We have recently seen a number of cases highlighting the importance of ensuring that there is proper insurance cover for driving in the course of a business. It emphasises the importance of businesses redoubling their efforts to ensure there is proper insurance cover:

1. Does each and every driver definitely have the correct driving entitlement for the vehicles they are driving? Only through a rigorous check can this be proved. Such checks need to take place regularly with original licences being scrutinised - we suggest at least every six months at most and operators should also insist that driver declare any fixed penalties or convictions as and when they arise. Now that the Driver CPC Scheme has started it will be necessary in due course to check drivers have maintained their existing rights and newly qualified drivers are properly documented. In a recent case a driver had been driving larger vehicles for many years without the correct entitlement, invalidating the insurance, but the lack of entitlement had gone unnoticed by several employers.

2. A lack of insurance creates particular problems for those who trade as partnerships or sole traders - this is because a lack of proper insurance cover leads not only to the potential offence of driving with no insurance on the part of the driver (see below) but the offence of permitting driving with no insurance. This attracts the same penalty as driving with no insurance. Therefore, a partner or sole trader who is the operator runs the risk of a minimum of 6 penalty points on their personal driving licence if their driver is uninsured. The penalty range for driving with no insurance is 6-8 penalty points or a discretionary disqualification. If the operator is a limited company then of course it holds no driving licence of its own and hence the problem does not arise as the directors will not be prosecuted personally.

3. A driver whose employer deliberately or inadvertently does not ensure there is insurance cover for the vehicle they are driving may have a statutory defence in law. If a driver is driving in the course of their employment and fulfils other criteria then the court cannot convict them of any offence of no insurance. This is intended to protect genuine employees whose employers have failed to provide proper insurance cover. Onee difficulty here is that fixed penalties now also cover the offence of driving with no insurance so an employee driver may accept (i.e. pay) a fixed penalty offer in the sum of £200 and have 6 penalty points endorsed on their driving licence unnecessarily when they may have a perfectly good defence for the reasons explained. Drivers issued with fixed penalties for offences of driving without insurance when they are driving as employees should contest such cases in court, to avoid a large number of penalty points, increased insurance premiums and of course the risk that the 6 points may be added to other points on their licence and create a totting up situation.

4. Problems arise in some instances where vehicles are put on and off cover and there are changes in the vehicle fleet leading to inadvertent lack of insurance cover (and hence the driver driving uninsured). All operators should be absolutely meticulous in their paperwork and at all times keep the most careful notes of conversations with brokers and insurance companies to ensure there are no difficulties of this kind.

Tim Ridyard is a Partner, Road Transport Solicitor based at Barker Gotelee Solicitors. tim.ridyard@barkergotelee.co.uk and www.barkergotelee.co.uk