After a legal marathon, the TRNC’s Compulsory Insurance Guarantee Fund [Zorunlu Sigortalar Garanti Fonu] has paid its first successful claimant in its 25-year history.
A sum totalling just under £47,000 has been awarded to Philip Kirby, a retired Englishman who suffered crippling injuries when his motorbike was hit by a car driving the wrong way down a one-way street in İskele.
The accident happened in 2008 and Mr Kirby has been confined to a wheelchair because of his injuries ever since.
The compensation claim was made when it was found that the motorist was not insured and did not have any money to pay Mr Kirby the damages he won in court.
The ten-year compensation battle would have failed without the help of his brother-in-law Brian Robinson and the determination of Advocate Arif Tahir Erişen, who took the case on a “no win, no fee” basis. Following the final compensation settlement, Mr Erişen and his team received £12,800 for seven years of work.
Mr Robinson: “I was told by various English experts that this was all we could expect from the TRNC legal system, that it was neither fair nor just, & that fighting on would be a complete waste of time & money.”
Mr Robinson said this week: “After a seven-year battle, although we got judgement against the driver, she had no capacity to pay, and we lost our case against the Compulsory Insurance Guarantee Fund. Therefore, we did not gain any compensation for my brother-in-law’s crippling injuries. He was sitting at home, unable to walk or drive.
“I was told by various English experts that this was all we could expect from the TRNC legal system, that it was neither fair nor just, and that fighting on would be a complete waste of time and money. They said that Turkish Cypriot law was not European Law, and certainly not English law.”
“However, Advocate Erişen and I – with the help of former Senior Judge Çetin Veziroğlu – decided to appeal the District Court decision and pursue our claim against the Compulsory Insurance Guarantee Fund, as they undertake to give cover for uninsured accidents.
“We fought alone for the next two-and-a-half years: four packed shelves of documents in Advocate Erişen’s office bear testimony to his determination to get justice – not to mention my own files in London. He earned not one Turkish Lira in seven years, for his countless times attending the case, and for his expert advice, guidance, friendship and office back-up. I am pleased he eventually received some reward, although pitifully small, for all his endeavours.”
“Advocate Erişen earned not one Turkish Lira in seven years for his countless times attending the case, & for his expert advice, guidance, & friendship. I am pleased he eventually received some reward, although pitifully small, for all his endeavours”
“The reality was that we won the appeal, and for the first time in over 20 years the law came into force, and the Guarantee Fund was found liable to pay compensation to my brother-in-law, setting a legal precedent in the history of the TRNC Courts.”
Advocate Erişen (pictured top left with retired Senior Judge Çetin Veziroğlu), who had known Philip Kirby before his accident, told T‑VINE this week:
“Thank you [T-VINE] for interest in covering Philip James Kirby’s ordeal and case. I must first mention that if [his brother-in-law] Brian Robinson’s help and assistance was not available, we could never have been able to conduct and follow up this case these past 10 years and to bring it to a successful conclusion. I have counted over 120 emails were exchanged between myself and Brian over those years.
“I knew Philip before the accident, when he was an energetic person and a lover of motorbike driving who had acted as a witness probably in 2004 in another case I was involved in. I found it hard to accept seeing him crippled after the accident, which he had no fault in.
“The woman who had caused this accident was not fully insured and she had no means of being able to pay [Philip] any compensation.”
Ordinarily, in cases like these, the state’s compensation fund would be able to help. The TRNC had formed its own Compulsory Insurance Fund in 1993, in order to make payments in cases where there was no insurance policy to cover those who had been injured or killed, for example after a ‘hit and run’ accident. Yet the wording used in establishing the Zorunlu Sigortalar Garanti Fonu (TRNC Compulsory Insurance Guarantee Fund, CIGF) had severely limited those who could apply and benefit from this financial aid.
“In 2017, the Appeal Court delivered its decision in Philip Kirby’s favour, creating the historic precedent”
“The Zorunlu Sigortalar Garanti Fonu’s regulations stated that when it made a payment, this could only be to provide ‘charitable help’ or ‘assistance’. Due to this wording, a few applicants who had applied and had been rejected tried to appeal against the Fund’s decision, but they all ended up failing or withdrawing their case. No lawyer had attempted to sue the Fund until our case,” explained Mr Erişen.
Mr Kirby’s legal team noted that under TRNC law, the CIGF budget is financed by premiums collected from third party motor insurance policies. Where the CIGF makes any payments, under the doctrine of subrogation it has the legal authority to sue the party at fault to recover the money the CIGF has paid out on the culprit’s behalf. The flipside to this was that the CIGF should also be open to legal challenges.
Advocate Erişen set out the rationale behind his legal approach to challenging the CIF: “The simple analogy in my mind was that, if the Fund had the legal capacity to sue, then the Fund is also legally liable to be sued. Furthermore, if the Government and the Presidency in our country could be sued, there was no reason why the Fund could not be sued.”
The case against CIGF was strengthened by Advocate Erişen’s extensive experience in insurance. Between 1980 and 2003, he had acted as an Independent Insurance Intermediary on general insurance polices at a leading insurance broker in North London. A director of well-known Mercan Insurance Services Ltd, Mr Erişen represented over 25 insurance companies, giving him expert knowledge and insights into how the insurance sector works.
Advocate Erişen explained how he and his long-time friend, and now retired Judge Çetin Veziroğlu set about creating history in the TRNC courts.
“After researching uninsured accidents, and the way the system works in Britain, Turkey and South Cyprus with my friend Çetin Veziroğlu, we sued the woman driver and the Compulsory Insurance Fund in 2010. However, after long hearings, the Mağusa District Court ruled that the Compulsory Insurance Fund could not be sued.
“We refused to accept this decision and never gave up hope. After more legal searches into TRNC laws, together with precedents in English and Common Law, we found we had multiple legal grounds to appeal against the Mağusa District Court decision and did so in the TRNC High Court.
“After a most interesting hearing on January 3rd, 2017, the Appeal Court delivered its decision with Case No: 1/2017 in Philip Kirby’s favour, creating the historic precedent that, yes, the Compulsory Insurance Fund can be sued. CIGF was duly ordered to pay compensation to Philip Kirby.”
He added, “I am extremely happy that this precedent was established by Philip Kirby’s case, and that he is a foreign national. This shows that the Turkish Republic of Northern Cyprus is a democratically-elected and governed country with independent courts, which treat TRNC nationals and foreign citizens equally, and with no discrimination.”