"without prejudice payment"

[SeanT]

The insurers of the gentleman that hit my vehicle several times last year don't seem to be playing ball. The incident happened over three months ago. His insurers have declined to accept liability until he has been to court for dangerous driving. My vehicle remained drivable, and I continued to drive it for some time, however it's hardly ideal, and has since gone wrong in such a way that it is no longer financially viable to repair it in light of it having now been written off because of the original damage!!

His insurer (I'm TPFT) wrote me exactly three months after the incident to say that they intended to write my vehicle off, and that they would be unable to make any payment until the criminal aspects had been dealt with. I spoke with them several times and they have mentioned making a without prejudice payment to cover the damage to / writeoff value of the vehicle. The criminal proceeding has now been sent to crown court, I have to give additional statements etc., and in the meantime bearing in mind all the circumstances, the unfeasability of continuing to drive this car indefinitely putting us at risk in the case of another accident / costing me money to repair it for it to be later scrapped,I have now bought another car. So, my vehicle has effectively been written off, I have shelled out for another car, and I have not received the without prejudice payment which was promised for if the matter went to crown court / was likely to take some time.

When can I demand this payment? After how long can I go to the Ombudsman? What should be my next move. I did have legal cover which included an assistance element whereby my vehicle would be assessed / hire car issued / writeoff decision made / payment made if appropriate but the TP insurer refused this company (Angel Assistance) access to the file, so I've had to deal directly with the TP insurer, who have thus far done nothing. Can I claim interest on the total loss money, having replaced my car and thus paying interest on this myself? They have formally notified me that my car is to be written off / beyond economical repair. Can a company just write your car off and then not pay you for it? I suspect not....

Also, because it has been dragged out for so long, I find myself having to pay more for my car insurance this year, as I have an unsettled claim - how do I go about getting this back when it is decided that the incident is his fault? He hit me from behind on a dual carriageway near a roundabout where I could reasonably have been expected to be braking, surely I shouldn't be penalised for this in any way???

The whole episode has been a joke, someone attacks my young family and I utilising his vehicle as a weapon, he is still driving it around and we have had to shell out on a new car????

Any advice, specific or general, is most welcome, I am going to call his insurer on Monday and ask for my money, or a date by which I can expect to receive it / a decision on it. I assume that on this date I can post an official complaint letter, if they give a date, or if they don't I can make a formal complaint straightaway - I would then need to make it quite clear that they have the absolute minimum time to deal with this before I take it straight to the ombudsman, what is the required time to wait before doing this nowadays?

One more thing, my understanding is that regardless of what happens in court, whether the TP is convicted of anything or not:

(a) the burden of proof differs between criminal and civil law, a criminal conviction implies civil liability but a failure to convict does not exempt any civil liability due to beyond reasonable doubt vs the balance of probabilities
(b) the insurer cannot avoid a third party payment for any provable damage nor personal injury regardless of what the insured was doing at the time, their liability to the third party stands regardless of whether insurance is declared void / cancelled / a crime was taking place on his part - ie. the minimum conditions of the Road Traffic Act for their liability in respect of my losses

let me know if either of the above is wrong?

[Gary29]

When I was reversed into when my husband picked me up from work I was a month of my rewnewal, they charged me the full amount, as they had put a year of my claims on hold, so I charged a year less. And was told that once the claim was settled they would add that years no claims which they did which brought my payments down. as I am finding out now, it might be chaeper to goto companies that advertise on the net, and might cheaper, but I am finding that out to my cost as I have had a driver who is refusing to inform her insurance comapny of an accident which happened 3 weeks ago. And nothing has been done to my car even thou I am fully comp. In march i will be going back to my old brooker Broadsure direct who might be a bit dearer, but I can speak to in person and in the same amount of time that I have been waiting to get my car done, it would have been done and I would have had a courtesy car and not had to pay an access out before the car was reapiraed. Unlike now.

So I would suggest calling your insurance comapny and asking how much will your payments be once they have reinstated this years no claims bounus.

It also shouldn't matter that your are TPFT, you are claiming of his insurance, not your own, so that shouldn't matter in the slightest.And even if he was third party his comapny should still hounour te agreed payment, as his premiums will be going up, not yours, as this will be classed as a non fault claim on your part.

Hope this helps if it has tip the scales.

[never shay die]

A lot of questions in there so I will do my best!

First off, the third party insurer (TPI) has a civil liability under the RTA to deal with your claim. This is subject to certain enquiries, such as liability, and there are exceptions (if the car was stolen, for example. The felon would need to be identified).

However, in the case you describe I cannot see any reason why the TPI should wait for criminal proceedings. Civil claims are based on negligence. As long as the other party is negligent, which he clearly is, then the TPI should be settling your claim. It is irrelevant whether the damage he caused to your vehicle was accidental or criminal.

One reason why they may be waiting for criminal proceedings are because, if he is convicted, the TPI can attempt to recover ther cost of your claim from him as he has breached his policy terms and conditions. But this shouldn't hold up the settlement of your claim. They can pay you Without Prejudice (they have suggested this themselves) and recovery their money later.

It would help if we knew what reasons the TPI were giving for waiting for the criminal proceedings. It is very strange.

I don't understand what you mean when you say that Angel Assistance were refused access to the TPI's file? This doesn't make any sense; I can't see why Angel would require 'access' to the file. Can you speak to them and clarify? The only reason I can see Angel Assistance/Helphire not getting involved is if they thought it was your fault.

Is liability in dispute? Perhaps the TPI will use the criminal conviction as proof that the other party was at fault?

Even if this is the case, you don't have to wait for the criminal proceedings. If I was in your position I would issue proceedings against the other driver. It is then down to him to defend himself, or for the TPI to appoint a solicitor to defend on his behalf. Given the circumstances, the TPI probably won't let it go that far anyway and settle the claim.

Send a letter to the TPI giving them 14 days to settle your claim or you will issue proceedings.

The Ombudsman is another option available to you but personally I would take it to court. You can claim interest through the courts too.

Finally, If an insurer has inspected a vehicle they have a duty to declare the vehicle a write-off in the correct manner (logging it on the various registers) even if they are not a position to pay.

Hope this helps. Let us know what happens.

[SeanT]

So I should threaten to issue proceedings against the TPI or the TP in my letter to the TPI?
The TP has apparently disputed liability, despite the obvious prevailing circumstances (he was negligent in hitting our vehicle from behind) - how is he getting away with disputing this?
There is a solicitor of mine (through insurance legal cover) dealing with my personal injury claim - so should I consult them before setting up my own claim for the value of the vehicle? Would they deal with recovering the value of my vehicle and any interest if the TPI didn't cooperate?

Angel merely said that the TPI had refused to allow them to deal with the damage, though the wording they used was to allow access to the (claim) file.

[SeanT]

BTW, I know where the third party lives, so should I write him stating that his insurer are not cooperating and therefore I intend to sue him for the damage? Is this underhand?

[tomterm8]

Originally Posted by SeanT

One more thing, my understanding is that regardless of what happens in court, whether the TP is convicted of anything or not:

(a) the burden of proof differs between criminal and civil law, a criminal conviction implies civil liability but a failure to convict does not exempt any civil liability due to beyond reasonable doubt vs the balance of probabilities
correct, the burden of proof is substaantially different, PLUS, civil remedies may exist where criminal remedies do not...

(b) the insurer cannot avoid a third party payment for any provable damage nor personal injury regardless of what the insured was doing at the time, their liability to the third party stands regardless of whether insurance is declared void / cancelled / a crime was taking place on his part - ie. the minimum conditions of the Road Traffic Act for their liability in respect of my losses

hrmph... I am honestly not sure; if the insured actually intended to commit a crime, that (would not notmally) be an insured risk in other fields of insurance. However, theis may be different in this field

let me know if either of the above is wrong?

Almost all third party / comprehensive policies have insurance cover that pays your legal expenses if you need to take the driver to court to recover damages...

It is very important to contact your insurance company and ask for advice, before taking further legal action.

[SeanT]

My understanding of the Road Traffic Act however is that regardless of any intent or anything else that may render his insurance void, the insurers are still liable for any third party damage, both via the statute of the road traffic act and for the simple reason that no contract existed between the TPI and the aggrieved before the incident occurred - as stated above, the insurers are free to recover any costs from the insured but still have to pay the third party regardless of whether these costs can be recovered or not - this seems implicit in the road traffic act also, and I have found case law during my various searches on the net.

[never shay die]

You are correct Sean. Under the RTA the fact that he used the vehicle to deliberately cause damage to your vehicle does not excuse the TPI of liability. Like I said, the TPI can look to recover the money from their customer if he is convicted.

I still don't understand the Angel Assistance story but I guess there's no point in going over it now. What's done is done.

As long as the TPI have informed you of the value of your vehicle then I see no reason why you cannot instruct your solicitor to issue proceedings both for the PI Claim and the vehicle damage.

HOWEVER (this is important) you can't issue proceedings for one and then claim for the other separately. If you issue proceedings, it has to be for everything. If you only issue for the vehicle damage, it will prejudice your claim for the PI.

The Civil Procedure Rules allow the TPI 3 months to complete enquiries into liability/indemnity before you can issue proceedings. As such, if I was in your position, I would now be instructing my solicitor to issue proceedings agsinst the TPI for both the PI and vehicle damage. It's all covered by your legal expenses insurance.

However, it is vital that you discuss this all with your solicitor and obtain their opinon. I can only advise based on what you have told me and there may be a reason why your solicitor is not in a position to issue proceedings.

Proceedings will normally be issued direct on the other party and not his insurer. Your solicitor will write to both him and his insurer informing them both that they are issuing proceedings so there is no need for you to write to the other party yourself.

[SeanT]

I have today received a letter from my insurer stating that my (protected anyway) NCB is carried forward, and that there will be no payments relating to the incident on their part, ie. the claim is settled from the PoV of my liability and my insurer have closed their file (not a moment too soon either as I am 3 weeks from renewal!)
I can only assume that, as the incident was not an act of god or due to terrorist activity, that his insurer now have to accept liability for the entire incident, regardless of what happens - it can't just be nobodys fault!!
What should I say about this when I contact his insurer? I know I should be dealing with my solicitor however they are happy to wait for a criminal outcome as it makes their lives easier as far as I can tell - they did give me some horror story about having to pursue criminal compensation but again the Road Traffic Act applies and this clearly wouldn't be the case...