Another interesting point is that the Road Traffic Act states that the driver of a vehicle must be in possesion of a certificate of security covering them for third party risks i.e. a certificate of insurance. They are then classed as insured.
However if their insurance company for some reason decides to renegade on the policy, for example it is discovered the insured does not infact have a licence or they have made a fraudulant aplication, then they cannot be prosecuted for 'No Insurance'.
In other words they only have to have a policy, it does not have to guarentee that it is going to pay out in the event of a claim.
Now making a false statement to an insurance company is an offence but it is'nt going to get you your money.
When making inquiries in respect of insurance policies the first question is usually " Have they been involved in an accident?" If its, "yes" then they are only too willing to drop them in it. If its," no" then its a more of a case of "well on this ocassion we do not see a problem but we will need to speak to our client . In other words " Don't want to loose our customer and their could be some more money in this."
So you see it's not black and white there is conflict between the civil and criminal law.
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> Another interesting point is that the Road Traffic Act states
> that the driver of a vehicle must be in possesion of a
> certificate of security covering them for third party risks
> i.e. a certificate of insurance. They are then classed as
> insured.
No, sorry, but you are quite wrong.
A certificate of insurance is regarded as normally acceptable proof of insurance. However, these are frequently checked with the insurance company, even more so with cover notes.
Even if that certificate had been valid but insurance had been revoked by means of 7 days written warning, recorded delivery to the last known address, then that person is not insured and can be prosecuted for no insurance.
In addition, "in possesion" is defined, as well as an additional part clarifying that it is your responsibility to ensure that your certificate is valid, not your insurers.
> fraudulant aplication, then they cannot be prosecuted for 'No
> Insurance
If the error is dicovered at that moment, and it has not been through the '7 day process" mentioned above, then not only is that person insured, the insurance company must also satisfy the claim. therefore, there is no "no insurance" case to be answered.
However, since that person was in breach of policy conditions, one of which is disclosure, then the insurance company is entitled to sue for the recovery of those monies under civil law.
> In other words they only have to have a policy, it does not
> have to guarentee that it is going to pay out in the event of
> a claim.
Yes it does.
> So you see it's not black and white there is conflict between
> the civil and criminal law.
It *is* black and white and there is *no* conflict between civil and criminal law, and neither can there be.
If you are meaning that a police officer is unlikely to check the validity of an insurance certificate, then whilst the odds are in your favour, they check one hell of a lot more than you think they do.
Mark
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Mark I agree with what you are saying. However your arguments are based mostly around civil law. The points I was trying to put across are based around practical reality, problems that could be encountered by claimants and how caselaw and the CPS interpret the Road traffic Act.
If a third party were making a claim and the insurance company were refusing to pay on the grounds that their client had broken their agreement, not withstanding the '7 day process' then it would be a matter of making a civil claim against the insurance company which would well succeed, however the hassle and time factor to reach a settlement could put most people off.
If the above scenario were the case then you would expect that the claimant could approach the Police and claim that as the other parties insurance company were refusing to pay up the other party must not have been insured.
However the Road Traffic Act states that the driver of a vehicle must be in posession of a certificate of security covering them for third party risks i.e. a Certificate of Insurance - which of course they had at the time. *What the Road Traffic Act does not state is that that policy must pay up in the event of a valid claim and if it does not then the holder is guilty of using a vehicle without Insurance.* That is the interpretation of the prosecuting autorities and that is where I see the conflict between Criminal and Civil law.
Let me give you another practical example. Someone is banned say for a month under the 'totting up' procedure. They continue to drive. During that month they are stopped by the police and produce an Insurance Cetificate which was obtained prior to being banned. It is then discovered that they are disqualified. They are duly processed. Despite what it says in the small print about being the holder of a licence and not being disqualified ( which it does not actually say on my Certificate) the reality is that until the " 7 day process" is initiated that person is the holder of a Certificate of Insurance etc. etc. under the Road traffic Act. And my experience is that prosecution is not pursued. Of course the only person who would notify the Insurance Company is the Policy Holder. They have not made a false declaration as the policy was already in force prior to being banned. They have of course not fulfilled their obligations to notify the insurance company but that is not a criminal offence.
Andrew
PS Spare me the shift on Mike Papa Zero 7 unless it is with Mark. I think we would have a lot to talk about!!!!!!!
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Andrew wrote:
> If a third party were making a claim and the insurance company were refusing to pay on the grounds that their client
> had broken their agreement, not withstanding the '7 day process' then it would be a matter of making a civil claim
> against the insurance company which would well succeed,
They are effectively unable to avoid some types of claim. For sure they cannot avoid TPI, and I believe, although I am not sure, that this was extended to Third Party damage also.
The portion of the claim they can avoid easily is damage/loss on the part of the policy holder. But having this portion of insurancve is not compulsory under the RTA.
> however the hassle and time factor to reach a settlement could put most people off.
That is certainly true. And a pretty sad indictment, also. Regrettably it is also self-fulfilling. The more peopel that believe this, the more that various parties, including insurance companies, become aware that being obstructive can be financially beneficial.
> If the above scenario were the case then you would expect that the claimant could approach the Police and claim that as
> the other parties insurance company were refusing to pay up the other party must not have been insured.
Maybe. As I said, I believe that TP cannot be avoided, although it can be recovered, and therefore without the 7 day process then the insurance is valid. Interestingly this gets very complex when the vehicle is being used in the course of a crime, which does not invalidate the TPI responsiblilty of the insurer.
> However the Road Traffic Act states that the driver of a vehicle must be in posession of a certificate of security
> covering them for third party risks i.e. a Certificate of Insurance - which of course they had at the time.
>*What the Road Traffic Act does not state is that that policy must pay
> up in the event of a valid claim and if it does not then the
> holder is guilty of using a vehicle without Insurance.*
Leave that one with me, I need to go and dig something out.
However, all of your points depend on the ability of an insurer to avoid third party liability, which I believe they cannot. I am, however, gonna check.
>They have not made a false declaration as the policy was already in force prior to being banned.
Its called material change and is part of your policy conditions.
>They have of course not fulfilled their obligations to notify the insurance company but that is not a criminal offence.
It may be. It depend if "intent" can be proved.
> PS Spare me the shift on Mike Papa Zero 7 unless it is with
> Mark. I think we would have a lot to talk about!!!!!!!
Actually, I can go on like this as long as I have a flow of beer. Of course that flow of beer does fairly quickly preclude sensible discussion.
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Here we go........
The following comes from the RTA 1988, C.52 Part 6 (TPL) S. 151 P. 5.
(5) Notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled, the policy or security, he must, subject to the provisions of this section, pay to the persons entitled to the benefit of the judgment?
(a) as regards liability in respect of death or bodily injury, any sum payable under the judgment in respect of the liability, together with any sum which, by virtue of any enactment relating to interest on judgments, is payable in respect of interest on that sum,
(b) as regards liability in respect of damage to property, any sum required to be paid under subsection (6) below, and
(c) any amount payable in respect of costs.
There's loads more, and I won't bore you with it, although I do now have it electronically and I can e-mail it to you if you ask. There are even more detailed and explanatory sections, but this one essentially covers it.
However, the net result is that unless an Insurance Policy has *already* been cancelled, then it is not legally possible to avoid TP Claims. Given that, then no offence, at least insofar as the RTA is concerned, has been commited. There may, or may not, have been criminal fraud depending on intent and benefit. Either way, you have exposed yourself to a civil liability through breach of contract by actions or ommisions such as disclosure or material change.
If the insurance *has* already been cancelled, then the MIB may decide that the Insurer must still pay given that he was the most recent or relevant insurer, but the "insured" would be liable to prosecution since he was not legally insured beyond an internal control & benefit of the MIB.
I.E. Take no crap. If you are the TP, they must may your damages and will get kicked if it goes to court.
And in case that's all too serious, then I would end it by saying "nyaah, nyaah, I was right".
M.
p.s. usual disclaimer, its your responsibility to get it right, not mine. The above could be total rubbish, except that its not, but I am not warranting or implying that it is not. If you have a doubt take *your* policy or case to *your* lawyer.
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p.p.s.
Andrew - if you want to discuss it more, let's do it over a beer in England rather than here in the BR, my fingers are tired.
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All good stuff and it's nice to see so much knowledge being spread on here!
My addition to this is that a couple of years back someone hit my stepfather's car whilst it was parked outside his father's house. He ran out in time to see the guy getting out the car and running into his house (was a very quiet cul-de-sac). He went over and knocked and a woman answered who swore blind noone had been out in the car all day etc etc. This guy even had the cheek to come back out and inspect the back of the car when he thought noone was looking! We went back round there and he steadfastly refused to give us his insurance details (which he may or may or not have had anyway).
Anyway, we took the plate details of his car and reported him to the Police. They did not want to know and were (apparently) under no obligation to do anything about the situation.
We then took the guy to court who still refused to provide any details of insurance. He claimed he was also penniless and could not afford to pay any of the repair costs to the car - Court found in our favour and made him pay the cost of 400 quid's worth of repairs at 10 quid a week.
The last bit is the key bit - 10 quid a week, and noone at any point gave a sh!t that this guy refused to provide insurance details (police/court etc).
It does seem that in current situation there are minimal penalties for those who drive uninsured and the process of making them ay for their damage are so expensive and complicated it must deter many people. I remeber several people I knew at uni who preferred to take the risk as they couldn't afford the 800 quid per year to drive their cars.
Dan
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> We went back round there and he steadfastly refused
> to give us his insurance details (which he may or may or not
> have had anyway).
>
> We then took the guy to court who still refused to provide
> any details of insurance.
Strange...................
154.?(1) A person against whom a claim is made in respect of any such liability as is required to be covered by a policy of insurance under section 145 of this Act must, on demand by or on behalf of the person making the claim?
(a) state whether or not, in respect of that liability?
(i) he was insured by a policy having effect for the purposes of this Part of this Act or had in force a security having effect for those purposes, or
(ii) he would have been so insured or would have had in force such a security if the insurer or, as the case may be, the giver of the security had not avoided or cancelled the policy or security, and
(b) if he was or would have been so insured, or had or would have had in force such a security?
(i) give such particulars with respect to that policy or security as were specified in any certificate of insurance or security delivered in respect of that policy or security, as the case may be, under section 147 of this Act, or
(ii) where no such certificate was delivered under that section, give the following particulars, that is to say, the registration mark or other identifying particulars of the vehicle concerned, the number or other identifying particulars of the insurance policy issued in respect of the vehicle, the name of the insurer and the period of the insurance cover.
(2) If without reasonable excuse, a person fails to comply with the provisions of subsection (1) above, or wilfully makes a false statement in reply to any such demand as is referred to in that subsection, he is guilty of an offence.
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make a formal complaint about the copper who u reported this offence to...
as soon as you start to do this things will change
as long as there are witnesses to the guy driving at some point etc
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Mark
Sounds good to me!
Just another example which I had to deal with. Elderley gentleman sets off from his house and about 500m down the road sadly suffers a fatal heart attack, veers to the nearside and hits parked cars which were subsequently written off.
I assisted one of the owners with their claim form and managed to obtain insurance details of the elderley gentleman. His insurance company would not honour the claim as they said that as the driver had suffered a heart attack, and that he had no history of illness, he therefore could not be held negligent and that they were therefore not liable for the claim. They also stated that as he was dead prior to impact he was no longer the driver!
Got to rank as one of the top excuses that one. I assisted in a series of letters to them stating that they were unable to catagorically say that he was dead prior to impact as the only person who is able to certify death is a doctor and that was done when the gentleman was removed to and arrived at hospital - well if they can get smart!
They continued in the same vane stating that as he had had a heart attack he was not negligent and therefore they were not liable. Eventually the claimant gave up and made a no fault claim on their own insurance.
I believe that had they taken the matter to court then they would have won but there again its the "hassle factor." I was also under the impression that it was the vehicle that was insured and not the driver.
Anyway just goes to show that insurance companies can be devious.
Andrew.
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