The Supreme Court held that a claimant cannot sue a hit-and-run driver who cannot be identified merely by describing him as the person who drove a particular car at the time of the collision. Ms Bianca Cameron sought a judgment against that unnamed driver so that Liverpool Victoria, which had issued a policy on the car, would have to satisfy it. Lord Sumption, with whom the other members of the Court agreed, held that the court cannot make a person subject to its jurisdiction without notice of the proceedings and an opportunity to be heard.
The collision and the insurance
Ms Cameron was injured in a collision with a Nissan Micra. The car could be identified and was insured, but the driver could not be identified. The registered keeper was not shown to have driven it.
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The Road Traffic Act 1988 gives the victim of a road accident no direct claim against an insurer for the driver’s underlying liability. The only direct right is to require the insurer to satisfy a judgment once that liability has been established. Section 151 extends that duty to a judgment against a person who was not insured to drive the vehicle. Where the driver cannot be identified, compensation is a matter for the Motor Insurers’ Bureau under its Untraced Drivers Agreement with the Secretary of State. The 2003 agreement applied where it was not possible to identify the person who was, or appeared to be, liable. The Bureau’s indemnity is not always as full as an insurer’s: at the relevant time property damage carried a £300 excess and a maximum of £1,000,000, and liability for legal costs was limited. A claim against the Bureau is ordinarily cheaper and quicker, but Ms Cameron chose not to make one. Her reasons remained unclear.
The attempt to sue an unnamed driver
Ms Cameron sued Mr Hussain and sought a declaration that Liverpool Victoria would meet any judgment against him. The insurer said that there was no evidence he had been the driver. She applied to substitute for him “the person unknown driving vehicle registration number Y598 SPS who collided with vehicle registration number KG03 ZJZ on 26 May 2013”.
The district judge refused substitution and gave summary judgment to the insurer. That decision survived the first appeal, but a majority in the Court of Appeal permitted the claim to proceed against the driver under a description.
Two kinds of unnamed defendant
Lord Sumption gave the only judgment. Lord Reed, Lord Carnwath, Lord Hodge and Lady Black agreed. He distinguished unnamed defendants who can still be identified from those who cannot. Squatters can be identified by where they are, served at that place, and matched to the description in the claim form. Most hit-and-run drivers cannot be identified with any particular person. Describing someone only by what he did on a past occasion does not show whether any given person is that someone. The proposed description identified no one, and there was no interim order whose enforcement would bring the proceedings to the driver’s attention. This was the first time the Supreme Court or the House of Lords had examined the basis and extent of the jurisdiction to sue unnamed persons. A practice direction cannot supply that basis, because it cannot alter the general law.
Jurisdiction depends on notice
The action is constituted when the claim form is issued, but service is what subjects the defendant to the court’s jurisdiction. Whether an unnamed person can be sued therefore depends on whether it is conceptually possible to serve him, not merely on whether service is difficult. An identifiable but anonymous defendant can be served by an alternative method under CPR 6.15. Alternative service is still service. Unless a statute provides otherwise, the method must be one that can reasonably be expected to bring the proceedings to the defendant’s attention. That requirement reflects a basic principle of natural justice: a person cannot be made subject to the court’s jurisdiction without notice enabling him to be heard.
Service on Liverpool Victoria could not meet that test. The Act makes an insurer liable to satisfy a judgment against the motorist; it does not, as a general rule, make the insurer directly liable for the underlying wrong. The Bureau fills the resulting gap, so there is no need to construct a claim against an unidentified driver in order to reach the insurer. Service on the insurer would not itself be service on the driver unless the insurer had authority to accept service for him. Lord Sumption was prepared to assume that the policy gave the insurer such authority, although the Court was not shown the policy, but any such authority could have been conferred only by the policyholder. It was agreed that the driver was not the policyholder. The insurer could be joined in its own right and could argue, in its own interest, that the driver was not liable. It could not conduct his defence. Alternative service on the insurer could not be expected to reach him and would have been tantamount to no service.
Dispensing with service altogether requires exceptional circumstances. Deliberate evasion of service may justify an exception, but this driver’s failure to stop after the collision did not establish that he knew about, or was evading, the proceedings.
The result is that a person who cannot be identified with any particular person cannot be sued under a pseudonym or description unless the claim form can be served or service can properly be dispensed with.
Why the Directive made no difference
The Court did not need to determine the full scope of the EU Motor Insurance Directive. UK law provided an indemnity through the Motor Insurers’ Bureau for victims of untraced drivers. The directive did not require the courts to change the rules of service so that Ms Cameron could obtain a judgment against this driver.
Verdict: The Court unanimously allowed Liverpool Victoria’s appeal and restored the district judge’s order. Ms Cameron could not substitute the unidentified driver as defendant, and the insurer obtained summary judgment.
Source: Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6
