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The UK Supreme Court recently handed down its judgment in the matter of Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6.

This case considers the very interesting issue of whether a claimant is entitled to bring a claim for damages against an unnamed defendant who was the driver of a vehicle responsible for a hit-and-run.

Background

The claimant, Ms Cameron, was injured when her car collided with a Nissan Micra which left the scene without stopping. It was accepted that the incident was caused by the driver of the Micra. The registration number for the vehicle was recorded, but the registered owner, who was not the driver, refused to identify the driver and was convicted for not doing so.

Initially, Ms Cameron sued the owner of the Micra for damages, and made a claim against Liverpool Victoria Insurance for a declaration that it would be liable to pay any judgment obtained against the driver. The insurer denied liability on the basis that there was no evidence that the owner was in fact the driver responsible for the collision. Ms Cameron then sought to amend her claim form to substitute the owner for an unidentified defendant, being the driver of the Micra.

The statutory framework

When a person is involved in a road accident they can make a claim against the driver responsible, and, pursuant to Part VI of the Road Traffic Act 1988, if liability is established, require the driver’s insurer to satisfy any judgment made against them.

If the driver cannot be identified, the claimant may seek indemnity from the Motor Insurers’ Bureau pursuant to the Uninsured Drivers Agreement. This agreement (entered into with the Secretary of State) assumes that judgment cannot be obtained against the driver if they cannot be identified and that therefore no liability can attach to their insurer. The Motor Insurers’ Bureau indemnifies persons suffering death, injury or property damage caused by unidentified drivers in such circumstances. Although Ms Cameron could have made an application to the Motor Insurers’ Bureau for relief, for reasons not set out in the Supreme Court judgment, she instead challenged the underlying assumption that you cannot sue an unidentifiable driver.

The Court of Appeal decision

Ms Cameron’s application to amend her claim form was dismissed as was her appeal. However, a further appeal to the Court of Appeal was allowed by majority, for the following reasons:

  1. The Court said that it had a discretion to permit an unknown person to be sued when justice required it.
  2. Justice required it in this case, because otherwise it would not be possible for Ms Cameron to obtain a judgment which the insurer of the driver was bound to satisfy.
  3. It was irrelevant that Ms Cameron had an alternative means of relief by making a claim to the Motor Insurers’ Bureau. She had a right against the driver, and, upon getting judgment against him, against the insurer, and she was entitled to choose between remedies.

Accordingly, the Court of Appeal allowed Ms Cameron to amend her claim form and substitute the owner of the Micra for the unknown driver and directed that service upon the insurer would constitute service upon the driver. The Court then delivered judgment against the driver and noted in its order that that the insurer was liable to satisfy that judgment. The insurer appealed to the Supreme Court.

Decision of the UK Supreme Court 

The question on appeal was: in what circumstances is it permissible to sue an unnamed defendant? The answer is one which relies on some of the most basic principles underpinning the UK legal system.

Generally, the accepted position at common law is that proceedings cannot be commenced against unnamed defendants, subject to limited exceptions which have been identified by the courts over time. Under the Civil Procedure Rules, the only express provision for commencing proceedings against unnamed defendants is CPR 55.3(4) which permits a claim for possession of property to be brought against trespassers whose names are unknown.

The Supreme Court classified unknown defendants as falling into two categories:

  1. Anonymous defendants who are identifiable, but their name is unknown. For example:
    • Squatters occupying a property or protestors (as they can be identified by their location, but not their name)
    • A group of thieves who stole copies of the latest unreleased book and offered it the publishers of the Sun, the Daily Mail and the Daily Mirror: Bloomsbury Publishing Group Plc v News Group Newspapers Ltd [2003] (Bloomsbury Case).
  2. Anonymous defendants that cannot be identified such as:
    • Enemy aliens living in Germany during the first world war: Porter v Freudenberg [1915] 1 KB 857
    • A negligent driver who gave a false name and address following a car collision: Clarke v Vedel [1979] RTR 26
    • The unknown insurer of a negligent driver who left the country: Gurtner v Circuit [1968] 2 QB 587

Although the question in this case was whether a claim could be issued (or amended) against an unidentifiable defendant, in reaching its decision, the Supreme Court gave consideration to the legitimacy of such a claim which cannot practically or conceptually be served on the defendant.

The Supreme Court held that the distinction between the two categories is that an anonymous but identifiable defendant can be served with the claim form or other originating process, if necessary, by alternative service under CPR 6.15 and an anonymous unidentifiable defendant, cannot. In the case of the former, this is because it is (at least theoretically) possible to locate and communicate with the defendant and to identify him as the person described in the claim form.

In injunction cases, an anonymous defendant could be identified in the future by committing the act prohibited by the injunction. For example, in the Bloomsbury Case, it was said that the unnamed defendants would have had to identify themselves in order to commit the prohibited act (i.e. offer the unreleased Harry Potter book to newspaper publishers).

According to the Supreme Court, it is not possible to identify an unknown person by referring to something they have done in the past. In this case, naming the “person unknown driving vehicle registration number…. who collided with vehicle registration… on 26 May 2013” does not identify anyone. It does not enable one to know whether any particular person is the one referred to, nor is there any interim relief (such as an injunction) which can be enforced in a way which will bring the proceedings to the defendant’s attention.

In the opinion of the Supreme Court, it is an essential requirement for any form of alternative service that the mode of service should be such as can reasonably be expected to bring proceedings to the attention of the defendant. This gives effect to the most basic principle of natural justice which has been the foundation of the English legal system for centuries.

In contrast, the Supreme Court disagreed with the Court of Appeal that it was in the interests of natural justice to allow Ms Cameron to amend her claim form. The availability of compensation from the Bureau meant that it was unnecessary to find some way of making the insurer liable for the underlying wrong when its liability was limited to satisfying judgments.

The Court concluded that a person, such as the unnamed driver of the Micra, who is not just anonymous but cannot be identified, cannot be sued under a pseudonym or description, unless the circumstances are such that the service of the claim form can be properly dispensed with.

Comment

No doubt that there was a collective sigh of relief by insurers when the Supreme Court handed down this decision. Had the Court of Appeal decision been upheld, the nature of risks which insurers had agreed to accept would differ greatly from those for which they would in fact be liable.

The Supreme Court decision provides certainty as to liabilities which are covered by the UK statutory framework for motor insurers and those which are covered by the Motor Insurers’ Bureau.

The distinction between anonymous but identifiable defendants and anonymous and unidentifiable defendants is an important one, which is likely to have a broader application beyond the insurance context.

Saskia Hayes works in the insurance and reinsurance group at CMS. Prior to joining CMS, Saskia worked as a solicitor in Australia, predominately in the area of professional negligence. Saskia also acted for a number of insurers in responding to, and appearing before, the Australian Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry.