Val Pitt: If the person at fault is anonymous as well as unidentified, suing won’t succeed

Val Pitt is an Associate with Clyde & Co

UK legislation permits victims of negligently caused road accidents to recover damages from either a party at fault or from his insurer who will be liable for a judgment, even against a person who is not insured under their policy. However, one of the fundamental principles underlying the scheme is that a victim has no direct right against an Insurer – the only direct right is to require the Insurer to satisfy a court judgment passed against the driver of a vehicle, once the driver’s liability has been established in legal proceedings.

In addition in the UK, we have the Motor Insurers Bureau (MIB) which is a fund of last resort, owned and funded by UK insurers to compensate victims of uninsured drivers and, in situations where a judgment cannot be obtained against a driver who cannot be identified, untraced drivers.

On 26 May, 2013 Ms Bianca Cameron was injured in a road traffic accident caused by the driver of a Nissan Micra, who left the scene without stopping or reporting the accident to the police. The registered keeper of the Micra was Mr Naveed Hussain. However, Mr Hussain refused to identify the driver and was subsequently convicted of failing to do so. The Micra was insured by Liverpool Victoria Insurance Co. under a policy issued to a Mr Nissar Bahadur, whom it is now believed was a fictitious person. Neither Mr Hussain nor the unidentified driver was insured under the policy to drive the car.

Ms Cameron could have brought her action against the MIB under the Untraced Drivers’ Agreement, however, she chose not to do so. Instead, Ms Cameron initially sued Mr Hussain and the insurers of the vehicle for damages. The insurers denied liability on the grounds that Mr Hussain was not the driver of the vehicle and was therefore, not liable for the accident. The claim was unsuccessful and was appealed. Surprisingly, the Court of Appeal in England allowed Ms Cameron to direct her action against “the person unknown driving [the] vehicle” and allowed her to serve her claim directly on the insurer, without an identified driver. The Insurers then appealed that decision to the Supreme Court.

The principle question for the Supreme Court was: can an unnamed, unidentified party be sued directly in these circumstances?

The Supreme Court noted that the general rule is that proceedings may not be brought against unnamed parties. There were some cases where this would be permitted, such as against trespassers or squatters, where the individuals could be identified but not named. However, in this case the party at fault was not only anonymous but also unidentified. The Supreme Court highlighted that it is a fundamental principle of justice that a person must have knowledge of proceedings to allow him the opportunity to defend himself, even if it is extremely unlikely that he will take that opportunity.

The Supreme Court’s decision has confirmed that parties are not permitted to raise actions against unidentified drivers or directly against insurers in these circumstances. The correct route to compensation is a claim against the MIB under the Untraced Drivers’ Agreement which the Claimant opted against.

So what can we learn? This decision reinforces the established principle that a party at fault must be identified before an action can be raised. In the case of road traffic accidents, if that is not possible, a victim must look to the MIB for compensation, rather than to insurers directly.

Val Pitt is an associate with Clyde & Co