Background

This claim arose from a road traffic accident which took place on 26^th May 2013.  One of the drivers did not stop and therefore unidentified but the registration of the vehicle was recorded.  The First Defendant was the registered keeper of that vehicle and the Second Defendant insured the vehicle under a policy it had issued to another person.

The Claimant originally pursued the First Defendant as she believed him to be the driver.  However, it became clear that he was not the driver and in response to an application for summary judgment by the First Defendant the Claimant made an application to substitute for the First Defendant, a defendant identified as:

‘The person unknown driving vehicle registration Y598 SPS who collided with vehicle registration number KG03 ZIZ on 26^th May 2013’.

The application was dismissed at first instance and summary judgment was given on the Second Defendant’s application.  The Claimant appealed to the Court of Appeal.

The Issues:

1. 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 a vehicle in the name of either a non-existent person or someone who was not traceable;
2. 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;
3. Whether judges in the appeal 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:

‘The person unknown driving vehicle registration Y598 SPS who collided with vehicle registration number KG03 ZIZ on 26^th May 2013’.

Where normally a Claimant’s only recourse would be to claim from the MIB under the Untraced Drivers’ Agreement, costs allowed in such a claim are significantly less than could be expected in court proceedings.  Also subrogated claims are not met under the Untraced Drivers’ Agreement and in this case the Claimant had significant associated hire charges.  Subrogated claims under the Untraced Drivers’ Agreement must be satisfied by a section 151 insurer if a judgment is obtained but only against a driver responsible for the accident.

Not only was the case important to the Claimant, it was also of significant importance to the Second Defendant as although any award would be met from the MIB’s central funds, any judgment against a driver, whether identified or not, would have to met by the insurer pursuant to section 151 of the Road Traffic Act 1988. 

Held:

The Court of Appeal held that:-

1. An insurer’s s151 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.  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 principal 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.
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 the Claimant of the remedy giving effect to those rights simply because she had an alternative remedy under the Untraced Drivers’ Agreement.  The Claimant was not obliged to pursue the Untraced Drivers’ Agreement remedy, which could in any event be regarded as inferior to a court action for damages.

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

Comment:

It is now the case that where an accident is caused by an identified vehicle but the driver cannot be identified, as long as the Claimant can identify the insurer they will now be able to bring court proceedings against an unknown person rather than pursuing a claim under the Untraced Drivers’ Agreement.  Bearing in mind the present cost regimes it appears almost inevitable that claimants will now pursue a court action rather than a claim through the MIB Untraced Drivers’ Agreement.  Will the Second Defendant look to appeal to the Supreme Court?.  Watch this space! 

[LINK TO JUDGMENT]

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