID but chose not to.61 However, following intervention by the European Commission, despite this judgment, the Department for Transport was required to enact the Motor Vehicles (Compulsory Insurance) Regulations 2000 No. 726 to broaden the meaning of the word road by adding ‘or other public place’.62 Further, in White v. White & MIB63 the Lords, while ultimately providing a purposive interpretation of the (extra-statutory) Uninsured Drivers Agreement (UDA), argued that as the UDA was established between the Secretary of State and the MIB (a private company), this was nothing more than a private law agreement and hence was not susceptible to a Marleasing-compliant64 interpretation. These cases are presented as examples of the national courts adopting a narrow and restrictive application of statutes which seek to protect vulnerable third-party victims of motor vehicle accidents. The judiciary had the benefit of guidance from the CJEU (through the reference procedure) to assist them achieve a consistent application of EU law, yet decided against this. Even when theorizing whether a broader application of national law to comply with an EU law with primacy should be adopted, in each aspect the judiciary decided, rather, to provide a very restrictive and literal interpretation.65 The EU has developed the MVIDs to offer increased protection to third-party victims and this is reflected also in the jurisprudence of the CJEU. On the contrary, even though the victims in the cases above were seeking compensation and had a route available to them through EU directives, the national judiciary decided against applying the law consistently. With regards to the current interpretation and scope of the RTA88, sections 143,66 145,67 148,68 150,69 151(4),70 152,71 185,72 and 19273 are at present in breach of EU law. How will Brexit affect the future of these transgressions? Section 143 is a requirement for insurance against third-party risks and that such insurance must comply with minimum standards. At section 143(1)(a) this requires that ‘a person must not use a motor vehicle on a road [or other public place] unless there is in force…such a policy of insurance…as complies with the requirements of this part of the Act’.74 As noted above, while this part of the RTA88 was extended to include vehicles on a road or other public place, the use of the term ‘public’ is problematic with regards to EU law. Essentially, it refers to places where the public can be expected to be and to which they have access. Hence, a private road leading to a group of buildings, where the public at large would not be invited (although social visitors, tradespeople, and so on would be) is not within the scope of the section.75 Campsites and caravan parks,76 pay and display car parks,77 and even dockyards78 have been held to satisfy the definition of a ‘road’, but the problem exists in relation to the use of the word ‘public’ and the inherent restrictions this creates. In the recent case of Vnuk,79 the CJEU has highlighted the incompatibility between RTA88 section 143 (and section 185)80 and the MVIDs. Here an individual on a farm in Slovakia was injured by a driver of a tractor and trailer. As the vehicle was never taken from the private land on which the farm was situated, no insurance policy was held to cover for any accidents associated with this vehicle. The CJEU was tasked with identifying whether the MVIDs extended to requiring insurance to be held merely for road registered vehicles or to all motor vehicles, properly used, regardless of the fact that national law did not require compulsory motor insurance to be held. Advocate-General Mengozzi identified the MVIDs as seeking to protect individual victims of accidents on public and private land, and the CJEU’s judgment confirmed the need for insurance of motor vehicles in such a location.81 Yet, the United Kingdom still maintains the ‘black-hole’ that currently exists in national motor insurance law as regards the protection of third-party victims of non-road registered vehicles (such as quad-bikes or vehicles used in purely agricultural, construction, industrial, motor sports, or fairground activities). There is no requirement under the RTA88 for such vehicles to be subject to insurance and therefore the third-party victim would be unable to claim from a contractual insurer, no statutory insurer would exist, and the MIB would also be unwilling to settle the claim. The MIB only has a responsibility to act as insurer of last resort in cases of no insurance, but only where the vehicle was legally required to be subject to an insurance policy (and evidently these classes of vehicle are not so required under the current interpretation of national law). Further, the definition of ‘motor vehicle’ provided in section 185 is, following the implications of Vnuk,82 too restrictive to comply with the MVIDs.83 In interpreting that term (and as a result determining the circumstances in which motor vehicle insurance is compulsory), a court would revert to the current national interpretation (although at the time of writing it would be more accurate to refer to the content of sections 143 and 185 as remaining (rather than reverting) due to the continued inaction of the United Kingdom and which is unacceptable until a formal UK withdrawal from the EU).84 Unless either Parliament chooses to change the law, the judiciary hear a case which offers an opportunity to provide a consistent interpretation (and they take that route), or a successful enforcement action is taken against the state by a third-party victim, it is more likely that the national law in this area will not be changed and a gap in the protection of victims will remain. A proposed seventh MVID may be established by the European Parliament85 to clarify the implications of the Vnuk86 ruling, but given the time frame for the creation and required transposition of directives, it is unlikely to affect the law in the UK, although presumably the UK may contribute to the consultation process while still a member state. Section 148 RTA88,87 providing the statutory restriction on exclusion clauses in motor insurance policies, was subject to interpretation by the Court of Appeal in EUI v. Bristol Alliance Partnership.88 Here, the driver of a motor vehicle attempted to commit suicide by driving his car into a department store and in so doing struck another motorist’s vehicle and caused damage to the building.89 The contractual insurance policy included a clause excluding the insurer’s liability for any action taken by the driver with the intention of causing deliberate damage. As such, the driver was considered to be ostensibly uninsured therefore leaving the owner of the building (and of the other vehicle) unable to recover its losses from the driver’s insurers. Further, the extra-statutory protection offered through the UDA 1999 was ineffective as it, at that time, it excluded subrogated claims.90 The reason the insurer was permitted to avoid the policy was that such an action was not expressly excluded by the RTA88. At section 148(2) eight ‘matters’91 (exclusions) are listed, which, if used by an insurer to avoid a policyholder’s claim under that policy would be held as void. Therefore, if the insurer’s attempt to exclude its liability on the policy was for a reason (or ‘matter’) included in this section of the Act, the insurer would still have to satisfy a third party’s claim for damage or loss suffered as a consequence of the accident. The eight ‘matters’ did not expressly prevent the use of an exclusion of liability for the consequences of deliberate damage and hence the Court of Appeal had to determine whether the list of matters in section 148(2) was illustrative or exhaustive. The Court of Appeal considered the compatibility between section 148(2) and the MVID Article 5 even though, at an EU level, the issue was clear.92 Section 148(2) RTA88, as held by the Court of Appeal, contained an exhaustive list and thus the clause prevented the insurers for the damaged building from recovering damages from the driver’s insurers. It is difficult to see how this conclusion can be justified since consistent case law from the CJEU in Bernaldez,93Correia Ferreira v. Companhia de Seguros Mundial Confiança SA,94Candolin v. Vahinkovakuutusosakeyhtio Pohjola,95Farrell v. Whitty,96 and Churchill v. Wilkinson and Tracey Evans97 identifies the exclusions as merely illustrative. On the face of it, the decision in EUI appears to be wrong, and therefore constitutes a breach of EU law. The MVIDs’ permitted exclusions refer to the very restrictive ‘right’ of insurers to cancel insurance policies, and ultimately, given the nature of the driver’s actions in EUI v. Bristol Alliance Partnership,98 while motorists are required to ensure that any use of motor vehicles is covered by a minimum of third-party cover, insurance companies are seemingly not required to provide the same. This facilitates the insurers in evading liability, it enables insurers to benefit from using the ‘Article 75 procedure’99 to handle claims on poorer terms for the victim of an accident than would be available through a contractual claim, and following Brexit will enable the industry to continue this practice without questions of compatibility with a higher source of law being raised. Until Brexit, the United Kingdom should delete the ‘matters’ from the section 148(2) RTA88 as their existence (wrongly) implies that other exclusions are permitted. The RTA88 holds that in the unauthorized or non-contractual use of the vehicle, no third-party cover is provided in the policy (with the exception of the eight ‘matters’ specified in section 148 RTA88). Consequently, where the insurance policy restricts the use of the vehicle to social and domestic purposes only, it correspondingly does not provide contractual cover where the vehicle is used for commercial purposes. Section 150 provides that a policy restricted to social, domestic and non-commercial use will however cover a fare paying passenger if criteria are met. This has led to a series of unfortunate incidents, and required the national courts to be creative in ensuring the protection of the third party when section 150 RTA88 was breached.100 Again, the MVIDs, as part of their broad social policy remit, requires for the protection of passengers and third-party victims, and that they be compensated according to comprehensive application of the MVIDs.101 A conundrum exists between RTA88 section 151(5),102 which obliges the insurer to fulfil the coverage required under a policy of motor insurance, regardless of a breach by the policyholder, and section 151(8), providing the insurer with a right to recover sums paid out to the third-party victim under the policy from the policyholder.103 The interaction between these sections of the RTA88, and the breach of the MVIDs, was demonstrated in Churchill Insurance v. Wilkinson and Tracey Evans.104 The victim was also the policyholder and subject to the insurer’s award of compensatory payments as a result of the accident (section 151(5)). She was also subject to a clawback of the award under section 151(8). It is in the automatic application of section 151(5) where the statutory provision breaches Article 13 of the sixth MVID. Given that the drafting of RTA88 included the coexistence and application of these sections for the protection of insurers, the Brexit result would enable a decision based purely on English law, and there would be no further need (requirement or indeed availability), as occurred here, for a reference to the CJEU to assist in the consistent interpretation of national law with an EU parent directive. How far post-Brexit judicial interpretation would follow previous case law determined in conformity with the MVIDs, and how many decisions would be made exclusively on the basis of national legislative instruments is difficult to determine at present. It will be interesting (if not also adding a further element of unwanted uncertainty) to see whether courts, free from the requirement of exercising a purposive statutory interpretation, will continue to follow the orthodoxy already established in statutory interpretation. The RTA88, at section 151(4) breaches the MVIDs by imposing what is termed ‘constructive knowledge’ on a third-party victim of a motor vehicle accident. Here, motor insurers may exclude liability in respect of the death of, or bodily injury to, or damage to the property of any person who, at the time of the use which gave rise to the liability, was allowing himself to be carried in or upon the vehicle and knew or had reason to believe that the vehicle had been stolen or unlawfully taken. (Authors’ emphasis) The MVIDs require that insurers, seeking to exclude liability to third-party victims, prove knowledge rather than impose it constructively through the wording ‘had reason to believe’. National courts continue to interpret the wording of the statute giving effect to constructive knowledge,105 and even where the CJEU has held contrary to this, national courts may now ignore its previous rulings as being part of a paradigm of compliance with EU law which no longer exists. It is to be hoped that in the negotiation stage of the UK’s withdrawal from the EU, definitive instruction on this matter will be issued to provide much needed certainty on the future application of motor vehicle insurance law. In each of the issues outlined above, either the national law (in transpositional deficit) or the (incorrect) interpretation of the law provided in national courts delivers weaker protection for third-party victims than is available through the EU directives. 4. CONSEQUENCES FOR ENFORCEMENT AND THE PRINCIPLE OF EQUIVALENCE A ‘hard’ Brexit would remove the areas of breach outlined above. As the conflicts between national and EU law occur on the basis of non-transposition and incorrect interpretation, by ‘converting’ all EU law currently transposed into national law, such problems would be removed. The United Kingdom would also be free to establish agreements with the MIB on the terms of its choosing. Until this happens (not expected to be concluded before the end of 2019), the United Kingdom is obliged to give effect to EU law and its rights and protections afforded to individuals in member states. The CJEU respects the national procedural law of member states and seeks to have as little interference with their operation as possible. Of course, this approach must be tempered with regard to legitimate expectations and the underlying principle of primacy through which the EU operates and is underpinned through effectiveness106 and equivalence (as articulated in Rewe).107 In relation specifically to the equivalence between national law (here the MIB agreements) and the sixth MVID, it was in Carswell v. Secretary of State for Transport and MIB108 where the High Court held109 that equivalence does not require a perfect copy of the national civil procedures. While true, the CJEU has also repeated on several occasions that ‘measures liable to seriously compromise the attainment of the result proscribed by [a] directive’110 are to be prohibited, and if the disconnect between the EU law and the implementing national law is sufficiently significant, national judges have not merely the power, but the duty, to set aside the offending national provisions.111 Similar conclusions as to transpositional measures, which ‘constitute a substantial procedural defect, render a technical regulation adopted in breach [of either the articles of the directive in question] inapplicable’.112 Further, the CJEU allow member states to determine their own procedural rules when applying/providing access to EU rules, insofar as they correspond with principles of EU law. Ultimately, the onus is placed on member states to ensure that the EU rights of individuals are safeguarded at a national level. However, such a simple premise is frequently lost in the complexity of national provisions and requires the invoking of the primacy of EU law113 to ensure conflicting national provisions are set aside.114 For example, it will be remembered that Mangold115 and Kücükdeveci116 impose on the national courts of member states powers to disapply conflicting national legislation (this in relation to anti-discrimination law amounting to a general principle of EU law). In other respects, where a national court was faced with conflicting EU and national law, and no consistent interpretation was possible without adopting a contra legem interpretation, the domestic court would apply the national law.117 Beyond this position, providing a consistent interpretation of EU law, first established in Marleasing,118 has progressed to impose this binding duty on all the authorities of member states (including their courts).119 In Pfeiffer,120 the CJEU held national courts must operate under the presumption that the ‘member state…intended entirely to fulfil the obligations arising from the directive concerned’.121 In relation to the MVIDs, while their remit has expanded during the development of the directives, the first MVID was enacted to facilitate the free movement of persons and goods (similarly a general principle of EU law). The third MVID122 has been held in Farrell v. Whitty123 to be directly effective, and it could be argued that if given this interpretation, the national courts would be required to follow the Mangold124 and Kücükdeveci125 authorities and disapply conflicting principles contained in the RTA88, the UDA 2015 and the Untraced Drivers Agreement (UtDA) 2003 (as amended). Had the government intended to negotiate Brexit on the basis of maintaining access to the Single Market, this would have required adherence to the free-movement principles upon which it is based and the MVIDs would have continued in force (even following a review of existing legislation as part of the powers expected to be contained in the Great Repeal Bill). It would have also been difficult for the United Kingdom to restrict the obligations to provide effectiveness and equivalence of EU law when these sources would have continued to be part of the national legal system. However, it appears that the current approach taken by the government will see the end of each of these requirements and impositions. With the removal of the free-movement principles,126 the United Kingdom will be free of the requirements to provide enforcement mechanisms to challenge the state for losses associated with breach of EU law. That enforcement, so linked with legal certainty in relation to the application of directives where the national law lacks clarity, precision, and an unequivocal legal framework,127 is removed and will greatly reduce individuals’ ability to hold the state to account.128 Despite a general lack of effectiveness of state liability since Francovich,129 in motor insurance the success of several cases130 has demonstrated not only the sufficiently serious nature of the UK’s transgressions,131 but also how such cases can highlight the breaches and compel changes in the conflicting law.132 The UK’s procedural rules will be able to continue the application of harsh strike-out provisions replete in the UDA133 and UtDA 2003 (as amended).134 By subsuming EU-based law into the national law, comparisons with an EU parent directive will be voided as will the principles of equivalence and effectiveness, and the powers derived from Mangold135 and Kücükdeveci136 will be lost in the ability to review primary legislation. 5. IMPLICATIONS AND CONCLUSIONS It must be remembered that, at the time of writing and until the United Kingdom formally exits the EU (on Brexit day when the Great Repeal Bill commences), the MVIDs and the jurisprudence of the CJEU have primacy over national law. They oblige the United Kingdom to not only transpose any new provisions of these sources of law, but they also inform the scope and application of the UK’s statutory and extra-statutory provisions relating to motor vehicle insurance. That is the theory and underlying acquis on which the EU is based. Brexit seems likely to change this relationship and revert the United Kingdom back to its pre-1973 legal position. Despite the MVIDs becoming fully national law following the enactment of the Great Repeal Bill, given the history of the conflict between national and EU law on the matter of motor vehicle insurance, the reluctance of the Secretary of State to admit to problems with the transposition of the MVIDs and the rulings of the CJEU, and the liability being imposed on the State for the consequences of its breaches of EU law, it is probable that offending aspects of the (EU-based) law will be removed. The parts of the MVIDs which are currently missing from national law are unlikely to be transposed prior to Brexit. This will have negative consequences for those innocent third-party victims of negligent and uninsured/untraced drivers. Decades of previous case law advancing the rights of victims will be put in jeopardy. As noted above, much statutory interpretation, from the higher courts in particular, has been based on a purposive/teleological method, and this incorporates both reference to EU law in the form of the MVIDs and the interpretations provided by the CJEU. The changes to the wording of the RTA88 and interpretation provided by the judiciary (both domestically and by the CJEU) are embedded and entwined with national law. To separate EU law from the RTA88 would likely necessitate a new Act and a comprehensive review of existing laws and liaison with interested parties (in particular, the insurance industry that has such a marked impact on the UDA and UtDA). Existing restrictions on executive discretion and reviews of the agreements concluded between the Secretary of State and the MIB will no longer be subject to external scrutiny (and enforceable correction). Brexit will certainly facilitate the continuation of a conservative, austerity-based ethos to prevail which will lead to contractual relationships being the primary source of protection with the state being a begrudging and reluctant safety net. Beyond these fundamental principles being changed, practical problems will also be created. A ‘hard’ Brexit will require individuals based in the UK driving to the EU (or even simply visiting and being involved in a vehicular accident) to have in place bespoke insurance cover. They will be unable to rely on an (EU regulated) central guarantee fund body facilitating their claim for compensation for accidents occurring in another member state.137 Such contractual relationships will change. Currently, the MVIDs provide a comprehensive and inclusive package of safety features and guarantees regarding social policy requirements for victims of accidents. The national law, conversely, offers restricted cover and the application of permissible contractual exclusions. The fourth MVID138 enabled extensive provision for cross-border claims and direct rights of action which are also likely to be lost following Brexit. Brexit may mean Brexit, but it marks a fundamental shift in the rights of third-party victims of negligent driving and the development of statutory protections. Given the disparity between the United Kingdom and the EU in this area, this does not bode well for the protective rights currently accessible to injured motorists, passengers, and pedestrians. The authors would like to express their sincere thanks for comments on previous drafts of this paper from Nicholas Bevan, Michael Jefferson, Robert Merkin, and the anonymous reviewers. Omissions and errors remain our own. Footnotes 1 RTA88 section 143. 2 The Uninsured Drivers Agreement (UDA) 2015 and the Untraced Drivers Agreement (UtDA) 2003 (as amended). 3 As underlined in the recitals to the first and second MVID. 4 Art. 3(1) (The First Directive) Council Directive 72/166/EEC on the approximation of the laws of Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability [1972] OJ L103/1. 5 See McMinn v. McMinn and anr [2005] EWHC 827 (QB) with reference to liability under the RTA88 (section 151(4)) and Akers v. Motor Insurers Bureau [2003] EWCA Civ 18 with reference to liability under the MIB agreements. 6 See Case C-348/98 Vitor Manuel Mendes Ferreira and Maria Clara Delgado Correia Ferreira v. Companhia de Seguros Mundial Confiança SA [2000] ECLI:EU:C:2000:442. 7 Case C-129/94 Rafael Ruiz Bernáldez [1996] ECR I-1829. 8 See Case C-356/05 Elaine Farrell v. Alan Whitty [2007] ECR I-3067. 9 For instance, the Second Council Directive 84/5/EEC on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles [1984] OJ LL8/17 in Art. 2(1) resulted in specific exclusions of liability being held as void as against a third-party claimant. This was a significant advancement as demonstrated in its application in Case C-129/94 Rafael Ruiz Bernáldez [1996] ECR I-1829. 10 At Art. 1.4 Council Directive 84/5/EEC. 11 (The) Third Council Directive 90/232/EEC on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles [1990] OJ L129/33. 12 At Art. 3 Council Directive 72/166/EEC. 13 Directive 2000/26/EC on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles and amending Council Directives 73/239/EEC and 88/357/EEC (the Fourth Motor Insurance Directive) [2000] OJ L181/65. 14 (The Fifth Directive) Directive 2005/14/EC amending Council Directives 72/166/EEC, 84/5/EEC, 88/357/EEC, and 90/232/EEC and Directive 2000/26/EC of the European Parliament and of the Council relating to insurance against civil liability in respect of the use of motor vehicles [2005] OJ L149/14. 15 (The Sixth Directive) Directive 2009/103/EC relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability [2009] OJ L263/11. 16 For instance, in Case C-409/11 Csonka v. Magyar Allam [2013] EUECJ (11 July 2013), a claimant failed to recover compensation from the guarantee fund of Hungary where the negligent driver’s insurers became insolvent (although in the UK such an instance would enable the claimant to recover from the Financial Conduct Authority). 17 Via Article 267 of the Treaty on the Functioning of the EU (TFEU). 18 Either at a national level through a claim of state liability (non-contractual tortious liability) or at an EU level through the Commission’s action against the member state for failure to fulfil an obligation under the Treaties (Article 258 TFEU). 19 Such as ensuring equivalence and effectiveness of national law with EU law. 20 Per Sir Andrew Morrit C’s judgment in Vodaphone 2 v. Revenue and Customs Commissioners [2010] EWCA Civ 446 at [37]: ‘In summary, the obligation on the English courts to construe domestic legislation consistently with Community law obligations is both broad and far-reaching. In particular: (a) It is not constrained by conventional rules of construction; (b) It does not require ambiguity in the legislative language; (c) It is not an exercise in semantics or linguistics; (d) It permits departure from the strict and literal application of the words which the legislature has elected to use; (e) It permits the implication of words necessary to comply with Community law obligations; and (f) The precise form of the words to be implied does not matter’. 21 For examples of breaches of the extra-statutory Uninsured Drivers’ Agreement, see J Marson and K Ferris ‘The Uninsured Drivers’ Agreement 2015 as a Legitimate Source of Authority’ [2016] Statute Law Review. DOI: 10.1093/slr/hmw043. 22 https://www.theguardian.com/politics/2016/aug/31/restricting-immigration-will-be-at-heart-of-brexit-deal-theresa-may-says (accessed 2 October 2016). 23 HM Government ‘The United Kingdom’s Exit from and New Partnership with the European Union’ (2017) Cm 9417. 24 It is also worth remembering that the terms of Brexit must be agreed with by the other 27 member states of the EU. This mechanism is not designed simply to allow a member state to unilaterally decide to leave and on which terms it wishes to continue any relationship. 25 At present, the government’s position appears to be no more strategic than ‘tit for tat’ arguments regarding reciprocal arrangements with the EU and individual states. https://www.theguardian.com/politics/2016/jul/28/theresa-may-on-brexit-tour-of-eastern-europe (accessed 4 October 2016). Further, on 7 October 2016, The Telegraph reported that the Home Office (after discovering five in six EU nationals currently living in the United Kingdom could not be legally deported) will, prior to the UK’s withdrawal, issue 80% of the 3.6 million EU citizens living in the United Kingdom with permanent residency rights. The remaining 600,000 individuals will be offered ‘amnesty’ to remain. http://www.telegraph.co.uk/news/2016/10/07/every-eu-migrant-can-stay-after-brexit-600000-will-be-given-amne/?utm_source=dlvr.it&utm_medium=twitter (accessed 8 October 2016). This is reiterated in the white paper (n 23) where at Para. 6.4, p. 30 ‘The UK remains ready to give people the certainty they want and reach a reciprocal deal with our European partners at the earliest opportunity. It is the right and fair thing to do’. 26 The Bill will replace the European Communities Act 1972 but its commencement date will be on ‘Brexit day’. 27 ‘There will be no unnecessary delays in invoking Art. 50. We will invoke it when we are ready. And we will be ready soon. We will invoke Art. 50 no later than the end of March next year’. http://www.bbc.co.uk/news/uk-politics-37532364 (accessed 2 October 2016). 28 Likely to be announced in the Queen’s speech in May 2017. 29 Which, interestingly, conflates Directives and Regulations (a distinction that has led to considerable debate and analysis in academic literature and judicial pronouncements). 30 The Prime Minister announced on 17 January 2017 that such legislation will only be changed following ‘full scrutiny and proper Parliamentary debate’, yet a commitment to the creation of a full Act of Parliament is missing. It is quite possible that Statutory Instruments, and the limitations for Parliamentary interventions such instruments allow, will be the mechanism selected to facilitate reviews of this source of law. 31 The point being reiterated in the white paper (n 23) where the fifth of the 12 principles, which will guide the government in exiting the EU is ‘controlling immigration’ (pp. 5, 7, and 25). Further, at Para. 5.4, the Government ‘will design our immigration system to ensure that we are able to control the numbers of people who come here from the EU. In future, therefore, the Free Movement Directive [Directive 2004/38/EC] will no longer apply and the migration of EU nationals will be subject to UK law’ (p. 25). This suggests a future agreement where the UK remains part of the European Economic Area (EEA) is ruled out. 32 The government’s view was the conduct of foreign relations, which included accession to and withdrawal from international treaties, was a matter falling within its prerogative. 33 R (On The Application of Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61 at [44]. 34 See Lord Oliver comments, JH Rayner (Mincing Lane) Ltd v. Department of Trade and Industry [1990] 2 AC 418 at [499F-500C]. 35 R (Miller) v. Secretary of State for Exiting the European Union [2017] UKSC 5. 36 The European Union (Notification of Withdrawal) Bill. 37 The Bill, brief at merely 133 words and allocating five days of debate, has already created controversy and may lead to further legal challenge even beyond the triggering of Art. 50 TEU. It is a ‘Bill to confer power on the Prime Minister to notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU’. 38 It is anticipated that the Bill will finish its passage through the House of Lords by 7 March 2017. A European Council meeting takes place two days later where it is possible the UK will formally invoke Art. 50 TEU. 39 Despite the inclusion and acknowledgement of the Sewel Convention in the Scotland Act 2016, this did not elevate its status to that of law. It remains a political convention and thus not a matter for the Court. 40 At Para. [146]. 41 Art. 48 TEU allows for the changing of the treaties and could be used to alter existing treaties to remove the United Kingdom from their scope. 42 Reliance on principles of international law would seem contrary to the sui generis legal orthodoxy of EU law. 43 Art. 54 allows for the withdrawal, by a party to an international treaty, on satisfaction that the withdrawal is in conformity with the terms of the particular treaty or at any time with the consent of the other parties (e.g. member states). Given the existence of Art. 50 TEU, this route would now be very unlikely and unnecessary. 44 Art. 50(3) TEU. 45 For instance, in the Prime Minister’s Brexit speech 17 January 2017, she indicated the United Kingdom wishes for a bespoke deal with access to the customs union and comprehensive free trade, but without the necessity of membership of the EU. 46 As identified by the C Emmerson, P Johnson and I Mitchell ‘The EU Single Market: The Value of Membership Versus Access to the UK’ (2016) Institute for Fiscal Studies Report R119, 10 August: ‘Maintaining membership of the Single Market as part of the EEA could be worth potentially 4% on GDP—adding almost two years of trend GDP growth—relative to World Trade Organization (WTO) membership alone’. https://www.ifs.org.uk/publications/8411 (accessed 4 October 2016). 47 As reported on 29 September 2016, the International Trade Secretary Liam Fox announced that he wants Britain to become a full independent member of the WTO. In the article, he is paraphrased as remarking ‘Britain is instead expected to pursue a deal which will “maximise access” to the Single Market while retaining the ability to make free trade deals’. http://www.telegraph.co.uk/news/2016/09/29/liam-fox-signals-britain-will-leave-the-single-market-in-hard-br/ (accessed 4 October 2016). Ultimately, the greater the access that non-member states have to the EU, the more they must adhere to market rules and the greater the financial contribution expected of them. 48 The United Kingdom will not seek to remain a member of the Single Market but will seek a free-trade deal with the EU, and the legal jurisdiction of the CJEU over the UK will end. 49 Which has four member countries—Iceland, Liechtenstein, Norway, and Switzerland. 50 Which would allow participation in the single market (not, however, with regards the Common Agricultural and the Fisheries Policies) but do so based on the application of the fundamental freedoms of EU law. It would require a continued, albeit reduced, financial contribution to the EU budget but without the contribution to the formation of EU law, and it would release the UK from the direct scope of CJEU rulings, but this may be a pyrrhic victory as the EFTA Court follows the CJEU. 51 Which would allow very limited access to the single market, but would mean no financial contribution to the EU budget, no requirement to apply the fundamental freedoms of EU law, not being subject to CJEU rulings, and no contribution to the formation and conclusion of future EU law. 52 Which would allow no direct access to the single market, would mean no financial contribution to the EU budget, no requirement to apply the fundamental freedoms of EU law, not being subject to CJEU rulings, and no contribution to the formation and conclusion of future EU law. 53 Such by concluding a relationship based on an EFTA and bilateral trade agreement (per Switzerland), a WTO and Free Trade Agreement etc. 54 n 23. 55 See, for instance, Byrne (A Minor) v. The Motor Insurers Bureau and the Secretary of State for Transport [2008] EWCA Civ 574 where the national law restricted the rights of a child victim of an untraced driver by requiring that a claim for compensation through the MIB had to be made within three years of the accident. For the victims of a traced driver (and hence a claim against the tortfeasor or his insurers), the period for the lodging of the claim did not begin until the child reached majority. The Court of Appeal changed the law to remove this defect by applying the requirements in the MVID. 56 See Moreno v. The Motor Insurers’ Bureau [2016] UKSC 52. 57 Or indeed, unless enacted and with a transposition date within this time frame, a potential seventh MVID—on 8 June 2016, the European Commission published its ‘Inception Impact Assessment’ proposing the ‘adaptation of the scope of Directive 2009/103/EC on motor insurance’. This will possibly lead to the European Parliament enacting a (seventh) directive to amend the sixth MVID. See http://ec.europa.eu/smart-regulation/roadmaps/docs/2016_fisma_030_motor_insurance_en.pdf (accessed 5 October 2016). 58 In February 2016, the government presented a report to Parliament ‘The Process for Withdrawing from the European Union’ Cm 9216 where it concluded that withdrawal from the EU could ‘…lead to up to a decade or more of uncertainty’ (Para. 2.9). 59 Indeed, it may be necessary, via the branch of the civil service dedicated to facilitating Brexit, for a new method of statutory interpretation to be developed to aid with consistency and determinacy. 60 Clarke v. Kato and Cutter v. Eagle Star Insurance Ltd [1988] All ER (D) 481. 61 Largely because the distinction between a road and a car park, reflected as it is in the ordinary use of words, was reinforced when considered in light of the language of the RTA88. To provide a consistent interpretation with the MVID would have meant a strained construction of the Act. 62 This change had practical effects for the geographic scope of sections 143, 145, 146, 165, and 170 RTA88. 63 White v. White & MIB [2001] UKHL 9. 64 Case C-106/89 Marleasing SA v. La Comercial Internacional de Alimentacion SA [1990] ECJ. 65 Most recently, the Court of Appeal was charged with interpreting sections 145, 143(1)(a), and 143(1)(b) RTA88 in respect of a third-party victim of an insured driver who, argued the claimant, had ‘caused or permitted’ an unidentified and uninsured driver to use a motor vehicle. In Sahin v. Havard and Riverstone Insurance (UK) Ltd [2016] EWCA Civ 1202 the Court of Appeal disregarded EU jurisprudence and a national decision held weeks before its judgment (Allen v. Mohammed and Allianz Insurance (2016), Lawtel, LTL 25/10/2016) to erroneously (we argue) provide a restrictive interpretation of the RTA88. The second MVID provided the required protection to the claimant and it is likely a case to the Supreme Court will be made to ensure the correct purposive interpretation of the RTA88 is provided. For commentary on the case, see J Marson and K Ferris ‘Misunderstanding and Misapplication of Motor Insurance Law. Will the Supreme Court come to the Rescue?’ [2017] European Journal of Current Legal Issues 22 (forthcoming). 66 The duty to insure. This section of the RTA88 breaches Arts 1 and 3 of the sixth MVID. 67 The requirement of third-party insurance cover. This section of the RTA88 breaches Arts 1 and 3 of the sixth MVID. 68 Limitations on certain exclusions within the holder’s insurance policy. This section of the RTA88 breaches Art. 3 of the sixth MVID. 69 The private use of a vehicle. This section of the RTA88 breaches Arts 3 and 12(1) of the sixth MVID. 70 The (constructive) knowledge of theft or unlawful taking. This section of the RTA88 breaches Art. 13.1 of the sixth MVID. 71 Exceptions to indemnity under section 151. This section of the RTA88 breaches recital 15 of the sixth MVID. 72 The definition of a motor vehicle. This section of the RTA88 breaches Arts 1 and 3 of the sixth MVID. 73 The definition of road or other public place. This section of the RTA88 breaches Arts 1 and 3 of the sixth MVID. 74 Similar requirements are placed on authorized insurers at section 145 RTA88. 75 Harrison v. Hill 1932 JC 13; 1931 SLT 598. 76 DPP v. Vivier [1991] 4 All ER 18. 77 Montgomery v. Loney [1959] NI 171. 78 Buchanan v. MIB [1955] 1 All ER 607. 79 Case C-162/13 Damijan Vnuk v. Zavarovalnica Triglav [2014] Judgment 4 September. 80 Which should, following Vnuk, adopt the definition provided in Art. 1 of the sixth MVID. 81 Case C-162/13 Damijan Vnuk v. Zavarovalnica Triglav ECLI:EU:C:2014:106 Opinion of Advocate General Mengozzi delivered on 26 February 2014 at [43]. 82 Case C-162/13 Damijan Vnuk v. Zavarovalnica Triglav [2014] Judgment 4 September. 83 It breaches Arts 1 and 3 of the sixth MVID. For commentary, see N Bevan ‘Ignore at Your Peril’ [2014] New Law Journal 164, 7. 84 It was expected that changes would be made to the RTA88 before the end of 2016 to comply with the implications of the Vnuk ruling (see http://www.ajginternational.com/news-insights/articles/insights/motor-fleet-insurance/, accessed 8 October 2016). 85 http://ec.europa.eu/smart-regulation/roadmaps/docs/2016_fisma_030_motor_insurance_en.pdf (accessed 5 October 2016). 86 Case C-162/13 Damijan Vnuk v. Zavarovalnica Triglav [2014] Judgment 4 September. 87 Interestingly, there is no equivalent provision to this section of the Act in the Road Traffic (Northern Ireland) Order 1981. 88 [2012] EWCA Civ 1267. 89 EUI v. Bristol Alliance Partnership [2012] EWCA Civ 1267. 90 UDA 1999 cl 6(1)(c)(ii). 91 The eight matters include the age or physical/mental condition of persons driving the vehicle; the condition of the vehicle (e.g. a car’s illegally worn (bald) tyres); the number of persons that the vehicle carries; the weight/physical characteristics of the goods which the vehicle carries; the time at which/areas within which a vehicle is used; the horsepower/cylinder capacity or value of the vehicle; the carrying on the vehicle of particular apparatus; or the carrying on the vehicle of any particular means of identification other than that required by law. 92 At Recital 15 of the sixth MVID, it is required that (subject to one exception) an insurer’s liability to compensate third-party victims of motor vehicle accidents is and remains independent of the contract. Any contractual restrictions therein exist as between the insurer and the policyholder only. 93 Case C-129/94 Rafael Ruiz Bernáldez [1996] ECR I-1829. 94 Case C-348/98 Vitor Manuel Mendes Ferreira and Maria Clara Delgado Correia Ferreira v. Companhia de Seguros Mundial Confiança SA [2000] ECR 1-6711. 95 Case C-537/03 Katja Candolin, Jari-Antero Viljaniemi and Veli-Matti Paananen v. Vahinkovakuutusosakeyhti&ouml Pohjola and Jarno Ruokoranta [2005] ECR I-5745. 96 Case C-356/05 Elaine Farrell v. Alan Whitty [2007] ECR I-3067. 97 Case C-442/10 Churchill Insurance Company Limited v. Benjamin Wilkinson and Tracy Evans v. Equity Claims Limited [2011] ECR I-00000. 98 EUI v. Bristol Alliance Partnership [2012] EWCA Civ 1267. 99 Art. 75 (of the MIB’s Articles of Association) is an intra-insurer protocol. It applies where the insurer asserts it has the right to repudiate or to avoid the contract (such as when the policyholder misrepresents facts or fails to disclose). Here, the insurer applies to the court for a declaration under RTA88 section 152(2) that the insurance contract is void. It gives effect to third-party victims of insufficiently insured drivers seeking access to compensation where the contractual insurer becomes a statutorily required insurer (standing in place of the MIB). The insurer here operates under the UDA and consequently the third-party victim suffers from access to poorer terms than would be available through claims against the insurer on a contractual basis. Art. 75 insurers have no liability to meet subrogated claims (a subrogated claim is one where another party should have been responsible for settling) and, as demonstrated in EUI the distinction between the rights guaranteed under statute and those available under the UDA are sufficiently different to place victims seeking redress under the latter arrangement at a disadvantage. 100 See for instance Seddon v. Binions [1978] RTR 163 and Keeley v. Pashen [2004] EWCA Civ 1491. 101 As noted in Churchill v. Wilkinson [2012] EWCA Civ 1166 and Case C-409/11 Csonka v. Magyar Allam [2013] EUECJ (11 July 2013). 102 Section 151 RTA88, which imposes the duty on insurers to satisfy judgments against persons insured or secured against third-party risks, is qualified against section 152 RTA88. Section 152 RTA88 outlines exclusions from liability and imposes procedural obstacles prior to the insurer being liable for any sum awarded. 103 In the event that he caused or permitted the use of the vehicle, which gave rise to the liability. 104 Case C-442/10 Churchill Insurance Company Limited v. Benjamin Wilkinson and Tracy Evans v. Equity Claims Limited [2011] ECR I-00000. 105 Found in RTA88 151(4) and UDA 2015 cll 7 and 8. 106 The principle establishes a worthy and appropriate ideal, nonetheless it is in its application that the state gains an advantage for internal systems which may fall short of ‘complete’ effectiveness, yet will not breach EU law. The test is that the national law or provision does not render it impossible or excessively difficult in practice to access the right. Even with the current deficiencies, it could be argued that the collectively the RTA88, UDA 2015 and the Untraced Drivers Agreement 2003 (as amended) satisfy this broad objective. 107 Case 33/76 Rewe-Zentralfinanz eG and Rewe-Zentral AG v. Landwirtschaftskammer für das Saarland [1976] ECR 1989 at [5]. 108 [2010] EWHC 3230 (QB). 109 At [15]–[18]. 110 Case C-129/96 Inter-Environnement Wallonie ASBL v. Région Wallonne [1997] ECR I/7411. 111 Case C-555/07 [2010] Kücükdeveci v. Swedex GmbH & Co KG ECLI:EU:C:2010:21. 112 Case C-443/98 Unilever Italia SpA v. Central Food SpA [2010] ECR I-7535 at [50]. 113 Case 106/77 Amministrazione delle Finanze dello Stato v. Simmenthal SpA [1978] ECR 629 and Case C-213/89 The Queen v. Secretary of State for Transport, ex parte: Factortame Ltd and others [1990] ECR I-2433. 114 In R v. Secretary of State for Transport, ex p Factortame (No 2) [1990] UKHL 13, famously the requirement of injunctive relief to prevent the application of incompatible national legislation was required of ‘any legislative, administrative or judicial practice which might impair the effectiveness of Community law’ at [20]. However, in Joined Cases 10/97 and 22/97 Ministero delle Finanze v. IN. CO. GE/90 Srl and Others [1998] ECR I-6307, the CJEU preferred the rendering of the national provision as inapplicable. 115 Case C-144/04 Werner Mangold v. Rüdiger Helm [2005] ECR I-9981. 116 Case C-555/07 Seda Kücükdeveci v. Swedex GmbH & Co. KG Judgment of 19 January 2010. 117 Case C-334/92 Miret v. Fondo de Garantia Salarial [1995] 2 CMLR 49. 118 Case C-106/89 Marleasing SA v. La Comercial Internacional de Alimentacion SA [1990] ECJ. 119 Case C-397/01 to C-403/01 Bernhard Pfeiffer et al v. Deutsches Rotes Kreuz, Kreisverband Walshut eV [2004] ECR I-8835. 120 Ibid. 121 At [119]. 122 Council Directive 90/232. 123 Case C-356/05 Elaine Farrell v. Alan Whitty [2007] ECR I-3067. 124 Case C-144/04 Werner Mangold v. Rüdiger Helm [2005] ECR I-9981. 125 Case C-555/07 Seda Kücükdeveci v. Swedex GmbH & Co. KG Judgment of 19 January 2010. 126 Enshrined in the fundamental premise of free movement of people and largely equated with immigration (but frequently (and incorrectly) conflated with the migrant crises in the Middle East). 127 Case C-87/14 European Commission v. Ireland [2015] ECLI:EU:C:2015:449 at [41]. 128 J Marson and K Ferris ‘Collective Redress: Broadening EU Enforcement Through State Liability?’ [2016] European Business Law Review 27, 3, 325. 129 Joined Cases C-6/90 and C-9/90 Francovich and Bonifaci and others v. Italy [1991] ECR I-5357. 130 Moore v. Byrne v. Secretary of State for Transport & MIB [2007] EWHC 879 (QB); Secretary of State for Transport & MIB [2008] EWCA Civ 574; Carswell v. Secretary of State for Transport & MIB [2010] EWHC; and Delaney v. Secretary of State for Transport [2015] EWCA Civ 172. 131 Going beyond mere technical breaches. 132 N Bevan ‘No Through Road’ [2015] New Law Journal 165, 7. 133 For example, see cll 12–13 UDA 2015; cll 7–12 in UDA 1999. 134 See for instance cl 2 which imposes a binding authority on the representatives of child/mentally incapacitated claimants to conclude agreements as if these claimants had capacity. This disadvantages the claimant compared with protections available under the Civil Procedure rules. See N Bevan ‘An Untidy Arrangement’ [2014] New Law Journal 164. http://www.newlawjournal.co.uk/content/untidy-arrangement (accessed 9 October 2016). 135 Case C-144/04 Werner Mangold v. Rüdiger Helm [2005] ECR I-9981. 136 Case C-555/07 Seda Kücükdeveci v. Swedex GmbH & Co. KG Judgment of 19 January 2010. 137 N Bevan ‘Where to Sue?’ [2014] New Law Journal 164, 14. 138 Council Directive 2000/26/EC on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles and amending Council Directives 73/239/EEC and 88/357/EEC (the Fourth Motor Insurance Directive) [2000] OJ L181/65. © The Author(s) 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

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Statute Law ReviewOxford University Press

Published: Mar 31, 2017

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