Is motorcycle filtering legal?

1. Is it legal for motorcyclists to filter through traffic?

I draw a distinction between filtering on a motorbike through traffic and overtaking a queue of slow-moving traffic on a motorcycle. Filtering is not really practicable for very wide motorbikes, and even on my single-cylinder Husqvarna 701 if panniered up with my Krieger ADV side bags, I have to change my filtering behaviour.

2. What’s the legal difference between overtaking and filtering?

The first point is "are you overtaking rather than filtering?" If you come across a queue of traffic backed up to a roundabout, and you pass along to its outside, you are overtaking, not filtering. The law places upon you clear duties, and upon drivers clear duties, you, as a motorcyclist are in a place which is both lawful, but not typical (at least outside of the M25), so you must ride so that you can brake in time for foreseeable hazards.

I draw a distinction between overtaking a queue, as it is something which motorcyclists can do lawfully by taking advantage of their 'nimbleness and narrowness', which a four wheeler does not have. At the risk of being pedantic, filtering on a motorcycle is moving between flows of traffic, creating your own lane. Again, the general proposition applies. The more unusual your manoeuvre the greater the duty of care. In Central London, bikes thread their way through traffic, drivers (at least if they are Londoners) are used to it, but do it in a provincial market town, and it is a lot less expected.

3. What does the Highway Code say about filtering on a motorcycle?

The Highway Code also applies to you, and it is clear that motorcyclists should not overtake by junctions. The law as to vehicles being overtaken is well established. A vehicle being overtaken must maintain a steady course, and the old rule of 'mirror, signal, manoeuvre' applies in a queue of traffic, so the driver must check his path is clear and his manoeuvre will not 'inconvenience, endanger or incommode' other road users.

The car driver also has a continuing duty to give way and an expectation that he will move to the crown of the road before turning right so his indicator is shared to everyone and not just the car behind him.

4. Who is to blame for a motorcycle accident when filtering?

If you overtake along the outside of a large van or a truck, unsighted as to what is going on ahead of you, and clatter into the back of a car turning right, you are in a lot of difficulty establishing blame against anyone as you have ridden well beyond what you can see and, if you cannot see the car driver looking ahead, he cannot see you in his door mirror. So, if you cannot see what is going on ahead of you, slow down, position yourself to get a look and be ready to cover the brake. The reaction times for an anticipated hazard are massively quicker than for a surprise hazard.

5. What is a foreseeable hazard whilst filtering on a motorbike?

The second test that applies is 'what is a foreseeable hazard?" The law says a driver does not have to anticipate 'folly in all its forms' but 'where experience shows carelessness is common... [the driver] is bound to pay regard' to such carelessness. So, in a classic scenario, if you are bowling along the outside of a queue of backed up traffic, experience will tell you that cars may well turn right into garage forecourts or junctions, or at the front of the queue someone will be waiting to turn right or pass a broken down vehicle.

In those circumstances absent excessive speed or sudden movement from the car, the Courts inevitably find the turning driver and the overtaking motorcyclist are equally to blame. Both of you have failed to anticipate each other's carelessness and the law does not go into fine graduations of blame. A lively speed from you and your culpability goes up but, if the driver has not signalled, his culpability goes up, perhaps to entirety of blame.

The law applies across England and Wales and is well established, you can use your speed, manoeuvrability and lack of bulk, but you must be able to pull up for foreseeable hazards.

6. Is there any motorcycle filtering accident case law?

There are many reported cases on filtering from both the Court of Appeal and the High Court. The old favourite is Powell v Moody – which in a weak Court of Appeal decision not to overturn a decision of a lower Court has given insurers a case to cite which pitches 80% of the blame on a motorcyclist filtering unsighted past a high sided vehicle but the Court of Appeal has made it absolutely clear that Powell v Moody is not an authority for anything.

All road traffic cases are based on their own facts – and no two situations are identical – it is the mark of a green lawyer, with a fresh “white wig” to come to Court armed with “case law” from decided cases. Judges will literally roll their eyes at fact based decisions being cited as precedent – they are at best a “useful starting point” and are no more than persuasive. There is one particularly helpful case to motorcyclists where a biker was overtaking backed up traffic on a single carriageway when a driver in the queue executed what was described by all the witnesses as an impatient and aggressive u-turn.

The general run of the evidence was that the motorcyclist was travelling too fast to pull up. but the Court found the motorcyclist to be entirely without blame, because the driver executing a u-turn was doing something which was unusual, and even if the motorcyclist had been travelling at 20mph, when a car suddenly moves into view, without having positioned itself towards the crown of the road, and not troubling with an indication, there is not a great deal the motorcyclist can do. However this is not authority – the Judge made findings of fact based on the evidence, apportioned blame and causation and the Court of Appeal said they though the Judge made a decision well within his wide range of discretion. So beware the forum Queen’s Counsel, citing authority. It does not carry much weight in the real world with real judges.

7. What is the guide for motorcycle filtering?

The golden rule, to avoid both a trip to Court and the fracture clinic, is not to assume that 'your' bit of road will not be occupied by someone who also thinks that that bit of road is his too. If you ride into an area of road, especially if you are doing so in a less than expected way. it is a safe bet that on one of those occasions someone else may be doing the same, but from a different angle. And no matter how ruffty tuffty your MX boots are, a car's bumper is a lot tougher. Equal blame, but not equal pain.

Andrew Dalton

Adventure Bike Rider July / August 2019