Can claimants rely on EC (Rights against Insurers) Regulations 2002 post-Brexit?

In short, yes.

European Union Withdrawal Act 2018, the Brexit implementation act, saved the vast majority of European Law.  European-derived law, decades of it, has been adopted as UK law and its linkage to Europe severed.

s2 EUWA 2018 Saving for EU-derived domestic legislation

  • EU-derived domestic legislation, as it has effect in domestic law immediately before [IP completion day]1 , continues to have effect in domestic law on and after [IP completion day]1 .
  • …”

EC (Rights against Insurers) Regulation 2002/3061 to give it it’s full name is a piece of secondary legislation brought in to give effect to European Law pursuant to s2(2) European Communities Act 1972.  It is incredible useful as it provides a direct cause of action against an insurer (in road traffic accident cases), i.e. avoiding the need to necessarily sue the at fault driver.

The European Union (Withdrawal) Act 2018 has repealed the  ECA 1972, the enabling act, and that would ordinarily mean secondary legislation made under it would fall away.  However, the vast majority of Europe-derived law, with exceptions, have been preserved.  This is explained in the Government Explanatory Note to the EUWA 2018 s2:

20 By only repealing the ECA, some EU law that currently applies in UK law by virtue of the ECA would cease to have effect. As outlined by the Supreme Court in Miller4, the ECA is not itself an originating source of EU law, but is rather the ‘conduit pipe’ through which EU law flows into UK domestic law.

“21 As set out in paragraph 18 of these notes, section 2(1) ECA provides that directly applicable law (such as EU regulations) has effect in UK law without the need to pass specific UK implementing legislation. If the ECA were repealed and no further action was taken, this directly applicable EU law would cease to apply in UK law, leaving gaps on the statute book.

“22 Other types of EU law (such as EU directives) have to be given effect in the UK through domestic laws. As set out above, this has frequently been done using section 2(2) of the ECA, which provides ministers, including in the devolved administrations, with powers to make secondary legislation to implement EU obligations. If the ECA were repealed and no further action was taken, all of the secondary legislation which has been made under it would fall away and cease to be part of the UK statute book, leaving significant gaps.

“23 To avoid such gaps, the Bill converts the body of existing EU law into domestic law and preserves5 the laws we have made in the UK to implement our EU obligations. After this, because the supremacy of EU law will have ended, Parliament (and, where appropriate, the devolved legislatures) will be able to decide which elements of that law to keep, amend or repeal once the UK has left the EU. This body of converted EU law and preserved domestic law is referred to in the Bill and these notes collectively as ‘retained EU law’.

“…

“24 This approach means that, as a general rule, the same rules and laws will apply on the day after the UK leaves the EU as before:

the Bill converts directly applicable EU law (e.g. EU regulations) into UK law;

it preserves all the laws which have been made in the UK to implement EU obligations (e.g. in EU directives);

…”

The 2002 Reg is pleaded differently by different solicitors and barristers, here is my short version:

The 2nd Defendant is directly liable to the Claimant in its capacity as the 1st Defendant’s insurer pursuant to Regulation 3 of the European Communities (Rights against Insurers) Regulation 2002.  Should the 2nd Defendant take any issue in this regard, the Claimant reserves his right to plead further and in detail.

Europe is dead! Long live Europe!

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