Supreme Court gives judgment in significant case for Claimants and insurers in accidents where drivers are untraced. [Cameron v Liverpool Victoria Insurance Company Limited]Talia Webster
Judy Dawson summarises today’s landmark decision in the Supreme Court affecting Claimants and insurance companies in cases where there is an accident caused by the negligent driving of an untraced driver, but the Claimant can establish the identity of the vehicle and its insurance company.
Issue on Appeal
Whether a claimant is entitled to bring a claim for damages against an unnamed defendant if the claimant has been the victim of an unidentified hit-and-run driver, and the car the unidentified driver was driving is covered by an insurance policy, albeit one in the name of someone untraceable.
Facts (as set out on Supreme Court website)
On 26 May 2013 Miss Cameron was driving when she collided with a Nissan Micra. Miss Cameron’s car was written off in the collision, and both she and her passengers suffered minor personal injuries. The driver of the Micra did not stop, but its number plate was taken down by a passing driver.
On this basis, it was discovered that the Micra was (i) registered in the name of a Mr Naveed Hussain and (ii) the subject of an insurance policy with Liverpool Victoria Insurance Company Limited. Miss Cameron therefore issued proceedings against Mr Hussain, believing him to be the driver involved in the collision, and she subsequently added the insurance company as a co-defendant. However, the insurance company then applied for summary judgment of the claim, arguing that Miss Cameron was unable to prove Mr Hussain was the driver. In response, Miss Cameron sought to amend her claim so as to substitute, for Mr Hussain, the following description: “The person unknown driving vehicle registration number Y598 SPS who collided with vehicle registration number KG03 ZIZ on 26th May 2013”.
When the issue came before a District Judge Miss Cameron’s application to amend was dismissed and summary judgment granted, and this position was upheld by HHJ Parker. However, when the case came before the Court of Appeal the majority of the judges found for Miss Cameron. The insurance company appealed that decision to the Supreme Court.
The Supreme Court unanimously allowed the appeal and reinstated the decision of the District Judge. The judgment can be found here;
It found that proceedings cannot be brought against the untraced driver in circumstances that he will never be able to be located or communicated with and therefore his fundamental right to defend himself will be unable to be exercised. The cases where unknown Defendants had been allowed in narrow circumstances, eg squatters in a particular building, were distinguished; in those that could be located and communicated with by, for instance, serving a copy of the proceedings at the building in question.
Judgment in more detail
The Supreme Court held that it was a fundamental feature of the statutory scheme of compulsory insurance in the UK that it does not confer on victims a direct right of recovery against an insurer for the underlying liability of the driver. The only direct right against the insurer is the right to require it to satisfy a judgment against the driver, under section 151 Road Traffic Act 1988, once the driver’s liability has been established in legal proceedings.
[Comment; The Supreme Court clearly distinguished between the statutory scheme of compulsory insurance as encapsulated in the Road Traffic Act 1988 and the provisions of the European Communities (Rights Against Insurers) Regulations 2002; it has been a relatively common error for lawyers and on occasions Courts to attempt to conflate the two completely separate pieces of legislation and interpret one with the assistance of the other).
The Untraced Drivers Agreements therefore allows recourse against the MIB, not the insurer where the driver is unidentified.
The general rule remains that proceedings may not be brought against unnamed parties, as is implicit in the limited exceptions contemplated by the Civil Procedure Rules (“CPR”). The main exceptions are: (1) possession actions against trespassers, (2) actions and orders where some of the wrongdoers were known so they could be sued both personally and as representing their unidentified associates and (3) the wider jurisdiction recognised in Bloomsbury Publishing Group Plc v News Group Newspapers Ltd  1 WLR 1633 (Ch).
The Supreme Court properly distinguished between two classes of unnamed defendant cases:
- anonymous defendants who are identifiable but whose names are unknown and
- defendants, such as most hit and run drivers, who are not only anonymous but cannot even be identified.
In category (1), defendants are described in such a way that it is at least possible to locate or communicate with them, and to determine whether they are the person described in the claim form. In category (2), this is not possible.
The Supreme Court recognised that the appeal was not directly concerned with service – it was about the issue or amendment of the claim form – but led that the legitimacy of issuing or amending should be be tested against the possibility of service. An identifiable but anonymous defendant could be served, if necessary, by CPR r.6.15 alternative service. However, an unknown person cannot be not identified simply by referring to past actions.
[Comment; it was always noted that those giving the majority verdict in the Court of Appeal appeared not to address the service issue; the argument that because the insurer was paying, it was enough to merely ensure that they had notice of proceedings, seemed to ignore the removal of a fundamental right of the tortfeasor to defend themselves from such allegation. The argument put forward on behalf of Miss Cameron that seemed to be adopted by the Court of Appeal – that a person who had deliberately fled from the scene of the accident had forfeited the right by such (criminal) wrongdoing – was fundamentally flawed. The Claimant’s assertion that the tortfeasor had deliberately fled was itself an assertion that the alleged tortfeasor should have the right to defend themselves against. The Claimant who asserted “the driver was at fault” would have to prove the same having given notice to the driver to enable them to defend themselves if they wished. For the Claimant who asserted “the driver was at fault and then the driver fled the scene” to effectively be allowed, without giving the alleged tortfeasor a chance to respond to either allegation, to proceed was evidently flawed.]
Lord Sumption, in giving the unanimous judgment of the Court, made clear that proceedings against such a person (in category (2)) offended the fundamental principle of justice that a person cannot be made subject to the jurisdiction of the court without having such notice of the proceedings as will enable a fair hearing. While CPR r.6.15 permits alternative service, the mode of service should be such as can reasonably be expected to bring the proceedings to the defendant’s attention.
In applying these principles to the present appeal, alternative service against an unidentifiable person referred to in the proceedings only by a pseudonym or description could not be justified. In particular, ordinary service on the insurer would not constitute service on the driver, and alternative service could not be expected to reach the driver. Nor would it be appropriate to dispense with service under CPR r.6.16 in a case where it could not be shown that the defendant knew of the proceedings.
[Comment; this is powerful dicta to be considered when the Court is considering applications for alternative service; the much-used argument that service on an insurance company should be allowed for alternative service where the alleged tortfeasor cannot be found because it is the insurance company which bears all the financial risk may be considerably weakened]
The Supreme Court gave short shrift to the European Law arguments; holding that no point on the Sixth Motor Insurance Directive arose because (1) Miss Cameron was not trying to assert a direct right against the insurer for the underlying wrong (her claim was for damages from the driver) and (2) it was consistent with the Directive to require a claim against the MIB, not the insurer, in this class of case.
[Comment; this was an argument which was only really advanced and developed in the Supreme Court during the hearing after it became clear that the service point would prove fatal to the Claimant’s case otherwise. The Court of Appeal had dealt with it in depressingly sparse detail merely stating that the Untraced Drivers Agreement was not comparable to the rights pursuant to the Road Traffic Act legislation, ignoring previous case law which confirmed the opposite].
According to the judgment the MIB paid out on 17,000 untraced driver cases in 2017. The difficulty that insurance companies would be placed under where they had to defend a case in which not only did they have no knowledge of the accident, but they also had no knowledge of even who was driving the vehicle, are obvious. The suggestion that in every case where an insurer raised an issue as to the identity of the driver that the Claimant could merely proceed to circumvent the issue by utilising a description of “driver unknown” would have (and has been in the time between the Court of Appeal and Supreme Court decisions) caused significant difficulties. The provisions of the Road Traffic Act 1988 and compulsory insurance have had the unfortunate and unintended consequence of spawning the use of alleged road traffic accidents by criminal gangs eager to exploit the insurance companies’ vulnerability. The insurance companies ability to investigate the same and assess which are the genuine cases that should be promptly paid to compensate innocent Claimants and those that should be challenged would have been significantly impaired by the failure to the requirement for the Claimant to identify the alleged tortfeasor.
The problem was that whilst the facts in Ms Cameron’s case may have been relatively clear-cut, the device was already being used in increasing cases; where the Claimant had lost the details of the driver, had not requested the details from the driver, or had made little or no enquiries to ascertain the true details of the driver.
The dicta in relation to the importance of service will be important beyond the narrow confines of this case. It establishes that a tendency of some Judges to downgrade the importance of the requirements of service and dispense with the same or order alternative service will have to stop.
NOTE This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons