horwich farrelly

At last common sense prevails – Cameron v Hussain

February, 20, 2019

In an important decision for insurers, the Supreme Court has today handed down judgment in Cameron v Liverpool Victoria Insurance Co Ltd. In so doing, they have unanimously overturned the decision of the Court of Appeal which, in May 2017, we criticised for a number of reasons, not least the fact that it had the potential to be exploited by those looking to facilitate fraudulent claims.


On 23 May 2017, we issued a bulletin to alert clients to the potential problems resulting from the Court of Appeal (COA) judgment in this case.

We were critical of the decision, highlighting a number of practical issues which the COA seemingly overlooked. We also highlighted that the decision could end up being a ‘slippery slope’ with the principle being extended first to the Uninsured Drivers’ Agreement (“UDA”) claims (applying to Article 75 insurers as well as the MIB itself) and then, beyond that, to the Untraced Drivers’ Agreement (“UtDA”; i.e. that a victim would seek to sue the unidentified driver of an unidentified vehicle).

We also expressed concern about the potential for the decision to be exploited to help facilitate fraudulent claims.

The essence of the original appeal was whether a claimant in an RTA case may sue an unnamed defendant, rather than having to identify the driver allegedly responsible for the accident.  A majority of the COA held that, in a case such as this, the court could and should, in accordance with principle:

  • Exercise its procedural powers to permit an amendment of the claim form (and the consequent amendment to the Particulars of Claim) to allow a claimant to substitute an unnamed defendant driver, identified by reference to the specific vehicle which he or she was driving at a specific time and place.
  • And consequently to enable a judgment to be obtained against such a defendant, which an identified insurer (in this case LV=) would be required to satisfy pursuant to the provisions of section 151 of the Road Traffic Act 1988.

In short, the COA agreed that a claimant could amend their claim so that it could be brought against, “The person unknown driving vehicle registration XXX…”

The Supreme Court’s Decision

In a decision which will be welcomed by motor insurers and the MIB, the Supreme Court overturned the COA’s decision. They have provided clarity at a time when a number of actions relying on Cameron are proceeding – or have been stayed awaiting an outcome.

It is clear from the judgment that the Supreme Court view the UK’s system of compensation, when taken as a whole, as broadly consistent with EU law.

They also made key points that an action does not start until proceedings are served. Linked to this, they also noted that it is a fundamental principle of our justice system that a defendant to proceedings must be aware of them.

They also noted, what should have been obvious in previous findings actions, that there is a clear distinction between persons whose names are unknown but are identifiable – and persons who cannot be identified.

An example of this distinction can best be described by the fact that actions are routinely brought against hackers or squatters – groups who cannot easily be named but who nevertheless can be identified because proceedings can be brought to their attention through a website or by pinning a notice to a premises door.

The Supreme Court stressed that, in Cameron, there was no way Hussain would ever have known about the proceedings (which would have breached their fundamental principle) and it was wrong of the COA to order that proceedings could be served on the insurer.


We have previously reported our concern that Cameron would be widened beyond RTAs to Art 75 insurer – and this duly happened in Farah.

Similarly, we also saw, as expected, claimant’s making applications to add an unknown driver in fraud cases where we challenged, robustly, that the defendant was the driver – or in fact that they existed at all.

We have a long list of cases that have been stayed following the COA decision and we are pleased that, following the decision taken by the Supreme Court today, that we now expect successful outcomes on these.

Claimants who have brought proceedings against an unidentified driver will, in all probability, now have to discontinue their claims (or face strike out applications) and instead claim against the MIB under the UtDA.

Victims of RTAs may not benefit from the same costs regime applying to litigation, but they gain the benefit of a system which is designed to ensure that they are compensated in a timely fashion.  It is important to stress that, following the original COA decision, the MIB has never sought to turn away claimants seeking to claim under the UtDA.

Last word?

This might not however be the last word on the issue of bringing proceedings where the driver is unidentified.  Certain commentators have argued that the European Communities (Rights against Insurers) Regulations 2002 (“ECRAIR”) fail to implement Article 18 fully because the insurer can only be directly liable to a victim of an RTA to the extent that they are liable to indemnify the defendant.

However, whether claimants actually have the appetite to run such an argument in light of this decision is doubtful because:

  1. They would be facing significant risks, uncertainties and delays when there is compensation available under the UtDA and;
  2. Decisions such as RoadPeace have shown that UK courts are not sympathetic to such arguments.


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