Driving Towards a More Therapeutic Future? The Untraced Drivers Agreement and Conscious Contracting

James Marson, Hassan Alissa, Katy Ferris


Therapeutic jurisprudence (TJ) is an emerging and developing philosophy which, established by Winnick and Wexler, and continued by the work of Perlin (inter alia), has been predominately used to explain the operation and efficacy of drug courts and the criminal justice system generally. It recognises that law has the potential to have both therapeutic and anti-therapeutic effects, and thus it is in the use of its rules, whilst not transgressing normative values, that therapeutic outcomes should be realised. More recently, however, TJ has been used to explore other legal jurisdictions beyond its drug and mental health origins – even to musical TJ.[i] In respect of the law surrounding motor vehicle insurance and the compensation applicable to third-party victims, a TJ approach has been used to discuss the standard of care in torts law (in an American context[ii] and that of the law in India)[iii] recognising the common agenda present in both the deterrence of potential injurers and the restoration of the injured. In the UK, motor vehicle insurance is governed through statutory (for example the Road Traffic Act 1988) and extra-statutory measures (for example the Untraced Drivers’ Agreement 2017), underpinned by the United Kingdom (UK)’s obligations to the European Union (EU). The extra-statutory element of this regulatory scheme is the focus of this paper. It is unique in the exploration of the procedural rules relating, primarily, to the Untraced Drivers’ Agreement concluded between the Motor Insurers’ Bureau and the Secretary of State for Transport. This Agreement has been defective in correctly transposing EU law into national law and, we argue, the UK’s fulfilment of its withdrawal from the EU could prove the opportunity for a new Agreement, based on conscious contracting, to remove the anti-therapeutic features present and to expunge the worst elements of an agreement that often fails to ensure the restoration of vulnerable third-party victims.   

[i] Perlin, M. L. 2019. ‘You That Build the Death Planes’: Bob Dylan, War and International Affairs. Available at SSRN: https://ssrn.com/abstract=3379255 or http://dx.doi.org/10.2139/ssrn.3379255

[ii] Shuman, D. W. (1993) ‘Therapeutic Jurisprudence and Tort Law: A Limited Subjective Standard of Care’ 46 SMU L. Rev. 409, https://scholar.smu.edu/smulr/vol46/iss2/5.

[iii] Halder, D., and Shetty, A. (2018) ‘Regulating Road Traffic Violation by Youth in India: A Therapeutic Jurisprudential Approach’ Available at SSRN: https://ssrn.com/abstract=3230604 or http://dx.doi.org/10.2139/ssrn.3230604

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