Cameron v Liverpool Victoria Insurance Co Ltd

An unnamed defendant may be sued by description where the defendant is identifiable and the claim form can be served. A person cannot ordinarily be sued where a description records only a past act and does not enable anyone to identify or communicate with that person.

Alternative service must be reasonably capable of bringing the proceedings to the defendant’s attention. Service may be dispensed with in exceptional circumstances, including deliberate evasion where the defendant knows that proceedings have been or are likely to be brought. The compulsory motor-insurance scheme does not justify dispensing with these requirements merely to obtain a judgment which an insurer must satisfy. Compensation through the Motor Insurers’ Bureau fills the resulting gap.

The respondent was injured in a collision caused by the negligent driver of an insured vehicle. The driver left the scene and could not be identified. The respondent sought to substitute as defendant a description of the unknown driver and to serve the proceedings on the appellant insurer.

The district judge refused the amendment and entered summary judgment for the insurer. A circuit judge dismissed the respondent’s appeal. The Court of Appeal, by a majority, allowed a further appeal: [2017] EWCA Civ 366; [2018] 1 WLR 657. It permitted the amendment, treated service on the insurer as service on the driver, dispensed with further service and entered judgment against the described driver.

The central issue was when proceedings may be brought against an unnamed person, particularly where that person cannot be identified or served.

Appeal allowed unanimously. Lord Sumption delivered the judgment, with which Lord Reed, Lord Carnwath, Lord Hodge and Lady Black agreed.

1. There is a material distinction between an anonymous defendant who is identifiable and a person who cannot be identified at all. A person is identifiable where the description makes it possible in principle to locate or communicate with that person and to determine, without further inquiry, whether a particular individual answers the description. Anonymous occupiers, internet wrongdoers and persons connected with property may fall within this category.

2. Personal jurisdiction ordinarily depends upon service of originating process. Natural justice requires notice sufficient to afford the defendant an opportunity to be heard. Accordingly, alternative service under the Civil Procedure Rules 1998 must use a method reasonably capable of bringing the proceedings to the defendant’s attention. The principle in Porter v Freudenberg [1915] 1 KB 857 remained fundamental. The contrary general proposition in Abbey National Plc v Frost [1999] 1 WLR 1080 was wrong.

3. A description referring only to a person’s past conduct does not identify that person. The proposed description of the unknown driver therefore identified nobody, and service on the insurer could not reasonably be expected to reach the driver. It would have amounted to no service.

4. Service may be dispensed with under rule 6.16 only in exceptional circumstances. Dispensation may be appropriate where a defendant deliberately evades service and knows that proceedings have been or are likely to be brought. The mere failure of a driver to stop or report an accident does not necessarily establish that knowledge. There was no submission or finding of evasion here.

5. The Road Traffic Act 1988 did not justify a special exception. Its scheme gives an accident victim no direct claim against an insurer for the driver’s underlying liability. The insurer’s statutory obligation is to satisfy a judgment obtained against the driver. Compensation through the Motor Insurers’ Bureau covers cases involving untraced drivers, so the legislative policy did not require an unidentifiable driver to be sued without notice.

6. The Sixth Motor Insurance Directive did not require recognition of a right to sue an unidentified driver without complying with procedural safeguards. Even assuming that article 18 requires a direct action against the insurer for the underlying wrong, the respondent had brought no such claim.

The Court of Appeal’s order was set aside and the order of the district judge was reinstated.

1. United Kingdom Supreme Court: The insurer’s appeal was allowed unanimously. The order of the Court of Appeal was set aside and the district judge’s order reinstated: [2019] UKSC 6.
2. Court of Appeal: By a majority, the court allowed the claimant’s appeal, permitted substitution of the unknown driver, directed that service on the insurer constituted service on the driver, dispensed with further service and entered judgment against the driver: [2017] EWCA Civ 366; [2018] 1 WLR 657.
3. Liverpool Civil and Family Court: Judge Parker dismissed the claimant’s appeal from District Judge Wright, who had refused the proposed amendment and entered summary judgment for the insurer.