This was the question before the Supreme Court in Cameron v Liverpool Victoria Insurance Co Ltd . Judgment was handed down on 20 February 2019.
The facts of the case
On 26 May 2013, the respondent, Ms Cameron (the Claimant), was injured when her car collided with a Nissan Micra. It was not disputed that the incident was due to the negligence of the driver of the Micra. The registration number of the Micra was recorded, but the driver failed to stop or report the accident to the police and has not been heard of since.
Mr Naveed Hussain, the registered keeper, was not the driver and declined to identify the driver. He was subsequently convicted of failing to disclose the driver’s identity. The Micra was insured under a policy issued by Liverpool Victoria Insurance Co Ltd (LVI), to a Mr Nissar Bahadur, whom LVI believed to be a fictitious person. Neither Mr Hussain nor the driver was insured under the policy to drive the car.
Ms Cameron initially sued Mr Hussain for damages. The proceedings were amended to add a claim against LVI for a declaration that it would be liable to meet any judgment against Mr Hussain. The insurer served a defence, denying liability on the ground that there was no right to obtain a judgment against Mr Hussain as there was no evidence that he was the driver. Ms Cameron then applied to amend her claim form and particulars of claim. She sought to substitute Mr Hussain, as defendant, “the person unknown driving vehicle registration number Y598 SPS who collided with vehicle registration number KG03 ZJZ on 26 May 2013.”
At first instance, District Judge Wright dismissed that application and entered summary judgment for the insurer. HHJ Parker dismissed Ms Cameron’s appeal. On further appeal, the Court of Appeal allowed the appeal by a majority. The majority considered that the court had a discretion to permit an unknown person to be sued whenever justice required it and that an alternative right of claim against the Motor Insurance Bureau (“MIB”) was irrelevant.
LVI appealed to the Supreme Court in relation to two issues: (1) the power to issue or amend the claim form and (2) the compatibility of the Road Traffic Act 1988 (“the 1988 Act”) with the Sixth Motor Insurance Directive (2009/103/EC).
The Supreme Court allowed LVI’s appeal. The Court held that:
- It is 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 Part VI of the Road Traffic Act 1988) once the driver’s liability has been established in legal proceedings. Consistent with this approach, the 2003 Untraced Drivers Agreement (“Agreement”) assumes that judgment cannot be obtained against the driver if he cannot be identified, and therefore the only recourse is against the MIB, not the insurer.
- 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 key distinction is between two classes of unnamed defendant cases: (1) anonymous defendants who are identifiable but whose names are unknown and (2) defendants, such as in 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.
- Alternative service against an unidentifiable person referred to in the proceedings only by a pseudonym or description cannot 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 of the Micra. 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.
- On the Sixth Motor Insurance Directive, the Court considered that no point on the Directive arose because: (1) Ms 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 is consistent with the Directive to require a claim against the MIB, not the insurer, in this class of case.
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