A CLAIMANT CAN SUE AN UNNAMED DRIVER (AND THE INSURER HAS TO PAY): COURT OF APPEAL DECISION TODAY

In Cameron -v- Hussain [2017] EWCA Civ 366 the Court of Appeal (by a majority) considered the question whether a claimant can sue an  and unknown and thus unnamed driver where details of the driver’s insurance is available.

KEY POINTS

  • A claimant can, in certain circumstances, issue proceedings against an unnamed party.
  • Whether such an action is appropriate is tested by reference to the overriding objective.
  • It was not unfair to insurers to require them to defend proceedings and meet judgments in these circumstances.

 

THE CASE

The claimant was inured in a road traffic accident where the errant driver drove away. The vehicle that struck the claimant was identified and a policy of insurance was in force. The driver was never identified. The keeper of the vehicle refused to give information about the driver, and was convicted of the offence of failing to give the identity of the driver.

  • Proceedings were issued against the keeper (Mr Hussain) as the claimant believed him to be the driver. Proceedings were also issued against the vehicle’s insurer.
  • The insurer denied liability on the grounds that Mr Hussain was not covered at the time of the policy and the claimant could not name the driver.
  • The insurer also applied for summary judgment.
  • The claimant made a cross-application for permission to amend her particulars of claim “so as to substitute, for the named first defendant, a defendant identified only by the following description:

    ‘The person unknown driving vehicle registration number Y598 SPS who collided with vehicle registration number KG03 ZIZ on 26th May 2013.'”

  • The claimant’s application was dismissed by the District Judge and, on appeal, by the Circuit Judge.

THE ISSUES BEFORE THE COURT OF APPEAL

These were summarised in the jugment of Lady Justice Gloster.

“i) whether it is possible to obtain a judgment in respect of a claim for damages against a defendant identified only by description (“an unnamed defendant”), in the context of a motor claim against an unidentified hit-and-run driver, where the vehicle was identified and an insurance policy had been effected in respect of such vehicle in the name of either a non-existent person or someone who was not traceable;
ii) whether an insurer would be liable to satisfy any unsatisfied judgment against such an unnamed defendant under section 151 of the Road Traffic Act 1988 (“the 1988 Act”);
iii) whether the judges below were right to refuse to allow the claimant permission to amend her claim form and particulars of claim so as to substitute, for the named first defendant, a defendant identified only by the following description:
‘The person unknown driving vehicle registration number Y598 SPS who collided with vehicle registration number KG03 ZIZ on 26th May 2013.'”

COURT OF APPEAL JUDGMENT ON THESE ISSUES

Discussion and determination
Relevant factual matters
    1. It is appropriate to identify certain agreed or assumed facts relevant to this case.
i) There was no dispute that, if the appellant’s action were allowed to proceed against an unnamed driver defendant, described as proposed, then:

a) the appellant, as claimant, would be entitled to a judgment against the unnamed defendant on the grounds of his negligence; and

b) the respondent would be liable, by virtue of the provisions of section 151(5) of the 1988 Act and the policy, to satisfy that judgment.

ii) In other words there was no dispute that, if the appellant obtained a judgment for damages against the unnamed defendant by the relevant description, such a judgment would relate to a liability with respect to a matter that was required to be covered by a policy of insurance under section 145 and that such a liability would have been covered by the terms of the policy if the policy had indeed insured “all persons”; see section 151 (2) (b).

iii) There was no dispute between the parties that, although the respondent, as insurer, would have been entitled under section 152(2(a) to have avoided the policy on the grounds of the fraudulent misrepresentation as to the existence of the purported insured, and to have obtained a relevant declaration to that effect, the respondent had not done so within the relevant time limit and was, accordingly, bound by the terms of the policy.

iv) It was accepted or assumed on both sides that the registered keeper, i.e. the first defendant, had not been the driver of the vehicle on the occasion in question.

v) It was not suggested that the appellant, as claimant, should have sued the first defendant as owner of the vehicle on the grounds that he was in breach of his statutory duty under section 143 of the 1988 Act in permitting the driver to drive the vehicle whilst uninsured; see Monk v Warby [1935] 1KB 75. Whilst it is arguable that the pursuit of such an action might have resulted in the first defendant identifying the actual driver (on pain of punishment for contempt), it is clear that the respondent would not have been liable under section 151 to have satisfied any such judgment against the first defendant; see Sahin v Havard [2016] EWCA Civ 1202.

vi) This court was not shown the policy and no argument was directed in relation to its terms.

vii) Apparently, as a matter of practice insurers almost never bring proceedings in small value cases pursuant to section 152(2) for a declaration they are entitled to avoid a policy on the ground that it was obtained by non-disclosure or false representation of a material fact. They do do so on occasions in high value cases.

The relevant issue – application of the rules, not statutory construction
    1. I emphasise that it was not suggested by Mr Worthington, or by Mr Williams, that the resolution of the issue in this case depended on the construction of section 151 or any other provision of the 1988 Act. It was accepted by Mr Worthington that, if indeed a judgment were obtained against the unnamed defendant under the intended description, such a judgment would fall within the definition in section 151(2) of a judgment “obtained against any person other than one who is insured by the policy” and would be a judgment to which subsection (1) of section 151 applied and which, accordingly, the respondent would be liable to satisfy. Rather, the thrust of Mr Worthington’s argument, as summarised above, was that the court could not, as a matter of principle, and/or should not, as a matter of discretion, exercise its power under the relevant procedural rules to permit the proposed amendment to the claim form to substitute the unnamed defendant identified by the proposed description. For that reason it is not relevant to consider the Consolidated European Motor Insurance Directive 2009/103/EC or the impact, if any, which it has on the construction of the 1988 Act.
My conclusion
    1. In my judgment, in a case such as the present, the court can and should, in accordance with principle, exercise its procedural powers to permit an amendment of the claim form (and the consequent amendment to the particulars of claim) to allow a claimant to substitute an unnamed defendant driver, identified by reference to the specific vehicle which he or she was driving at a specific time and place, and consequently to enable a judgment to be obtained against such a defendant, which an identified insurer is required to satisfy pursuant to the provisions of section 151 of the 1988 Act. My reasons are set out below.
Statutory policy of Part VI of the 1988 Act
    1. I start my analysis from the basic proposition that the policy of the regime imposed by Part VI of the 1988 Act makes clear that, where a policy of insurance is in place in respect of a vehicle, the insurer must, where it has received statutory notice (under section 152 of the 1988 Act) of the issue of third party proceedings, generally meet liabilities to a third party victim irrespective of whether the policy covers the driver/tortfeasor, and irrespective of the identity of the tortfeasor. That is so unless the insurer can show that it was either off-cover (because the policy has been cancelled) or that it should never have been on-cover (because the policy was procured by non-disclosure or misrepresentation) and, in both the latter cases, that it has also taken rapid and formal steps to demonstrate those matters.
    2. That policy is wholly consistent with common sense. If an insurer agrees to effect an insurance policy in respect of a specific vehicle and receives a premium in respect of accepting that risk, then prima facie, at least, and subject to any right to avoid the policy, the insurer, having received the economic benefit, should bear the economic risk as to the following matters: the existence or non-existence of the insured or named drivers; the fact that such persons may allow uninsured persons to drive the vehicle; and the fact that, because the vehicle is on the road, it may be driven unlawfully by persons without the consent of the insured. After all, the insurer, and only the insurer, is in a position to evaluate that risk; it, and it alone, makes the business decision as to whether to accept the risk, and to allow the particular vehicle to be driven with the benefit of an insurance policy in the name, or purportedly in the name, of a particular insured. The insurer enters the market knowing of the risk that, under the provisions of section 151, it may well be held liable to satisfy judgments against third-party tortfeasors, who have driven the insured vehicle negligently, notwithstanding that the latter may not be insured under the terms of the policy.
    3. As Mr Williams submitted, the policy of imposing third party liabilities on the insurer of a vehicle irrespective of its obligations to its insured has stood since the Road Traffic Act 1934. The mischief to which that legislation was directed was stated by Goddard LJ in Zurich Insurance Co Ltd v Morrison [1942] 2 KB 53 (CA), 61:
“Part II of the Road Traffic Act 1934 was passed to remedy a state of affairs that became apparent soon after the principle of compulsory insurance against third party risks had been established…. That… would naturally have led the public… to believe that if thereafter they were, through no fault of their own, injured or killed by a motor car they or their dependants would be certain of recovering damages, even though the wrong-doer was an impecunious person. How wrong they were quickly appeared. Insurance was left in the hands of companies and underwriters who had imposed what terms and conditions they chose. Nor was there any standard form of policy, and any company… could hedge round the policies with so many warranties and conditions that no one advising an injured person could say with certainty whether… there was a prospect of recovering against the insurers … It is not surprising therefore… that… Parliament interfered, and… they took steps towards remedying a position which to a great extent nullified the protection that compulsory insurance was intended to afford. Generally speaking, [the legislation] was designed to prevent conditions in policies from defeating the rights of third parties, but insurers were still allowed to repudiate policies obtained by misrepresentation or non-disclosure of material facts.”
Likewise, in In Hardy v MIB [1964] 2 QB 745 (CA), 769-770, Diplock LJ stated (in relation to the equivalent provisions of the Road Traffic Act 1960):
“The whole purpose of this Part of the Act is for the protection of the persons who sustain injury caused by the wrongful acts of other persons who use vehicles on a road, and it was no part of the policy of the Act that the assured’s rights to enforce his own contract against the insurers should constitute the sole measure of the third parties’ rights against the insurers… .”
    1. Thus the effect of the statutory regime is clear. Like its predecessors, the 1988 Act gives insurers rights of recourse against the insured or other culpable third party where they must pay out without contractual obligation to do so. For example, section 151(8) provides that an insurer may recover its outlay from an uninsured user of the vehicle, or from the insured if he permitted the user. Nevertheless, in accordance with the policy explained by Goddard LJ in the Zurich case, whether this right of recourse proves to be useful is a risk which falls on the insurer. In many cases, the right will be nugatory, because the actual tortfeasor will be a man of straw (e.g. cases where the driver was a thief). In particular, insurers may well routinely have to meet judgments obtained against defendant drivers who, although their identity is known at the date the proceedings were instituted by the victim, can no longer be traced by the time judgment is obtained. An example given by Mr Williams was the case of a visiting foreign worker who, although originally identified, some time after the relevant accident returned home to a foreign country and could no longer be found. In such circumstances, no defence is afforded to the insurer; Indeed, if proceedings are yet to be issued, the usual procedure is that the claimant obtains an order for alternative service on such a defendant by serving the insurer itself; see for example the practice suggested in Murfin v Ashbridge [1941] 1 All ER 231 (CA), 235 and in Gurtner v Circuit [1968] 2 QB 587 at 596G 597D in relation to substituted service on an insurer in relation to a named and identified, but untraceable, defendant. It was common ground between Mr Williams and Mr Worthington that this was the normal practice in relation to an order for service by alternative means: Blackstone’s Civil Practice 2017, §15.19; Zuckerman on Civil Procedure (3rd ed), §5.122.
    2. Accordingly, as Mr Williams submitted, insurers will commonly have to meet judgments under section 151 where they have no hope of enforcing against the culpable party, or even of finding the culpable party. Insurers will defend and control the defence of such proceedings whether the culpable party has been served with them, or knows anything about them. Indeed the insurers may well have been served with the proceedings in lieu of the culpable party.
    3. In such circumstances I am not impressed by Mr Worthington’s arguments that to permit a judgment to be entered against an unknown defendant driver in circumstances such as the present, where the vehicle, the insurer and the purported name of the insured can all be identified, will open the floodgates to a raft of fraudulent claims against insurers. It is for insurers to stipulate the conditions which they require to be satisfied by a proposed insured to establish identity before insurers issue a policy. If they do not, as a matter of practice, whether because of administrative difficulties or otherwise, seek declarations that they are entitled to avoid policies in the event of fraudulent non-disclosure or misrepresentation, that is a matter of their own commercial choice. Moreover, Mr Worthington was not able to articulate, other than in the most vague and general terms, the type of problems which he said might arise.
    4. Thus, it appears to me to be entirely consistent with the policy of the 1988 Act that an identified insurer’s liability under section 151 in relation to a policy of insurance, written in respect of a specific vehicle and a specific named insured, should not depend on whether, as at the date of issue of the proceedings, or thereafter, the claimant can identify the tortfeasor driver by name.
The exercise of the court’s powers under the relevant rules of the CPR
    1. It was correctly assumed by both parties that, only if judgment for damages could indeed be obtained against an unnamed defendant satisfying the relevant description, could it be a proper exercise of the court’ s powers or discretion to permit an amendment of the claim form and particulars of claim to substitute the unnamed defendant. The argument therefore appropriately focused on the issue as to whether a judgment for damages could be obtained against an unidentified party. However, Mr Worthington also argued that the existence of the appellant’s alternative remedy under the UTDA meant that the case could not be regarded as an exceptional one justifying the exercise of the court’s discretionary power to permit proceedings to continue against an unnamed defendant.
    2. I reject Mr Worthington’s submission that, whether as a matter of the construction of the relevant rules or as to the circumstances in which any power conferred thereunder should be exercised, a party is unable to bring proceedings against an unnamed party, identified by a specific description, for damages, or is unable to do so in the absence of a claim for an injunction to restrain such a defendant’s conduct in the future. In my judgment, in appropriate circumstances such as the present, a claimant can do so.
    3. In my judgment, the analysis of Sir Andrew Morritt V-C in Bloomsbury Publishing Group v News Group Newspapers [2003] 1 WLR 1633 is compelling and I respectfully adopt it. In that case, an injunction was granted against unknown persons who had obtained a copy of an unpublished Harry Potter novel. Sir Andrew Morritt V-C found that the cases decided prior to the introduction of the CPR were no longer applicable. He held that under the CPR, there was no procedural bar to issuing proceedings, and obtaining orders, against persons unknown. There was no attempt to prescribe the circumstances in which parties would be permitted to do so. At [18]-[22] he stated:
“18. Thus there are two questions:
a) am I entitled to make the order sought? and if so
b) should I do so?
The answer to the first question depends on whether and if so to what extent I am bound by the ratio decidendi of either Friern or Wykeham Terrace. I will consider them in turn.
19. Friern was decided on two grounds, first that the prescribed form of writ required the defendant to be named, second that the description used was too vague. Both points were decided against the background of the regime prescribed by the Rules of the Supreme Court. The regime introduced by the Civil Procedure Rules is quite different. There is no requirement that a defendant must be named, merely a direction that he “should” be. The failure to give the name of the defendant cannot now invalidate the proceedings both because they are started by the issue of the claim form at the request of the claimant and because, unless the court thinks otherwise, Rule 3.10 so provides. The over-riding objective and the obligations cast on the court are inconsistent with an undue reliance on form over substance. The proper application of Rule 3.10 is incompatible with a conclusion that the joinder of a defendant by description rather than by name is for that reason alone impermissible. For these reasons I conclude that the decision of the Court of Appeal in Friern is not applicable to proceedings brought under the Civil Procedure Rules.
20. The decision of Stamp J in Wykeham Terrace is not binding on me in any event, though I would follow it unless it was distinguishable or I was satisfied that it was wrongly decided. I consider that it is distinguishable as being, like Friern, inapplicable to cases under the Civil Procedure Rules. But it is also distinguishable on other grounds. First the objection in that case was that there was no defendant. In this case there is; the question is whether he or she has been properly described. Second, the objection in that case that the order sought would not bind any one to do or abstain from doing anything. That is not so in this case. A person falling within the description of the defendant could be liable for contempt of court if he acted inconsistently with it. Any other person who knowing of the order assists in its breach or nullifies the purpose of a trial may also be liable for contempt. Acrow (Automation) Ltd v Rex Chainbelt Inc [1971] 3 AER 1175 and Attorney General v Times Newspapers Ltd [1992] 1 AC 191.
21. These conclusions are consistent with the decisions of the Court of Appeal in  Biguzzi v Rank Leisure [1999] 1 WLR 1926 and Stewart v Engel [2000] 1 WLR 2268. Accordingly I conclude that the claimants are entitled to join as defendants and I am entitled, if I see fit, to make the order sought against persons described as quoted in paragraph 4. Mr Carr, as advocate to the court, for whose assistance I am most grateful, suggested that there might be a distinction to be drawn between cases such as Jackson and Levy, in which the description clearly referred to an identified person, Golden Eagle in which the defendants were identified in part by service of the statement of claim and Tony Blain in which the defendant was also identified in part by service of the order and this case where the description may cover no one or, by contrast, more than one person. I accept that those distinctions may be drawn but I do not consider that they should lead to a different result. The crucial point, as it seems to me, is that the description used must be sufficiently certain as to identify both those who are included and those who are not. If that test is satisfied then it does not seem to me to matter that the description may apply to no one or to more than one person nor that there is no further element of subsequent identification whether by service or otherwise.
22. I can see no injustice to anyone if I make an order in the form sought but considerable potential for injustice to the claimants if I do not. For these reasons I will make the order.”
    1. In Brett Wilson LLP v Persons Unknown [2015] EWHC 2628 (QB), Warby J granted an injunction and damages against “Persons Unknown responsible for the operation and publication of the website [SFUK.com]”. That was in the context of a claim for defamation, under the summary disposal provisions in section 9 of the Defamation Act 1996. The court was also satisfied that the defendants, though unidentifiable, had knowledge of the proceedings: see [6]-[9], [16], [31] and [35]. No specific reference was made to the (apparent) novelty of the award of damages, in addition to an injunction.
    2. Smith v Unknown Defendant Pseudonym ‘Likeicare’ [2016] EWHC 1775 (QB) was another summary determination of a claim for an injunction and damages in respect of defamation. Again there was no discrete consideration of the jurisdiction to award damages against unnamed defendants: see [11] and [18]-[22].
    3. I agree with Sir Andrew Morritt V-C that there is no reason in principle why, in appropriate cases, it should not be permissible under the CPR for a claimant to bring proceedings against an unnamed defendant, suitably identified by an appropriate description. The fact that the CPR may make express provision for situations in which this can take place does not preclude orders being made against unnamed defendants in other circumstances. Likewise, I see no reason in principle, or as a matter of construction of the rules, why the ability to do so should be limited to a claim for an injunction or in relation to future relief. Although there was no express discussion of the issue as to whether it was appropriate to bring a claim for damages against an unnamed person in the defamation cases, the logic of Sir Andrew Morritt’s analysis, in my judgment, equally applies to a claim for damages. The Canadian authorities demonstrate that it is well-established that damages claims may be issued against unnamed defendants. For example, in Manson v John Doe [2013] ONSC 628 damages of $200,000 were awarded against an anonymous person waging a campaign of defamation via websites. In such a case there is every reason for such an order to be made.
    4. As Sir Andrew Morritt V-C pointed out, the question is not simply whether a claimant can issue proceedings against a person unknown, notwithstanding the direction in the rules that a defendant “should” be named, or whether the court can permit a party to amend the claim form to substitute an unnamed defendant for a named defendant. The question also arises whether, in any particular case, the court should in the exercise of its discretion permit a claimant to amend in order to substitute an unnamed defendant, or permit such an action to proceed, so as to lead to a judgment against him. Once it is accepted that proceedings can be brought against unnamed defendants, then whether in any particular case that should occur, or whether relief should be granted against such defendants, must, it seems to me, depend on whether the overriding objective (that is to say of deciding cases justly and at proportionate cost – see CPR r1.1) would be furthered by such a course.
    5. In that context also, I do not accept Mr Worthington’s submission that it is only in “exceptional” circumstances that a claimant would be permitted to join an unnamed defendant, identified only by description, or that a judgment for damages would be granted against such a defendant. Nor do I accept his suggested constraint that, if a claimant has an alternative remedy (i.e. in the present case the appellant’s remedy under the UTDA) that necessarily precludes any exercise of the court’s relevant discretion in a claimant’s favour – whether to permit a claimant to substitute an unnamed defendant or to award damages against such a defendant.
    6. For these reasons I also reject Mr Worthington’s submission that the judge’s approach, as set out in paragraphs 23 and 24 of his judgment (as quoted above), was correct as a matter of law and that accordingly the exercise of the district judge’s discretion should be upheld. I see no reason why the fact that the appellant has an alternative remedy for compensation under the UTDA against the Motor Insurers Bureau should be regarded as a legitimate reason for preventing her from enforcing her undoubted substantive rights to:
i) a judgment for damages for negligence against the unnamed driver of the Nissan; and

ii) in the event that such a judgment is unsatisfied, payment by the respondent as insurer of the Nissan of the amounts payable under the judgment pursuant to the provisions of section 151.

Put another way, in circumstances where the appellant has an undoubted right conferred by statute to payment by the insurer of a vehicle in the event that she obtains a judgment against its negligent driver, it cannot be just to deprive her of the remedy to give effect to that substantive right, simply by the court’s refusal to exercise a procedural power on grounds of the existence of an alternative remedy against the MIB – a remedy which she is not obliged to pursue and the exercise of which is not a precondition to her entitlement under section 151.

    1. I also reject Mr Worthington’s submission and the judge’s conclusion that it would cause no injustice so far as the appellant is concerned if she were restricted to her claim to compensation under the UTDA and prevented from enforcing her rights under section 151. Apart from the point, which I have already mentioned (namely, that it is unjust for her to be deprived of a remedy to enforce her substantive right under section 151), it is clear that, for the reasons given by Mr Williams, including in particular the restriction on costs recovery, the inability to recover subrogated claims and the absence of a transparent court adjudication of her claims, a claimant in the position of the appellant might well regard a claim for compensation under the UTDA as an inferior remedy to a court action for damages and under section 151.
    2. I likewise reject Mr Worthington’s submission and the judge’s conclusion that to permit an action to proceed against an unnamed defendant by reference to a specific description would cause injustice to the respondent as insurer, on the grounds that it will be unable to ascertain from the driver, or indeed its own purported insured, how the accident happened or whether there is any defence to the claim. For the reasons which I have already stated in paragraph 42 above, the respondent’s inability to ascertain the facts from the driver of a vehicle is a problem which it may often face in section 151(2)(b) situations. So far as being unable to ascertain the relevant facts from its own insured is concerned, the respondent must bear the responsibility of not having carried out appropriate checks as to the identity, or existence, of the insured prior to inception of the policy.
Authorities relied upon by the respondent
    1. There is nothing in the cases relied upon by Mr Worthington which requires this court, or persuades me, to conclude to the contrary. Carswell v Secretary of State for Transport supra was a case where Hickinbottom J had to consider whether, in the context of a “Francovich” damages claim against the Secretary of State for Transport, the claimant could establish that the establishment of the UTDA failed to comply with the UK’s obligations on the implementation of the Second Motor Insurance Directive on the grounds that the scheme was inherently bad or that it necessarily offended the principle of equivalence. His comments in relation to a comparison between the scheme and the court action for damages were all made in that context.
    2. Nor is the case of Sahin supra relied upon by Mr Worthington of any assistance. In that case this court (Longmore, Kitchin and Floyd LJJ) had to consider whether a liability in respect of a Monk v Warbey claim by a Mr Sahin against a Ms Havard, the hirer of the vehicle, who, in breach of the terms of the insurance and of section 143 of the 1988 Act, had permitted an uninsured, unidentified driver to drive the vehicle which caused the accident, was a liability within the ambit of section 151(2). The court held inter alia that, because such a liability was not required to be covered under section 145, it was not within the ambit of section 151(2), and accordingly the insurer was not liable. The fact that, in that context, the court considered that there was “no scope for construing section 145, in isolation from MIB arrangements” is irrelevant for present purposes. For similar reasons, so is the statement upon which Mr Worthington sought to rely in paragraph 27, to the effect that the argument that the relevant liability was covered by section 145 was “quite unnecessary when the MIB Untraced Drivers Agreement covers the situation satisfactorily”.
    3. After the hearing of the appeal, Mr Worthington referred the court to a decision of this court (Stephenson and Roskill LJJ) in Clarke v Vedel [1979] RTR 26. In that case a motorcyclist, who was riding a motorcycle which had been stolen and had been insured with the Sun Alliance & London Insurer Group collided with two people and provided a false name and address. The plaintiffs used the false name as the defendant in proceedings and substituted service was initially ordered on the MIB with a view to the plaintiffs obtaining satisfaction of their judgment under the terms of the MIB Agreement 1972 (Uninsured Drivers). On application by the MIB, the order was set aside and the plaintiff unsuccessfully appealed against that ruling. This court decided that the false name meant that the driver was unidentified so that there could be no substituted service on the MIB and that accordingly the plaintiffs could only recover by means of a claim for compensation under the MIB Agreement 1972 (Untraced Drivers), which did not involve court proceedings. The issue was important as between the MIB and the Sun Alliance because, if the plaintiffs obtained a court judgment under the Uninsured Drivers Agreement, then, under the then current arrangements between MIB and insurers, the Sun Alliance, as the former insurer of the motorcycle, would have had to cover the liability. On the other hand, if the claim was only made under the Untraced Drivers Agreement, the MIB would have had to cover the liability. In addition, as Stephenson LJ appeared to accept at page 30, and as I consider to be the position in the present case, the plaintiffs were also potentially disadvantaged by having to bring a claim for compensation under the Untraced Drivers Agreement, as opposed to a court action for damages. But the court held that in the circumstances it was not appropriate to make any order for substituted service in relation to a fictitious, or partly fictitious defendant. Stephenson LJ said at 37 to 38:
“For my part, I do find some difficulty in reconciling the general rule that substituted service should only be ordered where there is a probability that it will bring the document served to the notice of the defendant with, at any rate, some of the observations in Gurtner v Circuit [1968] 2 QB 587; and I conclude that this court recognises that there may be cases where a defendant, who cannot be traced and, therefore, is unlikely to be reached by any form of substituted service, can nevertheless be ordered to be served at the address of insurers or the Bureau in a road accident case. The existence of insurers and of the Bureau and of these various agreements does create a special position which enables a plaintiff to avoid the strictness of the general rule and obtain such an order for substituted service in some cases. But I am not satisfied that that exception is as wide as the proposition laid down in the Supreme Court Practice 1976, and I am not satisfied that it applies to this case.
The distinguishing feature of this case is that it makes a difference, not only to the plaintiff, but also to the Bureau whether the rule is applied or whether the case is treated as exceptional. The Bureau is, as it seems to me, entitled to say: ‘this is the case not only of an uninsured driver, but of an untraced driver. It is properly dealt with under the Untraced Drivers Agreement . We prefer it to be dealt with in that way. It is true that that may mean that we have to pay whereas if we allowed it to be dealt with under the other agreement the Sun would be responsible for paying any compensation or damages awarded to the plaintiffs, but we are entitled to have it our way. It has certain advantages to us and as we are not prepared to get rid of this problem of service by entering a conditional appearance but stand on our rights, it would be quite wrong to make an order which has no chance of bringing the existence of the writ to the notice of the rider of the motor cycle, the untraced driver, simply in order to enable the plaintiffs to get a judgment against him in an action which we would have to fight, with all the trouble and expense that that involves’.
As Mr Crowther has pointed out, the continued existence of the right of action depends upon substituted service being ordered and it is a circular argument to say that substituted service ought to be ordered to allow the plaintiff to continue to sue the untraced driver and the Motor Insurers’ Bureau if the true view is that this is a matter which should be dealt with under the Untraced Drivers Agreement and not a matter in which on ordinary principles substituted service should be ordered.
Mr Deby has argued persuasively that the object of bringing a writ to the notice of a defendant is to enable him to defend himself, if he wishes to, clear his good name, support his record as a good driver, and do all he can to avoid being made liable to pay damages, and that is why it is important that he should know that proceedings are being brought against him in which he may be made liable for damages. He says that in this case neither of those matters has any real validity at all because this driver clearly will not wish to appear and defend his driving record, perhaps at the cost of revealing that he was a party to the stealing of this motor cycle or knew that it was stolen, nor will he be any better off by coming and defending the claim than he would be by remaining untraced and leaving the matter to be settled by the Bureau and it may be by the Sun Alliance. That is an argument which very cogently supports the application of the exception to the facts of this case, but, as I have already indicated, it seems to me that it is not only the plaintiffs who have to be considered but the Bureau. I say nothing about the position of the Sun, although Mr Crowther is altruistically appearing both on their behalf and on behalf of the Bureau, because the Sun are not a party to this action and I am not satisfied that their position, except insofar as it affects the position of the Bureau, is one which we can take into account in considering whether an order made between the plaintiffs and the Bureau is proper and correct.
On the whole, I have come to the conclusion that this is an Untraced Drivers Agreement case and the Bureau is entitled to assert so. This is a case in which, on the face of it, substituted service under the rule is not permissible and the affidavit supporting the application for it is insufficient. This fictitious, or, at any rate, partly fictitious defendant cannot be sued, so Mr Crowther is right in saying that he cannot be sued, and, therefore, the Bureau cannot be made liable in an action but only under the provisions of the Untraced Drivers Agreement. No agreements similar to the Agreements of 1972 were in existence at the date when Gurtner v Circuit [1968] 2 QB 587 was decided; I do not think that Lord Denning MR or Diplock LJ or Salmon LJ or Goddard LJ had anything like the facts of this case in mind; and whatever the cases in which the exception to the general rule should be applied, in my judgment this is not one of them.”
Roskill LJ agreed, adding further reasons at pages 39-40:
“In the circumstances it seems to me that it would be wrong, with all respect to Mr Deby, to allow the order originally made by the master for substituted service to stand. This order cannot possibly bring these proceedings to the notice of Mr Vedel, or whoever was the driver. What the court was primarily concerned with in Gurtner v Circuit [1968] 2 QB 587 was whether or not the Motor Insurers’ Bureau should, in a case in which they were, interested, be allowed to be joined as defendants. There were earlier decisions which said that they should not be so allowed. This court took a different view; but it was not primarily concerned with any question of substituted service. It was common ground that the order made in that case for substituted service on the Royal Insurance Co Ltd was wrongly made; all that this court was concerned to say was that, although that order was wrongly made, on the facts of that particular case no useful purpose would be served by setting aside that order and marking an alternative order for substituted service upon the Motor Insurers’ Bureau. But the main point that was argued was not directed to substituted service at all. As I read Mr Gibson’s argument, as it appears at p 592, it was never contended on behalf of the Motor Insurers’ Bureau that it was not an appropriate case for substituted service on the Motor Insurers’ Bureau; it was a case where the identity of the driver was ascertained but he was uninsured. I think that the passage relied upon in the judgment of Diplock LJ was clearly directed to the facts of that particular case and is not to be treated as of general application.
In the present case if we allowed the order for substituted service to stand, and reversed the judge, the effect would be to oblige the Motor Insurers’ Bureau to pay under the Uninsured Drivers Agreement rather than under the Untraced Drivers Agreement . In my view, on the facts of this case, that would be a misuse of the procedure of substituted service.
For those reasons, in addition to those which have been given by Stephenson LJ, I would dismiss the appeal.”
    1. But the decision in Clarke v Vedel predated not only the CPR but was also decided before the introduction of the 1988 Act. The reasoning of the court is clearly premised on the inability to sue a fictitious or unidentified defendant and the consequent inability to make an order for substituted service. In those circumstances it does not appear to me that this court is bound by the decision or should regard its views as persuasive. As the judgment of Sir Andrew Morritt V-C in Bloomsbury makes clear, since the introduction of the CPR, an unnamed defendant, identified only by a relevant description, may be sued and appropriate directions can be given for alternative service of the claim form on him or her. Indeed, in the present case Mr Worthington did not suggest that an order for alternative service could not be made, if an order were made for the substitution of the unnamed defendant.
Disposition
    1. For the above reasons, I consider that the approach adopted by both the district judge and the judge himself were flawed. I would allow the appeal and grant the appellant permission to amend her claim form and particulars of claim so as to substitute, for the named first defendant, a unnamed defendant identified by the description set out in paragraph 1(iii) above.
Lord Justice Lloyd Jones:
    1. I agree with the judgment of Gloster LJ and would allow the appeal for the reasons she gives.
    2. The facts of this case are rather unusual. The appellant is unable to identify by name the driver of the vehicle which collided with her car (“T”) but the vehicle he was driving has been identified. It proved to be subject to a policy of insurance and, as a result, the insurer, the second respondent, has been identified and notified. The registered owner has refused to provide information as to the driver of the vehicle and has been convicted of an offence of failing to provide information. The insurer has established that the policy was taken out fraudulently in a fictitious name.
    3. It is common ground between the parties to this appeal that T is liable for the collision, that if the claim is allowed to proceed in the manner proposed against an unnamed defendant the appellant will be entitled to a judgment against T and that the insurer would be liable to satisfy any unsatisfied judgment against T by virtue of section 151, Road Traffic Act 1988. However, the insurer maintains that the inability of the appellant to name T is a bar to bringing proceedings against T.
    4. On behalf of the appellant Mr. Williams QC does not contend that as a general rule it should be possible to bring a claim for damages against an unidentified tortfeasor. He accepts that if there were no prospect of such proceedings being efficacious it would be contrary to the overriding objective to permit them to proceed. However, he submits that it is now well established that where it is both necessary and efficacious to do justice the court will issue proceedings and make orders against defendants who are identified by a description rather than by name. He submits that in the present circumstances the appellant should be allowed to bring proceedings against T, as an unknown person who should be described in the proceedings as “the person unknown driving vehicle registration number Y598 SPS who collided with vehicle registration number KG03 ZIZ on 26 May 2013”, in order to permit the appellant to claim against the insurer under section 151. This, he submits, is necessary to do justice because T has unlawfully concealed his identity from the appellant by failing to stop after the accident. It is efficacious, he submits, because the insurer will then be liable to satisfy any unsatisfied judgment against T pursuant to section 151.
    5. On behalf of the insurer, Mr. Worthington QC objects on the grounds that
(1) The power to commence an action against an unknown and unnamed person should only be exercised in exceptional circumstances and where there is no other remedy available to the claimant.

(2) The case law in this jurisdiction has not gone so far as to permit a claim for damages to be brought against an unnamed defendant.

(3) The power should not be exercised in this case because this is not an exceptional case and the appellant has an alternative remedy under the Untraced Drivers Agreement.

(4) To permit the appellant to commence proceedings against an unnamed defendant would be unfairly prejudicial to the insurer and would have potentially wide ranging consequences for other factual situations.

    1. I gratefully adopt the account of the statutory provisions, the MIB arrangements and the relevant rules of the CPR set out in the judgment of Gloster LJ
    2. The insurer does not deny that the court has a power to permit proceedings to be brought against parties who are not identified by name. Mr. Worthington submits that the general rule is that parties should be named and that proceedings against an unnamed defendant should be permitted only in exceptional circumstances where there is no alternative remedy. He submits that “should” in CPR r. 7A PD 4.1(3) should be read as “shall” save in exceptional circumstances.
    3. The appellant submits that the fact that the insurer would be liable under section 151 to satisfy any unsatisfied judgment against T is a compelling reason why the court should permit the claim to be brought against T notwithstanding the fact that the appellant is unable to name him. Moreover, the inability to name him, she submits, is due to T’s deliberate and unlawful conduct in absconding after the collision.
    4. The question whether the appellant should be permitted to bring proceedings in this way must be determined having regard to the nature of the proceedings viewed in the context of the provisions of Part VI of the 1988 Act and the MIB schemes by which the United Kingdom discharges its obligations under Directive 2009/103/EC of 16 September 2009 (“the EU Directive”).
    5. The appellant is able to point to a line of authority in this jurisdiction in which proceedings have been brought against unknown persons in order to obtain injunctive relief. In particular, in Bloomsbury Publishing Group v. News Group Newspapers [2003] 1 WLR 1633 Sir Andrew Morritt V-C granted an injunction against unknown persons who had obtained a copy of an unpublished Harry Potter novel. He held that there was no general rule that joinder of a defendant by description rather than by name is for that reason alone impermissible. More recently, proceedings claiming an injunction and damages have been permitted to be issued against unnamed persons in Brett Wilson LLP v. Persons Unknown [2015] EWHC 2628 (QB) and Smith v. Unknown Defendant Pseudonym “Likeicare” [2016] EWHC 1775 (QB).
    6. Mr. Worthington submits that the claim for damages in Brett Wilson and in Smith should be considered as purely incidental to the main claim for injunctive relief which is prospective. He further submits that in none of the reported cases in this jurisdiction has the court made an order permitting proceedings against an unnamed defendant in circumstances where the only relief sought was damages for a past wrong. He submits that the critical feature of Brett Wilson and Smith is that they involve injunctions and if the court had not permitted the claim to be commenced against persons unknown the claimant would have had no remedy. There is, he submits, a justification for such a course in injunction cases in that effective relief can be obtained – the objective is the prevention of future tortious wrongs – but that where there is simply a claim for damages for past wrongs no effective relief can be obtained against an unnamed defendant. Mr. Worthington was unable to explain, however, why such a claim for damages should be permitted when claimed in conjunction with injunctive relief but not otherwise.
    7. To my mind any distinction in this regard between claims for an injunction and claims for damages turns on the efficacy of the proceedings. It will usually be pointless to bring a claim simply for damages against a defendant who cannot be named, because the resulting judgment would not be capable of being enforced. It seems to me that it is this, rather than any objection founded on the nature of a claim for damages as opposed to a claim for injunctive relief, which explains why there is apparently no previously decided case in this jurisdiction in which a claim for damages alone has been permitted to be brought against an unnamed defendant. Moreover, there are good reasons why such a claim should not normally be permitted to be brought. This would not result in any effective vindication of the right of the claimant. It would also be a waste of court resources and inconsistent with the overriding objective of the CPR. Court resources are precious and cannot be squandered on pointless litigation.
    8. Different considerations may apply, however, where a judgment for damages obtained against an unknown person may confer a real benefit on the claimant. This may be the explanation of Brett Wilson and Smith where proceedings were brought against unknown persons and the relief included both injunctive relief and an award of damages. The award of damages in those cases, even if not enforceable, was in those particular circumstances an important statement vindicating the character and reputation of the claimants.
    9. Accordingly, I agree with the conclusions of Gloster LJ that:
(1) There is no reason in principle why, in appropriate cases, it should not be permissible under the CPR for a claimant to bring proceedings against an unnamed defendant, suitably identified by an appropriate description.

(2) There is no reason in principle or as a matter of construction of the rules why the ability to do so should be limited to a claim for an injunction or in relation to future relief.

(3) Whether in any particular case a claimant should be permitted to bring proceedings against a person identified only by description should depend on whether the overriding objective would be furthered by such a course.

    1. The appellant in this case has a cause of action against a tortfeasor who has absconded. If he had been identifiable by name, a claim for damages could have been brought against him in his absence and a judgment obtained. It was common ground before us that the effect of section 151 is that insurers will routinely have to satisfy judgments against tortfeasors who, although their identities are known, can no longer be traced by the time proceedings are brought. It is said, however, that in the present case the appellant should be prevented from bringing a claim and obtaining a judgment for damages because the defendant cannot be identified by name.
    2. I can see no distinction between the two situations in terms of prejudice to the tortfeasor. It is also significant that in the situation now under consideration the tortfeasor has unlawfully sought to place himself beyond the reach of legal proceedings. Furthermore, there is here a justification for permitting such a claim. The present case is unusual in that to permit the appellant to bring a claim for damages against an unknown person would be efficacious because the insurer would be liable to satisfy the claim by virtue of section 151. In these circumstances it seems to me, prima facie, that the appellant should be permitted to bring the claim.
    3. Mr. Worthington submits, however, that to permit the appellant to bring these proceedings against an unnamed defendant would potentially prejudice the insurer.
(1) First, he submits that the fact that, at present, an insurer can only be liable under section 151 if the driver is identified provides the insurer with a valuable safeguard in that it has an opportunity to interview the driver to obtain his version of events in relation to liability and to get some idea of the claim on quantum. I do not find this submission particularly persuasive. Assuming for present purposes that this may be of some value to an insurer in deciding whether or not to defend the claim, the possibility that the driver cannot be interviewed is in a sense part of the risk assumed by the insurer when entering into the contract of insurance. Moreover, an inability to interview the driver is likely to be encountered frequently in other situations, for example where an identified driver has subsequently absconded or refuses to co-operate.

(2) Secondly, he submits that the scope for fraud is considerable here. I readily acknowledge that many fraudulent claims are made in the field of motor insurance. However, Mr. Worthington did not explain precisely how the possibility of a claim against an unnamed defendant would significantly broaden an insurer’s exposure to the risk of fraud. In this regard I note that the insurer would know the identity of the insured and the registered owner.

(3) Thirdly, it is said that if an unnamed driver can be sued, the insurer would be liable under section 151 without recourse against that driver under section 151(8). I accept that the insurer would not be able in such circumstances to recover its outlay from the culpable party. However, the risk of locating and then enforcing against that party is placed by the statutory scheme on the insurer. I also note that in such circumstances section 152 would still apply so it would be possible for the insurer to bring a claim for a declaration of non-liability under section 152(2).

  1. Accordingly, I am unable to accept that to permit proceedings to be issued against an unnamed driver would result in any unfairness to the insurer. On the contrary, it seems to me that there is force in the submission of Mr. Williams that to deny the possibility of such a claim leads to arbitrary outcomes. If the tortfeasor stops at the scene of the accident or is subsequently arrested or traced, he can be identified and sued and the insurer will be liable. That would remain the case even if the tortfeasor subsequently vanishes. Similarly, if the tortfeasor can be identified by name but is never subsequently traced or apprehended the insurer can become liable under section 151. However, if a victim is unable to name the tortfeasor because he has been adept enough to avoid identification, the victim would lose the protection of section 151 unless the tortfeasor could be sued by description.
  2. It is then submitted on behalf of the insurer that the availability of an alternative remedy, namely a claim under the MIB Untraced Drivers Agreement, should necessarily lead the court to decline to exercise its discretion so as to permit a victim to proceed against an unnamed driver. Mr. Worthington submits that the appellant will be able to obtain “a proper remedy” under the Untraced Drivers Agreement, a scheme which makes the MIB and not the insurer liable if the tortfeasor is untraced. There is, as he puts it, simply no need to permit an elaborate fiction in order to enable the appellant to obtain a remedy.
  3. In the course of argument it was suggested that a claim under the Untraced Drivers Agreement may be less advantageous to a claimant than a judgment against an unnamed tortfeasor which the insurer would be liable to satisfy under section 151. It was submitted that, among other disadvantages, only very limited legal costs are payable under the Untraced Drivers Agreement, that for property damage claims a claim must be submitted to MIB within 9 months of the accident, that the accident must have been reported to the police within 14 days of the accident (in the case of personal injury) and within 5 days (in the case of property damage), that the MIB will not meet subrogated claims and that the MIB itself carries out the investigation of the claim and (subject to provision for arbitration) assesses the amount of compensation. It was submitted that these are disadvantages which may be highly detrimental to claimants.
  4. I agree with Gloster LJ that a claimant in the position of the appellant might well reasonably regard a claim for compensation under the Untraced Drivers Agreement as an inferior remedy to a court action for damages. More fundamentally, however, I consider that the existence of an alternative remedy should not in the circumstances under consideration necessarily require a court to exercise its discretion against permitting a claim to be pursued against the tortfeasor. We are concerned here with a private law cause of action vested in a claimant who should not be prevented from vindicating it in legal proceedings without good reason. As Gloster LJ points out, the appellant is under no obligation to pursue the alternative remedy and its exercise is not a pre-condition to her entitlement under section 151. In the circumstances it would not be just to deny her a remedy which would give effect to her substantive right.
  5. Finally, Mr. Worthington submits that to permit a claim for damages against an unnamed defendant would cut across the scheme established by Part VI of the 1988 Act, the MIB Untraced Driver Agreement and the MIB Uninsured Driver Agreement by which the United Kingdom meets it obligations under the EU Directive. He submits that the system for the compensation of victims of road traffic accidents is a carefully constructed edifice and that tinkering with it by permitting claims such as the present will have serious consequences for the system. He submits that if such claims are allowed to proceed the procedure may thereafter be abused in a myriad of cases where the claimant is not bona fide, where liability is disputed and where the insurer would be prejudiced. It will, he says, be very difficult for the courts to limit the use of this procedure to cases where this is an appropriate course. The court is asked to make a fundamental change in the field of road traffic claims where it is not possible to see the full implications.
  6. It is important to bear in mind that the procedural innovation sought would be limited to cases where the vehicle driven by the tortfeasor was insured and where the insured and the registered owner are identifiable. Moreover, as explained earlier, to proceed against an unnamed party could only be permitted where to do so would be efficacious and consistent with the overriding objective. These considerations suffice to dispel most of the spectres conjured up by Mr. Worthington. I would accept that permitting a claim for damages against an unnamed party might result in an increase in the number of judgments against tortfeasors which insurers would be liable to satisfy, as opposed to recourse to the MIB Untraced Drivers Agreement. However, I am not persuaded that that is a valid reason for preventing the victim from obtaining a judgment against the tortfeasor. Moreover, to permit a claimant in the position of the appellant to proceed with a damages claim against an unnamed driver would not make the Untraced Drivers Agreement redundant. It would remain essential, for example, in cases concerning unwitnessed hit and run incidents where a vehicle driven by a tortfeasor cannot be identified at all.
  7. It was not suggested before us that to permit such a claim would be inconsistent with the requirements of the EU Directive.
  8. The intention of Parliament in enacting section 151 was that a motor insurer should compensate any parties injured by a vehicle it insures, even if the insurer has no contractual liability to indemnify the driver of the insured vehicle under the policy. The insurer is given a remedy against the tortfeasor under section 151(8) but the risk as to whether that will be effective is clearly intended to be borne by the insurer. As Mr. Williams put it in argument, this policy and the liabilities which result from it, are simply the obligations which motor insurers must accept as the price for writing motor business in the United Kingdom. Permitting the appellant in the present case to sue the unnamed tortfeasor is, in my view, entirely consistent with the policy of Part VI and section 151 in particular.
  9. For these reasons I consider that the judge’s approach was wrong as a matter of law and that, accordingly, the exercise of his discretion should not be upheld. I would allow the appeal.”