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Is filtering illegal?

If you live in London, filtering by motorcycles is a frequent event. London roads are busy, especially in rush hour. Motorcyclists can filter past traffic and have shorter journey times – surely one of the reasons to ride a motorcycle to work or to get around.

But should motorcyclists filter?

If an accident occurs the insurance company acting for the other party often makes great play in relation to whether the motorcyclist was filtering and whether the bike crossed the white line in the centre of the carriageway.

So, is filtering illegal?

The answer is no.

The Highway Code states that you must not drive dangerously, without due care or without reasonable consideration for other road users. You should also ride appropriately for the road and traffic conditions.

• Rule 151 deals with cars in slow moving traffic and specifically states that you should ‘be aware of cyclists and motorcyclists who may be passing on either side.’

Specifically for motorcyclists:

• Rule 88 says that “you should be aware of what is behind and to the sides before manoeuvring. Look behind you; use mirrors if they are fitted. When in traffic queues look out for pedestrians crossing between vehicles and vehicles emerging from junctions or changing lanes. Position yourself so that drivers in front can see you in their mirrors. Additionally, when filtering in slow-moving traffic, take care and keep your speed low.” (my emphasis).
• For drivers, Rule 160 states that they need to “be aware of other road users, especially cycles and motorcycles who may be filtering through the traffic. These are more difficult to see than larger vehicles and their riders are particularly vulnerable.”
• Rule 167 states: “DO NOT overtake where you might come into conflict with other road users. For example approaching or at a road junction on either side of the road.”
• Rule 170 advises drivers to “take extra care at junctions” and to watch out for motorcyclists.
• Rule 172 provides that those emerging onto a main road “must give way to traffic on the main road” and Rule 180 states the need to “take great care when turning into a main road.” Rule 211 states: “It is often difficult to see motorcyclists and cyclists, especially when they are coming up from behind, coming out of junctions, at roundabouts, overtaking you or filtering through traffic. Always look out for them before you emerge from a junction; they could be approaching faster than you think. When turning right across a line of slow-moving or stationary traffic, look out for cyclists or motorcyclists on the inside of the traffic you are crossing. Be especially careful when turning, and when changing direction or lane. Be sure to check mirrors and blind spots carefully.”
• Other relevant rules in the Highway Code include 144, 146,151,179,180

Filtering is a risky manoeuvre

Filtering can be risky. Some car drivers are not on the lookout for motorcyclists and can pull out into the path of a filtering vehicle. So whose fault would this be?

There are many cases where the courts have considered filtering motorcycles. Much of the case law is fact dependent but of relevance will be the speed of both the motorcycle and the other traffic, whether there was a road junction, what the road conditions were at the time and whether the car driver and the motorcyclist were aware of or should have been aware of each other’s presence on the carriageway.

Whilst not providing a principle of law, in the case of Clarke v Winchurch [1969] 1 WLR 691, the Judge remarked:

“If you have a small vehicle like a bicycle or motor cycle, you are in the fortunate position of taking up so little road space that you can slide along the offside, but, if you choose to do this, it does seem to me to warrant a very, very high degree of care indeed because you are blinded, to a great extent, to what goes on the left-hand side of the road. You must, therefore, continue to ride or drive in such a way that you can immediately deal with an emergency.”

Car drivers often seek to rely upon the 1966 case of Powell v Moody [1966] 110 Sol Jo 215. A vehicle edging out of side turning collided with a motorcycle which was filtering on the main road on the offside of a queue of traffic. The motorcyclist was held to be 80% to blame. The Court commented that ‘jumping’ a queue of stationary traffic was a manoeuvre that was hazardous and that needed to be carried out with care.

However filtering is much more commonplace these days than it was in the 1960s and more recently the Courts have come to different conclusions for example, the case of Woodham v. JM Turner [2012] EWCA Civ 375 concerned a coach driver who had stopped at a ‘T’ junction, intending to turn right out of a minor side road. A tractor driver to the coach’s right on the main carriageway stopped leaving a gap so that the coach could pull out. The motorcyclist was riding along the main road. He approached the junction from behind the tractor and was filtering past the queue of traffic on the offside. The motorcycle collided with the coach as it pulled out. The Court of Appeal held that both parties were equally to blame. It was of the view that the driver’s view was obscured and if the driver had waited until she had a clear view to her right, the accident would not have happened. Equally the motorcyclist was to blame for riding at a speed where he was unable to take evasive action and electing to filter past the queue of traffic when it was foreseeable that a vehicle would pull out of the junction.

Where a motorcyclist is found to be speeding, the courts are more likely to apportion liability in favour of the car driver. For example, in the case of Heaton v Herzog [2008] EWCA Civ 1636,a car driver pulled out from a side road into a main road and into the path of a motorcycle. The car driver’s view of the main road was reduced by parked vehicles. The court also found that the motorcyclist was travelling significantly in excess of the speed limit. The car driver was held to be 25% responsible and the motorcyclist was 75% at fault.

In the case of Jones v Lawton [2013] EWHC 4108 (QB) the motorcyclist was filtering on the offside of 2 slow moving lanes of traffic on the main road. The car driver was turning right from a side road onto the main road. The traffic stopped to let him out. In doing so he collided with the motorcyclist. The car driver alleged that he pulled out slowly edging forward and had no other option but to proceed on this basis. Witness evidence at trial said that the motorcyclists had been travelling at or in excess of the 30mph speed limit, which the court found to be too fast in the circumstances. The Judge did not follow Powell v Moody but concluded that the car driver should have been aware that motorcyclists would possibly be filtering past the traffic. The Judge was of the view that the car driver had created a hazard by pulling out and crossing the path of the motorcyclist and the motorcyclist was going too fast and not keeping a proper lookout. The Judge remarked that motorcyclists are more vulnerable than car drivers and found the car driver to be 2/3 responsible and the motorcyclist to be 1/3 responsible.

In Davis v Schrogin [2006] EWCS Civ 974, a filtering motorcyclist collided with a car which had tried to avoid a queue of traffic and commenced a ‘u’ turn. The car driver was held to be 100% to blame. The motorcyclist was not responsible as he was found to have been too close to the car to have time to react and was unable to avoid the collision.

In Fagan v Jeffers and the MIB [2005] EWCA Civ 380 the Court held that both the car driver and the motorcyclist were equally to blame. The car driver was turning right from a main carriageway into a side road. The traffic in the opposite direction had stopped due to a red traffic light further down the road. The stationary traffic had left a gap at the junction in accordance with the ‘Keep Clear’ road marking. A motor scooter was riding on the inside of the two lanes of stationary traffic. It collided with the car turning right. The Court was of the view that the motorcyclist had failed to keep a lookout for traffic turning into the junction but equally the car should have been aware that there had been sufficient room for a two-wheeled vehicle to be proceeding alongside the traffic.

Motorcyclists – be alert and take care!

If you are a motorcyclist, the conclusion from all of this is to be aware. Yes, by all means filter if necessary to progress your journey, but take care and be aware of the traffic conditions. If an accident occurs the Court is likely to conclude that filtering is a risky manoeuvre and by electing to do so, you may be held partly or wholly responsible. Every case will be fact sensitive but in general filtering in fast moving traffic on busy urban roads is likely to be seen as a dangerous manoeuvre. Filtering with care at slow speeds past slow moving, stationary traffic may not be.

Whilst filtering is not illegal, a motorcyclist must also be aware of the road layout. If for example, there is a thick white solid line in the centre of a carriageway, a sign that indicates that no overtaking is permitted or if the traffic is approaching a zebra crossing, the overtaking filtering manoeuvre is likely to be deemed both negligent and illegal.