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Articles | Mon 5th Jun, 2017
William Dean reviews the recent decision of the Court of Appeal in Cameron v Hussain [2017] EWCA Civ 266
What can a claimant do if she is injured in a road traffic accident but she does not know the identity of the other driver? Consider a case in which the defendant driver gives a false name, or leaves the scene before providing the claimant with his details. What if the claimant took the registration number of the other vehicle, but the registered keeper denies having driven the car, or it turns out that the car had been stolen before the accident?
Can a claim be brought against an unidentified or unnamed driver?
What The Rules Say
PD7A para. 4.1(3) provides that the claim form “must be headed with the title of the proceedings” and the title “should state [inter alia] the full name of each party.” Similarly, PD16 para. 2.6(a) provides that the claim form “must be headed with the title of the proceedings, including the full name of each party”, but goes on to provide that the full name “means, in each case where it is known…in the case of an individual, his full unabbreviated name and title by which he is known.”
At first blush, then, the rules appear to permit a claim against a person whose name is not known: although a claim form must be headed with the title of proceedings, that title must include the full name of a party only where the same is known.
What The Court Of Appeal Says
In Cameron v Hussain [2017] EWCA Civ 266, handed down on 23rd May 2017, the Court of Appeal considered whether an action could be brought against an unknown person. The question was preliminary to the substance of the first-instance application, which was to permit an amendment to Ms Cameron’s claim form after it transpired that Mr Hussain (the registered keeper) had not been the other driver in the accident.
The majority, Gloster and Lloyd Jones L.JJ., held that there is nothing in the Rules which prohibits a claim against an unnamed party, provided that party is “suitably identified by an appropriate description”, although in such a case the court will consider whether it would further the overriding objective to permit such a case to proceed. There is no reason why such a claim could not result in an award of damages (rather than a non-monetary remedy); and the availability of an alternative remedy (such as a claim against the Motor Insurers’ Bureau) is no bar to a claim against an unnamed party.
The Analysis
The Court of Appeal’s consideration of Ms Cameron’s appeal was the second appeal. The original decision had been made by a District Judge sitting in Liverpool.
On the first appeal, His Honour Judge Parker said that “in a claim for damages arising out of a road traffic accident, the claimant should provide the full name of the defendant. If the defendant is not known the claimant is unable to provide the full name of the defendant because the defendant is untraced, then in my judgment the claimant should not bring a claim for damages but rather should seek compensation through the M.I.B. Untraced Drivers’ Agreement. …In my judgment, to allow claimants to pursue claims against defendants identified only by description and not by name merely serves to increase litigation and costs thereof and is likely to prejudice insurance companies unfairly by imposing all of the burdens of section 151 of the Road Traffic Act 1988 whilst depriving them of an ability to pursue indemnity against the tortfeasor.”
In the Court of Appeal, Ms Cameron relied on Bloomsbury Publishing Group v News Group Newspapers [2003] EWHC 1205 (Ch). In that case, Sir Andrew Morritt V-C. distinguished earlier case law which was authority for the proposition that parties must be named. In 1926 the Court of Appeal had held that a writ referencing a party in a vague way was bad and unnamed defendants must be struck out: Friern Barnet Urban District Council v Adams [1927] 2 Ch. 25. In Bloomsbury Publishing the Vice-Chancellor noted that the existing authorities had been decided (under the old Rules of the Supreme Court) before the advent of the Civil Procedure Rules. At paragraph 19, the Vice-Chancellor drew a distinction between the words “must” and “should” in the Rules, and noted that the court may if necessary use the general power under rule 3.10 to remedy an error of procedure.
“The regime introduced by the Civil Procedure Rules is quite different. There is no requirement that a defendant must be named, merely a direction that he ‘should’ be. The failure to give the name of the defendant cannot now invalidate the proceedings both because they are started by the issue of the claim form at the request of the claimant and because, unless the court thinks otherwise, rule 3.10 so provides. The over-riding objective and the obligations cast on the court are inconsistent with an undue reliance on form over substance. The proper application of rule 3.10 is incompatible with a conclusion that the joinder of a defendant by description rather than by name is for that reason alone impermissible.”
Although Bloomsbury Publishing was a case involving an application for an injunction, a non-monetary remedy, Gloster L.J. noted subsequently-decided cases, such as Brett Wilson L.L.P. v Persons Unknown [2015] EWHC 2628 (QB) and Smith v Unknown Defendant, Pseudonym ‘Likeicare’ [2016] EWHC 1775 (QB), in which awards of damages were granted against unknown defendants.
The Decision
Gloster L.J., relying on Sir Andrew Morritt V-C.’s “compelling” analysis in Bloomsbury Publishing, held:
“that there is no reason in principle why, in appropriate cases, it should not be permissible under the C.P.R. for a claimant to bring proceedings against an unnamed defendant, suitably identified by an appropriate description. The fact that the C.P.R. may make express provision for situations in which this can take place does not preclude orders being made against unnamed defendants in other circumstances. Likewise, I see no reason in principle, or as a matter of construction of the rules, why the ability to do so should be limited to a claim for an injunction or in relation to future relief. Although there was no express discussion of the issue as to whether it was appropriate to bring a claim for damages against an unnamed person in the defamation cases, the logic of Sir Andrew Morritt’s analysis, in my judgment, equally applies to a claim for damages.”
That is not the end of the matter. Gloster L.J. went on to consider when such a claim may be brought (emphasis in original):
“…the question is not simply whether a claimant can issue proceedings against a person unknown, notwithstanding the direction in the rules that a defendant ‘should’ be named, or whether the court can permit a party to amend the claim form to substitute an unnamed defendant for a named defendant. The question also arises whether, in any particular case, the court should in the exercise of its discretion permit a claimant to amend in order to substitute an unnamed defendant, or permit such an action to proceed, so as to lead to a judgment against him. Once it is accepted that proceedings can be brought against unnamed defendants, then whether in any particular case that should occur, or whether relief should be granted against such defendants, must, it seems to me, depend on whether the overriding objective (that is to say of deciding cases justly and at proportionate cost – see C.P.R. r.1.1) would be furthered by such a course.”
The existence of the alternative remedy against the M.I.B. was no bar to the claimant suing an unnamed driver: Lloyd Jones L.J. (paragraph 84) considered “that the existence of an alternative remedy should not in the circumstances under consideration necessarily require a court to exercise its discretion against permitting a claim to be pursued against the tortfeasor. In the circumstances it would not be just to deny her a remedy which would give effect to her substantive right.”
Outcome & Practice Points
At paragraph 77 of Cameron, Lloyd Jones L.J. summarised the Court’s decisions on suing an unnamed defendant as follows.
In Cameron, the proposed form of description was: “The person unknown driving vehicle registration number Y598 SPS who collided with vehicle registration number KG03 ZIZ on 26th May 2013.” The description should be as specific as possible and ideally it should identify one person to the exclusion of all others. Identifying a person as the driver of a particular vehicle at a particular time on a particular date should satisfy that criterion.
It should be noted that if the description of a defendant does not fit on a claim form or does not lend itself to inclusion in the usual box, rule 4(2) provides that the same may be varied “if the variation is required by the circumstances of a particular case”.
When suing an unnamed defendant it is likely that a claimant will require an order for substituted service: “since the introduction of the CPR, an unnamed defendant, identified only by a relevant description, may be sued and appropriate directions can be given for alternative service of the claim form on him or her” (paragraph 62). Careful thought must be given to whether an appropriate place for service exists in practice in any given case.
The majority judgments in Cameron also support the ability of a claimant to obtain a judgment against an unnamed defendant in order to derive a benefit under section 151 of the Road Traffic Act 1988: paragraph 88.
