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Nicholas Bevan to the University of Exeter, As a Paper Submitted for the Degree of Doctor of Philosophy by Publication in Law in November 2016

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Nicholas Bevan to the University of Exeter, As a Paper Submitted for the Degree of Doctor of Philosophy by Publication in Law in November 2016 On the infringements associated with the United Kingdom’s transposition of European Council Directive 2009/103/EC of 1 September 2009 on motor insurance Submitted by Nicholas Bevan to the University of Exeter, as a paper submitted for the degree of Doctor of Philosophy by Publication in Law in November 2016. This paper is available for library use on the understanding that it is copyright material and that no quotation from the thesis may be published without proper acknowledgement. I certify that all material in this paper which is not my own work has been identified and that no material has previously been submitted and approved for the award of a degree by this or any other university. I have obtained permission from each of the publishers concerned to reproduce in the appendix to this paper my articles in the form in which they are presented. (Signature) Nicholas Bevan Nicholas Bevan 1 Abstract The United Kingdom (UK)’s transposition of the European Directive on motor insurance1 (the Directive) is shot through with provisions that fall below the minimum standard of compensatory protection for accident victims prescribed under this superior law. These expose third party victims to the risk of being left undercompensated, or recovering nothing at all. The author’s research has demonstrated that the handful of cases that had previously been perceived as isolated anomalies in the UK’s transposition of this European law are in fact symptomatic of a more extensive and deep-rooted nonconformity. His published articles over the past five years were the first to reveal the prevalence of this problem and the resulting lack of legal certainty. He has been the first to offer detailed proposals for reform, as well as fresh insights into legal remedies potentially available to private citizens affected by these irregularities. Sections 2 and 3 of this paper are a summary of the author’s views covered in his various articles and research into the causes and effects of this disparity. They explain that whilst both the UK and European Union’s legislature share a policy objective the different approaches to achieving that end have resulted in different standards of compensatory protection. Section 4 recounts the author’s empirical approach that led him to undertake the first comprehensive comparative law analysis in this field. Section 5 explains the original, if sometimes controversial, nature of the author’s case commentaries, articles and official reports proposing reform. Section 6 sets out the author’s contribution to legal knowledge and practice in this area. This includes his opinion, contrary to long established precedent, that the Directive is capable of having direct effect against the Motor Insurers’ Bureau. 1 Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 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, sometimes referred to as the sixth directive on motor insurance 2 2 “When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’ ’The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.”3 Through the Looking Glass and What Alice Found There, Lewis Carroll, 18714 2 Illustration by Sir John Tenniel (b 1820, d 1914). This is copyright expired 3 The excerpt quoted above was written is by Charles Lutwidge Dodgson (b 1832, d 1898), whose nom de plume was as Lewis Carroll. It is also copyright expired 4 Leggatt LJ may have been the first judge to quip, in the context of a commercial dispute, with a quote from Charles Dodgson’s children’s classic, in Investors Compensation Scheme Ltd v West Bromwich Building Society, and others [1998] 1 BCLC 493 at 528 3 4 Contents Abstract .............................................................................................................. 2 Contents ............................................................................................................. 5 Introduction......................................................................................................... 7 UK social policy .................................................................................................. 9 First steps ....................................................................................................... 9 A qualified success ....................................................................................... 11 A policy compromised ................................................................................... 12 Further stop gap measures ........................................................................... 13 Improved but incomplete protection .............................................................. 14 Emerging flaws ............................................................................................. 15 The increasing influence of European law ........................................................ 17 First steps ..................................................................................................... 17 Increasing restrictions ................................................................................... 17 Lock down of discretion and enhancement of rights ..................................... 18 The European insurance requirement ........................................................... 20 The compensating body’s role ...................................................................... 21 Comparisons with the UK provision .............................................................. 22 European law remedies .................................................................................... 27 Review of author’s publications ........................................................................ 35 Case commentaries: ..................................................................................... 35 Proselytising articles ..................................................................................... 39 Other published articles ................................................................................ 42 Significance of contribution............................................................................... 45 Contribution to legal knowledge .................................................................... 45 Contributions to practice ............................................................................... 48 5 Literature review............................................................................................ 50 Wider implications ......................................................................................... 53 Bibliography ...................................................................................................... 56 Preface .......................................................................................................... 56 1. Primary Sources ........................................................................................ 57 2. Secondary Sources ................................................................................... 66 Appendix ................................................... A. The Journal of Personal Injury Law .......................................................... 73 1. Case commentary on Churchill v Wilkinson and Evans v Equity Claims Ltd [2010] EWCA Civ 556 ...................................................................................... 73 2. Part I the Motor Insurers Bureau’s role ......................................................... 85 3. Part II: Why the UDA 1999 needs to be scrapped ...................................... 112 4. Case commentary on Delaney v Pickett [2012] EWCA Civ 1532 ............... 134 5. Marking the Boundary ................................................................................ 144 6. Tinkering at the Edges ............................................................................... 162 B. The British Insurance Law Association Journal .......................................... 182 7. Mind the gap! .............................................................................................. 182 8. Bridging the gap. ........................................................................................ 248 C. The New law journal ............................................................................... 312 9. On the right road? ...................................................................................... 312 10. On the right road? (Pt II) ........................................................................... 318 11. On the right road? (Pt III) .......................................................................... 326 12. On the right road (Pt IV) ........................................................................... 334 13. Self-driving vehicles: the road ahead ....................................................... 342 6 Introduction Our national law provision for guaranteeing that motor accident victims actually recover their full compensatory entitlement is defective. It is peppered with flaws that diminish or deny the protection it is supposed to confer. All too often, the ordinary literal meaning of these provisions fail to reliably convey their true legal effect; they often say one thing but are capable of producing a
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