Car seized, no insurance, but SDP certificate in force
Discussion
Dwight VanDriver said:
So Observer, you are a Proprietor of a business.
Your Insurance stipulates Social, Domestic and Pleasure use only.
You jump in your car and drive off to meet (?)for the purposes of discussing a contract.
Thats OK then?
No.
Wood v General etc Assurance Company [1949] held not covered for business use.
Likewise Passmore v Vulcan etc Insurance Co [1935]. Here we have a Certificate limited to use in the assured business.
He and another member of the firm used the vehicle on their respective businesses. Held - no insurance.
Those look like civil cases. As you said, you have to separate criminal from civil. I know I quoted s.151 but that was to demonstrate a different point. There is a qualitative distinction (which I think is fairly obvious) between being in breach of SDP restriction and not having a licence. Your Insurance stipulates Social, Domestic and Pleasure use only.
You jump in your car and drive off to meet (?)for the purposes of discussing a contract.
Thats OK then?
No.
Wood v General etc Assurance Company [1949] held not covered for business use.
Likewise Passmore v Vulcan etc Insurance Co [1935]. Here we have a Certificate limited to use in the assured business.
He and another member of the firm used the vehicle on their respective businesses. Held - no insurance.
dvd said:
I have prosecuted and obtained convictions in the past for No Insurance where young bucks on an open Insurance Cerificate have allowed their girl friend to drive who have never held a Licence.
OK. What does that prove?dvd said:
As I understand S 151 and Section 152 RTA 1988 that you quote is in relation to judgements on liability under Civil Law and not connected to the criminal offence of using without Insurance. Stones Justices Manual (Criminal Law Bible) does not delve into those two sections. I wonder why?
I agree and I would not expect someone driving without a licence to escape s.143 prosecution, regardless of whether or not their insurer would remain liable under RTA. But, as stated, that's qualitatively different from breach of use restriction.dvd said:
I need more convincing that under that described by Safe speed Pizza man was lawful.
I have explained why, in law, that should be so and backed it up with direct quote from the definitive legal textbook on motoring offences. In addition, another poster (who it seems works in motor insurance) has supported that view and the OP has stated that the driver's insurer is willing to deem him insured, notwithstanding the breach. What more do you want? Tablets of stone from the House of Lords?Edited by Observer2 on Monday 1st October 18:48
Chrispy Porker said:
AS I said before, it matters not whether he was insured or not.
As long as the officers belief that he was not insured was 'reasonable' the seizure of the vehicle was lawful.
If the belief was formed in good faith, probably so. Doesn't change the fact that the driver was insured (as the OP has confirmed).As long as the officers belief that he was not insured was 'reasonable' the seizure of the vehicle was lawful.
Chrispy Porker said:
AS far as I am concerned, if a driver is using a vehicle in circumstances that his policy specifically excludes, I would have reasonable grounds to believe he was not insured.
That might have been the case before you participated in this discussion. I don't believe you could, in good faith, hold that opinion on a future occasion, in a similar case, without further enquiry into the circumstances and allowing the driver to clarify matters with his insurers.In the senario of a take-away driver, I normally note the insurance details then send a letter off to the insurance company to ascertain whether the driver is covered for business purposes. Without fail, I have been informed, in writing, that s/he is not. At that point the vehicle is targeted and impounded as fair game.
On the initial stop I would be unlikely to impound the vehicle (unless of course I found another appropriate offence;o)). I know many who do and so far this has not been an issue (due to the insurance companies baulking as described above).
On the initial stop I would be unlikely to impound the vehicle (unless of course I found another appropriate offence;o)). I know many who do and so far this has not been an issue (due to the insurance companies baulking as described above).
Chrispy Porker said:
AS I said before, it matters not whether he was insured or not.
As long as the officers belief that he was not insured was 'reasonable' the seizure of the vehicle was lawful.
I think that's true and accurate.As long as the officers belief that he was not insured was 'reasonable' the seizure of the vehicle was lawful.
But hold on one cotton picking second. It's immoral and it's abhorrent. And especially so when Police Officers get it wrong.
You should NEVER be asked to make such a judgement. Such decisions are properly made by courts, and by NO ONE ELSE.
andmole said:
safespeed said:
Sheriff JWPepper said:
Safespeed as you bill yourself as the drivers' champion I find it slighly odd that you are spending your time trying to assist someone who has blantantly abused their insurance.
Eh?I don't 'bill myself as the drivers' champion'.
Is 'blatant abuse of insurance' an offence?
Was this chap, in fact, legally insured? That's what I want to know.
not applicable said:
In the senario of a take-away driver, I normally note the insurance details then send a letter off to the insurance company to ascertain whether the driver is covered for business purposes. Without fail, I have been informed, in writing, that s/he is not. At that point the vehicle is targeted and impounded as fair game.
On the initial stop I would be unlikely to impound the vehicle (unless of course I found another appropriate offence;o)). I know many who do and so far this has not been an issue (due to the insurance companies baulking as described above).
More target inspired policing, by the sound of it. On the initial stop I would be unlikely to impound the vehicle (unless of course I found another appropriate offence;o)). I know many who do and so far this has not been an issue (due to the insurance companies baulking as described above).
It seems to me that you're getting involved in the enforcement of a civil law contract. That is really none of your business. For all the reasons given previously, there is no doubt that insurers will remain liable for minimum RTA cover in a case of breach of use restrictions, unless they have taken steps to avoid the policy. Therefore, the driver is not in breach of s.143. Now that you are aware of this fact, I hope that you will act appropriately on future occasions.
As a matter of interest, what do you think gives you the authority to require the insurer to provide particulars of a civil contract?
not applicable said:
At that point the vehicle is targeted and impounded as fair game.
Do you really see this as some kind of sport? And when you say 'targeted' do you mean you set out to find the vehicle (presumably being used for take-way elivery again) and seize it?Edited by Observer2 on Tuesday 2nd October 05:19
vonhosen said:
Business use is not a restriction that can be avoided under 148.
The contractual analysis does not rely on s.148.vonhosen said:
If it were a case of all restrictions are void you wouldn't bother listing those restrictions that have no effect in the first place.
I don't know why insurers list 'use' restrictions on the certificate insurance. However, the insurance certificate states:certificate of insurance said:
Advice to third parties: Nothing in this certificate affects your right as a third party to make a claim
What purpose is that statement serving except to clarify/confirm that insurer remains liable to a third party notwithstanding a breach by the insured/driver of (inter alia) use restrictions.Generally, the point you're missing is that restrictions may be effective as between the insurer and the insured but NOT between the insurer and a third party who has been damaged/injured by the insured (who the insurer has a direct, statutory obligation to compensate in parallel to his obligation to indemnify the insured). You're also using "void" in a non-legal sense. The fact that the insured is in breach of a contractual obligation does not, in any circumstances, render the contract void (or voidable). The circumstances in which a contract can be avoided are much more restricted (so far as this discussion is concerned, to cases of fraudulent or negligent misrepresentation, neither of which are liley to be remotely relevant to the case at hand). Further, as previously stated, even if the contract could be avoided, it is not avoided until notice is given to the insured.
Observer2 said:
certificate of insurance said:
Advice to third parties: Nothing in this certificate affects your right as a third party to make a claim
What purpose is that statement serving except to clarify/confirm that insurer remains liable to a third party notwithstanding a breach by the insured/driver of (inter alia) use restrictions.If there is any scope for them to refuse the claim, then the driver is uninsured.
Edited by Deva Link on Wednesday 3rd October 15:52
Deva Link said:
Observer2 said:
certificate of insurance said:
Advice to third parties: Nothing in this certificate affects your right as a third party to make a claim
What purpose is that statement serving except to clarify/confirm that insurer remains liable to a third party notwithstanding a breach by the insured/driver of (inter alia) use restrictions.If there is any scope for them to refuse the claim, then the driver is uninsured.
In a case of a vehicle being used in breach of a use restriction, clearly there is possibility that insurer may reject a claim but, I believe, only wrt to own vehicle damage. By statute, the insurer has liablity to third parties independently of his contract with the insured. However, where there is a breach of warranty (e.g. business use where the policy is restricted to SDP), the insurer may seek to recover the loss arising from a third party claim from the insured.
There is a wide range of possible severity of breach of a 'use' restriction. At one extreme, a person with SDP cover only, who usually takes public transport, may decide to drive to work because of a tube strike. That would be put him in breach of the SDP restriction. Is the insurer likely to/able to avoid liability to a third party if a claim arises from such a trip? Clearly (I suggest) not. At the other extreme, a person may have taken out a policy for SDP use only with the full intention of using the vehicle for (say) visiting customers (not sure how that would be proved but it's conceivable). That would fall into the area of misrepresentation and that may make the contract void or voidable. Even so (according to Wilkinson's) there is no breach of s.143 if the insurer has not taken steps to avoid the contract. This suggests that the insurer will remain liable to third parties notwithstanding the breach/void/voidability.
On the whole, I think it's likely that the insurers will always settle a third party claim in such circumstances but will look to recover loss from the driver/insured if there has been a substantial or intentional misrepresentation or breach.
Of course, in the case at hand, no claim event had actually occurred. In those circumstances, there is no possibility, in my mind, that the driver was actually uninsured for s.143 purposes. The most severe action an insurer (having notice of a breach of that nature) could take would be to give notice to the insured of cancellation of the policy. In practice, it is far more likely that the insurer would simply require payment of applicable additional premium (obviously with implied threat to cancel if not paid).
Don't understand the "if they refuse the claim then they are uninsured" comment. What if it is not our fault ? They ran into the back of our stationary car and claimed.
Yes we are contractually liable to a third party, but not legally liable. There is no negligence on our part. Refused claim, still insured.
On the repudiation based on warranty, case law won't help much. You want the ICOBs. 7.1.4 or something (have posted the relevant bits before on another thread).
If the breach is not material to the claim ,then you don't repudiate.
But I do wonder if the two things are linked. The view appeared to be that the police would somehow second guess the insurer. However
"a person must not use a motor vehicle on a road unless there is in force in relation to the use of the vehicle by that person such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Part of this Act,"
makes it seem like the person involved could be both guilty of having no insurance AND actually be able to claim under the insurance at the same time. Unless I am missing something. Don't do the criminal stuff, just the insurers obligations bit. But as above, yes it is perfectly possible for the insurer to still be liable, even if there is a breach. Ultimately, if they are the insurer on the MID database against that registration, there is not a lot they can do get out of it. No matter who was driving and in what state. Possibly if the injured party knew they were in an uninsured car they could.
Yes we are contractually liable to a third party, but not legally liable. There is no negligence on our part. Refused claim, still insured.
On the repudiation based on warranty, case law won't help much. You want the ICOBs. 7.1.4 or something (have posted the relevant bits before on another thread).
If the breach is not material to the claim ,then you don't repudiate.
But I do wonder if the two things are linked. The view appeared to be that the police would somehow second guess the insurer. However
"a person must not use a motor vehicle on a road unless there is in force in relation to the use of the vehicle by that person such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Part of this Act,"
makes it seem like the person involved could be both guilty of having no insurance AND actually be able to claim under the insurance at the same time. Unless I am missing something. Don't do the criminal stuff, just the insurers obligations bit. But as above, yes it is perfectly possible for the insurer to still be liable, even if there is a breach. Ultimately, if they are the insurer on the MID database against that registration, there is not a lot they can do get out of it. No matter who was driving and in what state. Possibly if the injured party knew they were in an uninsured car they could.
Observer2 said:
The language is open to that interpretation but I don't believe that's the intention or the legal effect. A third party can make a claim anyway, regardless of what is stated (or not) on the certificate, so the statement would be meaningless if it was interpreted that narrowly.
In a case of a vehicle being used in breach of a use restriction, clearly there is possibility that insurer may reject a claim but, I believe, only wrt to own vehicle damage. By statute, the insurer has liablity to third parties independently of his contract with the insured. However, where there is a breach of warranty (e.g. business use where the policy is restricted to SDP), the insurer may seek to recover the loss arising from a third party claim from the insured.
There is a wide range of possible severity of breach of a 'use' restriction. At one extreme, a person with SDP cover only, who usually takes public transport, may decide to drive to work because of a tube strike. That would be put him in breach of the SDP restriction. Is the insurer likely to/able to avoid liability to a third party if a claim arises from such a trip? Clearly (I suggest) not. At the other extreme, a person may have taken out a policy for SDP use only with the full intention of using the vehicle for (say) visiting customers (not sure how that would be proved but it's conceivable). That would fall into the area of misrepresentation and that may make the contract void or voidable. Even so (according to Wilkinson's) there is no breach of s.143 if the insurer has not taken steps to avoid the contract. This suggests that the insurer will remain liable to third parties notwithstanding the breach/void/voidability.
On the whole, I think it's likely that the insurers will always settle a third party claim in such circumstances but will look to recover loss from the driver/insured if there has been a substantial or intentional misrepresentation or breach.
Of course, in the case at hand, no claim event had actually occurred. In those circumstances, there is no possibility, in my mind, that the driver was actually uninsured for s.143 purposes. The most severe action an insurer (having notice of a breach of that nature) could take would be to give notice to the insured of cancellation of the policy. In practice, it is far more likely that the insurer would simply require payment of applicable additional premium (obviously with implied threat to cancel if not paid).
See its that easy.In a case of a vehicle being used in breach of a use restriction, clearly there is possibility that insurer may reject a claim but, I believe, only wrt to own vehicle damage. By statute, the insurer has liablity to third parties independently of his contract with the insured. However, where there is a breach of warranty (e.g. business use where the policy is restricted to SDP), the insurer may seek to recover the loss arising from a third party claim from the insured.
There is a wide range of possible severity of breach of a 'use' restriction. At one extreme, a person with SDP cover only, who usually takes public transport, may decide to drive to work because of a tube strike. That would be put him in breach of the SDP restriction. Is the insurer likely to/able to avoid liability to a third party if a claim arises from such a trip? Clearly (I suggest) not. At the other extreme, a person may have taken out a policy for SDP use only with the full intention of using the vehicle for (say) visiting customers (not sure how that would be proved but it's conceivable). That would fall into the area of misrepresentation and that may make the contract void or voidable. Even so (according to Wilkinson's) there is no breach of s.143 if the insurer has not taken steps to avoid the contract. This suggests that the insurer will remain liable to third parties notwithstanding the breach/void/voidability.
On the whole, I think it's likely that the insurers will always settle a third party claim in such circumstances but will look to recover loss from the driver/insured if there has been a substantial or intentional misrepresentation or breach.
Of course, in the case at hand, no claim event had actually occurred. In those circumstances, there is no possibility, in my mind, that the driver was actually uninsured for s.143 purposes. The most severe action an insurer (having notice of a breach of that nature) could take would be to give notice to the insured of cancellation of the policy. In practice, it is far more likely that the insurer would simply require payment of applicable additional premium (obviously with implied threat to cancel if not paid).
Seriously though Thanks to all that have offered positive and negative comments. he is awaiting the arrival of the letter from the insurance which i will post up, hopefully it will have their legal position stated in it.
I believe from the third party statement in the ins documents that even if he has seriously modified his car. gone blind or in fact del a couple of takeaways. that in the event of a claim made against him the insurance would still pay out. Hence then him having the minimum legal requirement.
Although that being said and done if he told his ins he was del pizza every now and then this could all have been avoided.
matty g said:
I believe from the third party statement in the ins documents that even if he has seriously modified his car. gone blind or in fact del a couple of takeaways. that in the event of a claim made against him the insurance would still pay out. Hence then him having the minimum legal requirement.
No, the TP statement has nothing to do with that. It is just to do with making the claim, not paying. It is 100% possible for an insurer to be forced to make a payment to a TP (via the statutes and agreements already mentioned) but for the driver to be uninsured for the RTA88. Then the Insurer will take action against the driver to recover their costs. You ain't insured.
Whether it applies in this case is open to argument. Whether it is possible isn't at all. Sorry.
vonhosen said:
It's up to the prosecution to prove you were driving on business purposes. Where they can do that & you have no business cover it's no insurance.
Serious Organised Crime and Police Act 2005 said:
152 Power to seize etc. vehicles driven without licence or insurance
After section 165 of the Road Traffic Act 1988 (c. 52) insert—
“165A Power to seize vehicles driven without licence or insurance
(1) Subsection (5) applies if any of the following conditions is satisfied.
<snip>
(3) The second condition is that—
(a) a constable in uniform requires, under section 165, a person to produce evidence that a motor vehicle is not or was not being driven in contravention of section 143,
(b) the person fails to produce such evidence, and
(c) the constable has reasonable grounds for believing that the vehicle is or was being so driven.
<snip>
(5) Where this subsection applies, the constable may—
(a) seize the vehicle in accordance with subsections (6) and (7) and remove it;
(b) enter, for the purpose of exercising a power falling within paragraph (a), any premises (other than a private dwelling house) on which he has reasonable grounds for believing the vehicle to be;
(c) use reasonable force, if necessary, in the exercise of any power conferred by paragraph (a) or (b).
(6) Before seizing the motor vehicle, the constable must warn the person by whom it appears that the vehicle is or was being driven in contravention of section 87(1) or 143 that he will seize it—
(a) in a section 87(1) case, if the person does not produce his licence and its counterpart immediately;
(b) in a section 143 case, if the person does not provide him immediately with evidence that the vehicle is not or was not being driven in contravention of that section.
But the constable is not required to give such a warning if the circumstances make it impracticable for him to do so.
So von believes is's up to the prosecution to prove you were driving on business purposes. The law as quoted indicates (highlighted) that it's up to the driver to prove he/she wasn't driving on business purposes.After section 165 of the Road Traffic Act 1988 (c. 52) insert—
“165A Power to seize vehicles driven without licence or insurance
(1) Subsection (5) applies if any of the following conditions is satisfied.
<snip>
(3) The second condition is that—
(a) a constable in uniform requires, under section 165, a person to produce evidence that a motor vehicle is not or was not being driven in contravention of section 143,
(b) the person fails to produce such evidence, and
(c) the constable has reasonable grounds for believing that the vehicle is or was being so driven.
<snip>
(5) Where this subsection applies, the constable may—
(a) seize the vehicle in accordance with subsections (6) and (7) and remove it;
(b) enter, for the purpose of exercising a power falling within paragraph (a), any premises (other than a private dwelling house) on which he has reasonable grounds for believing the vehicle to be;
(c) use reasonable force, if necessary, in the exercise of any power conferred by paragraph (a) or (b).
(6) Before seizing the motor vehicle, the constable must warn the person by whom it appears that the vehicle is or was being driven in contravention of section 87(1) or 143 that he will seize it—
(a) in a section 87(1) case, if the person does not produce his licence and its counterpart immediately;
(b) in a section 143 case, if the person does not provide him immediately with evidence that the vehicle is not or was not being driven in contravention of that section.
But the constable is not required to give such a warning if the circumstances make it impracticable for him to do so.
I hate to repeat this, as it seems like a constant cry on PH, but we seem to be moving further towards being guilty until proven innocent, notwithstanding von's valiant statement of the opposite.
OK, so one is faced with a police officer and the other is faced with a court. But why would the standard of proof be lower for a BiB? Especially when the result in this case -- and many others that this law covers -- results in hardship and even danger for the accused, excessive costs due to the police outsourcing vehicle recovery and holding, and intense frustration on the part of yet another relatively law-abiding citizen that they are being dealt with more harshly than the criminal fraternity.
Noger said:
Don't understand the "if they refuse the claim then they are uninsured" comment. What if it is not our fault ? They ran into the back of our stationary car and claimed.
Was that aimed at me?What I was suggesting was that if the 'insured' crashed into a 3rd party and the ins co had any grounds to refuse to pay the claim (never mind that the consensus seems to be that the ins co wouldn't do that in practice) then the 'insured' is in fact uninsured.
Peter Ward said:
vonhosen said:
It's up to the prosecution to prove you were driving on business purposes. Where they can do that & you have no business cover it's no insurance.
Serious Organised Crime and Police Act 2005 said:
152 Power to seize etc. vehicles driven without licence or insurance
After section 165 of the Road Traffic Act 1988 (c. 52) insert—
“165A Power to seize vehicles driven without licence or insurance
(1) Subsection (5) applies if any of the following conditions is satisfied.
<snip>
(3) The second condition is that—
(a) a constable in uniform requires, under section 165, a person to produce evidence that a motor vehicle is not or was not being driven in contravention of section 143,
(b) the person fails to produce such evidence, and
(c) the constable has reasonable grounds for believing that the vehicle is or was being so driven.
<snip>
(5) Where this subsection applies, the constable may—
(a) seize the vehicle in accordance with subsections (6) and (7) and remove it;
(b) enter, for the purpose of exercising a power falling within paragraph (a), any premises (other than a private dwelling house) on which he has reasonable grounds for believing the vehicle to be;
(c) use reasonable force, if necessary, in the exercise of any power conferred by paragraph (a) or (b).
(6) Before seizing the motor vehicle, the constable must warn the person by whom it appears that the vehicle is or was being driven in contravention of section 87(1) or 143 that he will seize it—
(a) in a section 87(1) case, if the person does not produce his licence and its counterpart immediately;
(b) in a section 143 case, if the person does not provide him immediately with evidence that the vehicle is not or was not being driven in contravention of that section.
But the constable is not required to give such a warning if the circumstances make it impracticable for him to do so.
So von believes is's up to the prosecution to prove you were driving on business purposes. The law as quoted indicates (highlighted) that it's up to the driver to prove he/she wasn't driving on business purposes.After section 165 of the Road Traffic Act 1988 (c. 52) insert—
“165A Power to seize vehicles driven without licence or insurance
(1) Subsection (5) applies if any of the following conditions is satisfied.
<snip>
(3) The second condition is that—
(a) a constable in uniform requires, under section 165, a person to produce evidence that a motor vehicle is not or was not being driven in contravention of section 143,
(b) the person fails to produce such evidence, and
(c) the constable has reasonable grounds for believing that the vehicle is or was being so driven.
<snip>
(5) Where this subsection applies, the constable may—
(a) seize the vehicle in accordance with subsections (6) and (7) and remove it;
(b) enter, for the purpose of exercising a power falling within paragraph (a), any premises (other than a private dwelling house) on which he has reasonable grounds for believing the vehicle to be;
(c) use reasonable force, if necessary, in the exercise of any power conferred by paragraph (a) or (b).
(6) Before seizing the motor vehicle, the constable must warn the person by whom it appears that the vehicle is or was being driven in contravention of section 87(1) or 143 that he will seize it—
(a) in a section 87(1) case, if the person does not produce his licence and its counterpart immediately;
(b) in a section 143 case, if the person does not provide him immediately with evidence that the vehicle is not or was not being driven in contravention of that section.
But the constable is not required to give such a warning if the circumstances make it impracticable for him to do so.
I hate to repeat this, as it seems like a constant cry on PH, but we seem to be moving further towards being guilty until proven innocent, notwithstanding von's valiant statement of the opposite.
OK, so one is faced with a police officer and the other is faced with a court. But why would the standard of proof be lower for a BiB? Especially when the result in this case -- and many others that this law covers -- results in hardship and even danger for the accused, excessive costs due to the police outsourcing vehicle recovery and holding, and intense frustration on the part of yet another relatively law-abiding citizen that they are being dealt with more harshly than the criminal fraternity.
To seize the vehicle you do not have to prove the vehicle was uninsured. You have to have an officer with a 'reasonable belief' that that is so.
To prove 'No insurance' in court you have to prove beyond reasonable doubt.
One is a power to seize, one is a conviction.
They are 2 separate concepts.
I do not need to prove anything to arrest a thief, I need a 'reasonable suspicion'
To prove he is a thief in court needs evidence beyond reasonable doubt.
To prove 'No insurance' in court you have to prove beyond reasonable doubt.
One is a power to seize, one is a conviction.
They are 2 separate concepts.
I do not need to prove anything to arrest a thief, I need a 'reasonable suspicion'
To prove he is a thief in court needs evidence beyond reasonable doubt.
Noger said:
matty g said:
I believe from the third party statement in the ins documents that even if he has seriously modified his car. gone blind or in fact del a couple of takeaways. that in the event of a claim made against him the insurance would still pay out. Hence then him having the minimum legal requirement.
No, the TP statement has nothing to do with that. It is just to do with making the claim, not paying. It is 100% possible for an insurer to be forced to make a payment to a TP (via the statutes and agreements already mentioned) but for the driver to be uninsured for the RTA88. Then the Insurer will take action against the driver to recover their costs. You ain't insured.
Whether it applies in this case is open to argument. Whether it is possible isn't at all. Sorry.
This is the effect of (for example) ss.148:
RTA 1988 said:
(1) Where a certificate of insurance or certificate of security has been delivered under section 147 of this Act to the person by whom a policy has been effected or to whom a security has been given, so much of the policy or security as purports to restrict—
(a) the insurance of the persons insured by the policy, or
(b) the operation of the security,
(as the case may be) by reference to any of the matters mentioned in subsection (2) below shall, as respects such liabilities as are required to be covered by a policy under section 145 of this Act, be of no effect.
<snip>
(4) Any sum paid by an insurer or the giver of a security in or towards the discharge of any liability of any person which is covered by the policy or security by virtue only of subsection (1) above is recoverable by the insurer or giver of the security from that person.
(a) the insurance of the persons insured by the policy, or
(b) the operation of the security,
(as the case may be) by reference to any of the matters mentioned in subsection (2) below shall, as respects such liabilities as are required to be covered by a policy under section 145 of this Act, be of no effect.
<snip>
(4) Any sum paid by an insurer or the giver of a security in or towards the discharge of any liability of any person which is covered by the policy or security by virtue only of subsection (1) above is recoverable by the insurer or giver of the security from that person.
You can't just look at 148 in isolation. As above, "use" is not unavoidable under 148.
151 is what matters to us as insurers.
"(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."
So we are are quite able to avoid the policy, or decline indemnity. The RTA forces us to PAY the TP not to change the contractual relationship.
And this is how it works in practice too. It gets tricky as we have a claim on a cancelled policy. The IT guys get quite upset !
151 is what matters to us as insurers.
"(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."
So we are are quite able to avoid the policy, or decline indemnity. The RTA forces us to PAY the TP not to change the contractual relationship.
And this is how it works in practice too. It gets tricky as we have a claim on a cancelled policy. The IT guys get quite upset !
Noger said:
You can't just look at 148 in isolation. As above, "use" is not unavoidable under 148.
151 is what matters to us as insurers.
"(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."
So we are are quite able to avoid the policy, or decline indemnity. The RTA forces us to PAY the TP not to change the contractual relationship.
And this is how it works in practice too. It gets tricky as we have a claim on a cancelled policy. The IT guys get quite upset !
I thought we were saying the same thing, but let me try to put it more succinctly.151 is what matters to us as insurers.
"(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."
So we are are quite able to avoid the policy, or decline indemnity. The RTA forces us to PAY the TP not to change the contractual relationship.
And this is how it works in practice too. It gets tricky as we have a claim on a cancelled policy. The IT guys get quite upset !
1. A driver will be "insured" for RTA purposes, notwithstanding that he may be in breach of policy terms/warranties on account of (for example) use for business purposes when his policy is restricted to SDP, because the insurer is obliged to satisfy a judgement obtained against the driver by a TP notwithstanding the breach.
2. At the same time, the driver may be "uninsured" in the sense that he has lost his right to be indemnified under the contract of insurance because of his breach, so the insurer would be entitled to recover from the driver the amount paid in settlement of the TP's claim.
3. But, section 152 RTA allows the insurer to avoid liability to the TP if the policy:
(i) was cancelled (unilaterally or by mutual agreement) before the 'claim event' occurred (plus some other administrative requirements); or
(ii) there was a material non-disclosure or misrepresentation at the time policy was taken out (or renewed).
Is the above agreed?
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