Cameron v Hussain & Anor, Court of Appeal - Civil Division, May 23, 2017, [2017] EWCA Civ 366

Issuing Organization:Civil Division
Actores:Cameron v Hussain & Anor
Resolution Date:May 23, 2017
 
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Case No: B3/2015/0518

Neutral Citation Number: [2017] EWCA Civ 366

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE COUNTY COURT AT LIVERPOOL

His Honour Judge Parker

A19YJ567

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 23/05/2017

Before :

LADY JUSTICE GLOSTER

Vice President of the Court of Appeal, Civil Division

LORD JUSTICE LLOYD JONES

and

SIR ROSS CRANSTON

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Between :

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Benjamin Williams Esq, QC (instructed by Armstrong Solicitors Limited) for the Appellant

Stephen Worthington Esq, QC (instructed by Keoghs LLP) for the Respondent

Hearing dates : 8 December 2016

Further submissions received on 12 December 2016

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JudgmentLady Justice Gloster:

Introduction

  1. The issues in this case may be summarised as follows:

    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;

    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:

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

    Factual and procedural background

  2. On 26 May 2013 there was a collision between the claimant in the action, Miss Bianca Cameron (``the appellant''), driving her Ford Fiesta, registration number KG03 ZJZ, and another motorist, driving a Nissan Micra, registration number Y598 SPS, on Torres Road in Leeds. That driver went on to hit another vehicle, but did not stop. However, the vehicle registration number of the Nissan was taken down by a passing taxi driver. As a result of the accident, the appellant suffered modest personal injuries as did the passengers in her car. In addition, her own car was written off and she incurred charges for the hire of a replacement car. The total value of the appellant's claim (which excludes any claim by her passengers) is estimated at between £10,000 and £15,000.

  3. The Nissan was ascertained by the police to be registered to a Mr Naveed Hussain as registered keeper, who is currently the first defendant in the action (``the first defendant''). The first defendant did not co-operate with police enquiries into the accident, and on 19 November 2013 he was convicted of the offence of failing to give information about the identity of a driver by the Calderdale Justices.

  4. The Nissan was also discovered to be the subject of a policy of motor insurance (``the policy'') written by Liverpool Victoria Insurance Co Limited, the second defendant and respondent to the appeal (``the respondent''). The respondent filed evidence in the lower court stating that its insured was a Mr Nissar Bahadur of Hinkley, Leicestershire - a person whom it now believes to be fictitious, such that the policy was obtained by fraud. The first defendant (i.e. the registered keeper) was not himself insured to drive the Nissan.

  5. In January 2014 the appellant issued proceedings claiming damages against the first defendant, because at that time she believed him to be the other driver involved in the collision. In March 2014, the appellant amended the proceedings to add the respondent as second defendant and to seek a declaration against it pursuant to section 151 of the Act to the effect that it was obliged to satisfy any unsatisfied judgment against the first defendant.

  6. In May 2014 the respondent filed a defence denying its liability to satisfy any judgment against the first defendant. This was on the grounds: (a) that the first defendant was not covered to drive the Nissan under the terms of the policy; and (b) that the claimant was unable to prove the identity of the driver at the time of the accident.

  7. On 4 June 2014 the respondent issued an application for summary judgment on the basis of the arguments in its defence.

  8. On 19 June 2014 the appellant made a cross-application for permission to amend her claim form and the particulars of claim so as to substitute, for the first defendant, a defendant identified only by the description set out in paragraph 1(iii) above.

  9. On 16 July 2014 District Judge Wright dismissed the appellant's application to substitute the name of the first defendant for the description set out above and granted summary judgment against the appellant on the respondent's application.

  10. On 13 January 2015 HHJ Parker (``the judge'') dismissed an appeal by the appellant against that decision. By the time of that hearing it was common ground that the first defendant was not the driver of the vehicle on the relevant date.

  11. On 22 October 2015 Tomlinson LJ granted permission to appeal to this court against the judge's decision.

    The judgment appealed against

  12. The judge set out the parties' submissions and the authorities at [5]-[22]. His reasoning was contained in [23]-[24]. He concluded that it would be unjust to the respondent to allow the appellant to obtain a judgment enforceable against it, when it could not hope itself to trace any unknown defendant so as to attempt recoupment. He also held that there was no injustice to the claimant, because she could still submit a claim to the Motor Insurers' Bureau [`MIB'].

  13. The judge took the view that:

    ``23. Applying Bloomsbury Publishing Group v News Group Newspapers [[2003] EWHC 1206 (Ch), [2003] 1 WLR 1633] and Civil Procedure Rules 7APD4.1(3) and CPR16 PD 2.6(a), in a claim for damages arising out of a road traffic accident, the claimant should provide the full name of the defendant. If the defendant is not known the claimant is unable to provide the full name of the defendant because the defendant is untraced, then in my judgment the claimant should not bring a claim for damages but rather should seek compensation through the MIB Untraced Drivers' Agreement. In my judgment, in a case of this nature it is neither necessary nor consistent with the overriding objective of enabling the court to deal with cases justly and at proportionate cost for the court to permit claims against defendants identified by description rather than name nor for that matter to permit an amendment to provide for identification of the defendant by description, simply to enable a claimant to obtain a judgment which an insurer is then required to satisfy under the Road Traffic Act 1988. The claimant has a perfectly good remedy under the Untraced Drivers' Agreement and any solicitor or other representative instructed by the claimant is able to recover costs which are prescribed by the scheme.

  14. In my judgment, to allow claimants to pursue claims against defendants identified only by description and not by name merely serves to increase litigation and costs thereof and is likely to prejudice insurance companies unfairly by imposing all of the burdens of Section 151 of the Road Traffic Act 1988 whilst depriving them of an ability to pursue indemnity against the tortfeasor. To dismiss this appeal will in my judgment create no injustice for the claimant who can continue with a claim to the MIB Untraced Drivers' Scheme. To allow the appeal would work considerable potential injustice for the [respondent] who will be left with all the burden of Section 151 of the Road Traffic Act 1988 and a prospect of indemnity from the tortfeasor that is no more than fanciful."

  15. The judge, therefore, refused to allow the appellant permission to amend the claim form so as to substitute, for the first defendant, a defendant identified only by the description set out in paragraph 1(iii) above.

    Grounds of appeal

  16. The appellant relied upon three stated grounds of appeal:

    i) Ground 1: English civil procedure permitted proceedings to be issued and orders (including judgments) to be made against unnamed parties where it is necessary and efficacious to obtain justice.

    ii) Ground 2: It was both necessary and efficacious to allow the appellant to proceed against an unnamed defendant in the particular circumstances of this case.

    iii) Ground 3: Permitting the appellant to proceed was consistent with the policy of section 151 of the 1988 Act.

    The relevant statutory provisions

  17. Section 151 forms part of Part VI of the 1988 Act, which legislates for, and is headed, `Third Party Liabilities'. The basic structure of Part VI is as follows:

    i) Section 143 requires motorists to be insured against third party liabilities; so far as material it provides:

    ``143 Users of motor vehicles to be insured or secured against third-party risks.

    (1) Subject to the provisions of this Part of this Act--

    (a) a person must not use a motor vehicle on a road or other public place unless there is in force in relation to the use of the vehicle by that person such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Part of this Act, and

    (b) a person must not cause or permit any other person to use a motor vehicle on a road or other public place unless there is in force in relation to the use of the vehicle by that other person such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Part of this Act. Bolding of text in this judgment (other than headings) is my emphasis.

    (2) If a person acts in contravention of subsection (1) above he is guilty of an offence.

    ...''

    ii) Section 145 specifies the risks which the compulsory insurance must cover; so far...

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