The Supreme Court, the highest court authority we have, gave their long-awaited judgment this recently (20 February 2019) in a case called Cameron-v-Liverpool Victoria Insurance Co Ltd.
The Court had been asked to rule whether or not a completely unknown and unidentifiable driver of a car that was responsible for an accident but failed to stop and exchange details could be sued through his or her insurer rather than using the scheme run by the Motor Insurers Bureau for obtaining compensation where a driver is unidentified.
Basically, the answer was a unanimous “No”.
By way of background, in 2013 Ms Bianca Cameron was hit whilst driving her car by a Nissan Micra. Ms Cameron was entirely blameless, so it was in effect a “hit and run” accident. As the driver of the Nissan Micra failed to stop and identify themselves and their insurers as they should have done so Ms Cameron could make a claim for personal injury and damage to her car through his or her insurers.
The Motor Insurers Bureau run a special scheme to cover this scenario called The Untraced Drivers Scheme.
The scheme is funded by a levy on insurers and exists so that innocent drivers in this position do not go completely uncompensated where a driver can’t be found to claim against. Claiming under the scheme is slightly different to and more restrictive as to time limits and what can be claimed for than claiming direct against an identified driver and their insurer. They also run a similar scheme where the driver is uninsured.
For the purpose of this article, the best advice is that if you find yourself in this position, hit by someone who drove off or you can’t identify, or proves to be uninsured, then contact a solicitor as soon as possible after the event to be sure you don’t miss the time limit of 2 years for using the scheme.
In this case, the Nissan’s number plate details were obtained and it was traced to a registered “keeper”. A keeper of a car may not necessarily be the owner or driver. The keeper was sued, as he was thought, wrongly, to be the driver who disappeared. The insurance policy in place on the Nissan only covered one named individual, who wasn’t the keeper. The keeper was convicted of failing to say who the driver actually was.
So Ms Cameron added the insurers, LV as a defendant in her claim and asked for a declaration that under the provisions of the Road Traffic Act 1988 s151, that the insurers would have to
“satisfy any judgment” against the driver, even though they were unknown. This meant she was asking that even though the insurers didn’t know who the driver was, they were the insurers for the car and so they should pay compensation to Ms Cameron. She wanted to claim against “The person unknown driving vehicle registration number A who collided with vehicle registration number B on (date of the accident)”.
The first court at County Court level said she could not do that. So she took it to the next level, the Court of Appeal. The Court of Appeal decided that a Court DID have discretion to allow someone to sue an unknown person. Otherwise, they said, the innocent person can’t get a judgment which the insurers then have to honour in compensation.
They decided it was irrelevant that she could have claimed through the Motor Insurers Bureau Scheme.
But the Supreme Court have now disagreed. They say:
“…a person, such as the driver of the Micra in the present case, who is not just anonymous, but cannot be identified with any particular person, cannot be sued under a pseudonym or a description unless the circumstances were such that service of the Claim Form could be effected or properly dispensed with”
They also confirmed that their ruling and the MIB scheme were not inconsistent with European law, which we are still subject to at least until 29 March 2019
The thinking is that firstly, you cannot find yourself subject to the jurisdiction -the scope- of a Court without having notice of proceedings which gives you the opportunity to have your side of the story heard if you wish to do so. If you have absolutely no idea who someone is, or don’t have any identification, then potentially you can’t bring notice of proceedings to their attention. This doesn’t apply to someone where you know who they are, but they keep evade being served with proceedings. There are ways round that.
It has been argued that this ruling is unfair to innocent driver claimants who may not achieve full compensation under the MIB scheme where a driver cannot be identified and sued. The counter argument is that had Ms Cameron been allowed to sue the unknown driver through his or her insurer, then there would be a flood of claims whereby it would be alleged that the driver was unidentified which the insurer would then have to meet, potentially on better terms than the MIB scheme.
Judgments in the Supreme Court are binding on all lower Courts. This means that if lower Courts find themselves faced with the same set of circumstances, they have to follow the Supreme Court ruling. So that seems to be the end of the argument for the time being.