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Those injured abroad must be protected post-Brexit, say lawyers

‘Changes to the law would open the floodgates to a catalogue of legal uncertainties’

20 March 2017

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Personal injury lawyers have urged the UK government to protect the rights of its citizens who are injured in road accidents abroad post-Brexit.

At present, UK residents involved in an accident in the EU can bring a claim in the domestic courts against a foreign insurer. The UK courts can also enforce a judgment against a defendant from another member state.

In the second edition of the Bar Council’s ‘Brexit Papers’, the Personal Injury Bar Association (PIBA) argued that a failure to preserve the current arrangements could bring injustice to injured parties and at a significant cost to the UK. The current simplified claims process saves the UK hundreds of millions of pounds on treatment costs, social care, and benefits, according to the association.

PIBA argues that a legislative lacuna of adequate procedures for jurisdiction and the recognition of judgments post-Brexit could see both the government and injured claimants worse off. Moreover, a lack of certainty as to enforcement could impact existing arrangements regarding the future enforceability of orders or settlement agreements.

Speaking to Solicitors Journal, Jennifer Lund, a partner in Irwin Mitchell’s international personal injury team, said there was no doubt that Brexit has the potential to restrict access to justice for parties injured abroad.

‘What is clear is that, if parliament decides not to retain some or all aspects of European law, this will have considerable ramifications on all victims of accidents abroad,’ she said. ‘The legal implications for the travel industry, consumers, insurers, and victims of accidents abroad are far from clear.’

Paul McClorry, head of travel litigation at Slater and Gordon, suggested any deviations from the current regime could also impact the lawyers who work in this niche area of law: ‘Changes to the law may well cause travel lawyers to move away from this area of the law as it may no longer be viable to pursue such claims in the UK. Therefore, UK citizens would lose their rights to justice.

‘Additionally, it would open the floodgates to a catalogue of legal uncertainties, resulting in errors, inconsistencies and confusion throughout the legal profession as to how these cases should be considered and handled.’

Great Repeal Bill

The so-called Great Repeal Bill may incorporate some of the current benefits injured parties enjoy under EU law, however, PIBA has said it was unlikely that all the advantages would be enshrined in UK legislation, including whether domestic judgments will be enforceable abroad.

PIBA said the bill could not oblige insurers domiciled in EU states to maintain an accessible presence in the UK, which injured parties can look to for compensation. Further, it could not oblige equivalents of the Motor Insurance Bureau – the insurer of last resort – in EU states to cooperate in the process of insurer identification, claims handling, or claims settlement.

To preserve the current arrangements, PIBA proposes the creation of an international binding agreement to ensure cooperation and inter-bureaux guarantees between the MIB and its equivalent in each EU member state. It also recommends translating the Sixth Motor Insurance Directive and Rome II Regulation into domestic law and a guarantee that UK judgments will be enforceable within the EU by accession to the 2007 Lugano Convention.

Matthew Rogers is a legal reporter at Solicitors Journal

matthew.rogers@solicitorsjournal.co.uk | @lex_progress

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