The European Communities (Rights against Insurers) Regulations 2002 can simplify the enforcement steps needed in an RTA matter. It can also reduce issues when it comes to service, because the claim can be served against the insurer when Solicitors have not been nominated (or, if they are a limited company, even when Solicitors have been nominated as per Collier v WIlliams [2006] EWCA Civ 20).
However, it still requires the driver to be identified, as Regulation 3 of the 2002 Regulations takes effect because the Claimant would have a cause of action against the insured driver. If you do not know the identity of the driver, how can you know if the Defendant insurer would be liable to indemnify the collision? That was the determination of the Supreme Court in Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6.
Cameron v LV
On 26th May 2013, Ms Bianca Cameron was injured in a road traffic collision in Leeds involving a Nissan Micra. The collision was caused by the Micra’s driver, who drove away and was never identified. The Micra was registered to Mr Naveed Hussain, but he was not driving at the time. He later refused to identify the driver and was convicted of failing to do so.
The car was insured with Liverpool Victoria Insurance Company Ltd (LV), but the policy was taken out in the name of “Mr Nissar Bahadur,” who was believed to be fictitious. Neither the registered keeper nor the driver was insured to drive the car. Ms Cameron obtained the registered keeper’s details and initially brought the claim against them, with LV as a second Defendant to satisfy any judgment against the registered keeper under section 151 of the Road Traffic Act 1988. When it became clear that the registered keeper was not the driver, Ms Cameron applied to amend her Particulars of Claim to say “ the unknown driver of…”.
In the first instance and at the Court of Appeal, the Claimant prevailed on this point. However, the Supreme Court overturned the decision and found in favour of the Defendant. The Supreme Court held that a basic principle of justice is that no person can be made subject to the court’s jurisdiction unless they have notice of the proceedings sufficient to enable them to take part. It follows that a claim cannot properly be issued or amended against an unnamed defendant where it is conceptually impossible to bring the proceedings to that person’s attention.
They found that proceedings can only be brought to a Defendant insurer’s attention if the Defendant is described in the claim form in a way that makes it possible, in principle, to locate or communicate with them and to identify whether a particular person is the one being sued.
In this case, the description of the driver was based solely on a past act and did not make it possible to locate or identify him. As a result, the driver could not, as a matter of English law, be sued under that description. Alternatively, the claim would have otherwise been brought against the MIB under the untraced driver’s agreement.
Recent example
I was recently instructed in a matter which was proceeding to trial and the Defendant had denied purely on the basis that the Claimant had not identified the driver and therefore the claim against the Defendant insurer was defective. It did not deal with the accident or the heads of loss (including credit hire).
Upon reviewing the Particulars of Claim I noted the pleadings said “the Defendants insured was the driver of “, which was very vague. I then considered the bundle and came across correspondence which included one email from the Defendant Insurer saying”-
Thank you for your recent communication. Please note our interest as Motor Insurers of [name redacted].
Having reviewed the circumstances of this incident, we will not be disputing liability.
I also noted a subsequent email:-
Thank you for your e-mail.
We are indemnifying our insured, we will be listed as 1st defendant. You may intimate proceedings against [Defendant insurer name and address redacted].
It was going to be my contention that the correspondence, the naming of the insured and confirming the identity meant that both parties were quite aware of who the insured driver was and therefore was distinguishable from Cameron. I prepared a skeleton argument and my opponent, upon my arrival to Court, sent a copy of her skeleton to me. Before I read it, we were asked (advocates only) to appear before the Judge.
Amongst other points (put to both myself and my opponent), the Judge asked my opponent about correspondence containing an admission, the apparent identity of the insured, and confirmation that indemnity was not an issue. My opponent said she would argue that it was not an admission that the insured person was the driver. The Judge advised that even if the issues did get resolved in favour of the Claimant, it was unlikely we would be able to have the trial heard as well. He indicated that this might be a case where we should step outside and exhaust all negotiations before reverting to make submissions.
In the end, the parties reached a compromise. The Judge indicated that it would have been an interesting issue but gave no indication of his preliminary view.
Conclusion
In essence, whilst my submissions may very well have had some traction, it was a real risk that the Claimant had not named the driver (or who he believed the driver was). If the Claimant had named the insured, and the Defendant then decided to challenged that the insured was the driver, then it could be address accordingly.
My backup approach would have been to argue that as, per In Soo Kim v Youg [2011] EWHC 1781 (QB) and Alton v Powszechny Zaklad Ubezpieczen [2024] EWCA Civ 1435, this was the first time the issue was being addressed by the Court and that a remedy should be allowed before the draconian step of a strike out. The Defendant did not make an application to strike out and was silent on the point at the allocation hearing. Any prejudice to the Defendant would have been remedied by the Defendant having the opportunity to plead a positive case against the Claimant. However, on the other hand, the Claimant had not taken any steps to remedy their case upon receipt of the Defence.
Whilst Cameron was an issue regarding the principle of the insurer being a named Defendant for the purposes of s151 Road Traffic Act 1988, the principle does apply to the 2002 Regulations as it is clear from Regulation 3 that it concerns an insured person, not a vehicle. You can’t compel an insurer to insure a person that they may or may not insure.
Information
Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.
