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.
Held: The Court proceeded on the assumption 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.’
Stephenson LJ considered, 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 held 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.’
Concurring, Roskill LJ 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.
[1979] RTR 26
England and Wales
Cited by:
Cited – Cameron v Liverpool Victoria Insurance Co Ltd SC 20-Feb-2019
The Court was asked in what circumstances is it permissible to sue an unnamed defendant? The respondent was injured when her car collided with another. The care was insured but by a driver giving a false name. The car owner refused to identify him. . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 10 January 2022; Ref: scu.670956