Supreme Court: No right to sue untraced driver

Sumption: Justice in legal proceedings must be available to both sides

Accident victims have no right to sue an untraced driver, the Supreme Court has ruled.

Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6 concerned a hit-and-run driver and a registered owner who refused to identify him or her.

Bianca Cameron was injured when her car was hit by a Nissan Micra. Both sides agreed that the driver of the Micra was negligent, but he or she drove off without stopping.

The vehicle’s owner, Naveed Hussain, was later convicted of refusing to disclosure the driver’s identity.

The claimant initially sued Mr Hussain for damages, adding a claim against the car’s insurer, Liverpool Victoria, for a declaration that it would be able to meet any judgment against him.

She later applied to substitute Mr Hussain for “the person unknown driving vehicle registration number Y598 SPS”.

A district judge rejected Ms Cameron’s application and entered summary judgment for the insurer. However, the Court of Appeal allowed her appeal by a majority.

Giving the unanimous ruling of the court, Lord Sumption said referring to the defendant as “the person unknown” driving a certain vehicle registration number at the time of the crash did not identify anyone.

He said there was a distinction between anonymous defendants who were identifiable but whose names were unknown – such as squatters – and those who were not only anonymous but could not even be identified, as in the present case.

“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.”

Though the appeal was primarily concerned with the issue or amendment of the claim form, Lord Sumption said the legitimacy of doing so in order to sue an unnamed defendant could “properly” be tested by asking whether it was conceptually, and not just practically, possible to serve it.

“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. It is true that the publicity attending the proceedings may sometimes make it possible to speculate that the wrongdoer knows about them.

“But service is an act of the court, or of the claimant acting under rules of court. It cannot be enough that the wrongdoer himself knows who he is.

“This is, in my view, a more serious problem than the courts, in their more recent decisions, have recognised. Justice in legal proceedings must be available to both sides.

“It is 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 heard.”

Lord Sumption said it was a “fundamental feature” of the statutory scheme of compulsory insurance in the UK that it conferred on accident victims “no direct right against an insurer in respect of the underlying liability of the driver”.

He said the 2003 Untraced Drivers Agreement assumed that judgment could not be obtained against a driver who could not be identified, meaning that “no liability will attach to the insurer”, and instead the matter became a liability of the Motor Insurers Bureau, which received 17,700 applications by victims of untraced drivers in 2017.

He concluded: “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.”

Counsel for Ms Cameron argued that this result was inconsistent with the Sixth Motor Insurance Directive 2009/103/EC, but Lord Sumption said no point arose on the directive because the claimant was not trying to assert a direct right against the insurer and it was consistent with the directive to require a claim against the MIB.

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