Cameron v Hussain & Anor

The Court of Appeal held that, under the Civil Procedure Rules, a claimant may in appropriate circumstances amend proceedings to substitute an unnamed defendant identified by a sufficiently certain description so as to enable a judgment for damages to be obtained against that person. The court applied and adopted the reasoning in Bloomsbury Publishing Group v News Group Newspapers that the CPR do not erect an absolute bar to proceedings against persons unknown and that the overriding objective requires a flexible approach.

The majority concluded that where the vehicle and its insurer are identified and the insurer would be liable under section 151 of the Road Traffic Act 1988 to satisfy any unsatisfied judgment, permitting an amendment to sue the driver by description is consistent with the statutory policy of Part VI of the 1988 Act and with the overriding objective of the CPR. The existence of an alternative remedy under the Motor Insurers' Bureau Untraced Drivers Agreement was not, by itself, a sufficient reason to refuse the amendment. The judge below had therefore erred in refusing permission to substitute a defendant described by reference to the vehicle, time and place.

The court also considered and distinguished earlier authorities which had limited the joinder of unnamed defendants, and identified practical safeguards (for example, the need for a description sufficiently certain to identify who is included and who is not) and statutory protections for insurers (including section 152 and the insurer's rights of recovery under section 151(7)–(8)).

Background and facts: On 26 May 2013 the appellant was involved in a hit-and-run collision with a Nissan Micra (registration Y598 SPS). The vehicle was recorded and traced to a registered keeper, the named first defendant, who did not cooperate with enquiries and was later convicted for failing to give information. The motor was insured under a policy issued by Liverpool Victoria Insurance Co Ltd, the second defendant. The insurer contended the policy had been procured by fraud and the purported named insured was fictitious. The appellant could not identify the actual driver and sought to amend proceedings to substitute, for the named first defendant, an unnamed defendant described as "the person unknown driving vehicle registration number Y598 SPS who collided with vehicle registration number KG03 ZIZ on 26th May 2013".

Procedural posture: The appellant issued proceedings in January 2014 and added the insurer in March 2014 seeking a declaration against it under section 151 of the Road Traffic Act 1988. District Judge Wright refused permission to substitute the unnamed defendant and granted summary judgment for the insurer. HHJ Parker dismissed the appellant's appeal. Permission to appeal to the Court of Appeal was granted by Tomlinson LJ.

Nature of relief sought: The appellant sought permission to amend the claim form and particulars of claim to substitute a defendant identified only by description so that a judgment for damages could be obtained and, if unsatisfied, enforced against the identified insurer under section 151 RTA 1988.

Issues framed by the court:

• whether judgments and orders for damages may be given against unnamed defendants identified by description under the CPR;
• whether an insurer would be liable under section 151 to satisfy an unsatisfied judgment against such an unnamed defendant;
• whether it was appropriate in all the circumstances, and consistent with the overriding objective, to permit the amendment in this case, having regard also to the Motor Insurers' Bureau Untraced Drivers Agreement.

Reasoning and disposition: The majority (Gloster LJ and Lloyd-Jones LJ) accepted that the CPR permit proceedings against persons unknown where an adequate and sufficiently certain description is used and where the overriding objective supports such a course. They applied Bloomsbury Publishing and subsequent authorities to hold that the power is not confined to injunctive or future relief and may extend to damages where the proceedings are efficacious. They emphasised the statutory policy in Part VI RTA 1988 that an insurer who has received notice of proceedings may be obliged to satisfy judgments under section 151, and that denying a claimant the ability to obtain a judgment by description would undermine those statutory protections and produce arbitrary results. The existence of the MIB Untraced Drivers Agreement did not preclude the exercise of the court's discretion to permit the amendment.

The dissent (Sir Ross Cranston) agreed that in principle proceedings against unnamed defendants can be permitted but would have dismissed the appeal. He placed weight on the CPR's general requirement that parties be named, the limited and specific exceptions in the rules, the long-standing interplay between the RTA and the Motor Insurers' Bureau arrangements, and the potential for prejudice and fraud; he concluded that where the MIB scheme provides an adequate remedy a refusal to permit substitution was justified.

Appeal allowed. The Court of Appeal (majority) held that under the Civil Procedure Rules a claimant may, in appropriate circumstances, amend proceedings to substitute an unnamed defendant identified by a sufficiently certain description and obtain a judgment for damages against that unnamed defendant. Where the vehicle and its insurer are identified and section 151 of the Road Traffic Act 1988 would require the insurer to satisfy any unsatisfied judgment, it is consistent with the statutory policy and the overriding objective to permit such an amendment; the availability of the MIB Untraced Drivers Agreement does not, of itself, bar the exercise of that discretion. The judges below had therefore erred in refusing permission to amend.

Proceedings began in the County Court at Liverpool (District Judge Wright: application to amend refused and summary judgment granted 16 July 2014). Appeal to HHJ Parker (dismissed 13 January 2015). Permission to appeal to the Court of Appeal granted by Tomlinson LJ (22 October 2015). Appeal to the Court of Appeal allowed [2017] EWCA Civ 366 (23 May 2017).