Are They Being Served? The Courts' Recent Treatment Of Effective Service

Service of Claim Forms can be effected on unknown parties, but there are pitfalls to avoid. As financial institutions and corporates increasingly face threats from unknown parties, particularly in the context of cyber incidents, a number of recent decisions in the Supreme Court and the Commercial Court provide a timely reminder of the importance of effective service, and the steps that the courts will consider sufficient in order for service to have been deemed effective, particularly in situations where the defendant(s) may be unknown or may be seeking to evade service. Parties facing these threats will benefit from a familiarity with the current landscape and rules as we enter the new decade which will undoubtedly see a continued rise in the need to serve unidentified defendants.

Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6

In Cameron, the Supreme Court considered the circumstances in which it is permissible to sue an unnamed defendant.

Ms Cameron was injured in a hit-and-run collision, in which the car was identified, but the driver was not; only the registered keeper of the car, and the insurer of a named driver of the car (not the keeper), could be identified. Accordingly, Ms Cameron applied to the Court to amend her original Claim Form to identify the defendants as the insurer and "the person unknown driving vehicle [registration number] who collided with vehicle [registration number] on [date of accident]".

At first instance, District Judge Wright dismissed Ms Cameron's application and granted summary judgment in favour of the insurer. On appeal, the Court of Appeal reversed that decision, with Lady Justice Gloster holding that the Court had discretion to permit an unknown person to be sued - if justice required it - in circumstances such as Ms Cameron's where the driver could not be identified, because otherwise it would not be possible to obtain a judgment which the car's insurer would be bound to satisfy.

The insurer appealed to the Supreme Court. In giving the Supreme Court's judgment, which reversed the Court of Appeal's ruling and found for the insurer, Lord Sumption identified the critical question to be determined as being what, as a matter of law, the basis of the Court's jurisdiction over the parties was, and in what (if any) circumstances jurisdiction could be exercised on that basis against persons who could not be named.

Lord Sumption considered the distinction between unnamed and unidentified defendants, noting that the first category comprised anonymous defendants who were identifiable but whose names were unknown, such as squatters occupying a property who are identifiable by their location but not by their names; while the second category comprised defendants who were not only anonymous but also could not be identified. The key distinction was that, in the first category, the defendant was described in a way that made it possible - in principle - to locate or communicate with him/her and to know without further inquiry...