Idris Farah (by his Litigation Friend Fatuma Mohamad) v Ahmed Abdullahi (1)
| Jurisdiction | England & Wales |
| Judge | Master Davison |
| Judgment Date | 20 April 2018 |
| Neutral Citation | [2018] EWHC 738 (QB) |
| Docket Number | Case No. HQ17P03107 |
| Court | Queen's Bench Division |
| Date | 20 April 2018 |
[2018] EWHC 738 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Master Davison
Case No. HQ17P03107
Mr Robert Weir QC (instructed by Irwin Mitchell) for the Claimant
Mr William Audland QC (instructed by Kennedys) for the Second Defendant
Mr Derek O'Sullivan QC (instructed by Horwich Farrelly) for the Fourth Defendant
Mr Timothy Horlock QC (instructed by Weightmans) for the Fifth Defendant
Hearing date: 20 March 2018
Judgment Approved
Introduction
In Cameron v Hussain [2017] EWCA Civ 366, the Court of Appeal held that the claimant, a victim in a road traffic accident, should be entitled to add as defendant a person who could only be described as “the person unknown driving vehicle registration number Y598 SPS who collided with vehicle registration number KG03 ZIZ on 26 th May 2013”. The circumstances were that the claimant could not identify the driver, but he could identify both the car and an insurer who had provided insurance cover for the vehicle at the time of the accident. The court (by a majority) held that there was no procedural bar to issuing proceedings and obtaining orders against persons unknown (following Bloomsbury Publishing Group v New Group Newspapers [2003] EWHC 1205 (Ch)) and that the case before it was an appropriate one to allow such a claim to proceed. An important part of the factual matrix in the case was that there was a section 151 insurer, i.e. an insurer who, notwithstanding the fact that the use of the vehicle was outside the contractual scope of the insurance, was statutorily liable to meet the claim.
The principal question in this case is whether I should permit the claim before me to proceed in circumstances where the insurer has, on 12 January 2017, obtained a declaration that it is entitled to avoid the policy ab initio on the grounds of material non-disclosure. Such a declaration was obtained by the Fourth Defendant (as claimant) at an uncontested hearing before Deputy District Judge R Hendicott at the Cardiff County Court. Thus, on the face of it, there is no section 151 insurer. Does that mean that in this case the claim against the unnamed, third defendant should not be allowed to proceed?
The facts giving rise to the claim
The facts are striking. In the early hours of the morning on 6 September 2014 the claimant was a pedestrian on Harlesden High Street, London NW10. He was in a group. There was some kind of fracas or disturbance. The first defendant driving a Ford Focus insured by the second defendant drove directly at him. The claimant attempted to jump out of the way. In seeking to evade the Ford Focus he jumped (or possibly a glancing blow from the Ford Focus propelled him) into the path of a Mercedes A Class driven by someone who has not been identified. The Mercedes was insured by the fourth defendant. The claimant's head impacted the windscreen and he lay sprawled across the bonnet. The Mercedes accelerated, then braked, throwing him off the bonnet and on to the ground. As he was lying on the ground injured, the first defendant, who had now turned his car around, drove back towards him, struck him and pushed him along the road some 33 metres. The claimant was effectively caught underneath the front wheels of the Ford Focus. A charge of attempted murder against the first defendant resulted in two hung juries. He was eventually convicted of dangerous driving and other motoring offences and sentenced to a term of imprisonment.
The claimant suffered catastrophic injuries. He lacks capacity to litigate and the claim proceeds with the benefit of a litigation friend. It is relevant to mention that the insurers of the two vehicles concerned each seek to place responsibility for the claimant's injuries on the other. The insurer of the Ford Focus maintains that the claimant's traumatic brain injury was exclusively caused by his being thrown from the bonnet of the Mercedes; see paragraph 22 of its Defence. The insurer of the Mercedes maintains that the two drivers committed “concurrent torts” and that the claimant will be able to enforce all of his claim for damages against the insurer of the Ford Focus; see paragraph 25 of Mr O'Sullivan QC's skeleton argument of 19 March 2018.
The procedural history and the application
The Claim Form was issued on 25 August 2017 and had to be served four months later. The third defendant was not named, but was identified as the person who had collided with the claimant on 6 September 2014. The Claim Form, Particulars of Claim, Preliminary Schedule and report of Dr Liu were served on 8 December 2017 having been posted out on 6 December 2017. Service on the third (unnamed) defendant was effected by serving the sealed copy of the Claim Form on the fourth defendant – the insurer of the car he was driving. That was done pursuant to an order of Master Eastman. Master Eastman's order was obtained in the following way. On 5 December 2017 the claimant's solicitors issued an application for an order pursuant to CPR r 6.15 “that the fourth defendant accept service of proceedings on behalf of the third defendant”. The application was supported by a witness statement from Mr Charankamal Dhaliwal, the solicitor with conduct of the claim. He explained the circumstances of the accident; explained the effect of Cameron; stated that the fourth defendant's solicitors, Horwich Farrelly, were instructed to accept service on behalf of the fourth defendant but had refused to accept service on behalf of the third defendant; he exhibited “relevant party and party correspondence”. He asked the court to deal with the application on the papers given the imminent deadline for service, or, if that was not considered appropriate, to extend the deadline for service pending determination of the application. The application was placed before Master Eastman. Master Eastman considered it and made an order in the terms requested, adding the words “ CPR 23.9 & 23.10 apply”. (Those rules provide for a party not served with an application resulting in an order to have the right to apply to set it aside.)
By an application issued on 12 December 2017, Horwich Farrelly acting for the fourth defendant, applied to set aside Master Eastman's order. Put broadly, the application rests on two bases. The first basis is that set out above, namely that because the fourth defendant in this case is not a section 151 insurer (having avoided the policy) the claim was “not one to which the ratio of the decision in Cameron applied”. The second basis was that the claimant had neither complied with relevant procedural rules nor the practice applicable to seeking orders without notice. Specifically, Master Eastman had not been made aware / sufficiently aware of the arguments that the fourth defendant was deploying in opposition to the proposal to pursue a claim against an unnamed driver. Had he been made aware of them, he probably would not have made the order.
The submissions made on these points appear sufficiently from the discussion below.
Does Cameron apply?
Section 151 of the Road Traffic Act 1988 provides that insurers must meet judgments in respect of insured third party liabilities even if the insurer is not liable to its insured as a matter of contract. A typical situation would be where the person driving was a partner or friend who was not actually a named driver on the policy. The insurer would have to meet a claim under section 151 in respect of liabilities incurred by such a driver. Indeed, section 151 would even extend to driving by a thief. But there are various “get-outs” for insurers. The relevant one for present purposes is contained in section 152(2). By that sub-section, (paraphrasing it), if a policy has been obtained by misrepresentation or failure to disclose material facts, then, if the insurer obtains a declaration that it is entitled to avoid the policy on these grounds, “no sum is payable … under section 151”. There are time limits to be observed if an insurer wishes to take advantage of section 152(2). The insurer must commence the action for a declaration “before or within three months after the commencement of” the proceedings leading to the judgment in favour of the victim of the road accident.
There is an issue as to whether section 152(2) is compatible with the Sixth Motor Insurance Directive 2009/103/EC. The Directive (which is a consolidating measure) imposes on Member States an obligation to ensure that civil liability in respect of the use of vehicles based in each Member State's territory is covered by insurance. Only where a vehicle is unidentified or uninsured is the victim of a road accident to be thrown back on to a body of last resort; (in the UK this body is the Motor Insurers' Bureau). Thus, in Fidelidade-Companhia de Seguros SA v Caisse Suisse de Compensation & Ors Case C-287/16 [2017] RTR 26, the European Court of Justice held that national laws that permitted motor insurers to deny a third party claim on the ground that the policyholder's misrepresentation rendered it void were contrary to EU law. Fidelidade led to a concession by the government in Roadpeace v Secretary of State for Transport & Anor [2017] EWHC 2725 (Admin) that section 152(2) was no longer compatible with EU law.
The difference between the case before me and Cameron, is that in Cameron there was no issue that the insurer would have to meet the claim under section 151, whereas, in this case, the claimant would first have to make good the claim put forward in paragraph 18 of...
To continue reading
Request your trial
-
Cameron v Hussain Applied: Court Judges Unnamed Defendants By Their Cover
...v Abdullahi & Ors [2018] EWHC 738 (QB) The High Court has ruled the application of Cameron v Hussain does not rest on a section 151 liability against an identified insurer. The issue to be addressed is whether a claim and potential judgment against an unnamed defendant is capable of con......