A sense of identity

Unknown identity

We have written before about the need to get a party’s name right when commencing court proceedings (see previous article here), but what happens when a would-be party cannot be identified?

In its 2017 decision in Cameron v Hussain, the Court of Appeal extended insurers’ liability to injured claimants under section 151 of the Road Traffic Act 1988 to cases where the insured vehicle could be identified but the driver could not. The decision caused significant disquiet to motor insurers since it meant that as long as the claimant could identify the insurer, they could bring proceedings against an unknown person rather than having to claim against the Motor Insurers Bureau under the Untraced Drivers’ Agreement, with its less favourable costs regime.

Cameron is currently being appealed to the Supreme Court. In the meantime, the High Court has relied on the Court of Appeal decision in holding, in Farah v Abdullahi, that the claimant was entitled, in principle, to claim against an unidentified driver in circumstances where the insurers had avoided the motor policy on the grounds of misrepresentation and/or non-disclosure. Master Davidson held that it would be both efficacious and consistent with the overriding objective of the English Civil Procedure rules (which is to deal with cases justly and at proportionate cost) to allow the claim to proceed. It made no difference that, in contrast to Cameron, the claimant in this case only had an arguable claim to an indemnity under the policy rather than an undisputed right to be indemnified pursuant to s.151.

This decision widens the scope and effect of Cameron, making it clear that a purported avoidance of the policy by the insurer will not preclude a successful claim against an unidentified driver. Motor insurers will be hoping that the Supreme Court rules in their favour, and quickly.

John McGowan