Wednesday, 16 December 2020

What is a valid certificate of motor insurance?

Almost 11 years ago I blogged about the Police power to impound vehicles - Post February 2010

The Road Traffic Act 1988 sections 165A and 165B empower a Police Officer in Uniform to seize vehicles in certain circumstances  - e.g. is a driver is asked to produce evidence that he has a driving licence or that the vehicle is insured and the driver is unable to do so.  Reasonable force may be used to seize the vehicle.

Section 165B states that the Secretary of State may by regulations make provision as to -

(a) the removal and retention of motor vehicles seized under section 165A; and (b) the release or disposal of such motor vehicles.  The current Regulations are the Road Traffic Act 1988 (Retention and Disposal of Seized Motor Vehicles) Regulations 2005

When a vehicle has been seized by the Police it is possible for the vehicle to be recovered by the registered keeper who would be required to produce a "valid certificate of insurance" covering his use of the vehicle - (for full details see Regulation 5). But what is a "valid certificate of insurance"?

This question was tested in the High Court in R (Astrid Linse) v Chief Constable of North Wales [2020] EWHC 1288 (Admin) - HHJ Jarman QC (sitting as a High Court Judge).

Mrs Astrid Linse had her Mercedes Benz Unimog U1300L impounded on 28 October 2019. At the time she was unable to prove that the vehicle was insured. 

Later, Mrs Linse provided a certificate of insurance issued by a German insurer.  A Police Officer made inquiries with the insurer, as a result of which he told Mrs Linse that he could not accept the document as a valid certificate of insurance.

Mrs Linse then applied to NFU Mutual to add the vehicle to an existing insurance policy and it was added from 19 December 2019. Mrs Linse was told by a Police Sergeant that, if she took the new insurance document to the police station, she would be able to recover the vehicle. (Recovery and storage charges apply).

Another Police Officer - PC Birkby - made enquires of NFU Mutual.  PC Birkby discovered that Mrs Linse had not disclosed certain driving convictions to the insurer including the driving convictions, that the vehicle was not registered, that the purpose of obtaining the insurance was to secure the release of the vehicle after it had been seized, that the vehicle was her home, and that she and her husband were being prosecuted for driving without insurance. 

The Police refused to release the vehicle arguing that Mrs Linse had not produced a "valid certificate" of insurance. Mrs Linse challenged the decision by way of judicial review. 

Knowing of the challenge, the Police nevertheless auctioned off the vehicle.

The High Court held that the policy in question was VOIDABLE - that is, it could be set aside by the insurer but is valid until the insurer does so.  NFU did not do this until May 2020. At the time the certificate was presented to the Police it was a valid certificate.The Police Officers, in taking into account that the insurer may have grounds to avoid the policy, took into account immaterial matters.

The result was that Mrs Linse was entitled to succeed in the judicial review. It is possible to award damages and, at a separate hearing, the court decided that question - R (Astrid Linse) v Chief Co0nstable of N. Wales [2020] EWHC 3403 (Admin).

How damages are assessed in a particular case involves both points of law and fact. For example, what forms of loss can properly be the subject of an award of damages.  There can also be questions of fact which the court has to decide. Such issues arise in many cases every year and Jarman QC's judgment is worth reading fully as it shows how a court decides such questions.

The outcome was that Mrs Linse was awarded damages for the market value of the vehicle (assessed at £25,000) and also for the loss of certain items which had gone missing. There was no award for loss of income (see paras 33-36) and no award for emotional upset (para 38). 

The court also awarded exemplary damages of £6,000.

The Police had informed Mrs Linse that the NFU certificate of insurance was valid and that she could recover the vehicle but, despite this, PC Kirkby made enquiries of the NFU and decided that the certificate was not valid. That decision was incorrect in law. Jarman QC noted (para 40) that it was not clear whey PC Birkby did not comply with the instruction of the Police Sergeant but, in Jarman QC's judgment, that conduct was arbitrary by a servant of the government.

As such it came within the first category of cases where it is appropriate to award exemplary damages laid down by Lord Devlin in Rookes v Barnard [1964] AC 1129

Exemplary damages are most commonly ordered against the police in false imprisonment and malicious prosecution cases, typically in a wide range of awards from hundreds of pounds to tens of thousands of pounds. This case was not as serious as most of those but the failure to return the vehicle had a significant impact upon the freedom of Mrs Linse and her husband to return to Germany, to follow their chosen lifestyle and to sell their artwork.

The judge ended by saying - "in conclusion, Mrs Linse is entitled to an award of damages in the total sum of £36,500. The parties should attempt to agree consequential matters such as interest and costs. A draft order should be filed within 14 days of the handing down of this judgment, together with any written submissions on any such matter which cannot be agreed and any application for permission to appeal."

16 December 2020.

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