Your queries answered in our new law column

WE'VE BEEN kicking off a new weekly section of the site, with some proper learned answers to your bikey legal queries. Whether you’ve been knocked off by a pissed-up driver, been stitched up by a dodgy trader, or looking down the barrel of a six-month ban for one speeding ticket too many, we can help – with some clever judicial stuff from Thompsons Solicitors, one of the biggest law firms in the country.

Send your questions to alan.dowds@visordown.com, or post on our Facebook page. We’ll answer as many as we can.

This week - a complex one covering cross-border legalities after a crash...

"I live in the Highlands of Scotland and every summer there are hundreds of tourists from Europe. Last month, a driver from Croatia knocked me off my bike, and admitted it was his fault. I have his name and address etc, and have informed my insurance company, but I’m worried it will be hard to make a claim against them since they’re from overseas. Will I be able to take them to court for compensation if needed? I hurt my wrist and was off work for a few weeks. Also, I’m worried about Brexit - could that affect this?"

Martyn Gwyther, national practice lead for cross-border claims at Thompsons Solicitors, says: “As Croatia is a Member of the European Union, the 4th Motor Directive and the legislation that has been developed applies to your accident that took place in Scotland in July 2018.  

“This means that as a victim of a road traffic accident involving a third party who comes from a different European Union Member State, your legal representative will be able to utilise the services of the Motor Insurance Bureau (the MIB) to search for the UK based agent of the third parties’ insurers. After that, they will be able to communicate directly with those UK based representatives about the status and settlement of your claim. This is subject only to the insurer’s name or green card number being known. If the green card number isn’t known, there are wider searches that can be made by your legal representatives to trace this information before following the same process. 

“In the event that those reasonable enquiries are made but the insurers either do not respond, fail to provide a reasoned response or cannot be located, the Motor Insurance Bureau can be required to stand in and pay compensation in the place of those insurers. I would therefore feel confident that it should be possible for you to make a claim against the wrongdoer, even though they are from overseas. Alternatively, you should be able to secure compensation from the MIB.

“It should be possible for your Court action (if one is required) to be run in Scotland. According to the basic principles of litigation, a Defendant can ordinarily be sued:

1. In the country (European Member State) in which they are habitually resident. For example, where they live, or where they have a registered office address in the context of a limited company; or 
2. In the country in which the accident happened, if different.  

“In the context of a road traffic accident, this typically means that the country in which the accident took place is a good venue to commence the claim. At Thompsons Solicitors, we have experience of running cross-border claims. We will ensure that the correct procedures and processes are followed in the shortest time possible.   

“The question about whether this situation will be different after Brexit is an interesting one. The rights that I have referred to exist as a result of Britain’s membership of the European Union. As the accident involving yourself took place in July 2018 (before Britain has left the European Union) and your right of action already exists, it is highly unlikely that your prospects of success in such a claim will be affected by any changes that may take place when Britain does leave the EU. For example, it is not expected that any such changes will have retrospective effect, such as interfering with any ongoing claims.

“That is not to say that people injured in a similar way in the future after Britain has left the EU will enjoy the same rights and benefits that currently exist. In fact, in order for this to be the case, Britain will have to secure the agreement of the European Union that such rights should continue to exist following our departure. The majority of legal commentators believe that such an agreement will be possible in due course and that certainly appears to be the intention of the politicians from both sides (UK and European). However, with no final agreement yet achieved, the only accurate advice for now is watch this space.

“For more information and advice on making a road traffic accident claim, visit our #StayRoadSafe campaign.”