The recent decision of Cameron (Respondent) v Liverpool Victoria Insurance Co Ltd (Appellant)  UKSC 6 is an interesting insight into service of untraceable and unidentified drivers that are liable for road traffic accidents. This case concerned an appeal in the Supreme Court on the question of “in what circumstances is it permissible to sue an unnamed defendant?” [para 1]. This question arose when Ms Cameron was injured and her car damaged when a Nissan Micra collided with her vehicle. The incident was caused by the negligence of the Micra driver, whose registration number was noted, before the driver made off without stopping. The registered keeper of the Micra was not the driver at the time and was subsequently convicted of failing to identify the driver. The Micra was insured by Liverpool Victoria Insurance Co Ltd to a person who the company believed to be fictious; neither the registered keeper nor the driver was insured to drive the Micra under the policy issued.
Section 151 of the Road Traffic Act 1988 requires an insurer, under subsection (5), to satisfy any judgment falling within subsection (2). Subsection (2) covers judgments relating to liability with respect to a matter that is required to be covered by a policy of insurance under Section 145 of the act and the liability is covered by the terms of the policy and judgment is obtained against any person insured by the policy or against any person other than the one who is insured by the policy. This has the effect that the insurer who issued a policy for a vehicle is liable on judgment, even if the judgment is obtained against someone who was not insured by their policy. However, this is subject to an exception under Section 152 where an insurer is entitled to avoid the policy for non-disclosure or misrepresentation, if they have obtained a declaration to that effect in the prescribed time period. This means that if an insured gives false details or fails to disclose their full situation to the insurer, such as failing to disclose endorsements on their licence, the policy can be avoided by the insurer.
Those who suffer property damage or personal injury caused by uninsured or untraced drivers are protected by the Uninsured Drivers Agreement and the Untraced Drivers Agreement, respectively. Any claims under these agreements are normally met by the Motor Insurance Bureau with the Bureau assuming liability under the Uninsured Drivers Agreement in cases where there is a Section 152 declaration. However, under Article 75 of the Bureau’s articles of association, each insurer agrees to meet the Bureau’s liability in favour of the third party. This liability, however, is limited to claims where there is no other recourse for the injured party and so the injured parties’ insurer’s outlay, for example, would not be awarded as part of the judgment.
The detail set out above confers upon the ‘victim’ no direct right against the insurer for the liability of the driver; the only direct right is the right to require the insurer to satisfy the judgment, once liability has been found against the driver in legal proceedings. Due to this, the Untraced Drivers Agreement, the one relevant in the present case, assumes that judgment cannot be obtained against the driver as he cannot be traced and therefore no such liability can be attached to the insurer, which is why it is accepted that the Motor Insurance Bureau is liable. However, Ms Cameron in the present case had elected not to claim against the Bureau for reasons that remained unclear to the court.
Ms Cameron initially claimed against the registered keeper of the Micra for damages, with proceedings subsequently being amended to add a claim against Liverpool Victoria Insurance for a declaration that it would be liable to meet any judgment against the registered keeper. The insurer defended the claim on the basis that as there was no evidence that the keeper was the driver at the time, then there was no right to obtain judgment against him. Ms Cameron then applied to amend her claim to substitute the keeper as “the person unknown driving vehicle registration number Y598 SPS who collided with vehicle registration number KG03 ZJZ on 26 May 2013”. District Judge Wright dismissed that application, entering summary judgment for the insurer and Judge Parker, subsequently, dismissed Ms Cameron’s appeal. However, a further appeal to the Court of Appeal was allowed by majority, with the court giving permission for the claim form to be amended, that service on the insurer shall constitute service on the driver, that further service be dispensed with, as well as giving judgment against the driver and recording that the insurer accepted it was liable to satisfy the judgment.
In giving judgment in the Supreme Court, Lord Sumption (with whom Lord Reed, Lord Carnwath, Lord Hodge and Lady Black agreed) differentiated between cases previously brought against unnamed Defendant’s with the present case as in those previous cases the Defendant could be identified by their location, something in their possession, etc. However, as within the present case, a person could not be identified by something they had done it the past; the description didn’t enable someone to identify the Defendant and it “cannot be enough that the wrongdoer himself knows who he is” [para 16].
This then also brings about issues with service as if the Defendant cannot be identified, service cannot be effective and this could be seen as disregarding the principles fundamental to natural justice; that a Defendant is entitled to effective notice and to be heard in his defence. Further, alternative service should still be reasonably expected to bring the proceedings to the attention of the Defendant and it was plain in the present case that alternative service on the insurer could not be expected to reach the driver of the Micra and “would be tantamount to no service at all” [para 24]. Lord Sumption considered that the service ordered would only be suitable where it would be appropriate to dispense with service altogether, which should only be done in exception circumstances (CPR 6.16) and that it would be “hard to envisage any circumstance in which it would be right to dispense with service….where there was no reason to believe that the defendant was aware that proceedings had been or were likely to be brought” [para 25].
The Supreme Court concluded that a person who is not just anonymous but that cannot be identified could not be sued under a description or pseudonym unless there could be effective service or service could be properly dispensed with.
This case discusses interesting issues which regularly arise in road traffic accident cases but also highlights the importance of the Motor Insurance Bureau and insurers in cases, such as the present one, where a driver cannot be traced or found.
Specialist advice on road traffic accident proceedings can be obtained from members of Becket Chambers – speak to the clerks for further information.
Cara Radford is a Pupil barrister in Becket Chambers, presently undertaking the second six of her pupillage.