PIBULJ
Kevan and Ellis on Credit Hire, 4th Edition: Chapter Three - Mitigation of Loss
27/06/12. A further way for Defendant Insurers to attack credit hire charges is to argue that the Claimant has failed to mitigate his loss. In short, that the Claimant has acted unreasonably.
In assessing the strength of arguments based on mitigation of loss it is important to start with a firm grip on the general principles of mitigation. We will summarise them first. In this regard, we should add one word of caution. Mitigation is a difficult subject, about which whole books have been written. This chapter is not a substitute for such works as McGregor on Damages, which contains an excellent account of the law on mitigation.
But in addition to the general principles, the practitioner also needs to be aware of the increasing volume of cases applying these general principles to credit hire cases. These cases are the primary focus of this chapter.
We should also note that in Copley v Lawn...
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Kevan and Ellis on Credit Hire, 4th Edition: Contents
Introduction
The death of credit hire litigation has been predicted rather often. After each new higher court case, there is a tendency to imagine that all issues have been conclusively resolved, facilitating the negotiated settlement of the majority of cases. And yet credit hire litigation continues. Indeed it prospers, to the concern of many County Court Judges. It is no exaggeration to say that credit hire cases, often on similar issues in low value cases, come before the courts every day. Partly, this is due to the relentless tide of new statutory instruments affecting consumer credit. Partly, it is simply because many of the issues that arise turn on the facts of individual cases.
Chapter One - Rates
“the major protection for the defendant and his insurers is that the claimant can only recover the ‘spot’ or market rate of hire”. So spoke the Court of Appeal in Copley v Lawn in considering the proper scope of mitigation of loss in credit hire cases. It remains open to argument whether the Court of Appeal was correct to regard the protection of the spot or market rates as limiting the scope for traditional mitigation arguments. But far less contentious was the Court’s identification of spot rates as the major issue in current credit hire cases. With the reduction in the number of cases challenging the enforceability of hire agreements (at least under the Consumer Credit Acts), and the unpredictability of mitigation arguments, the focus has definitely shifted to arguments about the applicable daily rate of hire. It is no exaggeration to say that in recent years credit hire cases have been fought in the County Courts every day, often in circumstances where the applicable daily rate is the only real point of contention.
Chapter Two - Impecuniosity
In this chapter, we will consider the analysis of impecuniosity in the leading case of Lagden v O’Connor, with particular emphasis on the definition of impecuniosity and the practical implications of this issue.
Chapter Three - Mitigation of Loss
A further way for Defendant Insurers to attack credit hire charges is to argue that the Claimant has failed to mitigate his loss. In short, that the Claimant has acted unreasonably. In assessing the strength of arguments based on mitigation of loss it is important to start with a firm grip on the general principles of mitigation. We will summarise them first.
Chapter Four - Introduction to Enforceability
The next chapters are devoted to the vexed question of whether a particular credit hire agreement is enforceable in the light of various statutory and common law issues, which in particular dictate the form of consumer credit agreements.
Chapter Five - Enforceability Issues: The Consumer Credit Acts
The purpose of this chapter is to discuss the enforceability of credit hire agreements under the Consumer Credit Act 1974 as amended by the Consumer Credit Act 2006.
Chapter Six - Cancellation of Contracts Made at a Consumer’s Home or Place of Work Regulations 2008
The Cancellation of Contracts made in a Consumer's Home or Place of Work Regulations 2008 ("the Cancellation Regulations") came into force on 1 October 2008. They give further effect to the Doorstep Selling Directive, and were enabled by the Consumers, Estate Agents and Redress Act 2007. In short they provide that, where the Regulations apply, the trader must give to the consumer a notice of their right to cancel the agreement. If this cancellation notice is not given, the Regulations provide that the agreement "shall not enforceable against the consumer".
Chapter Seven - Other Enforceability Issues
In this chapter, we address other issues related to enforceability which may arise in relation to credit hire agreements whether by statute or at common law. These are: the Distance Selling Regulations; the concept of Unfair Relationships; the Unfair Terms in Consumer Contracts Regulations 1999; issues arising from signature of...
Chapter Eight - Miscellaneous
The purpose of this chapter is to address additional heads of claim which the practitioner will frequently encounter in dealing with credit hire claims, including claims for interest on credit hire charges and claims for engineer’s fees. Further, the chapter concludes with a section summarising the law on champerty, which was the Insurers’ first big challenge to the credit hire industry but which is now only of historical interest.
Editorial: Detention of ICC Staff - Aidan Ellis, Temple Garden Chambers
26/06/12. As I write, four members of staff of the International Criminal Court continue to be detained in Libya whilst on an official Defence visit to Saif al-Islam Gaddafi. I ought to confess some interest in these matters; two of those detained are known to me personally and, moreover, I recently contributed to a communication to the African Commission on Human Rights about the detention of Mr Gaddafi. But whatever opinion one holds of the new Libyan regime or Mr Gaddafi, the detention of ICC staff clearly cannot be justified. First, employees from the ICC benefit from immunity and so should not be detained at all. Second, the detention of a Defence lawyer is hardly an indicator of...
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Challenging the Cost of Accident Repair - Tim Kevan
25/06/12. High court judge rules in Coles v Hetherton on how far a defendant can go in questioning the cost of repairs done to a claimant’s car both generally and when arranged by an insurer.
In Coles v Hetherton (Cooke J, 15/6/12) we have another judgment on the thorny issue of how far a defendant can go in questioning the cost of repairs done to a claimant’s car. In the various cases, three preliminary points arose around this topic and I will deal with each in turn.
Measure of loss
The first question was “Where a vehicle is negligently damaged and is reasonably repaired (rather than written off), is the measure of the claimant's loss taken as the reasonable cost of repair?” This question takes us back to the debate which raged in the credit hire world a few years back.
In Dimond v Lovell [2000] 2 WLR 1121, when the Court of Appeal (and then the House of Lords) held that if hire charges against a claimant were unenforceable then no loss could be recovered from the defendant, the focus turned to credit repairs. The argument went that if a claimant...
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Having a lovely time? Loss of enjoyment of cruising - Helen Pugh, 3 Hare Court
22/06/12. The last six months have not been kind to the cruise industry. Media reports of passengers overboard, of fires onboard ship and vessels adrift in the Indian Ocean, not to mention dramatic photographs of the tragic Costa Concordia disaster. Claims by passengers for loss of enjoyment and diminution in value aplenty, one might think. In fact, those claims may not be as straightforward as is often assumed.
Claims for personal injury, loss and damage are less controversial. More often than not, personal injury suffered onboard ship will fall within the scope of the 1974 Athens Convention on the Carriage of Passengers and Luggage by Sea.
Since 1st January 1996, and the coming into force of section 183 of the Merchant Shipping Act 1995, the Athens Convention has applied to international carriage by sea if the ship is flying the flag of or is registered in a State Party to the Convention, if the contract of carriage was made in the State...
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June 2012 - PI Practitioner
Eastwood v. Magnox et al[2005] 1 AC 503 - the House of Lords held that where an employee suffered psychiatric harm in the course of being constructively unfairly dismissed, a cause of action for personal injury accrued independently of any statutory remedy which the Claimant might have for being dismissed unfairly.
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![Appeal judge rules that credit hire company has no costs liability following a finding of fundamental dishonesty in personal injury case: RSA v. Fastrack Solutions Limited [2023] 4 WLUK 92 - David Bowden, Erimus Chambers](/content/images/resized/images/stories/carkeys_72_72.jpg)
