Oriel Chambers Journal
Some years ago, a friend of mine overheard a county court usher ask “will persons unknown please come to the reception area ?” Like all the best anecdotes, this one peters out before the practicalities of the matter came to be considered. For both claimants and defendants in road traffic claims, however, the practicalities of claims involving unnamed drivers are not so easy to ignore. The innocent claimant risks being left in a position where he or she cannot proceed with a claim because it is impossible to identify a named person against whom judgment can be obtained, in order to trigger the liability of the other vehicle’s insurer to satisfy that judgment, pursuant to section 151, Road Traffic Act 1988, leaving the claimant to the tender mercies of the MIB Untraced Drivers Agreement. Insurers, on the other hand, fear that permitting a claimant to succeed without identifying the at-fault driver will open the floodgates to a torrent of staged accidents.
These issues came into sharp focus before the Court of Appeal in Cameron v Hussain, Liverpool Victoria Inusrance Company Limited  EWCA Civ 366. The Claimant alleged injury as a result of her vehicle being struck by a Nissan Micra. The Micra’s driver promptly absconded (presumably at a speed unknown to most Micra drivers). The First Defendant, registered keeper of the Micra, refused to identify the driver. When the Second Defendant denied that it was liable to satisfy any judgment entered against the First Defendant, on the grounds that there was no evidence that he had been the at-fault driver, the Claimant sought to add as an additional defendant “the person unknown driving vehicle registration number Y598 SPS who collided with vehicle registration number KG03 ZJZ on 26 May 2013”. The majority of the Court of Appeal, in permitting the Claimant’s appeal against the dismissal of this joinder application, essentially decided that the headaches for the Claimant, if she were not permitted to sue the unnamed driver, outweighed the problems for the Second Defendant, in dealing with such a claim. Now, the Supreme Court’s decision in the case, sub nom Cameron v Hussain and Liverpool Victoria Insurance Company Limited  UKSC 6, has rejected the Court of Appeal’s reasoning as emphatically as it has reversed its decision.
The policy issues on which the Court of Appeal’s decision turned are mostly conspicuous in Lord Sumption’s judgment by their near-complete absence. The practical difficulties for a claimant in obtaining a judgment which an insurer is bound to satisfy when the at-fault driver cannot be named were touched on only in passing. The possibility of an alternative claim under the Untraced Drivers’ Agreement, a matter discussed at length by the Court of Appeal, also received little consideration, except insofar as it was considered a viable alternative to circumventing the usual principles of service to permit an action against an unnamed driver which the insurer would then be liable to satisfy. (In an early entry for judicial maintenance-of-straight-face-of-the-year award, Lord Sumption commented that “for reasons which remain unclear, in spite of her counsel’s attempt to explain them”, the Claimant had elected not to proceed under the Untraced Drivers Agreement, despite having noted in the preceding paragraph that the MIB’s liability for a claimant’s costs under the agreement was limited.) Other matters considered important by the Court of Appeal’s majority, such as whether an insurer should bear the economic risk as to the existence or non-existence of the insured or named drivers; the possibility of the insured allowing uninsured persons to drive the vehicle; and the possibility of uninsured persons driving the vehicle without the insured's consent, were not mentioned at all by the Supreme Court. In distinct contrast to the majority of the Court of Appeal, the Supreme Court touched on the context of road traffic litigation in the present case only, for the most part, to disregard it.
Instead, Lord Sumption departed from what he considered first principles with regard to the requirement to name a party to proceedings:
“The general rule remains that proceedings may not be brought against unnamed parties. This is implicit in the limited exceptions contemplated by the Rules”.
Having set out no authority in support of this general rule, His Lordship accepted that the Civil Procedure Rules “neither expressly authorise nor expressly prohibit exceptions to the general rule that actions against unnamed parties are permissible only against trespassers”. Yet he cited numerous parts of them which he seemed to consider to reinforce the general rule, such as the absence of the practice direction, envisaged by CPR 8.2A, to set circumstances in which a claim form could be issued without naming a defendant, and the existence of specific rules in the CPR (e.g. CPR 55.3(4) in possession proceedings), and in statue, permitting claims against unnamed defendants, but only in specific circumstances. He noted the requirement in PD 7A para 4.1 “that a claim form must be headed with the title of the proceedings, which ‘should state’, among other things, the ‘full name of each party’ ”, though he accepted that whether an unknown person could be sued was a matter of substantive law, which could not be affected one way or another by a practice direction.
Lord Sumption accepted that a wider general jurisdiction to permit proceedings against an unknown person was opened up by Bloomsbury Publishing Group Plc v News Group Newspapers Limited  EWHC (Ch) 1205 (on which the majority of the Court of Appeal had relied). However, whilst seeming to accept that a court did have a jurisdiction to permit an unknown person to be sued (whether or not on the basis of PD 7A para 4.1, His Lordship noted that the issue of this discretion had not been considered by the Supreme Court or the House of Lords.
Thus fortified, His Lordship identified the crucial question as being the basis of this jurisdiction, and in what (“if any”) circumstances it could be exercised on that basis against persons who could not be named:
“In approaching this question, it is necessary to distinguish between two kinds of case in which the defendant cannot be named, to which different considerations apply. The first category comprises anonymous defendants who are identifiable but whose names are unknown. Squatters occupying a property are, for example, identifiable by their location, although they cannot be named. The second category comprises defendants, such as most hit and run drivers, who are not only anonymous but cannot even be identified. The distinction is that in the first category the defendant is described in a way that makes it possible in principle to locate or communicate with him and to know without further inquiry whether he is the same as the person described in the claim form, whereas in the second category it is not.”
The Supreme Court’s approach appears to rest on an intimate connection between whether it is permissible to sue someone, and whether it is likely to be possible to serve him or her, in particular via the alternative service provisions in CPR 6.15: Subject to any statutory provision to the contrary, Lord Sumption considered it
“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”.
Lord Sumption described it as a fundamental principle of justice that a person cannot be made subject to the jurisdiction of the court without having such notice of the proceedings as will enable him to be hear, a principle he described as “perhaps self-evident”.
His Lordship went on to note that service is, in general, the point at which a defendant is subjected to a court’s jurisdiction. He repeated Lord Woolf’s comments in Access to Justice: Final Report to the effect that the object of the more extensive means of service permitted by the CPR was to enable the court to be “satisfied that the method used had put the recipient in a position to ascertain the contents of proceedings”. He noted that alternative service, pursuant to CPR 6.15, was itself a method of service, and that service was defined in the CPR glossary as “steps required by rules of court to bring documents used in court proceedings to a person’s attention.” He quoted Abela and others v Baadarani and another  UKSC 44, SC to the effect that “the whole purpose of service is to inform the defendant of the contents of the claim form and the nature of the claimant’s case”.
Lord Sumption did reflect on whether the compulsory insurance regime created by the Road Traffic Act 1988 required an exception to the usual principles of service, but rejected this, on several grounds. He described the 1988 Act’s 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. He considered that the MIB’s compensation provisions are intended to fill any gaps in this scheme. He emphasised that service on an insurer permitted via CPR 6.15, even where the insurance policy permitted the insurer to accept service on the driver’s behalf, would not constitute service on the driver, who (His Lordship considered) was entitled to be heard in his own right, notwithstanding the insurer’s involvement in proceedings. In his view, “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”. The policy considerations made explicit by the majority of the Court of Appeal (along with perhaps its implicit assumption that the insurer, rather than the unnamed driver, was the party which really needed to be informed of proceedings) does nto seem to have affected Lord Sumption’s consideration of more general principles.
Lord Sumption also considered the circumstances in which service could be dispensed with pursuant to CPR 6.16. Whilst at pains not to rule out such service on an unnamed driver, and whilst expressly stating that he did not wish to limit courts’ discretion in this regard, he suggested that these would be limited to situations in which the unnamed driver was already aware of proceedings, in particular due to a previous attempt at service, or in which he or she was trying to conceal his or her identity to evade service. Lord Sumption found 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 (such a situation not being easy to envisage when an unnamed driver is involved).
The Court of Appeal’s decision to permit alternative service of the claim on the unnamed driver, pursuant to CPR 6.15, does not appear to have been subject to appeal in the Supreme Court (although this is perhaps unsurprising as reversing the permission given to join the unnamed driver would have left no valid proceedings to be served on him or her). Notwithstanding this, Lord Sumption complained that the Court of Appeal appeared to have had no regard to what he considered the principles underlying CPR 6.15, and service more generally, when permitting alternative service.
Lord Sumption sought to avoid complete elision of the question of whether a party should be permitted to sue an unknown person with the question of whether this person could in fact be served. In his view, a description such as “ ‘The person unknown driving vehicle registration number Y598 SPS who collided with vehicle registration number KG03 ZJZ on 26 May 2013’, does not identify anyone. It does not enable one to know whether any particular person is the one referred to. The impossibility of service in such a case is due not just to the fact that the defendant cannot be found but to the fact that it is not known who the defendant is. The problem is conceptual, and not just practical”. Elsewhere, His Lordship commented that “the legitimacy of issuing or amending a claim form so as to sue an unnamed defendant can properly be tested by asking whether it is conceptually (not just practically) possible to serve it”.
Comparison, however, between the position of an unnamed driver, and an unnamed occupier of land, may suggest that Lord Sumption’s distinction between cases in which the potential defendant is “described in a way that makes it possible…. to know without further inquiry whether he is the same as the person described in the claim form” may be difficult to apply. If a person is no longer in occupation of land, it is hard to see how it is any easier to know without further enquiry whether that person is the person identified in proceedings as the occupier of land at some particular (past) point in time, than it would be to ascertain whether someone had been the driver of a vehicle at some particular point in time. Or to apply another of Lord Sumption’s considerations, is the unnamed occupier really any more “identifiable” than the unnamed driver, when in both cases he or she is being identified in relation to his or her actions at a particular point in time ? While it might be said that an occupier of land is identified by status rather than action, this seems no more of a status than the status of someone as driver of a car at some particular point in time.
Lord Sumption’s approach might be considered as necessary fudge in order to preserve the intellectual coherence of the historic (and very useful) rules permitting service on squatters and the like (and his judgment illustrated how, following Bloomsbury, these principles have been expanded at common law to include a host of hard-to-identify groups of people). If, however, the categories set out in it are considered to be of general application, this suggests that the other aspect of his test, whether the potential defendant is “described in a way that makes it possible in principle to locate or communicate with him” is the more important (or perhaps more workable) principle to be drawn from his judgment. Taken together with the lengthy discussion of the principles underlying CPR 6.15 and service more generally, it is hard to escape the conclusion that the practical possibility of whether proceedings can be served on an unnamed driver – in practical, rather than conceptual, terms - is at the very least likely to be a major consideration in a judge’s exercise of his or her discretion.
The Supreme Court’s judgment rules out the approach taken by the unfortunate Ms Cameron in (it would seem) most cases involving unnamed drivers, and perhaps points to a cottage industry for defendant solicitors in seeking to strike out claims permitted in reliance on the Court of Appeal’s decision. However, is the claimant who sufferes loss at the hands of an unnamed driver left with no recourse, but an application under the Untraced Drivers Agreement ? The Supreme Court’s decision leaves open a number of alternatives.
Firstly, it would in theory be possible to describe in proceedings the driver of the at-fault vehicle at the time of an accident “in a way that makes it possible in principle to locate or communicate with him and to know without further inquiry whether he is the same as the person described in the claim form”, satisfying Lord Sumption’s test for an action against an unnamed driver. It is not easy to envisage circumstances in which this could apply. The average innocent claimant is unlikely to know anything about the unnamed driver beyond the details of the vehicle he or she was driving. Evidence linking the unnamed driver with a particular address, or otherwise sufficing to enable alternative service pursuant to CPR 6.15, may swing the balance, but such evidence is unlikely to arise in the vast majority of cases.
Secondly, if sufficient evidence can be adduced to suggest that a particular person was driving the at-fault vehicle at the time of an accident, a claimant might take his or her chances with convincing the trial judge of this. Again, this would depend on the evidence in a particular case. It is particularly hard to say to what extent a judge would be likely to infer from matters such as possession of the vehicle generally around the time of an accident, or a defendant’s refusal to respond to or get involved in proceedings, that this person was driving. It is perhaps instructive that, although the First Defendant was registered keeper of the notorious Micra in Cameron, and although he was prosecuted under section 172 of the 1988 Act for failing to identify its driver at the time of an offence, no-one seems even to have considered mounting a case on the basis that it could be inferred from his conduct that he was likely to have been the at-fault driver.
Thirdly, if the owner of a vehicle denies involvement in an accident, and alleges that some other unidentified person (who would not have been covered by any insurance applying to the vehicle) was driving, the claimant may sue the keeper for permitting use of the vehicle without insurance, pursuant to Mnk v Warbey  KB 75. However, if the owner does not respond to a claim at all, a court may not readily infer that some uninsured person was driving. The principle, perhaps perversely, will apply only if the driver was not in fact covered by insurance, requiring the terms of any insurance covering the vehicle to be considered carefully. And, from the point of view of securing any actual compensation for a claimant, it should also be remembered that an insurer’s duty pursuant to s 151(5) of the 1988 Act does not include satisfying any judgment entered against someone liable for permitting the use of an uninsured vehicle (Savin v Havard  EWCA Civ 1202).
Finally, nothing in the Supreme Court’s decision affected a claimant’s right to sue an insurer directly, pursuant to the European Communities (Rights against Insurers) Regulations 2002 (and Lord Sumption’s judgment seemed at times to be almost consciously avoiding reference to the Regulations). It is, however, an open question whether “the insured person” for the purposes of the 2002 Regulations must be someone capable of being identified, there being an argument in these circumstances that, without identifying the insured person specifically, it is usually impossible to know whether he or she was in fact insured under the relevant policy of insurance. While it might seem anomalous that a claimant could sue an insurer in respect of an unnamed person under the 2002 Regulations in circumstances where, following Cameron, he or she could no longer sue that unnamed person at common law, Lord Sumption’s stress on the general requirements to name parties in proceedings, and to effect service in such a way that a party is likely to be made aware of them, may suggest that the 2002 Regulations can and should be interpreted without reference to the Supreme Court’s decision.