The Fourth Motor Insurance Directive
Anyone dealing with an RTA that occurs in the European Community should be aware of the Fourth Motor Insurance Directive, which came into force on 16 May 2000 and which was brought into English law by the European Communities (Rights Against Insurers) Regulations 2002 coming into affect on 19 January 2003.
Regulation 3 says that a party, without prejudice to his right to issue proceedings against an insured person, can issue proceedings against the insurer who issued the policy of insurance relating to the vehicle and that insurer shall be directly liability to the entitled party.
What is important to note is that the Regulations are not limited to claims abroad and can be used in this country. So, in a case where we intended to commence proceedings against a dissolved transport company, rather than restore the company to the register we brought the claim directly against the insurers.
“Inequality of arms” is not an absolute requirement of the rules
A District Judge had allowed a consultant surgeon, who has formerly treated the claimant, to redraft his statement as a witness of fact, not opinion. The fresh statement included his answer to the question of what his advice would have been had the claimant’s accident at work not have happened. The Judge ordered that the surgeon attend trial and give evidence and the question of whether his evidence was fact or opinion evidence be left to the trial Judge.
The defendant claimed that, by allowing further expert evidence of opinion, there was an inequality of arms. The Court of Appeal disagreed. Lady Justice Smith said that the equality of arms aspiration need not result in an absolute rule requiring equal numbers of expert witnesses on each side. Proportionality was relevant. In any event, the challenged evidence amounted to a statement of fact not further expert opinion.
Kirkman -v- Euro Exide Corporation. Times Law Reports, 6 February 2007
Joint statement of expert witness is not privileged
A Judge ordered that architectural experts should prepare a joint report. They produced a joint statement that was used in a mediation. However, the mediation was unsuccessful and the case continued.
The defendants sought to use the joint statement in the proceedings. However, the judge found that the primary function of the statement had been to assist in the mediation and that it was therefore privileged.
The Court of Appeal were having none of that. Lord Justice May made it clear that a joint statement of expert witnesses produced under a court order was not privileged and the fact that it was made within an eye to assist a contemplated mediation did not change that fact.
Aird and Another -v- Prime Meridian Limited. Court of Appeal 2007, Times Law Reports