Legal Update: Cameron v Hussain & Liverpool Victoria Insurance



A motorist had been injured in a hit-and-run collision. The driver of the car at fault was never identified, but its registered keeper was. An insurance policy covered one named individual, not the registered keeper, to drive the car. In January 2014, the motorist issued proceedings against the registered keeper, erroneously believing him to be the driver. When it became clear that he was not, she added the insurer as a defendant, seeking a declaration under the Road Traffic Act 1988 s.151 that it was obliged to satisfy any unsatisfied judgment against the registered keeper.

The insurer denied liability, arguing that the policy did not cover the registered keeper and since the driver had not been identified, it sought summary judgment on its defence. The motorist applied for permission to amend her claim form and particulars of claim by removing the registered keeper as first defendant and substituting "the person unknown driving vehicle [registration number] who collided with vehicle [registration number] on [date of accident]".

The district judge dismissed her application and granted summary judgment in favour of the insurer. A judge upheld those decisions on appeal, holding that the motorist could submit a claim under the Motor Insurers' Bureau Untraced Drivers Agreement (UTDA).

The Court of Appeal

The case went on to the Court of Appeal, where three issues were identified for consideration namely, whether: (1) s.151 applied only where the driver could be named; (2) proceedings could only be issued against unnamed parties in exceptional circumstances; (3) the motorist was precluded from pursuing the unnamed driver because the UTDA gave her an adequate remedy.

The Court of Appeal held:

(1) An insurer's s.151 liability in relation to an insurance policy covering a specific vehicle and named insured did not depend on whether the driver could be identified by name, Sahin v Havard [2016] EWCA Civ 1202, [2017] R.T.R. 9 considered. Where such a policy was in place and a notice of issue of third party proceedings had been served, the insurer had generally to meet liabilities to third party victims, whether or not the policy covered the driver, and irrespective of the driver's identity. That was so unless the insurer could demonstrate that it was off-cover, or should never have been on-cover. The insurer bore 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. Where an insurer had to pay out in the absence of any contractual obligation to do so, the Act provided it with rights of recourse against the insured or culpable third parties. However, insurers would commonly have to meet judgments without any hope of enforcing against the culpable party. To permit a judgment to be entered against an unknown driver in circumstances where the vehicle, the insurer and the purported name of the insured could all be identified, would not open the floodgates to a raft of fraudulent claims against insurers.

(2) There was 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. There was no reason an unnamed defendant could not be pursued for damages, Bloomsbury Publishing Group Plc v News Group Newspapers Ltd (Continuation of Injunction) [2003] EWHC 1205 (Ch), [2003] 1 W.L.R. 1633 applied and Clarke v Vedel [1979] R.T.R. 26 considered. Whether the court should allow an unnamed defendant, identified only by description, to be pursued in any particular case depended on whether such a course would further the overriding objective. The circumstances did not have to be exceptional.

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(3) The motorist had a substantive right to a judgment for damages against the driver and a statutory right to payment by the insurer if the judgment was not satisfied. It would be unjust to deprive her of the remedy giving effect to those rights simply because she had an alternative remedy under the UTDA. She was not obliged to pursue the UTDA remedy, which could in any event be regarded as inferior to a court action for damages, Carswell v Secretary of State for Transport [2010] EWHC 3230 (QB), [2011] Eu. L.R. 406 considered. On the other hand, there would be no injustice to the insurer in permitting her to pursue an unnamed driver.

The appeal was allowed and in cases such as the instant one, claimants should be permitted to amend their claim forms and particulars to substitute an unnamed driver, identified by reference to a specific vehicle driven at a specific time and place.

The full text of the judgement is available here.


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