Dear Colleagues;

While it contains a lot of information about specific arrangements for motor accidents in the UK, the decision of the UK Supreme Court in Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6 (20 Feb 2019) https://www.supremecourt.uk/cases/docs/uksc-2017-0115-judgment.pdf seems to me to make one major point that is of general interest: unless an alleged defendant can be identified, subject to any specific statutory provision, then they cannot be sued. The case was one which involved damage caused to one driver (Cameron) by the driver of another car, a Micra, whose number plate was recorded but as to whom it could not be determined who was driving it. There is apparently an administrative scheme whereby the Motor Accidents Bureau agrees to compensate drivers in these cases, but for some unknown reason (see [5]) Ms Cameron was determined to pursue a claim through the courts.

The Supreme Court (LORD SUMPTION, with whom Lord Reed, Lord Carnwath, Lord Hodge and Lady Black agreed) held that it was not possible to sue someone who could not be located to receive service. They either distinguished, or in one case at least over-ruled, earlier UK cases to the contrary. It would be possible if it was simply the case that a person’s name was not known, but other characteristics meant that they could be located and served (eg trespassers occupying land). But a person who can’t otherwise be identified, cannot be identified simply because they are known to have done some wrong at some point.

Lord Sumption concluded:

[26] I conclude that 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 description, unless the circumstances are such that the service of the claim form can be effected or properly dispensed with. 

Seems correct. In NSW we have a “Nominal Defendant” scheme set up by statute which seems to achieve a similar outcome as the admin scheme in the UK, in relation to motor accidents.

Regards

Neil

NEIL FOSTER

Associate Professor, Newcastle Law School

Faculty of Business and Law

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