Whether a claimant has to name a defendant, even when they cannot do so, has become of great importance. Cases include wrongdoers who commit fraud and other wrongs whilst concealing their identities using the internet, injunction cases in which wrongdoers cannot be identified, and hit and run drivers. Any civilised society has to allow the possibility of court claims against persons who cannot be named. English Law now allows this through the first rule in its Civil Procedure Rules, the “overriding objective”.
On 28th November 2018 the Supreme Court is to hear the appeal by the insurers from Cameron v Hussain [2018] 1 W.L.R. 657, a hit and run case, which will be the first case on unnamed defendants to reach the highest court.In 2015 there were 17,000 cases in Great Britain involving hit and run drivers with serious injuries in 9% and some deaths. The system of compulsory motor insurance throughout Europe requires an insurer of a vehicle to pay victims. Provided the victim gets the number plate the insurers can be identified from a register. If the insurers do not pay the Sixth Motor Insurance Directive requires Member States to provide a direct right of action against them. This applies regardless of who was driving the vehicle and regardless of what lies may have been told to get the insurance. It includes a thief. There is a safety net for cases where there was no insurance or the victim is unable to identify the insurers. In the UK this is provided by the Motor Insurance Bureau.
The victim’s car was in a hit and run collision. The insurance policy was with a fictitious insured. Drivers who are not insured have more motive not to stop. She had the number plate of the perpetrator’s vehicle and sued the registered keeper. The police had served a notice on him to provide details of who was driving and he was convicted of failing to give information about the driver’s identity. But the insurers applied for summary judgment because they could prove he was not the driver. The victim riposted by asking for permission to sue the unnamed driver, intending to present the judgment to insurers as one they had to satisfy under section 151 of The Road Traffic Act 1988. The District Judge and then the County Court Judge on appeal decided she should not be permitted to do so because insurers could not identify the hit and run driver and claim an indemnity against him. The Court of Appeal by a majority decided to exercise the discretion allowing her to do so.
Article 18 of the Directive, not mentioned in the Court of Appeal judgments, requires Member States to provide a direct right of action against the insurers. It appears only to have been implemented in the UK where the actual driver is covered by the insurance policy. Article 18 is a legislative choice that the insurers are to compensate victims. There is only one exception: when the victim has entered the vehicle as a passenger knowing it was stolen. This is insurance for the benefit of everyone because anyone can be a victim. Insurers can check on who they are being asked to insure and can require adequate premiums across their book of business, to cover their potential liabilities in all eventualities. The victim has no choice.
Steven Gee QC and Christopher Kientzler have written a detailed article on the case which is being published in (2018) 37 Civil Justice Quarterly issue 4 p.413.
