At the time of writing it is still not clear when the UK will leave the EU, or indeed at all. Bearing in mind that Article 50 of the Treaty on European Union was triggered 2 years ago, it is perhaps surprising that with a week to go such uncertainty remains.
Whilst Brexit has been a mainstay of the news feeds 24/7 for most of the past 2 years, what is less well publicised is the fact that the question of whether the government manages to negotiate a deal with the EU prior to our departure will impact upon how cross border motor accident claims are dealt with after that date.
Currently a system known as the Green Card Scheme allows vehicles to move freely across the borders of all 48 subscribing countries and ensures that when a visiting vehicle causes damage, there is easy access to compensation in the victim’s home country. This system is not European-born and will continue post- Brexit. That system enables cross border travel while protecting victims injured in their own country by a foreign registered vehicle.
However there is another system, known as the Fourth Directive, to assist victims who are injured while abroad. This scheme is European-born and this is much more likely to face disruption depending on the progress of Brexit negotiations. The Fourth Directive enables victims to return home and then pursue a claim in their home country either via a local representative of the foreign insurer, or a special body known as the compensation body. Specialist claims handing companies such as Van Ameyde exist to deal with these cases. If the scheme is not maintained post- Brexit, then victims will have no choice but to pursue their claims in a foreign country, in an unfamiliar language.
The UK may well decide to keep its laws in line with the EU Motor Insurance Directives. However, if the Fourth Directive scheme is to be maintained in the UK it will require the agreement of all the other Member States. This is because, unlike the Green Card Scheme, it is based on reciprocal agreements and provisions in national laws.
One practical consequence of this is that any UK lawyers currently dealing with cases involving accidents abroad are having to issue court proceedings in those cases, whatever their state of readiness. If proceedings are issued prior to 29 March (or such later date on which the UK leaves the EU) then the lawyer will have retained the ability for their client to proceed with the case in the UK under the current favourable jurisdiction regime. This means that the CCMC which currently deals with the issuing of all County Court money claims is likely to be inundated with urgent requests for cases to be issued, thereby putting a strain on its limited resources.
There is a trap for the unwary when it comes to what is meant by issuing court proceedings in this context. Most lawyers involved in litigation are familiar with the need to issue claims protectively in order to avoid them becoming time barred. In that context it is usually sufficient for the claim form to simply have been received by the court, even if it has not physically been issued. This arises by the operation of Civil Procedure Rule Practice Direction 7A, paragraph 5.1, which says Proceedings are started when the court issues a claim form at the request of the Claimant but where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is ‘brought’ for the purposes of the Limitation Act 1980 and any other relevant statute on that earlier date. However, it seems that it should not be assumed that this will be sufficient for the purposes of making sure the current rules on jurisdiction are retained. Indeed, it is almost certainly the case that it will not be sufficient and that the Claim Form will need to have been actually issued and not merely received by the Court.
There are some other fairly fine points which seem to be causing confusion amongst some practitioners. Although it is necessary to issue proceedings to be sure of retaining the current jurisdiction regime, it is not a requirement for those proceedings to be served ahead of our departure. The House of Lords confirmed in the case of Canada Trust Co v Stolzenberg (No.2) (2002) that the jurisdiction will be seised once proceedings are issued. It will therefore be sufficient for a Claimant to issue a claim on 28 March (or the day before we leave the EU) and serve it out of the jurisdiction within the following 6 months without running the risk of losing the ability the bring a foreign accident claim in the UK. Some practitioners are either unaware of this or are taking a “belt and braces” approach. This is likely to mean that in some cases they will be urgently instructing medical experts to make sure they have a medical report available when serving the proceedings. In other cases the writer has already seen that some lawyers have proceeded to serve proceedings without any medical evidence. This means that they risk falling foul of Civil Procedure Rule 16 Paragraph 4.3 which states that where the Claimant is relying on the evidence of a medical practitioner the Claimant must attach to or serve with his particulars of claim a report from a medical practitioner about the personal injuries which he alleges in his claim.
Insurance companies, specialist claims handling organisations and insurance lawyers alike are keeping a close eye on Brexit developments. The outcome is already and could continue to impact on the way in which these specialist claims are dealt with in a variety of ways. This article is intended to serve as merely a reminder of the number of issues that may be impacted by Brexit and which were not within the contemplation of the majority of people at the time of the referendum.
Article by Kelvin Farmaner
Kelvin Farmaner and the team at Trethowans have many years of experience in dealing with foreign accident claims. They are active members of the Forum of Insurance Lawyers (FOIL) and Kelvin sits on FOIL’s “European Issues” Sector Focus Team.