Driving without insurance

Insurance is a contract that remains in force until it expires or is cancelled

As you may, or may not, know I specialise in motoring law and most of my work involves defending people accused of drink driving. With the drink driving often come other road traffic offences such as driving while disqualified and driving without insurance. It’s driving without insurance I want to talk about today because I think far too many police officers, solicitors, barristers and judges miss a key legal point when looking at these cases.

I’ve received prosecution papers today for somebody accused of driving while disqualified and driving without insurance. The no insurance element is claim that the suspect did not tell the insurer about the disqualification. In his statement, the police officers says,

“[I] contacted [the insurer] who called me back informing me they would not consider the insurance policy valid as there were no convictions disclosed.”

Looks like an open and shut case, right? But here’s the problem, the police officer has just set out a full defence!

You see, it’s not for an insurer to decide they would not honour a policy of insurance retrospectively, i.e. they can’t say “oh well you’ve had a crash, but today we’ve decided your policy was void”. The reason for that isn’t surprising, Parliament requires insurance to ease the strain on the health and social services when people are killed or seriously injured in crashes. Allowing insurers to avoid liability retrospectively would undermine that aim. Is it unfair on the insurer? Maybe but they knew the law when they entered the market, so they’ve taken a decision to accept the risk.

Because the insurer hasn’t voided the policy and thus avoided liability they must still pay out in the event of a crash and thus the driver is still insured despite having been disqualified from driving and lied by omission to the insurance company. They therefore have a complete defence to the no insurance allegation.

I get it, you don’t believe me so let’s look at some law. Part VI of the Road Traffic Act 1988 sets out the requirements for insurance and section 151(5) tells us that where a court judgment has been obtained the insurer must pay up, “notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled, the policy”. For what its worth, the Act is saying here that the insurer must still pay up if they have subsequently cancelled the policy not if they did so before the incident that led to them/the driver being sued.

The case of Adams v Dunne [1978] R.T.R. 281 involved a defendant who lied to an insurance company by telling them he was not disqualified from driving to obtain insurance. The magistrates held that his policy remained in force because it had not been cancelled at the time he drove, and the charge was dismissed. The case went to the Divisional Court where it was heard by three High Court judges who all agreed with the magistrates. Croom-Johnson, J. said,

“What the facts, as the justices found in the present case, reveal is that here there was an avoidable contract of insurance, and, unless and until the insurance company had taken steps to avoid it, it remained a contract of insurance for the purposes of section 143 of the Road Traffic Act 1972 [now s. 143 of the Road Traffic Act 1988].”

So, there you have it, if somebody obtains insurance by fraud or deception or if they fail to notify the insurer of a change in circumstances the insurance policy remains in force and protects the driver from a criminal charge until the policy is cancelled.