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Articles | Wed 20th Feb, 2019
Today, the Supreme Court handed down their judgment in Cameron v Liverpool Victoria Insurance Co Ltd. The case concerned whether a claimant could amend their claim form (and consequently, their particulars of claim) to include a description of an individual who was unidentifiable and unknown.
On the 26th May 2013, Ms Cameron was involved in a road traffic accident, when her Ford Fiesta collided with a Nissan Micra (“the Nissan”). The driver of the Nissan went on to hit another vehicle, before leaving the scene without stopping. His number plate details were ascertained by a passing taxi driver.
Ms Cameron and her passengers suffered personal injuries as a result of the collision. In addition, her car was written off and she incurred hire charges of a replacement vehicle.
The police discovered that a Mr Hussain was the registered keeper of the Nissan. However, Mr Hussain was later convicted of the offence of failing to give information about the identity of the driver of the Nissan. It was also discovered that the Nissan was subject to a policy insurance written by Liverpool Victoria Insurance Co Limited (“LV”). However, LV averred that this policy had been obtained by fraud and Mr Hussain was not insured to drive the Nissan.
In January 2014, Ms Cameron brought proceedings against Mr Hussain, who she considered was driving the Nissan at the time of the accident. In March 2014, Ms Cameron added LV as the Second Defendant in the proceedings and sought a declaration against it pursuant to section 151 of the Road Traffic Act 1988 (“the Act”) to the effect that it was obliged to satisfy an unsatisfied judgment debt against Mr Hussain.
LV defended the claim and applied for summary judgment, on the basis that Mr Hussain was not insured under the policy and that Ms Cameron could not prove the identity of the driver of the Nissan at the time of the accident. Ms Cameron made a cross-application for permission to amend her claim form and particulars of claim to substitute the First Defendant with the following description: “The person unknown driving vehicle registration number Y598 SPS who collided with vehicle registration number KG03 ZIZ on 26th May 2013“.
The matter originally came before District Judge Wright, who dismissed Ms Cameron’s application to substitute the name of the First Defendant with the above description. He also granted summary judgment. District Judge Wright’s decision was then appealed by Ms Cameron.
The appeal came before HHJ Parker. HHJ Parker again did not permit Ms Cameron to substitute the name of the First Defendant with the description of the unknown driver. He considered that there was no injustice to Ms Cameron, as she could simply submit a claim to the Motor Insurers’ Bureau. HHJ Parker considered that it was contrary to the overriding objective for Court to permit claims against defendants identified by description rather than name, and that would only serve to increase litigation and costs.
Tomlinson LJ subsequently granted permission to appeal in respect of HHJ Parker’s judgment.
Court of Appeal
The appeal was heard by Lady Justice Gloster, Lord Justice Lloyd Jones and Sir Ross Cranston. Ms Cameron relied on three grounds of appeal, namely:
(i) Ground 1: English civil procedure permitted proceedings to be issued and orders (including judgments) to be made against unnamed parties where it is necessary and efficacious to obtain justice.
(ii) Ground 2: It was both necessary and efficacious to allow the appellant to proceed against an unnamed defendant in the particular circumstances of this case.
(iii) Ground 3: Permitting the appellant to proceed was consistent with the policy of section 151 of the 1988 Act.
Gloster LJ gave the lead judgment, with which Lord Justice Lloyd Jones agreed, in which she considered that the Court should permit an amendment of the claim form and the consequent amendment to the particulars of claim to allow Ms Cameron to substitute the unnamed defendant driver. Gloster LJ noted that insurers agree to effect a policy of insurance and receive a premium for doing so. As such, by receiving economic benefit, insurers should bear the economic risks of the existence or non-existence of the insured or named drivers, the fact that such persons may allow uninsured persons to drive the vehicle, and that the vehicle may be driven unlawfully by persons without the consent of the insured. She also considered that insurers commonly have to meet judgments under s151 where they have no hope of enforcing against the culpable party, or of finding the culpable party.
Gloster LJ drew upon the judgment of Sir Andrew Morritt VC in Bloomsbury Publishing Group v News Group Newspapers  1 WLR 1633, where an injunction was granted against persons unknown who had obtained a copy of an unpublished Harry Potter novel, in which he stated that under the CPR, there was no requirement that a defendant must be named.
The Court of Appeal further directed that under CPR 6.15 service on the insurer should constitute service on the driver.
LV consequently appealed to the Supreme Court in relation to two issues, namely: (i) the power to issue or amend the claim form and (ii) the compatibility of the Act with the Sixth Motor Insurance Directive.
The Supreme Court judgment
The appeal was heard before Lord Reed, Lord Sumption, Lord Carnwath, Lord Hodge and Lady Black. Lord Sumption gave the lead judgment, with which all the Justices agreed.
Lord Sumption concluded that it was a fundamental feature of the statutory scheme of compulsory insurance in the United Kingdom that the victim of a road traffic accident has no direct right against an insurer in respect of the underlying liability of the driver. He noted that the only direct right against the insurer is a right to require it to satisfy a judgment against the driver, once the driver’s liability had been established.
Lord Sumption further considered that an unknown person could not be identified simply by referring to something that person has done in the past. He did not consider that the description provided by Ms Cameron to be substituted in the claim form identified anyone.
Although the appeal did not directly concern service, Lord Sumption noted that a person who is not only anonymous, but is not identifiable (as in this case), cannot be sued under a pseudonym or description, unless service of the claim form could be effected or properly dispensed with.
The Court did not consider that a point in respect of the Sixth Motor Insurance Directive arose. This was because Ms Cameron was not trying to assert a direct right against LV for the underlying wrong. Further, it was consistent with the Directive to require a claim against the MIB, not the insurer, in this class of case.
Consequently, LV’s appeal was allowed. The Court of Appeal decision was set aside and the Order of District Judge Wright was reinstated.
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