Kerry Underwood

CLAIMANT CAN SUE UNIDENTIFIED DRIVER: INSURER MUST INDEMNIFY

with 2 comments


In Cameron v Hussain [2017] EWCA Civ 366

 

the Court of Appeal held that a claimant could obtain judgment for damages against an unnamed defendant who could only be identified by description, if this furthered the overriding objective under the Civil Procedure Rules.

 

There is no requirement that such a claim must be allowed only in exceptional circumstances, or where there is no other remedy available to the claimant.

 

Here the claim was in relation to a road traffic accident where the claimant was injured by a hit and run driver.

 

The practical significance here was, that as the vehicle was insured, the judgment against the unnamed defendant would be enforceable against the motor insurers under section 51 of the Road Traffic Act 1988.

 

The Court of Appeal held that it was necessary efficacious and just to allow the claim as the policy underlying section 151 was that when a vehicle was insured, the insurers should compensate anyone injured by that vehicle.
This is apparently the first case to hold that it is possible to bring a claim and obtain a judgment for damages alone against an unidentified tortfeasor.

 

Previous cases had involved injunctions or a combination of an injunction and damages.

 

This decision is likely to lead to an increase in claimants pursuing unidentified drivers of insured vehicles, rather than making claims against the Motor Insurers’ Bureau.

 

Here the vehicle that struck the claimant was identified and it was established that a policy of insurance was in place, but the hit and run driver was never identified.

 

The keeper of the vehicle, Mr Hussain, refused to give information about the driver and was convicted of failing to give the identity of the driver.

 

The claimant issued proceedings against Mr Hussain, believing him to be the driver, and against his insurers who denied liability on the ground that Mr Hussain was not covered at the time and that the claimant could not name the driver.

 

The insurer applied for summary judgment and the claimant applied for permission to amend the 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 Y598SPS who collided with vehicle registration number KGO3ZJZ on 26 May 2013.””

 

A District Judge dismissed the claimant’s application and a Circuit Judge upheld that decision.

 

The Court of Appeal summarised the issues as follows:

 

  1. 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;
  2. 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.

 

By the time of the hearing of the appeal it was common ground that Mr Hussain was not in fact the driver of the vehicle on the relevant date.

 

The Circuit Judge’s decision was based on the premise that it would be unjust to the insurance company to allow the claimant to obtain a judgment enforceable against it, when it could not hope to trace any unknown defendant so as to attempt at recoupment.

 

The Circuit Judge also held that there was no injustice to the claimant, because she could still submit a claim to the Motor Insurers’ Bureau.

 

The Court of Appeal then set out in detail the relevant provisions of the Road Traffic Act 1988 and the Civil Procedure Rules and Practice Directions.

 

The Court of Appeal pointed out that a number of provisions in the Civil Procedure Rules expressly contemplate proceedings and/or orders against unnamed parties. However, it was common ground that none of these provisions related directly to this type of case.

 

Ben Williams QC, representing the claimant, pointed out that the MIB Untraced Drivers’ Agreements (UTDA) was a more limited remedy than provided by section 151 as:

 

  1. a) only limited legal costs were recoverable;

 

  1. b) the collision had to be reported to the police within 14 days of occurrence (if the claim was for personal injury (or five days) if it was for property damage;

 

  1. c) the MIB would not meet subrogated or similar claims; and

 

  1. d) the MIB itself carried out the investigation of the claim and, subject to review by way of arbitration, decided the amount of the compensation.

 

It irrelevant as to the relationship between the insured and its insurance company; the purpose of the act is the protection of people who sustain injury caused by the wrongful acts of other persons who use vehicles on a road.

 

As was said in Hardy v MIB [1964] 2 QB 745 (Ca)

 

“… it was no part of the policy of the Act that the assured’s right to enforce his own contract against the insurers should constitute the sole measure of the third parties’ right against the insurers…”

 

The case of Bloomsbury Publishing Group Limited v News Group Newspapers Limited [2003] 1 WLR 1633 established that cases decided before the introduction of the Civil Procedure Rules were no longer applicable and that under the CPR there was no procedure Rule R to issuing proceedings, and obtaining orders, against persons unknown.

 

The Court of Appeal here rejected the argument that it is only in exceptional circumstances that a claimant would be permitted to join an unnamed defendant.

 

The Court of Appeal also rejected the argument that the existence of an alternative remedy, here a claim against the MIB precluded the joining of an unnamed defendant.

 

Paragraph 56 the Court of Appeal said:

 

“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.”

 

Those who are no fans of insurance companies will be particularly interested in paragraph 43 of the judgment which recites how the original concept of an insurance company being liable to a third party even if it was not liable to indemnify its insurers, came about in 1934:
“43. 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… .””

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Written by kerryunderwood

June 12, 2017 at 9:01 am

Posted in Uncategorized

2 Responses

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  1. Hi Kerry – I’ve searched through your 3 volumes, which my employer has kindly purchased, but not found the answer to this query, so hope you can help.

    I have a case which started in the RTA portal but fell out as liability was disputed. P7 proceedings were issued and a Defence entered denying liability.

    The Notice of Allocation (to the Fast Track) included the following Direction:

    “… the parties must agree a plan and any photographs of the accident site”

    I commissioned professional plans and photos (as indeed I would generally do on a disputed liability RTA case even if that Direction had not been made). The Judge then disallowed the disbursement when my client succeeded at Trial, saying it wasn’t listed in 45.29I.

    Do you think this disbursement should in fact be allowed, as per 45.29I(2)(h), or whether it is just another example of work that the solicitor is supposed to do themselves (because obviously I have time to travel the length and breadth of the country with my trusty camera and lots of expensive measuring equipment which I don’t actually have) and therefore included in the fixed costs?

    Many thanks

    David

    David van der Burg

    June 13, 2017 at 4:21 pm

    • David

      Yes it should be allowed and in my view must have been reasonably incurred as it was incurred as a direct result of a court order.

      I advise you to appeal.

      Kerry

      kerryunderwood

      June 14, 2017 at 10:19 am


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