Easter has now been and gone, and I note with surprise that it is some months since I updated this blog at the beginning of the year. How quickly 2019 is passing. Unlike the Brexit debacle, where the same old cabbage soup is reheated and served up to increasing public indifference.
Perhaps the government’s new strategy is to bore everyone to death, and hope all interest on both sides of the debate simply fizzles away. One consequence of the current impasse however, is that European Union law is going to be with us for a quite a while yet, which includes a significant body of directives and ECJ case law of interest to those undertaking credit hire claims or indeed road traffic accident litigation more generally.
A couple of months ago the Supreme Court handed down judgment in the case of Cameron v Liverpool Victoria Insurance Company  UKSC 6 a case which I must declare I had some interest in, having settled the skeleton arguments before the District Judge in the County Court and the first appeal. The case then passed into other hands, and ultimately wound up in the Supreme Court, the issues and arguments having evolved far beyond the initial scope of the case.
The Supreme Court summed up the issue before it in these terms:
1. The question at issue on this appeal is: in what circumstances is it permissible to sue an unnamed defendant? It arises in a rather special context in which the problem is not uncommon. On 26 May 2013 Ms Bianca Cameron was injured when her car collided with a Nissan Micra. It is common ground that the incident was due to the negligence of the driver of the Micra. The registration number of the Micra was recorded, but the driver made off without stopping or reporting the accident to the police and has not been heard of since. The registered keeper of the Micra was Mr Naveed Hussain, who was not the driver but has declined to identify the driver and has been convicted of failing to do so. The car was insured under a policy issued by Liverpool Victoria Insurance Co Ltd to a Mr Nissar Bahadur, whom the company believes to be a fictitious person. Neither Mr Hussain nor the driver was insured under the policy to drive the car.
In fact the issue was rather wider than that: the issue was whether such a course of action was permissible in order to obtain a full award of damages, interest and costs in ordinary part 7 proceedings in the County Court, or whether instead the more limited redress available under the Untraced Drivers Agreement, was all that an injured claimant could obtain.
5. It is a fundamental feature of the statutory scheme of compulsory insurance in the United Kingdom that it confers on the victim of a road accident no direct right against an insurer in respect of the underlying liability of the driver. The only direct right against the insurer is the right to require it to satisfy a judgment against the driver, once the latter’s liability has been established in legal proceedings. This reflects a number of features of motor insurance in the United Kingdom which originated well before the relevant European legislation bound the United Kingdom, and which differentiate it from many continental systems. In the first place, policies of motor insurance in the United Kingdom normally cover drivers rather than vehicles. Section 151(2)(b) of the Act (quoted above) produces a close but not complete approximation to the continental position. Secondly, the rule of English insurance law is that an insurer is liable to no one but its insured, even when the risks insured include liabilities owed by the insured to third parties. Subject to limited statutory exceptions, the third party has no direct right against the insurer. Thirdly, even the insured cannot claim against his liability insurer unless and until his liability has been ascertained in legal proceedings or by agreement or admission. The Untraced Drivers Agreement assumes that judgment cannot be obtained against the driver if he cannot be identified, and therefore that no liability will attach to the insurer in that case. This is why it is accepted as a liability of the Motor Insurance Bureau. On the present appeal, Ms Cameron seeks to challenge that assumption. Such a challenge is usually unnecessary. It is cheaper and quicker to claim against the Bureau. But for reasons which remain unclear, in spite of her counsel’s attempt to explain them, Ms Cameron has elected not to do that.
This paragraph is hard to reconcile with the arguments as presented (capable of being watched now on Supreme Court TV!) in the court. The Untraced Drivers Agreement is very much an inferior model of compensation to that which can be obtained in the common-law courts. It has also proved an extra-ordinarily resilient mode of awarding compensation, as various attempts over the years, to challenge its congruence with the United Kingdom’s obligations under EU insurance law have failed. There has simply been no appetite in the judiciary to take various governments to task over the issue.
Cameron therefore is about two issues: a narrow one, on the purpose and requirements of joining defendants and the requirements of service, and a wider one, concerning the EU law issue. On the narrow issue concerning naming defendants and the requirements and purpose of service, Lord Sumption traced a fascinating history of the nuances of the principles in this area, in his judgment:
17. This is, in my view, a more serious problem than the courts, in their more recent decisions, have recognised. Justice in legal proceedings must be available to both sides. It is a fundamental principle of justice that a person cannot be made subject to the jurisdiction of the court without having such notice of the proceedings as will enable him to be heard. The principle is perhaps self-evident. The clearest statements are to be found in the case law about the enforcement of foreign judgments at common law. The English courts will not enforce or recognise a foreign judgment, even if it has been given by a court of competent jurisdiction, if the judgment debtor had no sufficient notice of the proceedings. The reason is that such a judgment will have been obtained in breach of the rules of natural justice according to English notions. In his celebrated judgment in Jacobson v Frachon (1927) 138 LT 386, 392, Atkin LJ, after referring to the “principles of natural justice” put the point in this way:
“Those principles seem to me to involve this, first of all that the court being a court of competent jurisdiction, has given notice to the litigant that they are about to proceed to determine the rights between him and the other litigant; the other is that having given him that notice, it does afford him an opportunity of substantially presenting his case before the court.”
Lord Atkin’s principle is reflected in the statutory provisions for the recognition of foreign judgments in section 9(2)(c) of the Administration of Justice Act 1920 and section 8(1) and (2) of the Foreign Judgments (Reciprocal Enforcement) Act 1933, as well as in article 45(1)(b) of the Brussels I Regulation (Recast), Regulation (EU) No 1215/2012.
18. It would be ironic if the English courts were to disregard in their own proceedings a principle which they regard as fundamental to natural justice as applied to the proceedings of others. In fact, the principle is equally central to domestic litigation procedure. Service of originating process was required by the practice of the common law courts long before statutory rules of procedure were introduced following the Judicature Acts of 1873 and 1875. The first edition of the Rules of the Supreme Court, which was promulgated in 1883, required personal service unless an order was made for what was then called substituted (now alternative) service. Subsequent editions of the rules allowed for certain other modes of service without a special order of the court, notably in the case of corporations, but every mode of service had the common object of bringing the proceedings to the attention of the defendant. In Porter v Freudenberg  1 KB 857 a specially constituted Court of Appeal, comprising the Lord Chief Justice, the Master of the Rolls and all five Lords Justices of the time, held that substituted service served the same function as personal service and therefore had to be such as could be expected to bring the proceedings to the defendant’s attention. The defendants in that case were enemy aliens resident in Germany during the First World War. Lord Reading CJ, delivering the judgment of the court, said at p 883:
“Once the conclusion is reached that the alien enemy can be sued, it follows that he can appear and be heard in his defence and may take all such steps as may be deemed necessary for the proper presentment of his defence. If he is brought at the suit of a party before a court of justice he must have the right of submitting his answer to the court. To deny him that right would be to deny him justice and would be quite contrary to the basic principles guiding the King’s courts in the administration of justice.”
It followed, as he went on to observe at pp 887-888, that the court must “take into account the position of the defendant the alien enemy, who is, according to the fundamental principles of English law, entitled to effective notice of the proceedings against him. … In order that substituted service may be permitted, it must be clearly shown that the plaintiff is in fact unable to effect personal service and that the writ is likely to reach the defendant or to come to his knowledge if the method of substituted service which is asked for by the plaintiff is adopted.”
The principle stated in Porter v Freudenberg was incorporated in the Rules of the Supreme Court in the revision of 1962 as RSC Order 67, rule 4(3). This provided:
“Substituted service of a document, in relation to which an order is made under this rule, is effected by taking such steps as the court may direct to bring the document to the notice of the person to be served.”
This provision subsequently became RSC Order 65, rule 4(3), and continued to appear in subsequent iterations of the Rules until they were superseded by the Civil Procedure Rules in 1999.
19. The treatment of the principle in the more recent authorities is, unfortunately,
neither consistent nor satisfactory. The history may be may be summarised as follows:
(1) Murfin v Ashbridge  1 All ER 231 arose out of a road accident caused by the alleged negligence of a driver who was identified but could not be found. The case is authority for the proposition that while an insurer may be authorised by the policy to defend an action on behalf of his assured, he was not a party in that capacity and could not take any step in his own name. In the course of considering that point, Goddard LJ suggested at p 235 that “possibly” service on the driver might have been effected by substituted service on the insurers. Porter v Freudenberg was cited, but the point does not appear to have been argued.
(2) In Gurtner v Circuit  2 QB 587, the driver alleged to have been responsible for a road accident had emigrated and could not be traced. He was thought to have been insured, but it was impossible to identify his insurer. The plaintiff was held not to be entitled to an order for substituted service on another insurer who had no relationship with the driver. Lord Denning MR thought (pp 596-597) that the affidavit in support of the application was defective because it failed to state that the writ, if served on a non-insurer, was likely to reach the defendant. But he suggested that substituted service might have been effected on the real insurer if it had been identified. Diplock LJ thought (p 605) that it might have been effected on the Motor Insurers’ Bureau. Porter v Freudenberg was not cited, and the point does not appear to have been argued.
(3) In Clarke v Vedel  RTR 26, the question was fully argued by reference to all the relevant authorities in the context of the Road Traffic Acts. A person had stolen a motor cycle, collided with the plaintiffs, given a fictitious name and address and then disappeared. He was sued under the fictitious name he had given, and an application was made for substituted service on the Motor Insurance Bureau. The affidavit in support understandably failed to state that that mode of service could be expected to
reach the driver. The Court of Appeal proceeded on the assumption (p 32) that there was “no more reason to suppose that [the writ] will come to his notice or knowledge by being served on the Motor Insurance Bureau than by being served on any one else in the wide world.” But it declined to treat the dicta in the above cases as stating the law. Stephenson LJ considered (p 36), on the strength of the dicta in Murfin v Ashbridge and Gurtner v Circuit, that “there may be cases where a defendant, who cannot be traced and, therefore, is unlikely to be reached by any form of substituted service, can nevertheless be ordered to be served at the address of insurers or the Bureau in a road accident case. The existence of insurers and of the Bureau and of these various agreements does create a special position which enables a plaintiff to avoid the strictness of the general rule and obtain such an order for substituted service in some cases.”
But he held (p 37) that “This is a case in which, on the face of it, substituted service under the rule is not permissible and the affidavit supporting the application for it is insufficient. This fictitious, or, at any rate, partly fictitious defendant cannot be served, so Mr Crowther is right in saying that he cannot be sued … I do not think that Lord Denning MR or Diplock LJ or Salmon LJ or Goddard LJ had anything like the facts of this case in mind; and whatever the cases in which the exception to the general rule should be applied, in my judgment this is not one of them.” In his concurring judgment, Roskill LJ (pp 38-39) approved the statement in the then current edition of the Supreme Court Practice that “[t]he steps which the court may direct in making an order for substituted service must be taken to bring the document to the notice of the person to be served,” citing Porter v Freudenberg in support of it.
(4) 20 years later, another division of the Court of Appeal reached the opposite conclusion in Abbey National Plc v Frost (Solicitors’ Indemnity Fund Ltd intervening)  1 WLR 1080. The issue was the same, except that the defendant was a solicitor insured by the Solicitors Indemnity Fund pursuant to a scheme managed by the Law Society under the compulsory insurance provisions of the Solicitors Act 1974. The claimant sued his solicitor, who had absconded and could not be found. The Court of Appeal made an order for substituted service on the Fund. Nourse LJ (with whom Henry LJ and Robert Walker LJ agreed) distinguished Porter v Freudenberg on the ground that it was based on the practice of the masters of the Supreme Court recorded in the White Book at the time; and Clarke v Vedel on the ground that the policy of the statutory solicitors’ indemnity rules required a right of substituted service on an absconding solicitor. RSC Order 65, rule 4(3) was held to be purely directory and not to limit the discretion of the court as to whether or in what circumstances to order substituted service. Nourse LJ held that RSC Order 65 did not require that the order should be likely to result in the proceedings coming to the defendants’ attention.
Moving to consider the instant case the Supreme Court declared:
21. In my opinion, subject to any statutory provision to the contrary, 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. Porter v Freudenberg was not based on the niceties of practice in the masters’ corridor. It gave effect to a basic principle of natural justice which had been the foundation of English litigation procedure for centuries, and still is. So far as the Court of Appeal intended to state the law generally when it observed in Abbey National Plc v Frost that service need not be such as to bring the proceedings to the defendant’s attention, I consider that they were wrong. An alternative view of that case is that that observation was intended to apply only to claims under schemes such as the solicitors’ compulsory insurance scheme, where it was possible to discern a statutory policy that the public should be protected against defaulting solicitors. If so, the reasoning would apply equally to the compulsory insurance of motorists under the Road Traffic Acts, as indeed the Court of Appeal held in the present case. That would involve a narrower exception to the principle of natural justice to which I have referred, and I do not rule out the possibility that such an exception might be required by other statutory schemes. But I do not think that it can be justified in the case of the scheme presently before us.
22. In the first place, the Road Traffic Act scheme is expressly based on the principle that as a general rule there is no direct liability on the insurer, except for its liability to meet a judgment against the motorist once it has been obtained. To that extent, Parliament’s intention that the victims of negligent motorists should be compensated by the insurer is qualified. No doubt Parliament assumed, when qualifying it in this way, that other arrangements would be made which would fill the compensation gap, as indeed they have been. But those arrangements involve the provision of compensation not by the insurer but by the Motor Insurers’ Bureau. The availability of compensation from the Bureau makes it unnecessary to suppose that some way must be found of making the insurer liable for the underlying wrong when his liability is limited by statute to satisfying judgments.
23. Secondly, ordinary service on the insurer would not constitute service on the driver, unless the insurer had contractual authority to accept service on the driver’s behalf or to appoint solicitors to do so. Such provisions are common in liability policies. I am prepared to assume that the policy in this case conferred such authority on the insurer, although we have not been shown it. But it could only have conferred authority on behalf of the policy-holder (if he existed), and it is agreed that the driver of the Micra was not the policy holder. Given its contingent liability under section 151 of the Road Traffic Act 1988, the insurer no doubt has a sufficient interest to have itself joined to the proceedings in its own right, if it wishes to be. That would authorise the insurer to make submissions in its own interest, including submissions to the effect that the driver was not liable. But it would not authorise it to conduct
the defence on the driver’s behalf. The driver, if sued in these proceedings, is entitled to be heard in his own right.
24. Thirdly, it is plain that alternative service on the insurer could not be expected to reach the driver of the Micra. It would be tantamount to no service at all, and should not therefore have been ordered unless the circumstances were such that it would be appropriate to dispense with service altogether.
What then of the court’s power to dispense with service altogether?
25. There is a power under CPR 6.16 “to dispense with service of a claim form in exceptional circumstances.” It has been exercised on a number of occasions and considered on many more. In general, these have been cases in which the claimant has sought to invoke CPR 6.16 in order to escape the consequences of some procedural mishap in the course of attempting to serve the claim form by one of the specified methods, or to confer priority on the English court over another forum for the purpose of the Brussels Regulation, or to affect the operation of a relevant limitation period. In all of them, the defendant or his agents was in fact aware of the proceedings, generally because of a previous attempt by the claimant to serve them in a manner not authorised by the Rules. As Mummery LJ observed, delivering the judgment of the Court of Appeal in Anderton v Clwyd County Council (No 2)  1 WLR 3174, para 58, service was dispensed with because there was “no point in requiring him to go through the motions of a second attempt to complete in law what he has already achieved in fact.” In addition, I would accept that it may be appropriate to dispense with service, even where no attempt has been made to effect it in whatever manner, if the defendant has deliberately evaded service and cannot be reached by way of alternative service under CPR 6.15. This would include cases where the defendant is unidentifiable but has concealed his identity in order to evade service. However, a person cannot be said to evade service unless, at a minimum, he actually knows that proceedings have been or are likely to be brought against him. A court would have to be satisfied of that before it could dispense with service on that basis. An inference to that effect may be easier to draw in the case of hit and run drivers, because by statute drivers involved in road accidents causing personal injury or damage to another vehicle must either “stop and, if required to do so by any person having reasonable grounds for so requiring, give his name and address and also the name and address of the owner and the identification marks of the vehicle”, or else report the incident later. But the mere fact of breach of this duty will not necessarily be enough, for the driver may be unaware of his duty or of the personal injury or damage or of his potential liability. No submission was made to us that we should treat this as a case of evasion of service, and there are no findings which would enable us to do so. I would not wish arbitrarily to limit the discretion which CPR 6.16 confers on the court, but I find it 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. That would expose him to a default judgment without having had the opportunity to be heard or otherwise to defend his interests. It is no answer to this difficulty to say that the defendant has no reason to care because the insurer is bound to satisfy a judgment against him. If, like the driver of the Micra, the motorist was not insured under the policy, he will be liable to indemnify the insurer under section 151(8) of the Road Traffic Act. It must be inherently improbable that he will ever be found or, if found, will be worth pursuing. But the court cannot deny him an opportunity to be heard simply because it thinks it inherently improbable that he would take advantage of it.
The section of the judgment I have underlined is breathtaking in its ambiguity. If a drive does a hit-and-run, leaving aside the possibility that he hammers the accelerator because he is shy, or to simply avoid an embarrassing conversation with his victim, the reason that he does so, is to avoid becoming embroiled in criminal or civil proceedings, which might follow, if his identity becomes known.
Rather than a “fraudsters charter” as this case was termed in the aftermath of the Court of Appeal decision, it has now become a scarperer’s charter. Possibly. Because the ambiguity in the formulation adopted by the Supreme Court, means that the point remains arguable that dispensation of service would apply in the case of a driver evading service.
Indeed as the court noted:
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.
By way of contrast, the European point was dealt with in almost cursory fashion:
30. Mr Williams’ second point is in reality a reiteration of the first. It is based on article 10 of the Directive, which requires member states to ensure that there is a “national bureau” charged to pay compensation for “damage to property or personal injuries caused by an unidentified vehicle or a vehicle for which the insurance obligation provided for in article 3 has not been satisfied.” The submission is that the Directive requires that recourse to the Bureau, as the relevant body in the United Kingdom, should be unnecessary in a case like this, because the Micra was identified. It was only the driver who was unidentified. This is in effect a complaint that the indemnity available from the Motor Insurers’ Bureau under the Untraced Drivers Agreement, which extends to untraced drivers whether or not the vehicle is identified, is wider than the Directive requires. In reality, the complaint is not about the extent of the Bureau’s coverage, which unquestionably extends to this case. The complaint is that it is the Bureau which is involved and not the insurer. But that is because the insurer is liable only to satisfy judgments, which is Mr Williams’ first point. It is true that the measure of the Bureau’s indemnity is slightly smaller than that of the insurer (because of the excess for property damage and the limited provision for costs). But in that respect it is consistent with the Directive.
I have read many interesting arguments over the years about EU law on road traffic insurance and the United Kingdom’s compliance with it. Some have been most inventive. Some I have thought made very good points indeed. All of them have in common the feature that when the they reach the courts, the judiciary tend to dismiss them. In this respect Cameron, is simply the latest demonstration of the bomb proof nature of the Untraced Drivers Agreement and the courts’ view that there is nothing in these points.