Cameron v Hussain & LV Insurance  EWCA Civ 366
The Court of Appeal handed down judgment today.
This claim arose from a road traffic accident on 26 May 2013. One of the drivers did not stop and remains unidentified but the registration number of that vehicle was recorded. The First Defendant was the registered keeper of that vehicle and the Second Defendant insured the vehicle under a policy it had issued to another person.
The Claimant who had suffered modest personal injury as well as significant damage to her car and associated hire charges originally pursued the First Defendant because she believed him to be the driver. When it became clear that he was not the driver and in response to an application for summary judgment by the First Defendant the Claimant made an application to substitute for the First Defendant, a defendant identified only as:
‘The person unknown driving vehicle registration number Y598 SPS who collided with vehicle registration number KG03 ZIZ on 26 May 2013’
That application was dismissed at first instance and summary judgment was given on the Second Defendant’s application. The Claimant’s appeal was dismissed by HHJ Parker. The Claimant appealed to the Court of Appeal.
The central issue in this case was whether, as a matter of procedural law, the Claimant could sue an unknown person in those circumstances.
That was of importance to the Claimant as otherwise her only recourse was to claim from the MIB under the Untraced Drivers’ Agreement (UtDA). Practitioners will be aware that the costs allowed in such a claim are significantly less than can be expected in court proceedings. It is also the case that subrogated claims are not met under the UtDA but must be satisfied by a section 151 insurer if a judgment is obtained against a driver responsible for the accident.
It was also of significant importance to the Second Defendant. The Second Defendant would not have to directly fund any award under the UtDA. Such award would be met from MIB’s central funds. Any judgment against a driver (whether identified or not) would have to be met by the Second Defendant pursuant to section 151 of the Road Traffic Act 1988. It did not matter whether they insured the driver or not under their policy.
In a split decision (Gloster and Lloyd Jones LLJ in the majority, Sir Ross Cranston dissenting) the Court of Appeal allowed the Claimant’s appeal and gave her permission to amend the claim form and particulars of claim to name a person unknown as the First Defendant driver.
The majority found that under the CPR there was no procedural bar to issuing proceedings and obtaining orders against persons unknown (following Bloomsbury Publishing Group v New Group Newspapers) and this was an appropriate case to allow such a claim to proceed.
Both judges in the majority confined the scope of their decision to cases where there is a section 151 insurer.
Gloster LJ stated:
“In my judgment, in a case such as the present, the court can and should, in accordance with principle, exercise its procedural powers to permit an amendment of the claim form (and the consequent amendment to the particulars of claim) to allow a claimant to substitute an unnamed defendant driver, identified by reference to the specific vehicle which he or she was driving at a specific time and place, and consequently to enable a judgment to be obtained against such a defendant, which an identified insurer is required to satisfy pursuant to the provisions of section 151 of the 1988 Act.” (emphasis added)
Lloyd Jones LJ stated:
“It is important to bear in mind that the procedural innovation sought would be limited to cases where the vehicle driven by the tortfeasor was insured and where the insured and the registered owner are identifiable. Moreover, as explained earlier, to proceed against an unnamed party could only be permitted where to do so would be efficacious and consistent with the overriding objective. These considerations suffice to dispel most of the spectres conjured up by Mr. Worthington.” (emphasis added)
It remains to be seen whether the Second Defendant will pursue a further appeal to the Supreme Court. At present:
- where an accident is caused by an identified vehicle but the driver cannot be identified, as long as the claimant can identify an insurer, they can now pursue court proceedings against an unknown person rather than pursuing a claim under the UtDA;
- given the respective costs regimes it is almost inevitable that claimants will pursue court action rather than a claim under the UtDA;
- Sahin v Havard would appear to be redundant. There is no need to pursue a Monk v Warbey claim if a section 151 insurer can be identified;
- insurers are now responsible for meeting ‘unidentified driver’ claims if they retain liability under section 151;
- there is a much greater incentive for insurers to pursue section 152 declaration proceedings. Obtaining a declaration will avoid the section 151 liability and the claim will fall back into the UtDA scheme transferring the liability from the insurer to MIB’s central fund.
The views expressed in this article are solely those of the author.