Tim Horlock QC and Paul Higgins successfully represented the MIB in this important appeal concerning the operation of the Untraced Drivers’ Agreement (‘UTDA’), and whether it was possible to sue an unidentifiable tortfeasor. The appeal succeeded for the following reasons:
i. Firstly, “a person…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” (Judgment Paragraph 26);
ii. Secondly, as to alternative service, “it is an essential requirement for any form of alternative service that the mode of service should be such as can reasonably be expected to bring the proceedings to the attention of the defendant…[it cannot] be justified in the case of the scheme presently before us” (Paragraph 21);
iii. Thirdly, as to dispensing with service, it was “hard to envisage any circumstances in which it could be right to dispense with service of the claim form in circumstances where there was no reason to believe that the defendant was aware that proceedings had been or were likely to be brought… the court cannot deny him an opportunity to be heard simply because it thinks it inherently improbable that he would take advantage of it” (Paragraph 25)
In the Court of Appeal Liverpool Victoria (‘LV’) had:
i. conceded that it was possible to sue an unidentifiable driver but submitted that this should be permitted only in exceptional circumstances;
ii. conceded the point on service.
The Court of Appeal rejected the ‘exceptional circumstances’ test and found for the Respondent.
The MIB applied to intervene. The Respondent vigorously opposed the application, but the Supreme Court permitted the MIB to intervene by both written and oral submissions.
The grounds upon which the appeal succeeded were grounds identified and advanced by the MIB only after they had been conceded by LV in the Court of Appeal. As such, Cameron is a remarkable example of an intervener changing the course of an appeal in the Supreme Court.
The decision highlights:
i. the important role that the MIB fulfills in the administration of motor insurance compensation, and
ii. the MIB’s willingness to join into proceedings, and influence their outcome, if that is in the interests of the wider insurance market.
Tim Horlock QC and Paul Higgins were instructed by David Holt, Partner and Technical Lead for Large Loss and Technical Motor Claims, at Weightmans in Liverpool.
The full judgment can be accessed via: https://www.supremecourt.uk/cases/uksc-2017-0115.html