Cameron v Hussain & Anor

The CPR permit proceedings against an unnamed defendant identified by a sufficiently certain description where the overriding objective is furthered. That power is not confined to injunctions or future relief and may support a damages judgment. In a hit-and-run claim, identifying the vehicle, its insurer and the relevant insured or registered owner can make proceedings efficacious because the insurer may be required to satisfy the judgment under the Road Traffic Act 1988, s 151. An available MIB Untraced Drivers Agreement is not an exclusive or preconditionary remedy. The court must assess certainty, efficacy, justice, proportionality and prejudice; exceptionality is not a separate threshold.

The claimant suffered injury and property damage when an unidentified driver collided with her vehicle and fled. The other vehicle was identified, as was its insurer, but the registered keeper was not the driver and the purported insured was believed to be fictitious.

The claimant had initially sued the registered keeper and added the insurer under s 151 of the Road Traffic Act 1988. The County Court refused permission to substitute a defendant described as the person driving the identified vehicle and granted summary judgment for the insurer, holding that the claimant could use the MIB Untraced Drivers Agreement. The appeal concerned whether an unnamed driver could be sued for damages and whether the proposed amendment should be permitted.

The appeal was allowed by Gloster LJ and Lloyd Jones LJ. Sir Ross Cranston dissented.

1. Procedural power. The CPR contain no general bar to proceedings against a defendant identified by a sufficiently certain description rather than by name. The power is not confined to injunctions or future relief. It may support a judgment for damages where the proceedings are efficacious. The reasoning in Bloomsbury Publishing Group v News Group Newspapers [2003] 1 WLR 1633 was adopted and applied.
2. Exercise of discretion. The relevant question is whether permitting the proceedings furthers the overriding objective. The description must identify the intended defendant with sufficient certainty, and the proceedings must produce a real benefit at proportionate cost. There is no separate requirement that the circumstances be exceptional or that no alternative remedy exist.
3. Section 151. Part VI of the Road Traffic Act 1988 places the risk of ineffective recourse against the tortfeasor on the insurer. In this case, identifying the vehicle, the insurer and the relevant insured or registered owner made a damages judgment against the unnamed driver efficacious, because the insurer would be liable to satisfy it under s 151. The insurer’s inability to interview or recover from the driver did not create unfairness.
4. Alternative remedy. The MIB Untraced Drivers Agreement was neither exclusive nor a precondition to the claimant’s statutory rights. Differences concerning recoverable costs, subrogated claims, reporting requirements and the MIB’s investigative role meant that the claimant might regard it as inferior to a court action. Its availability therefore did not justify refusing the amendment. Sahin v Havard [2016] EWCA Civ 1202 and Carswell v Secretary of State for Transport [2010] EWHC 3230 (QB) did not assist the insurer because they arose in materially different contexts.
5. Earlier authority and order. Clarke v Vedel [1979] RTR 26 was not followed because it predated both the CPR and the 1988 Act and proceeded on the basis that an unidentified defendant could not be sued. Permission was granted to amend the claim form and particulars of claim by substituting the unnamed driver described by the vehicle, time and place of the collision.
6. Dissent. Cranston LJ accepted that unnamed defendants could sometimes be sued, including for damages, but considered that the discretion required no injustice to the unnamed party and a real potential for injustice to the claimant if proceedings were refused. Because compensation was available under the MIB scheme, he would have dismissed the appeal.

• Court of Appeal (Civil Division). Appeal allowed and permission granted to substitute the unnamed driver as defendant.
• County Court at Liverpool. HHJ Parker dismissed the claimant’s appeal against the District Judge’s refusal of the amendment and grant of summary judgment for the insurer.
• District Judge. The application to substitute an unnamed defendant was dismissed and summary judgment was granted to the insurer.