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EU Law Paves The Way For Rights
On the 19th January 2003 the European Communities (Rights
against Insurers) Regulations 2002 [SI 2002/3061] came into force.
The effect was to give Claimants ("entitled party") resident in an
EU member state, EEA, or Iceland, Norway, Liechtenstein a right to
issue proceedings directly against the insurer which had issued a
policy of insurance relating to an insured vehicle involved in a
road traffic accident.
In simple terms the Claimant involved in an RTA may now sue for
example, Fortis Insurance, Provident, National Farmers' Union etc
direct rather than Mr Smith or Mrs Bloggs who was driving the
vehicle involved. There are however certain requirements to be met.
The accident has to have taken place on a road or other public
place in the United Kingdom. The vehicle involved has to have been
intended for travel on land and propelled by mechanical power, not
run on rails (so trams and trains are excluded). The Regulations
also include trailers whether they are coupled or not. However the
vehicle has to normally be based within the United Kingdom. The
Regulations don't seem to give assistance to the Claimant colliding
with a Dutch lorry on its way to Felixstowe! Finally, and perhaps
most obviously, the vehicle has to be insured for use by the
insured person on a road or public place within the United
Kingdom.
If all of the above are satisfied then the Claimant can issue a
claim against the insurer direct and the insurer will be directly
liable to the Claimant to the extent that he is liable to the
insured person. The Regulations seek to extend the existing rights
that Claimants have under English Law. The Claimant already has a
direct right against the insurer by virtue of The Third Parties
(Rights against Insurers) Act 1930, but this is only available
where the insured/proposed Defendant is insolvent. In addition, the
Claimant has to establish liability on behalf of the Defendant
before he can look to the insurer direct. The Claimant also has an
existing right by virtue of Road Traffic Act 1988, which obliges
insurers to satisfy and satisfied Judgments obtained against their
insured, providing they were given requisite notice of the
intention to commence the proceedings pursuant to S.152 (1) (a) RTA
1988. The rights conferred by the Regulations are wider and simpler
than both of the existing regimes.
Despite being in force for the past year, history and tradition
seem to dictate. Certainly proceedings falling on the desks of the
motor team at Browne Jacobson continue to cite the insured as the
Defendant and not the insurer. Only time will tell whether EU law
does in fact cause the tortfeasor who caused the road traffic
accident to disappear as a Defendant on proceedings.