AN ANONYMOUS DRIVER CANNOT BE SUED: YOU’VE GOT TO HAVE SOMEWHERE TO SERVE…

In the judgment today  Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6 the Supreme Court overturned the Court of Appeal decision in relation to service when there is an unknown driver.  The court cannot make an order that service of an unknown driver takes place on an insurer. The essential test is whether service will bring the proceedings to the attention of the defendant.

 

“In my opinion, subject to any statutory provision to the contrary, it is an essential requirement for any form of alternative service that the mode of service should be such as can reasonably be expected to bring the proceedings to the attention of the defendant.”

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 Court of Appeal allowed the claimant’s appeal and permitted  service to take place

THE JUDGMENT IN THE SUPREME COURT

The Supreme Court allowed the insurer’s appeal against the Court of Appeal decision.   Lord Sumption set out the history of suing an unnamed party.
21.              In my opinion, subject to any statutory provision to the contrary, it is an essential requirement for any form of alternative service that the mode of service should be such as can reasonably be expected to bring the proceedings to the attention of the defendant. Porter v Freudenberg was not based on the niceties of practice in the masters’ corridor. It gave effect to a basic principle of natural justice which had been the foundation of English litigation procedure for centuries, and still is. So far as the Court of Appeal intended to state the law generally when it observed in Abbey National Plc v Frost that service need not be such as to bring the proceedings to the defendant’s attention, I consider that they were wrong. An alternative view of that case is that that observation was intended to apply only to claims under schemes such as the solicitors’ compulsory insurance scheme, where it was possible to discern a statutory policy that the public should be protected against defaulting solicitors. If so, the reasoning would apply equally to the compulsory insurance of motorists under the Road Traffic Acts, as indeed the Court of Appeal held in the present case. That would involve a narrower exception to the principle of natural justice to which I have referred, and I do not rule out the possibility that such an exception might be required by other statutory schemes. But I do not think that it can be justified in the case of the scheme presently before us.
22.              In the first place, the Road Traffic Act scheme is expressly based on the principle that as a general rule there is no direct liability on the insurer, except for its liability to meet a judgment against the motorist once it has been obtained. To that extent, Parliament’s intention that the victims of negligent motorists should be compensated by the insurer is qualified. No doubt Parliament assumed, when qualifying it in this way, that other arrangements would be made which would fill the compensation gap, as indeed they have been. But those arrangements involve the provision of compensation not by the insurer but by the Motor Insurers’ Bureau. The availability of compensation from the Bureau makes it unnecessary to suppose that some way must be found of making the insurer liable for the underlying wrong when his liability is limited by statute to satisfying judgments.
23.              Secondly, ordinary service on the insurer would not constitute service on the driver, unless the insurer had contractual authority to accept service on the driver’s behalf or to appoint solicitors to do so. Such provisions are common in liability policies. I am prepared to assume that the policy in this case conferred such authority on the insurer, although we have not been shown it. But it could only have conferred authority on behalf of the policy-holder (if he existed), and it is agreed that the driver of the Micra was not the policy holder. Given its contingent liability under section 151 of the Road Traffic Act 1988, the insurer no doubt has a sufficient interest to have itself joined to the proceedings in its own right, if it wishes to be. That would authorise the insurer to make submissions in its own interest, including submissions to the effect that the driver was not liable. But it would not authorise it to conduct the defence on the driver’s behalf. The driver, if sued in these proceedings, is entitled to be heard in his own right.
24.              Thirdly, it is plain that alternative service on the insurer could not be expected to reach the driver of the Micra. It would be tantamount to no service at all, and should not therefore have been ordered unless the circumstances were such that it would be appropriate to dispense with service altogether.
25.              There is a power under CPR 6.16 “to dispense with service of a claim form in exceptional circumstances.” It has been exercised on a number of occasions and considered on many more. In general, these have been cases in which the claimant has sought to invoke CPR 6.16 in order to escape the consequences of some procedural mishap in the course of attempting to serve the claim form by one of the specified methods, or to confer priority on the English court over another forum for the purpose of the Brussels Regulation, or to affect the operation of a relevant limitation period. In all of them, the defendant or his agents was in fact aware of the proceedings, generally because of a previous attempt by the claimant to serve them in a manner not authorised by the Rules. As Mummery LJ observed, delivering the judgment of the Court of Appeal in Anderton v Clwyd County Council (No 2) [2002] 1 WLR 3174, para 58, service was dispensed with because there was “no point in requiring him to go through the motions of a second attempt to complete in law what he has already achieved in fact.” In addition, I would accept that it may be appropriate to dispense with service, even where no attempt has been made to effect it in whatever manner, if the defendant has deliberately evaded service and cannot be reached by way of alternative service under CPR 6.15. This would include cases where the defendant is unidentifiable but has concealed his identity in order to evade service. However, a person cannot be said to evade service unless, at a minimum, he actually knows that proceedings have been or are likely to be brought against him. A court would have to be satisfied of that before it could dispense with service on that basis. An inference to that effect may be easier to draw in the case of hit and run drivers, because by statute drivers involved in road accidents causing personal injury or damage to another vehicle But the mere fact of breach of this duty will not necessarily be enough, for the driver may be unaware of his duty or of the personal injury or damage or of his potential liability. No submission was made to us that we should treat this as a case of evasion of service, and there are no findings which would enable us to do so. I would not wish arbitrarily to limit the discretion which CPR 6.16 confers on the court, but I find it hard to envisage any circumstances in which it could be right to dispense with service of the claim form in circumstances where there was no reason to believe that the defendant was aware that proceedings had been or were likely to be brought. That would expose him to a default judgment without having had the opportunity to be heard or otherwise to defend his interests. It is no answer to this difficulty to say that the defendant has no reason to care because the insurer is bound to satisfy a judgment against him. If, like the driver of the Micra, the motorist was not insured under the policy, he will be liable to indemnify the insurer under section 151(8) of the Road Traffic Act. It must be inherently improbable that he will ever be found or, if found, will be worth pursuing. But the court cannot deny him an opportunity to be heard simply because it thinks it inherently improbable that he would take advantage of it.
26.              I conclude that a person, such as the driver of the Micra in the present case, who is not just anonymous but cannot be identified with any particular person, cannot be sued under a pseudonym or description, unless the circumstances are such that the service of the claim form can be effected or properly dispensed with.