Insurance Law Monthly

It is over two years since the CJEU’s decision on the scope of compulsory third-party motor insurance (CTPMI) in Vnuk v Zavarovalnica Triglav Case C-162/13 [2015] Lloyd’s Rep IR 142. The case involved an accident in Hungary, where a tractor and a trailer collided with a ladder on a private farm, causing personal injury to the claimant.

Under CPR 25.13 the court may make an order for security for costs in favour of a defendant if: it is just to do so, and; where the claimant is a company, there is reason to believe that it will not be able to pay the defendant’s costs if ordered to do so. A question that has arisen on a number of occasions is whether an order for security for costs should be made if the claimant’s action is being funded by after the event (ATE) insurance.

The Court of Appeal in W R Berkley Insurance (Europe) Ltd and Another v Teal Assurance Co Ltd [2017] EWCA Civ 25 has dismissed an appeal against the first instance decision of Eder J [2016] Lloyd’s Rep IR 134 on the question of allocation of losses to a liability policy. The case turned on the construction of a settlement agreement.

The New South Wales Court of Appeal in Zhang v ROC Services (NSW) Pty Ltd [2016] NSWCA 370 considered the significance of a comma in an exclusion clause in a liability policy. The judgments contain much learning on the interpretation of contracts in general and insurance policies in particular.

The New Zealand Court of Appeal in Miah v National Mutual Life Association of Australasia Ltd [2016] NZCA 590 has reversed the decision of Associate Judge Dougue of the High Court of New Zealand, [2015] NZHC 993 as regards the benefits of a joint names life insurance policy following the bankruptcy of one of the parties. The case is of interest for its discussion of English authorities on the same point.

On 10 January 2017 the Motor Insurers’ Bureau published amendments to the Uninsured Drivers Agreement 2015 and a new version of the Untraced Drivers Agreement in place of the 2003 Agreement. It was amended by a revised version on 28 February 2017. The new provisions reflect a recognition that the existing provisions did not comply with EU law as now enshrined in the Consolidated Motor Insurance Directive 2009.

In RR Securities Ltd v Towergate Underwriting Group Ltd [2016] EWHC 2653 (QB) HHJ Waksman QC dealt with a largely factual dispute as to the effect of the failure of brokers to advise the assured that the policy contained security requirements and that failure to comply with them would defeat any claim.

The decision of Jay J in R (Aviva Life & Pensions (UK) Ltd) v McCulloch [2017] EWHC 352 (Admin) is the first on the application of FOS principles to insurance policies. It is clear from the decision that the FOS has a wide discretion as to how to decide cases, and that the courts have a very limited jurisdiction to overturn FOS rulings on their merits. The issue in Aviva was largely procedural, but the judgment contains vital guidance for the future.

The system for providing compensation to the victim of a motor accident while in another member state is set out in the Fourth Motor Insurance Directive, European Parliament and Council Directive 2000/26/EC. The provisions of that Directive were amended slightly by the Fifth Motor Insurance Directive, European Parliament and Council Directive 2005/14/EC and the entire regime was consolidated by the Consolidated Motor Insurance Directive, European Parliament and Council Directive 2009/103/EC.