Faux amis? – the saga of Setanta

Language teachers refer to faux amis, or false friends, as those words which appear the same in different languages but which in fact have very different meanings.

The ostensibly similar motor insurance regimes of the UK & Ireland were examined by the Irish High Court on 4 September 2015 in connection with Setanta Insurance. Both countries’ regimes give effect to the EU Motor Insurance Directives. Both regimes set out the scopes of (a) their respective Motor Insurers’ Bureaux’ obligations and (b) of their respective insurance compensation funds.

Setanta, which offered motor policies in Ireland, went into liquidation in April 2014. Some 1,700 to 2,000 claims were outstanding, valued in aggregate at around €90 million. Had the insolvency happened in the UK, the FSCS would have picked up the claims in full, with the UK’s MIB having no role. The question for Mr Justice Hedigan in the Setanta case (Law Society of Ireland v MIBI) was where, as a matter of Irish law, should the liability for these claims lie? Should they fall to the general insurance insolvency compensation scheme or should they be met by the MIBI?

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Driverless cars

steering wheel

On 11 February the Department for Transport (DfT) published The Pathway to Driverless Cars: a detailed review of regulations for automated vehicle technologies”. This two hundred page report long deals with all aspects of the technology, including insurance and liability issues. It states, somewhat obviously, perhaps, that “… the legal position of the driver when ceding control over the steering and similar features in a highly automated vehicle is untested before British courts but in a given case the court would undoubtedly determine whether liability lies in the hands of the test driver, the body carrying out the tests for whom the driver acts, or the manufacturer of the vehicle if different.”

Detailed solutions to these critical aspects will be developed over the next two to three years. The following three actions and delivery dates in the DfT’s report are particularly relevant to the legal and insurance issues raised by the new technologies. The last of these may raise quite difficult ethical questions.

Review existing legislation and provide clarity on how liability passes between the driver and the vehicle manufacturer according to mode of operation. Summer 2017
Review the allocation of criminal and civil liability between driver and manufacturer and amend the appropriate legislation, as necessary. Summer 2017
Consider the need for requirements governing decisions in vehicle control software and algorithms which may have safety implications for other road users. End of 2018

About the Author

akAlistair Kinley is BLM’s Director of Policy & Government Affairs.

Alistair is responsible for BLM’s engagement with government departments and regulators on policy and public affairs issues and consultations affecting the firm and its customers. He coordinated BLM’s market-facing activities in connection with the Insurance Act 2015 and the consultations which preceded its publication and introduction in Parliament.

He is a member of the Civil Justice Council (CJC), a regular speaker and experienced commentator on legal and procedural reforms and was a contributing editor to the Law Society’s Litigation Funding Handbook (September 2014).