Summary of Court of Appeal decision
The factual background has been well rehearsed, but in summary, the claimant was involved in a collision with an unidentified driver, who did not stop. The unidentified driver's vehicle registration was taken and the insurers of the vehicle, LV=, were as a result identified. The claimant amended her claim to identify the defendant as "The person unknown driving vehicle registration number Y598 SPS who collided with vehicle registration number KG03ZIZ on 26th May 2013" and sought to serve the proceedings on LV=.
In its decision (now reversed), the Court of Appeal decided that a claimant could bring proceedings against an unnamed defendant, identified by an appropriate description, and allowed substituted service of the proceedings on the insurer.
Supreme Court decision
The Supreme Court's judgment emphasises throughout, the important role of the Motor Insurers' Bureau and Untraced Drivers' Agreement in the UK system of compensation.
It is a fundamental of the UK compulsory insurance regime that a claimant must establish a liability, by way of a judgment. Where a claimant cannot obtain judgment, the insurer can have no liability, and it is for this reason that the MIB steps in to protect those suffering injury in incidents with unidentified drivers.
Lord Sumption, who delivered the Supreme Court's unanimous judgment, described the claimant's motives in choosing to pursue insurers rather than the MIB as "unclear", and referenced the view of the majority of the Court of Appeal that it was irrelevant that the claimant had the option to pursue her claim through the MIB.
The Supreme Court described a growing body of cases brought against unknown persons (the increase prompted by torts committed via the internet) where the defendant is identified by description but it was said, only so long as the description was sufficient to identify the persons included in that description and those not included.
A distinction was made between cases in which the defendant's name is not known, but where his identity is known and he could therefore be located and communicated, (such as a squatter), and those cases in which both a defendant's name and identity could not be ascertained. The court's jurisdiction applied only to identifiable persons who could be made aware of the proceedings.
Dealing with the apparent anomaly of obtaining injunctive relief against unidentified persons, it was said that the anonymous person would be identified if the injunction was breached. A defendant identified by the description in the claim would then be known and identified as falling within the description of the defendant.
In contrast, the description "the person unknown driving vehicle registration number…" did not, and would at no point, identify any person. There was no means by which proceedings could be brought to the unknown defendant's attention. It is a fundamental principle of natural justice according to English courts that a defendant should be allowed to raise a defence, and the assumption that a hit and run driver would not raise any defence was regarded by the Supreme Court as irrelevant to that fundamental principle.
Much of the judgment considered the rules of service, and the principle that the purpose of service, is that it can reasonably be expected to bring the proceedings to the attention of the defendant. Lord Sumption commented that the Court of Appeal appears to have "had no regard" to these principles in ordering service on the defendant to be effective through the insurers.
The Supreme Court acknowledged that the CPR allows for service to be dispensed with, including in circumstances where the defendant conceals his identity to evade service. However, such deliberate concealment would only occur if the person knows that proceedings are likely to be brought against him, and this could not be assumed from a hit and run incident.
The claimant also took issue before the Supreme Court with the UK scheme of compulsory insurance with reference to the Motor Insurance Directive (2009/103/EC). The Supreme Court dismissed these arguments (which had not been addressed by the Court of Appeal) on the basis that the Road Traffic Act is clear in its requirement for a judgment in the first instance and there is no direct action against insurers under the compulsory regime.
The Supreme Court has reiterated the importance of establishing liability through a judgment before there can be any liability on the insurer under the compulsory regime. Judgment can only be obtained where a claimant can identify the driver and properly serve the proceedings. The Supreme Court decision provides a very useful reminder of the legal and procedural burden to be satisfied by a claimant.
The decision is likely to revive the significance of Sahin v Havard (2016), which was decided in the Court of Appeal shortly before its decision in Cameron, but which was largely sidelined by the impact of Cameron. Sahin decided that there is no compulsory insurance for a party who “caused or permitted” an unidentified and uninsured driver to use a motor vehicle (a Monk v Warbey liability).
The Court of Appeal decision had rendered the Untraced Drivers' Agreement largely defunct. The Supreme Court judgment implies some confusion as to why the claimant chose to pursue the route she did, when there was in place a scheme which would address her predicament. The Supreme Court acknowledged the MIB's indemnity is "slightly smaller" than that of the insurer, but stated that it was consistent with the Motor Insurance Directive. The Supreme Court decision endorses the importance of the MIB in the compulsory regime.
The Court of Appeal acknowledged that its decision in May 2017 was a "procedural innovation". The decision and much awaited appeal has produced a period of uncertainty. We expect claimant representatives and insurers will now be taking stock of the many cases awaiting the outcome of this appeal.