The Court of Appeal’s decision in the recent case of Cameron –v- Hussain & Liverpool Victoria  EWCA CIV 366 is a welcome triumph for claimants and their solicitors.
The case centred on three main issues: –
- whether it was possible for judgment for damages to be made against an unidentified driver described only as “ an unnamed defendant” in a hit and run accident where the vehicle was insured and an effective insurance policy was in place.
- whether an insurer under section 151 of the Road Traffic Act 1988 was liable to meet any unsatisfied judgment against an “unnamed defendant”
- whether the judges had been right to refuse to allow the claimant permission to amend her claim form and particulars of claim so as to substitute for the named first defendant, a defendant identified only by the following description:
“The person unknown driving vehicle registration number Y598 SPS who collided with vehicle registration number KG03 ZIZ on 26 May 2013.”
The claim arose when Bianca Cameron on 26 May 2013, was involved in a collision with another motorist, driving a Nissan Micra in Leeds. The driver did not stop, but the vehicle registration was obtained by a third party. Miss Cameron suffered modest personal injuries and the value of her case including property damage and hire charges was estimated to be between £10,000 – £15,000.
Miss Cameron issued proceedings against the registered owner of the Nissan Micra, Mr Hussain, believing him to have been the driver involved in the collision and later amended proceedings to include Liverpool Victoria to meet any unsatisfied judgment against Mr Hussain pursuant to section 151 of the Road Traffic Act 1988. As matters progressed, the insurers denied liability on the grounds Mr Hussain was not covered to drive the Nissan under the policy and that Miss Cameron was unable to provide the identity of the driver.
Miss Cameron sought permission to amend her claim form and particulars of claim so as to substitute for Mr Hussain, an unnamed defendant only identified as described above. She was refused permission to amend her claim form and she, therefore, brought her case to the Court of Appeal.
The appellant, Miss Cameron relied upon 3 grounds of appeal: –
- English civil procedure permitted proceedings to be issued and orders(including judgments) to be made against unnamed parties where it was necessary and efficacious to obtain justice.
- It was both necessary and efficacious to allow her to proceed against an unnamed defendant in the particular circumstances of this case.
- Permitting her appellant to proceed was consistent with the policy of section 151 of the 1988 Act.
In response, the insurers argued that it was only in exceptional circumstances that proceedings could be issued against unnamed parties, such where an injunction was sought and no other remedy was available. The insurers submitted that the MIB Untraced Driver’s Agreement (UTDA) was a perfectly adequate alternative remedy available to Miss Cameron. It was submitted that Section 151 and the UTDA were a unified scheme to provide compensation to victims of road traffic accidents and had to be looked at in conjunction.
The insurers argued that it would be an injustice to them if Miss Cameron succeeded and they also presented a “floodgates” argument that if she was correct that a claim could be brought against an unnamed defendant, whenever it was just to do so, the implications would exceed far beyond section 151, and could be applied whenever there was an insurer behind an unknown wrongdoer.
The Court of Appeal identified there were some assumed facts relevant to the case. These included that there was no dispute that if Miss Cameron obtained a judgment for damages against the unnamed defendant, such a judgment would relate to a liability that would have been covered by the terms of the policy. It was also agreed that the insurers would have been entitled under Section 152 (a) to have avoided the policy on the grounds of fraudulent misrepresentation as to the existence of the purported insured, but they had not done so within the relevant time limit and were therefore bound by the terms of the policy. It was also assumed that the registered keeper, Mr Hussain, had not been the driver of the vehicle at the time of the collision.
In considering whether a judgment for damages could be obtained against an unidentified party, the authority of Bloomsbury Publishing Group –v- News Group Newspapers  1 WLR 1633 was considered compelling and it was adopted. The judge, in that case, determined that there was no reason in principle why, in appropriate cases, it should not be permissible under the Civil Procedure Rules for a claimant to bring proceedings against an unnamed defendant, suitably identified by an appropriate description. Likewise, there was no reason in principle, or as a matter of interpretation of the rules, why the ability to do so should be limited to a claim for an injunctions or similar. There were also Canadian authorities which demonstrated it was well-established in that jurisdiction that damages claims may be issued against unnamed defendants.
To determine whether the court should exercise its discretion to permit a claimant to amend their case in order to substitute an unnamed defendant, the court considered the overriding objective and whether it would be furthered by such a course.
It was recognised that insurers under section 151 routinely have to satisfy judgments against wrongdoers who, although their identities are known, can no longer be traced. In the present case, the Court of Appeal held that there was no distinction between the former and bringing a claim and obtaining judgment for damages against an unnamed defendant and as such under section 151 the insurer would be under a duty to satisfy the judgment. It was also significant that the unknown driver had unlawfully sought to place himself beyond the reach of legal proceedings. Furthermore, in this case, the justification for permitting such a claim for damages against an unknown person would be efficacious because the insurers would be liable to satisfy the claim by virtue of section 151. In these circumstances, Miss Cameron should be permitted to bring the claim.
The Court held that it was entirely consistent with the policy of the 1988 Act that an identified insurer’s liability under section 151 in relation to a policy of insurance written in respect of a specific vehicle and a specific named insured, should not depend on whether, at the date of issue of court proceedings, or thereafter, the claimant can identify the driver by name.
The Court of Appeal reached the decision that this was a case where a court can and should, in accordance with principle, exercise its procedural powers to permit an amendment to the claim form and particulars to allow Miss Cameron to substitute an unnamed defendant driver and the relevant description, and consequently to enable a judgment to be obtained against such a defendant, which an identified insurer is required to satisfy pursuant to section 151 of the 1988 Act.
The decision reached in this case affords claimants a more advantageous remedy in bringing proceedings against an unnamed defendant rather than previously being compelled to make a claim under the UTDA, which has numerous disadvantages including strict time limits for submitting a claim for property damage and reporting the accident to the police. In addition, this decision means claimants will not be prevented from seeking subrogated claims or be subject to recovering very limited legal costs if court proceedings can be pursued.
This case highlights for claimants they have substantive rights to a judgment for damages and an entitlement under section 151, which should not be interfered with without good reason. The court emphasised that the existence of an alternative remedy did not itself require a court to exercise its discretion against permitting a court claim to be pursued against the wrongdoer.
Whilst the Court of Appeal recognised that the principles established in this case may lead to an increase in claims made to insurers rather than the MIB, it should be duly noted that the scope of the case is specifically limited to the circumstances where the vehicle is insured and the insured and registered owner are identifiable. In addition, to proceed against an unnamed party can only be permitted where to do so would be efficacious and consistent with the overriding objective.
So, whether this is truly a small or big triumph for claimants or whether there will be many similar future cases like this one, or an appeal made by the insurers, no one yet knows as only time will tell.
It is hoped however that this will be a significant remedy for claimants whose particular cases fall into the specified circumstances, which will enable their solicitors to proceed with their cases with certainty with the knowledge that submitting a claim to the MIB is not their only recourse.