KNOW YOUR RIGHTS


To conclude, if a policy is running at the time of the stop the driver may still be covered regardless of whether the terms of the policy have been breached. BUT - consider the two points below;


1. Despite the above “invalid terms”, the case of Barr v Carmichael [1993]makes it clear that there will be instances whereby a false material representation will make a policy void from inception.


Example - if the driver made false representations regarding the date of passing his driving test to obtain a cheaper policy, then the court is entitled to find that, despite the above “invalid terms”, the policy can still be void from the beginning.


2. There may also be another term or disclaimer in the small print of the policy stating that even though a person may be covered under the Road Traffic Act if any of the terms are breached then any payments would be recovered from the driver. In practice this this means that whilst a driver may be covered for the pur- poses of a police prosecution (and therefore would not receive penalty points) they may not be covered for civil purposes and may still be liable for damages.


So this covers instances where a person has an insurance policy. But what about where a person does not have a policy, or where a person is alleged to be driving outside the cover of the policy? It may seem quite simple – no insurance means six points – but again it is not that easy. There still may be arguments available.


Defence -


Driving in course of employment s.143(3) Road Traffic Act 1988


(3) A person charged with using a motor vehicle in contravention of this section shall not be convicted if he proves -


(a) that the vehicle did not belong to him and was not in his pos- session under a contract of hiring or of loan,


(b) that he was using the vehicle in the course of his employment, and


(c) that he neither knew nor had reason to believe that there was not in force in relation to the vehicle such a policy of insurance or security.


Typically quite self-explanatory. It is a very specific defence that is usually used to protect employees who are given a vehicle by their employers that is not covered under any policy.


Special Reasons


Even if the driver does not have a policy and is not covered by the very specific employment defence above, there may still be a spe- cial reasons argument.


A special reason is where a person is guilty of an offence but there are “special reasons” for not endorsing a driving licence with penalty points. It is an argument under s.44(2) Road Traffic Act 1988.


It is very case specific and every situation needs thorough exami- nation. Following are some of the general principles that a court may apply in determining whether there are special reasons:


MAY 2019


Rennison v Knowler [1947] - a driver can argue that there are spe- cial reasons for not endorsing points if they can show that they were under a genuine misapprehension that they were insured, and that this was based on reasonable grounds.


DPP v Alma [2009] – misleading by another person does not al- ways amount to a special reason. Mr Alma was in his flat when his girlfriend received a call from her friend, Mr Jarmolenks, ask- ing to borrow a car. Mr A agreed and asked his girlfriend to con- firm that he had insurance. She asked him over the telephone and he confirmed that he was insured. It transpired he was not. Mr A was prosecuted for permitting another to drive without insurance and argued that he had been misled by his girlfriend and Mr J. The argument was rejected on the basis that even though Mr A was misled, he did not know Mr J, had never spoken with him, had never checked documents and even his girlfriend did not know him that well. Therefore it was not reasonable for him to rely on this.


Compare with Marshall v McLeod [1998] and Gordon v Russell [1999]. In Marshall it was held that it was not necessary in every case for discussions to be had about insurance. It all comes down to the circumstances of a particular case and the position may well be different in that of an employer and employee, or of brothers. In Gordon v Russell the owner was a young man and he knew the person who he asked to insure the car. In the past they had had discussions about insurance and both knew each other were in- sured to drive each other’s vehicles. On this occasion there was no discussion about insurance and it transpired one of them was not insured, but the court found there were special reasons for not en- dorsing the six points on the basis that there was implied knowl- edge of insurance and it was assumed that insurance would be in existence.


Labrum v Williamson [1947] – A person misled by an insurance company was found to be capable of amounting to a special rea- son. A garage owner applied for full cover but was only given named driver cover and the difference was not pointed out by the insurance company.


Boss v Kingston [1963], Carlton v Garrity [1964] – Held that pe- rusal of policy documents that would suggest the defendant is covered can amount to a special reason – but it depends if the pol- icy is confusing. However no perusal of documents cannot amount to a special reason.


So to summarise, allegations of driving without insurance are not straightforward cases. They are often complicated, technical and require a thorough examination by a specialist. Simply because an insurance company is refusing to provide cover, or because a pol- icy has expired, or because the police allege that you are not cov- ered for a particular purpose does not automatically mean that is the case. And even if it is the case, there may still be a special rea- sons argument available.


Always seek specialist advice. At Patterson Law we offer free advice calls – call us on 01626 359800 if you need assistance.


This impartial advice has been provided by Patterson Law Solicitors Patterson Law - 0800 021 7753 www.pattersonlaw.co.uk


91


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40  |  Page 41  |  Page 42  |  Page 43  |  Page 44  |  Page 45  |  Page 46  |  Page 47  |  Page 48  |  Page 49  |  Page 50  |  Page 51  |  Page 52  |  Page 53  |  Page 54  |  Page 55  |  Page 56  |  Page 57  |  Page 58  |  Page 59  |  Page 60  |  Page 61  |  Page 62  |  Page 63  |  Page 64  |  Page 65  |  Page 66  |  Page 67  |  Page 68  |  Page 69  |  Page 70  |  Page 71  |  Page 72  |  Page 73  |  Page 74  |  Page 75  |  Page 76  |  Page 77  |  Page 78  |  Page 79  |  Page 80  |  Page 81  |  Page 82  |  Page 83  |  Page 84  |  Page 85  |  Page 86  |  Page 87  |  Page 88  |  Page 89  |  Page 90  |  Page 91  |  Page 92  |  Page 93  |  Page 94  |  Page 95  |  Page 96  |  Page 97  |  Page 98  |  Page 99  |  Page 100  |  Page 101  |  Page 102  |  Page 103  |  Page 104