Aidan O’Brien was recently instructed on behalf of the Respondent to resist an appeal, in a claim involving £26,290 of credit hire charges.
The Claimant was a self-employed PCO-licenced taxi driver. On 27 May 2016, his Mercedes E220 was damaged in an accident and was temporarily unroadworthy. The Claimant subsequently hired a replacement credit hire vehicle for a period of 64 days, equating to a daily cost of approximately £410.
On 3 June 2016, the Claimant received an engineering report, which confirmed that the repairs to his Mercedes would cost around £2,335 to complete.
On 7 July 2016 the Claimant received an interim payment from the Defendant in the sum £1,962 in part payment of repairs, which were commenced the following day. On 1 August 2016, the Claimant came out of hire, following a successful Transport for London safety test on his repaired vehicle.
First Instance Decision:
On 12 August 2019, the matter came before HHJ Venn, whereupon Aidan successfully argued that the Claimant taxi driver was sufficiently pecunious, such that he could have (i) self-funded repairs to his vehicle, and (ii) self-funded a replacement hire vehicle, during the course of those repairs.
As a consequence, the recoverable hire period was reduced to 49-days and the recoverable cost of hire was £68 per day (a total of £3,332 for the entire period). The Defendant therefore beat its own pre-action Part 36 offer.
Of particular note, HHJ Venn accepted that:
- In determining the issue of impecuniosity, a Judge was entitled to consider the Claimant’s available funds, from a range of sources, including current accounts, savings accounts, credit cards and overdrafts.
- Over the period of recoverable hire, the Claimant would have needed to fund £5,756, to include the cost of repairs and hire. Whilst this sum exceeded the available credit on the Claimant’s various credit cards, he was able to fund any shortfall from his current account, including its overdraft facility. The fact that the Claimant would have needed to use his overdraft for a short period did not preclude a finding that he was pecunious.
- Whilst the Claimant would have exhausted the available funds on his credit cards during the course of hire, such that significant interest would have been charged, it was probable that the Defendant would have sought to settle the claim within 2-months, if the Claimant had sought to self-fund repairs and hire.
- In awarding £500 to account for two-months of credit card interest, the Judge observed that ‘… this dispute appears to have escalated because of the claim for credit hire charges…’ It was therefore reasonable to conclude that if the Claimant had not presented such a contentious credit hire claim the matter would have been settled pre-action.
- It was unreasonable for the Claimant to send the Defendant an engineer’s report and then sit back and allow hire charges to accrue until a response was received. The Defendant should be given ‘… a reasonable time to respond, but if they do not respond in a reasonable period of time, progress must be made’. As to ‘… what a reasonable period of time is, is likely to be context specific’. In this instance, where the vehicle was repairable at modest cost, 15 days was a reasonable period of time for the Claimant to allow the Defendant’s insurer to indicate whether they wished to arrange their own inspection.
- The Defendant had discharged the burden of establishing that there was a difference between the recoverable ‘spot hire’ rate and credit hire rate, notwithstanding that there were imperfections in the BHR evidence provided. In particular, the Judge was entitled to find that the witness had made a series of telephone enquiries to the alternative hire companies, from which he harvested the relevant data, notwithstanding that the exhibits relied upon were either missing or inconsistent with that data.
- In determining that ‘Wendex’ was a reputable hire company from which to derive appropriate BHR evidence, it was accepted that a PCO-licenced hire vehicle was a niche product, which would be offered by lesser known companies. It was therefore “unsurprising that the comparators are not from places like Hertz…”
The Claimant was subsequently granted permission to appeal. The grounds of appeal averred that HHJ Venn’s decision was wrong in law and/or in fact, on the basis that
- The Claimant should not have been found to be pecunious, at the beginning and during the period of hire.
- The Judge was wrong to have determined that the Defendant would have made payment to the Claimant sooner, had he personally paid for repairs to his vehicle and an alternative hire vehicle.
- The Judge was wrong to have determined that the Claimant’s period of hire was too long.
- The Judge was wrong to have accepted the Basic Hire Rates (‘BHR’) evidence from the Defendant, when assessing whether, and at what rate, the Claimant could have obtained a comparable vehicle on the open ‘spot’ market.
Following submissions at the appeal hearing, Mr Justice Stewart rejected each of these grounds, finding no errors of law and observing that “…it would be wholly wrong for this Court to be interfere with the findings of fact made by the Judge…”
The appeal judgment of Putta v RSA can be found here.
Aidan O’Brien is a member of the Farrar’s Building Credit Hire Team and accepts instructions from both Claimants and Defendants. Aidan frequently delivers training, seminars and workshops upon request. Any such request should be made to the Farrar’s Building Clerking Team.