Resolving the Inconsistency between National and EU Motor Insurance Law. Was Factortame the Solution nobody Sought?

In this article we argue that the continued uncertainty of UK national motor vehicle insurance law when viewed in respect of its EU parent, the Motor Vehicle Insurance Directive (MVID), has not been satisfactorily addressed using the remedy available through the non-contractual liability of the State. The existing enforcement mechanisms have equally been haphazard in their effectiveness and success in affording rights to third-party victims. Given the link between the MVID and the free movement of persons and goods on which the harmonization of insurance protection was based, we present the first article establishing an argument for the offending aspects of UK national law to be disapplied. Whilst the UK has concluded its agreement to withdraw its membership from the EU and thus to be bound by EU law and the jurisprudence of the Court of Justice, until the transitional period is completed the UK remains aligned to EU law. It is committed to follow superior EU law and the judgments of the Court of Justice. Hence the remedy issued from the Factortame line of case authorities may prove to be the most effective way to grant access to rights which continue to be denied to victims in the UK

Motor vehicle insurance law: ignoring the lessons from King Rex

Following a review in 2013, the Motor Insurers’ Bureau (MIB) established the Uninsured Drivers Agreement (UDA) 2015. The aim was to implement aspects of the Motor Vehicle Insurance Directives (MVID). The UDA 2015 contained numerous errors in its drafting and led to widespread criticism due to its incompatibility with EU law and common law principles. In January 2017 the MIB provided its Supplementary Uninsured Drivers Agreement. If its aim was to remedy these problems we argue that it has substantially failed. Further, the updated Agreement continues the uncertainty of the law in this area and, with reference to Fuller’s ‘Eight Ways to Fail to Make Law’, we present an argument that the Secretary of State for Transport should again redraft the UDA 2015 and the 2017 Supplement to provide legal certainty, remove the inconsistencies between national and EU law, and provide the protection to which third-party victims of uninsured drivers are entitled under EU law

Misunderstanding and misapplication of motor insurance law: will the Supreme Court come to the rescue?

For many years a tension has existed between the law of the European Union governing motor vehicle insurance and the UK’s transposition, interpretation and application of its national law. Cases including Delaney v Pickett & Tradewise [2011] EWCA Civ 1532 and EUI v Bristol Alliance Partnership[2012] EWCA Civ 1267 have demonstrated the UK’s misunderstanding of its legal obligations in this area and has led to the award of damages to affected individuals against the UK. On 5 December 2016 the Court of Appeal issued its judgment in the case Sahin v Havard and Riverstone Insurance (UK) Ltd [2016] EWCA Civ 1202. The Court was tasked to apply provisions of the Road Traffic Act 1988 to a victim of an unauthorised driver in a claim against the policyholder and the insurer. It is argued here that the Court has misunderstood and misapplied the EU parent law in its application of national law. The case may ultimately be determined by the Supreme Court but it is a ruling of sufficient significance in its lack of adherence to EU law and, given the notoriety of cases demonstrating the inconsistencies of the Court of Appeal’s decisions in motor vehicle insurance law, it is worrying that these judgments seemingly have been ignored. The ruling also has important implications for the consequences that Brexit will have on motor vehicle insurance. This is particularly if, as is expected, the UK pursues a ‘hard Brexit’ without access to the single market and the need to comply with the free movement principles through which the motor vehicle insurance directives are based. The UK would therefore be freed of the compatibility issues demonstrated in Sahin, but this will likely leave third party victims in a weaker position

Splitting Hairs?

Is it discrimination? James Marson & Katy Ferris examine the different approaches of the court to mistreatment on grounds of nationality & immigration status

Collective redress : broadening EU enforcement through state liability?

This article advances an argument that private enforcement of European Union (EU) rights has largely been stunted due to a series of blocking tactics by Member States, enabled through a form of tacitic subservience of the Court of Justice of the European Union to these States. Currently, State Liability is neither an effective system of redress under tortious liability, nor a genuine enforcement mechanism in domestic law. By enabling collective redress in State Liability, we present an argument, missing explicitly in current literature, that both as a viable remedy through the (UK’s modified) tort of breach of statutory duty, and through granting effective redress through action by the EU Commission, State Liability will become the mechanism for corrective justice the Court of Justice envisaged in 1991. In 2011, the EU Commission issued a non-binding Recommendation establishing collective redress for breach of competition law. Could this be seen as positive positioning by the EU to seize the initiative for greater access to individuals of justice and justiciable solutions

Delaney and the Motor Vehicle Insurance Directives : lessons for the teaching of EU law

A recent series of cases relating to the EU motor vehicle insurance directives and their application in the UK makes for interesting reading. It is in the UK’s negligent transposition, and a lack of knowledge and awareness by lawyers and judges in the cases of the interaction between domestic and EU law, which compounds the negative effects. The issues raised in Delaney v Pickett [2011] and Delaney v Secretary of State [2014] generate concern not just as to the implications they have to the application of EU law principles, but have resonance with the way in which EU law is taught in many universities. In this article we suggest that reconsidering the method and purpose of EU teaching may better serve the EU-lawyers needed for the future

Splitting hairs? Is it discrimination? James Marson & Katy Ferris examine the different approaches of the court to mistreatment on grounds of nationality & immigration status

In Brief: In Taiwo v Olaigbe and another: Onu v Akwiwu and another the Supreme Court had to decide whether the appellants suffered mistreatment on the basis of their nationality (protected by s13(1) of the Equality Act 2010 (EqA 2010)) or due to their vulnerable immigration status (not protected). The case of Taiwo v Olaigbe and another: Onu v Akwiwu and another [2016] UKSC 31, [2016] All ER (D) 134 (Jun) involved the mistreatment of migrant domestic workers by their employers and whether such action amounted to direct or indirect race discrimination

Does disability begin at 40? Karsten Kaltoft v Kommunernes Landsforening (KL), acting on behalf of the Municipality of Billund (Advocate General's Opinion) [2014]

Anti-discrimination legislation based on disability has been in existence in the United Kingdom since 1995 with the Disability Discrimination Act. In the UK, the first major legislation action to outlaw discrimination began with sex and race, and the effects of the UK's membership of the EU accelerated the extent and scope of the law, and these, along with the other protected characteristics have subsequently been codified in domestic law through the Equality Act (EA) 2010. Of the protected characteristics articulated in EA 2010, disability has been defined as where 'A person has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on the person's ability to carry out normal day-to-day activities. Does this definition extend to individuals who are obese and suffer associated problems due to medical complications? This question is pertinent as nearly 25% of the UK adult population are classified as clinically obese (have a Body Mass Index of 30 or more) and regardless of the effect this has on the NHS and medical profession generally, for employers, it is becoming an increasing problem - 'Obesity imposes a significant human burden of morbidity, mortality, social exclusion and discrimination.' Obesity also has a negative impact on the national economy, leading to a reduction in the national output, reductions in tax revenues, with increased spending on benefits such as incapacity and unemployment payments. Whilst the Employment Appeal Tribunal (EAT) held in Walker v Sita Information Networking Computer Ltd [2013] that obesity, of itself, would not amount to disability, it did conclude that being obese is more likely to result in that person suffering a disability-related condition. In Kaltoft v The Municipality of Billund, the Advocate-General (A-G) to the Court of Justice of the European Union (Court of Justice) has provided an opinion that those individuals who are 'severely' or 'morbidly' obese (i.e. those with a Body Mass Index (BMI) of 40+) maybe treated as disabled. They will be able to avail themselves of legal protection in the event of being dismissed or treated less favourably because of their condition, as a consequence of the impairments they suffer from being obese, but not because they are obese. As such, the law has not changed following the ruling by the A-G, but it does give employers pause for thought in how to ensure reasonable adjustments are made for individuals who are morbidly obese and thereby may (but not will) come under the remit of disability laws

After arrival, the problems facing refugees and their families : a clinical legal response

Since 2016, a Refugee Family Reunion Law Clinic has operated from Sheffield Hallam University’s Helena Kennedy Centre for International Justice (hereafter HKC Law Clinic). Given the austerity-driven political agenda of the UK government in cutting public funding to advisory services, the effects of LASPO and a continuing refugee crisis, refugees in many parts of the UK were in need of legal and non-legal assistance. To fill this gap in services university law clinics, including our own, began to offer specialised services to assist the refugee population. This has included family reunion and exceptional case funding applications, and expert legal advice for individuals who find themselves stateless, yet in many instances the formal assistance ends at this stage. The HKC Law Clinic and its staff have remained in contact with many of our refugee clients (some are now engaged as interpreters). Through this interaction we have observed a particular problem of the lack of post-arrival support for refugees and their families. Developing the Therapeutic Jurisprudence philosophy upon which the clinic is based, and thus ensuring a therapeutically positive experience for the Clinic’s users, we have begun a process of creating a more holistic clinical experience. Following the refugee clients’ successful family reunion application, and when building their new lives together in the local region, our clinic offers a range of support services to assist in the pragmatic issues facing the family. This aspect of the HKC Law Clinic is in its infancy, but this paper aims to demonstrate what university law clinics can achieve and provides examples of our experiences so far

The transposition and efficacy of EU rights. Indirect effect and a coming of age of state liability?

Throughout the duration of the UK’s membership of the European Union (EU), non-implementation and incorrect transposition of Directives has been commonplace. Coupled with the Court of Justice of the European Union’s refusal to extend the direct effect of Directives to horizontal relationships, and historic difficulties in holding States liable in damages, it has often fallen to the national courts to give effect to EU laws through purposive statutory interpretation. Recent cases involving the collective redundancy of workers in the UK, and the High Court’s assessment of State Liability in the insurance sector (approved by the Court of Appeal), raise questions as to the efficacy of the current system of enforcement of EU law domestically. Despite the problems of access to EU rights experienced by workers in the UK, there appears to be hope that the judiciary is becoming more attuned to the relationship between EU and domestic laws, and are willing to take control of granting access to remedies without necessarily waiting for EU institutions to provide express permission or instruction. 2015 has thus far been a particularly important year in this regard. However, a systematic review of the UK’s transposition of EU law and the impact on individuals of the current suite of enforcement mechanisms is required if private enforcement of EU law is to provide the protection workers need and to which they are entitled