Cameron v Liverpool Victoria Insurance Co Ltd

The Supreme Court held that a person who is not merely anonymous but cannot be identified with any particular person (for example an untraced hit-and-run driver) cannot be validly sued by a description or pseudonym unless the court can effect service of the claim form by a method reasonably likely to bring the proceedings to that person’s attention, or can properly dispense with service. The court applied the longstanding principle of natural justice that a defendant must have sufficient notice of proceedings to be heard. In doing so it considered the Road Traffic Act 1988 regime (notably sections 143, 145, 151 and 152), the role of the Motor Insurers’ Bureau, and the Civil Procedure Rules (in particular CPR 6.15 and CPR 6.16). The court rejected the view that ordinary service on an insurer or on the Bureau can substitute for effective service on an unidentifiable wrongdoer, and rejected the Court of Appeal’s approach that permitted proceedings against an unknown driver in these circumstances.

Background and facts:

• On 26 May 2013 Bianca Cameron was injured in a collision with a Nissan Micra. The Micra's registration number was recorded but the driver made off and has not been identified. The registered keeper refused to identify the driver and was convicted of failing to do so. The vehicle was insured under a policy issued by Liverpool Victoria Insurance Co Ltd, but the company considered the policy-holder to be fictitious and the driver was not an insured driver under the policy.

Nature of the claim and relief sought:

• Ms Cameron initially sued the registered keeper. She sought to amend proceedings to substitute for the keeper a description of the unknown driver (“the person unknown driving vehicle registration number Y598 SPS who collided with vehicle registration number KG03 ZJZ on 26 May 2013”) and, against the insurer, a declaration that it would be liable to satisfy any judgment obtained against the keeper or driver.

Procedural history:

• District Judge Wright refused the application to sue the unknown driver and entered summary judgment for the insurer. A subsequent appeal (Judge Parker) dismissed Ms Cameron’s appeal. The Court of Appeal by majority allowed her appeal and permitted the amendment and alternative service on the insurer; it recorded that the insurer accepted it was liable to satisfy any judgment; see [2018] 1 WLR 657 (majority: Gloster and Lloyd Jones LJJ; dissent: Sir Ross Cranston).

Issues framed:

1. Whether it is permissible in the Civil Procedure Rules framework to issue or amend a claim so as to sue an unidentifiable person by description and to treat service on an insurer as service on that person.
2. Whether service may be dispensed with under CPR 6.16 where the defendant is unidentifiable and unaware of proceedings.
3. Whether European law (Directive 2009/103/EC) required recognition of a direct action against an insurer that would permit suing an unidentified driver in this way.

Court’s reasoning in summary:

• The court distinguished anonymous but identifiable defendants (e.g. trespassers identifiable by location) from defendants who cannot be identified at all (e.g. many hit-and-run drivers). Service and the court’s in personam jurisdiction require that the mode of service be reasonably likely to bring proceedings to the defendant’s attention (CPR 6.15 interpreted consistently with the long-established principle of natural justice and authority such as Porter v Freudenberg).
• Service on the insurer could not be treated as service on the unknown driver unless the insurer had contractual authority to accept service on the driver’s behalf; even where an insurer is joined, it does not substitute for the driver’s own right to be heard. Alternative service on the insurer could not reasonably be expected to reach an unidentifiable driver and would therefore be tantamount to no service.
• Dispensing with service under CPR 6.16 is limited to exceptional cases (for example where the defendant has actual knowledge of proceedings or has deliberately evaded service); there must be reason to believe the defendant is aware of or has evaded proceedings. There were no findings to that effect in this case.
• The statutory motor insurance scheme and the Motor Insurers’ Bureau provide a route to compensation for victims of untraced drivers; the Road Traffic Act regime confines the insurer’s direct liability to satisfying judgments against a driver and Parliament provided other arrangements (the Bureau) to fill the gap. The court did not accept that the Sixth Motor Insurance Directive required the United Kingdom to permit an action against a wholly unidentifiable defendant in the manner sought.

Disposition: The Supreme Court allowed the appeal by the insurer, set aside the Court of Appeal’s order and reinstated the decision of District Judge Wright.

The appeal was allowed. The Supreme Court held that a person who cannot be identified as any particular individual cannot be sued by a pseudonym or descriptive designation unless the court can effect service by a method reasonably likely to bring the proceedings to that person’s attention or can properly dispense with service. Service on the insurer or the Bureau does not substitute for effective service on an unidentifiable wrongdoer, and there were no grounds to dispense with service in the present case. The Court therefore set aside the Court of Appeal’s order permitting the claim against the unknown driver.

Proceedings began in the Liverpool Civil and Family Court where District Judge Wright dismissed the application to sue an unknown driver and entered summary judgment for the insurer. An intermediate appeal (Judge Parker) was dismissed. The Court of Appeal allowed the claimant’s appeal by majority ([2018] 1 WLR 657). The insurer appealed to the Supreme Court (on appeal from [2017] EWCA Civ 366), which allowed the appeal and reinstated the district judge’s order.