Claims against unnamed defendants

As a general rule of civil procedure, statements of case should name the parties (CPR 7A PD 4.1(3), CPR 16 PD 2.6(a)). The naming of the parties in court proceedings is consistent with the principle of open justice. It enables the parties to know about proceedings, respond to allegations, and to conduct any necessary investigations into the claim (especially where there has been an allegation of fraud).

There are a number of specific, narrow situations under the CPR that allow unnamed parties to be included on statements of case. For example, CPR 19.7 permits for unnamed parties in group litigation and CPR 55.3(4) permits for unnamed parties in possession claims.

Despite the narrow exceptions to the general rule, the Court of Appeal in Cameron v Hussain [2017] EWCA Civ 366 held that a victim of a hit-and-run collision could bring an action against an unnamed defendant and that insurers would be liable to satisfy any judgment pursuant to section 151 of the Road Traffic Act 1988 (RTA). The court further held that there was no reason in principle why, in appropriate cases, it should not be permissible under the CPR for a claimant to bring proceedings against an unnamed defendant where that defendant was suitably identified by an appropriate description.

Facts and lower court decisions

The claimant had been injured in a hit-and-run collision. Although the driver of the car at fault was never identified, its registered keeper was. The insurance policy of the hit-and-run car covered one named individual (but not the registered keeper) to drive the car.

In January 2014, the claimant issued proceedings against the registered keeper believing him to be the driver. When it became clear that the keeper was not the driver, the claimant purported to add the insurer as a defendant, seeking a declaration under section 151 of the RTA that it was obliged to satisfy any unsatisfied judgment against the registered keeper. The insurer denied liability and argued that the policy did not cover the registered keeper and that the driver had not been identified. The insurer sought summary judgment.

The claimant made an application to the court for permission to amend her claim form and particulars of claim by removing the registered keeper as first defendant and substituting ‘the person unknown driving vehicle [registration number] who collided with vehicle [registration number] on [date of accident]’. However, the district judge dismissed the claimant’s application and granted summary judgment in favour of the insurer. Parker J upheld the district judge’s decision on appeal, finding that the claimant could submit a claim under the Motor Insurers’ Bureau Untraced Drivers Agreement (UTDA). Gloster and Lloyd Jones LLJ (Cranston J dissenting) allowed the claimant’s appeal.

Court of Appeal decision

The issues before the Court of Appeal were whether: (1) section 151 of the RTA applied only where the driver could be named; (2) proceedings could only be issued against unnamed parties in exceptional circumstances, where an injunction was sought, and where no other remedy was available; and (3) the claimant was precluded from pursuing the unnamed driver because the UTDA gave her an adequate remedy.

On the first issue the Court of Appeal held that section 151 of the RTA did not only apply where the driver could be named. Gloster LJ was of the opinion that an insurer’s section 151 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] 1 WLR 1853 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. Gloster LJ went on to explain that the insurer bore the economic risk as to the existence or non-existence of the insured or named drivers; the possibility of the insured allowing uninsured persons to drive the vehicle; and the possibility of uninsured persons driving the vehicle without the insured’s consent. Gloster LJ dismissed the argument that permitting judgments to be entered where the driver was unknown would open the floodgates.

Hit-and-run victims will not be restricted to simply pursuing a claim with the UTDA which may result in far less favourable compensation as compared with court-ordered damages

On the second issue the court held that a judgment for damages could be obtained against an unnamed driver. Gloster LJ stated that there was no reason in principle why, in appropriate cases, it should not be permissible under the CPR for a claimant to bring proceedings against an unnamed defendant where that defendant was suitably identified by an appropriate description. The court must pay attention to the particular circumstances of the case and consider whether allowing proceedings against an unnamed defendant would further the overriding objective but, in any event, the circumstances did not have to be exceptional. Her ladyship dismissed the argument that proceedings could only be brought against an unnamed defendant if an injunction or future relief was being sought. There was no reason, Gloster LJ explained, why an unnamed defendant could not be pursued for damages (Bloomsbury Publishing Group Plc v News Group Newspapers Ltd (Continuation of Injunction) [2003] EWHC 1205 (Ch), [2003] 1 WLR 1633).

On the final issue the court found that the availability of a remedy under the UTDA did not preclude the claimant from pursuing an unnamed defendant. Gloster LJ held that the claimant 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. Therefore, it would be unjust to deprive her of the remedy giving effect to those rights simply because she had an alternative remedy under the UTDA. She was not obliged to pursue the UTDA remedy which could be less favourable than court-ordered damages. Gloster LJ went on to explain that in these types of cases, claimants should be permitted to amend their claim forms and particulars to substitute an unnamed driver and should do so by referring to a specific vehicle driven at a specific time and place.

In his dissenting opinion, Cranston J explained that the limited exceptions in the rules indicated that the underlying premise of the CPR is that the parties should be named. He was of the opinion that ‘to move away from named parties outside the gateways they provide needs substantial justification’. Cranston J argued that there were no justifications nor would there be any injustice because the claimant retained her right to bring a claim before the UTDA.

The decision raises a number of significant substantive and procedural points. For the purposes of section 151 of the RTA insurers will continue to be liable where a driver is unnamed – this will be welcome news for victims of hit-and-run drivers. It also means that victims will not be restricted to simply pursuing a claim with the UTDA which may result in far less favourable compensation as compared with court-ordered damages.

Finally, the court has confirmed that the courts retain a wide discretion to permit claims against unnamed defendants in ‘appropriate circumstances’. This appears to go beyond the exceptional cases identified in the CPR and hit-and-run cases and therefore is in danger of undermining the general principle rule that parties should be named.         

Masood Ahmed is associate professor in civil dispute resolution at the University of Leicester and a member of the Civil Procedure Rule Committee