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1 Headlight motoring news welcome to Headlight, Dolmans Solicitors motoring news bulletin. In this edition we cover: case summaries CPR 36 offers MVN (R on the application of) v London Borough of Greenwich [2015] Cyclists Donald MacLeod (a protected party by his litigation friend, Barbara MacLeod) v Commissioner of Police of the Metropolis [2015] Fenella Sinclair (a protected person by her litigation friend and daughter, Rebecca Rosalina Da Silva Lima) v Rachel Louise Joyner [2015] non-compliance = strike out Luftu Ali v CIS General Insurance [2015] sentencing discounts R v Jeremiah Ezekial Butler [2015] articles autumn 2015 new MIB uninsured drivers agreement

2 MVN (R on the application of) v London Borough of Greenwich [2015] Having succeeded at trial, the claimant sought an order for the recovery of indemnity costs and interest following on from what the claimant described as a part 36 (the revised CPR 36) offer which had been made some 2 months previously. The original dispute concerned the claimant s age. The offer put forward by the claimant s solicitor stated: The terms of our part 36 offer are that the local authority (i) accept our client s age and (ii) agree to pay our costs. In view of the public funding of both parties, we would invite the local authority, at this juncture, to accept our client s age and bring the proceedings to a close without the need for a trial. The defendant maintained that such an order would be inappropriate since there was no room for negotiation in relation to the offer made. It was a total capitulation offer as described in AB v CD & Others [2011] EWHC 602 (Ch). In that case, Henderson J noted that: A request to a defendant to submit to judgment for the entirety of the relief sought by the claimant cannot be an offer to settle within the meaning of part 36. If it were otherwise, any claimant could obtain the favourable consequences of a successful part 36 offer, including the award of indemnity costs, by the simple expedient of making an offer which required total capitulation by the defendant. In my judgment, the offer must contain some genuine element of concession on the part of the claimant.. The concept of a settlement must, by its very nature, involve an element of give and take. A so called settlement which was all take and no give would, in my view, be a contradiction in terms. It was held that the part 36 offer in this case was not a genuine offer to settle.. because what the claimant was doing was not to give as well as take. He was offering to take nothing short of what he was claiming in these proceedings. This was not a settlement offer in any real sense, but a tactical ploy on the part of the claimant. The defendant was ordered to pay costs on the standard basis only. 1

3 Donald MacLeod (a protected party by his litigation friend, Barbara MacLeod) v Commissioner of Police of the Metropolis [2015] The claimant sustained serious injuries when he was hit by a police car answering a 999 call on 24 March Although it was dark and had been raining, the claimant s bicycle was lit and he was wearing a helmet and high visibility vest at the time of the accident, which occurred at a busy crossroads in London. The police vehicle was travelling at some 55 miles per hour, well in excess of the 30 mile per hour speed limit. There was a dispute regarding the direction from which the claimant was alleged to have been travelling. The judge, in the first instance, preferred the evidence of the two independent witnesses, which he found to be reliable and compelling. Unfortunately, the claimant s injuries were such that he was unable to give evidence himself regarding the accident. The commissioner appealed on the basis that the judge had erred in making a finding of fact against the weight of the evidence; preferring the evidence of the independent witnesses and rejecting the possibility of an alternative scenario based on the expert evidence, and finding that the claimant had turned to his right before the collision when there was no evidence to support such a finding. On appeal, it was held that the judge had been careful to distinguish the evidence from the independent witnesses of what they actually saw from what they thought might have happened. There was no obligation to him to accept the expert evidence. The commissioner s appeal was on the facts, and where a trial judge had reached a conclusion on the primary facts, it would only be in very rare circumstances where that judgment would be interfered with. There was no indication that the judge had misunderstood the evidence, and that in applying his common sense and experience, it was entirely possible for the accident to have occurred as contended by the claimant. Fenella Sinclair (a protected person by her litigation friend and daughter, Rebecca Rosalina Da Silva Lima) v Rachel Louise Joyner [2015] On 30 July 2011, the 62 year old claimant was cycling along a country lane some 2.5 metres wide. The claimant was not wearing a cycling helmet and was cycling towards the middle of the road. The defendant was driving her Volvo 4x4 motorcar in the opposite direction and made contact with the claimant s bicycle, causing the claimant to fall and suffer a life changing head injury. 2

4 The claimant submitted that the defendant did not properly assess the potential hazard and that she should have stopped to allow her to pass, rather than to attempt to drive past the claimant. Of note, the defendant s motorcar was some 2.1 metres wide, and whilst it was accepted that the claimant was only just on her side of the road, even had she been right over to her nearside, only 40 centimetres would have been available to the claimant at the point where the vehicles passed each other. The claimant s injuries were such that she could not recall why she had been towards the centre of the road, but it is worth noting that whilst it was pleaded that the claimant was negligent in failing to wear a cycle helmet, there was no medical evidence adduced to show that failing to wear a helmet made the claimant s injuries worse, and the 25% reduction related solely to the claimant s position on the road as a contributing factor. Luftu Ali v CIS General Insurance [2015] It was held that the defendant driver was liable. She had noticed the claimant s position towards the centre of the road and that she was riding up on pedals, and that was a clear indication that she was not a serious cyclist and was struggling. Any prudent driver would have stopped to allow the claimant to pass. There was contributory negligence at 25%. The deduction was made on the basis that the claimant should not have been riding a bicycle in the centre of the road and that in doing so, she materially contributed to the damage caused. The claimant s vehicle was damaged in a road traffic accident. A week later, she was involved in another accident whilst driving the family s second car. The second incident was her fault, and her insurer settled the other driver s claim against her. A claims management company then provided the claimant with a hire car and the claimant sought to recover damages for credit hire charges and other losses from the defendant as insurer of the other vehicle in the first accident. The claim was defended on the basis of the hire claim, or the need for a hire vehicle, which arose following the second accident, which meant that the claimant no longer had access to the family s second car. 3

5 An order for specific disclosure required the claimant to provide details of all accidents that she had been involved in for 5 years before and subsequent to the index accident, including disclosure of medical reports, details of special damages claimed, witness statements and engineering evidence. Having failed to provide documents relating to settlement of the second accident, the court allowed the defendant s application to strike out the claim for non-compliance. The claimant appealed and submitted that it had been disproportionate to strike out her claim. The non-disclosure related to documents concerning the second accident, which were not relevant since she had not made any claim in respect of the second accident. Where there was a history of multiple accidents/claims, such that credibility was an issue, it was not unreasonable for the defendant to seek a relatively wide range of disclosure. The extent of damage to the second vehicle was important in establishing not only her need to hire, but the appropriate period of hire. On that basis, the documents relating to the settlement were potentially relevant. Striking out a statement of case is one of the court s most powerful case management weapons. In this case, the claimant had failed to provide any adequate explanation for her failure to comply with the order and the court had rightly concluded that the breach was far from trivial and a further unless order would have been disproportionate. The claimant had failed to act within the letter and spirit of the CPR and, consequently, the court had no confidence in her conduct. Her appeal was dismissed. R v Jeremiah Ezekial Butler [2015] In March 2014, Mr Butler was unlawfully at large, having been released on licence and having breached his licence conditions. After an argument with his partner, he drove off in her car, which she then reported stolen. A police chase ensued, with Mr Butler reaching speeds of up to 85 miles per hour, driving through red traffic lights and on the wrong side of the road. Mr Butler maintained that he had simply panicked, knowing that he would be recalled to prison and that he did not think his driving had been dangerous. In October 2014, following an investigation by the CPS, Mr Butler was charged with dangerous driving, and he first appeared before the magistrates in March 2015, a year after the offence, where he pleaded guilty. This was his first opportunity to plead guilty. The judge reduced the full 20 month term by 20% to reflect the guilty plea. The full discount of one third was not given because the evidence against him was overwhelming. 4

6 Mr Butler argued that he should have received the full one third discount for his guilty plea. He also argued that the delay in prosecuting him had resulted in injustice because had there been no delay, he would have been sentenced much earlier and, therefore, released earlier. It was held that the initial denial that he had been driving dangerously was significant, as was the fact that he did not indicate his proposed plea at the earliest opportunity. There was no doubt that his driving had been dangerous. The judge had been entitled to conclude that this case was one where the full discount for pleading guilty should be withheld. The discount of 20% was in accordance with the guideline issued by the Sentencing Guidelines Council on the Reduction in Sentence for a Guilty Plea. Further, Mr Butler knew the possible consequences of committing a further offence while on licence and that a lengthy sentence of imprisonment was inevitable. If he had not breached the conditions of his licence, he would not have found himself in the position which he did. The police had to properly investigate and the normal processes of bringing the case to court would have taken some time. When put into its proper context, it could not be said that any real injustice had occurred. ARTICLE New MIB Uninsured Drivers Agreement The Motor Insurers Bureau (MIB) acts as a last resort for claimants seeking compensation against uninsured or untraced drivers in the UK. The Uninsured Drivers Agreement, agreed between the MIB and insurers in 1999, sets out the framework for claims involving defendants driving without valid insurance and the circumstances in which an insurer will take on this liability from the MIB under Article 75 of the MIB Memorandum and Articles of Association (for example, when an insurer has issued a policy of insurance that is subsequently declared void). The Uninsured Drivers Agreement has been the subject of a review and consultation since 2013, and a new agreement, incorporating the findings of that review, and updated in line with developing practice, EU and domestic law, came into force on 1 August The new agreement applies to all accidents occurring on or after this date. So, what has changed? Notice In essence, the rules are now much simpler. There were a number of criticisms of the 1999 agreement, particularly in relation to the notice provisions in relation to the issue and service of proceedings. 5

7 Under the new agreement, claimants, when completing the MIB form, must provide the MIB with such information as they reasonably require to deal with a claim and then answer any reasonable requests for further information. Any disputes over the reasonableness of the MIB s requests are to be determined by an arbitrator. Under the new rules, it is no longer necessary for claimants to give the MIB 7 days notice of commencing court proceedings. The new clause 13(1) requires the MIB to be joined as a party to the proceedings from the outset (unless a claimant reasonably believes that there is an RTA insurer and has given RTA notice accordingly). The MIB, as a defendant from the commencement of proceedings, will, therefore, receive all pleadings, court documents and notices, and the claimant will no longer need to notify the MIB of an intention to apply for judgment. This new clause will also avoid the MIB having to apply to be joined into any proceedings. Passengers The new agreement amends the position in terms of what passenger knowledge is required, to exclude liability, bringing it in line with recent developments and case law. Under the old agreement, the test was whether the passenger ought to have known that the defendant driver was uninsured. Under the new agreement, the test has been amended to had reason to believe that the driver was uninsured. This new clause is likely to produce more consistent decisions and brings the test in line with sections 143(3) and 151(4) of the Road Traffic Act The old agreement also allowed the MIB to escape liability if a passenger knew that the vehicle that they were travelling in was being used in the furtherance of a crime. This has been held to be a breach of EU law (Delaney v Secretary of State for Transport [2015] EWCA Civ 172), so the new agreement deletes the exception entirely. Previously, the MIB were also able to escape liability to passengers who knowingly allowed themselves to be carried in vehicles to avoid lawful apprehension, but this has been removed from the new agreement. Subrogated claims It was accepted under the old agreement that the MIB could avoid liability for subrogated claims and it was, therefore, a bone of contention as to what was, and what was not, deemed a subrogated claim. Clause 6(1) of the new agreement seeks to clarify matters by extending the scope of what is deemed a subrogated claim, to include: Any claim, or any part of a claim, in respect of which the claimant has received, or is entitled to receive, or demand, payment or indemnity from any other person, including an insurer, not being the Criminal Injuries Compensation Authority or its successor. 6

8 Other changes Under the new agreement, the maximum payable for damage to cars is 1 million, and the agreement makes it clear that the MIB will not be liable for any claim caused by, or in the course of, an act of terrorism. The agreement has also been extended to recognise the common practice of settling a claim using a form of assignment. Conclusion The Uninsured Drivers Agreement is now much shorter, simpler and purportedly fairer to victims of uninsured drivers. The MIB has been stripped of its many powers to reject legitimate claims for trivial procedural breaches, which should result in more victims of uninsured motorists being compensated. If there are any topics you would like us to examine, or if you would like to comment on anything in this bulletin, please the editor: Simon Evans at One Kingsway, Cardiff, CF10 3DS Tel : Fax : This update is for guidance only and should not be regarded as a substitute for taking legal advice. Dolmans However, some commentators consider that the new agreement does not go far enough in terms of compensating victims, and it is argued in some quarters that it does not even provide the minimum standard of protection required under EU law. 7

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