Case note on Cameron v Liverpool Victoria Insurance Co Ltd
On 20 February 2019, the Supreme Court handed down the much anticipated judgment in Cameron v Liverpool Victoria Insurance Co Ltd  UKSC 6. This judgment, which constitutes a major victory for insurers, means that it now appears very difficult for a claimant to sue an unidentified defendant following a “hit & run” RTA. In those circumstances, the claimant’s sole remedy is a claim to the MIB under the Untraced Drivers Agreement, which claimants may consider a less attractive route given the limited costs recovery available (amongst other features).
The claimant, Miss Cameron, was injured in a “hit & run” accident. The registration number was noted at the scene, and it transpired that the vehicle was insured under a LV policy. The claimant originally sued the registered keeper, however it became clear subsequently that neither the registered keeper nor the LV policyholder was driving the vehicle at the material time. The driver of the vehicle was therefore unidentified, which would ordinarily have resulted in a MIB claim under the Untraced Drivers Agreement. In fact, rather than pursuing a claim to the MIB, the claimant sought to amend her claim to bring it against “the unknown person driving vehicle reg number Y998 SPS involved in a collision on 26 May 2013”. The claimant’s application was unsuccessful at first instance, and then on appeal, but found favour with a majority of Court of Appeal.
The reasoning of the majority of the Court of Appeal, in essence, was that the policy of the Road Traffic Act 1998 was to ensure that victims received compensation from insurers whenever a policy had been issued in respect of a vehicle, irrespective of who was driving. Further, the Court of Appeal stated that there was a discretion to permit an unknown person to be sued whenever justice required it, and that the discretion ought to be exercised in this case, as otherwise there would be no underlying judgment in order to establish the insurer’s contingent liability. For the Court of Appeal it mattered not that the claimant had a remedy via a claim to the MIB under the Untraced Drivers Agreement, as in principle the claimant was entitled to chose between remedies.
The Supreme Court unanimously reversed the decision of the Court of Appeal. Lord Sumption, who gave the sole judgment, distilled the issue at the heart of the appeal as: “in what circumstances is it permissible to sue an unnamed defendant?” Against a background of a growing body of cases where unnamed defendants had been sued, he identified two classes of cases, namely: (1) cases in which the defendant’s name is not known, but the identity is known and he/she could therefore be located (e.g. a squatter) and; (2) cases in which the defendant’s name is not known, and in which the defendant is not realistically identifiable (e.g. a hit and run driver). This distinction was germane; whilst the first category of defendants can be served with a claim form, if necessary by alternative service under CPR 6.15 (e.g. attaching claim form to door where squatter resides), service against the second category of defendants is impossible. Lord Sumption considered that this problem was “conceptual, and not just practical” given that it is a “fundamental principle of justice that a person cannot be made subject to the jurisdiction of the court without having such notice of the proceedings as will enable him to be heard”. The defendant had conceded before the Court of Appeal that alternative service could be effected upon the insurer, but this concession was withdrawn before the Supreme Court (with its permission), which ultimately was critical to the appeal.
Further, and as a separate point, Lord Sumption was not persuaded by the claimant’s argument that this outcome was inconsistent with the Sixth Motor Directive, and that the Road Traffic Act 1998 should be read down so as to conform with it. The claimant submitted that the Directive required a direct right against the insurer on the driver’s underlying liability, and not simply a requirement to have the insurer satisfy a judgment against the driver. However, even if that were correct, here the claimant was not trying to assert a direct right against the insurer, but in truth she was trying to assert a right to “sue him without identifying him or observing rules of court designed to ensure that he is aware of the proceedings”.
Notably, the Supreme Court observed that it was “unclear” why the claimant had attempted to sue an unidentified driver rather than bringing a claim under the Untraced Drivers Agreement, as “it is cheaper and quicker” to claim against the MIB. That is perhaps at odds with the received wisdom that the Untraced Drivers Agreement is a less attractive route for a claimant, a proposition which seemed to have been acknowledged by the Court of Appeal. The judgment of the Supreme Court does perhaps leave open the smallest of widows for claimants to pursue unidentified drivers, where it can be said that the driver through his/her actions at the scene attempted to ” deliberately evade service”, which might it turn permit the Court dispensing with service under CPR 6.16. However, Lord Sumption was sceptical as to when such circumstances might arise in a “hit & run” RTA, as even a driver who fails to stop following an accident may be “unaware of his duty [to stop and exchange details] or of the personal injury or damage or of his potential liability”. This may be an area that future cases seek to explore.
By Rory Holmes